No to Kneejerk Justice
Not long after Jacqui Smith declared that the 42-Days detention measure was brought in as part of a new culture of preventing knee-jerk legislation, Jack Straw… puts through knee-jerk legislation. After a ruling by the Law Lords last week that the present witness anonymity rules jeopardise fair trials, Mr. Straw has decided that the best response is to rush through a Bill that risks being poorly thought-through, failing to adequately address the issues at stake, and filled with unintended consequences.
The reasons for doing so are perfectly understandable: the ruling risks undermining numerous trials that rely on the testimony of anonymous witnesses. The police consider it vital for convicting gang members, drug dealers and murderers. Their case is admirable, but so is that of the Law Lords. It is fundamental to a fair trial to be able to face one’s accuser; to be unable to do so moves the burden of proof away from the prosecution. The defence, unable to cross-examine the credibility of a witness, have to disprove their testimony. In so doing the presumption of innocence is removed. Moreover, the psychological effect of witnesses giving testimony anonymously prejudices the outcome of the trial by implying that the accused is violent.
In these cases the ability to get witnesses to come forward needs to be balanced against the right to face one’s accusers. The Law Lords felt that this was not occurring. The Government’s response should be to take this move constructively and create a law that deals with this serious problem. The concern that the system could allow for a miscarriage of justice is genuine: emergency legislation will not alleviate it. The best solution would be to have a free vote on the matter to ensure proper scrutiny and discussion of what is a particularly difficult legal conundrum. Parliament lends itself towards this solution: the Commons is filled with lawyers, and their expertise, scrutinised through various readings and checked against the expert opinion of those in the Lords, could produce a sensible law. The debate should be constructive and beyond party-political lines. The legislature moves slowly because justice must be deliberate.
More haste less speed.
Sphere: Related ContentParliament is Stronger if it Votes against the Government
Home Office Minister Tony McNulty has announced on Radio 4 today that “it will be damaging to Parliament as an institution” if it fails to vote in favour of increasing the limit on detention without charge to 42 days.
Did Parliament suffer institutional damage when it voted against detention without charge for ninety days? The rejection of measures proposed by the government of the day reflects on Parliament favourably as a sign of institutional strength. A Parliament that can stand up to the government and defeat its proposals demonstrates that it is more than a rubber-stamp legislature, and is capable of acting independently. It asserts its sovereign constitutional status as above the government, and reminds voters that its members are capable of judgement independent of party. The cynical rallying of backbench rebels to the government on grounds of party loyalty and survival would do more to damage Parliament’s institutional status than MPs exercising their own judgement.
When MPs are encouraged to debate and vote according to their conscience, it elevates the esteem in which people hold Parliament. The most recent example would be the debate last month over abortion time limits. The ability of MPs to act independently of the whips resulted in a higher quality of debate and the press covered the affair in detail. For a brief moment, the cynicism of many towards politicians was set aside to witness the Commons at its best. Contrary to McNulty’s proclamation, dissent within the Houses strengthens Parliament as an institution by demonstrating its independence from government and capability to actually deliberate legislation.
One can accept however that to hold free votes on every matter is impractical. National mandates, internal discipline and the requirement for national politics to be above party politics may on occasion require a party to deploy the three line whip. It would be naïve to assume that all of the electorate vote for candidates before they do parties. On numerous issues, a leader may be required to whip his MPs to assert his personal mandate and maintain discipline against the infighting that can paralyse and bring down governments. But let’s not pretend that when MPs break those whips it damages Parliament. It may damage the party and possibly the government, but Parliament as an institution does not suffer for it.
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