Bravo David Davis
David Davis’ resignation as an MP last night is a move that ought to be welcomed by all who favour good government and the protection of the rights of the citizen. The arguments presented in the House of Commons throughout yesterday in favour of extending pre-charge detention were notable by their absence. Much like the justifications printed in The Sun, on close inspection the case is much weaker than one would believe (of their much-touted “42 reasons for 42 days, 34 were not reasons but simply statements of “Look! There’s a shifty man with a beard over there!”) They boiled down to the following:
- The police want it so they must get it;
- We might need longer in the future;
- It’s popular.
The first argument I have addressed rather exhaustively in a previous post on this blog, so I will not repeat it unnecessarily. The second has also been addressed, but I will add two extra points: first, there is no reason why legislating if the need arises in the future need be “knee jerk”. The only reason such legislation has been in the past is because the government has a tendency of acting like headless chickens in a crisis. It is perfectly conceivable that the Commons could introduce good legislation on the issue if it were not unduly pressured by the government to chase the relevant Daily Mail headline. This point is tantamount to an admission by Gordon Brown that the image he cultivated last year of being calm and firm in a crisis is a myth.
The third argument however is far more deceitful. Certainly, on the face of it, the polls do suggest that an extension of pre-charge detention is popular. However this is because the public have been misled by the government as to the alternatives. When faced with the two options of “do something” or “do nothing” in regards to terrorism, the public will naturally (and correctly) favour doing something. Nevertheless this does not equate to a mandate for draconianism. The polling presents a false choice where the only means of “doing something” is to extend pre-charge detention. Numerous alternatives exist, ranging from the admission of intercept evidence to allowing greater post-charge questioning. Any curtailing of Habeas Corpus should only occur after the alternatives have been exhausted. In this case it is clear that they have not. Were the public to be polled on the issue presented with the alternatives, the level of support for the government would no doubt drop. Were they to be informed of much of the practice of this current measure likewise, the level of support would further decrease. Gordon Brown however seems insistent on presenting 42-day detention as the only means of combating terrorism, and weakening our capability to effectively counter it by shutting down reasoned debate on the problem.
The comment by Gordon Brown in Prime Minister’s Questions that something “cannot be both draconian and useless” is also rather ill-informed. Draconian measures often prove in the end to be useless by undermining the support for the underlying aims of the policy they are meant to advance. Sir Robert Peel’s reforms of the death penalty acknowledged this, as did Michel Foucault in Discipline and Punish. The draconianism of policies ultimately evokes popular opposition that undermines the effectiveness and legitimacy of the law. They become useless because their unpopularity means that people are unwilling to support it. The present measure combines both a draconian message that will alienate the very people the government needs to get on board to combat terrorism, and will be a useless weapon because of it.
The government won by the worst combination of pork-barrel politics, bribery and factionalism. Debate was replaced by MPs voting for self-interest. Gordon Brown sold any claim to statesmanship he had last night with this desperate series of bribes to various sectional interest groups. He then insulted the intelligence of the electorate by insisting that no such deals had been made. To invoke the Parliament Act subsequently to ram it through potential opposition in the Lords would further undermine the constitutional settlement of the United Kingdom.
I met David Davis during the Conservative leadership campaign. He is a man of principle and conviction. This decision will not have been an easy one for him to make, but nonetheless it is the right one. A victory in the resulting by-election will undermine the claim to a popular mandate that is tacitly required for invoking the Parliament Act. It will also commit the Conservative Party to the side of liberty over the worst sort of creeping authoritarianism that has characterised the Home Office in recent years. It will also open the debate on liberty and security to the public at large, hopefully undermining the simplistic and false dichotomy newspapers such as The Sun have presented.
He is right to challenge the attitude in government that the rights of the British people should be trampled on, ranging from ID cards to the right to a trial by jury, and the arrogant attitude that one is guilty until proven otherwise. The government has placed itself on the opposing side of freedom on nearly every issue imaginable. This principled stand against the erosion of the traditional rights and liberties of the British is long overdue. Bravo to David Davis and good luck.
Sphere: Related Content42 Days and the Upper House
I will be covering the House of Commons debate of this Bill using coveritlive next week. More details closer to the time.
When the clearly draconian proposal of detention of suspected terrorists without charge for a maximum period of ninety days was watered down to twenty-eight, I predicted that the government had unfinished business. 28 days was the thin end of an authoritarian wedge. The Government would wait sufficient time for the measure to normalise before pushing for further extensions. This represents a rolling back of the moderate victory 28 days represented.
The arguments in favour simply do not stand up to criticism. Notwithstanding the disquiet about the measure within the service, the argument that “the police want it” is not sufficient in a liberal democracy. Like any corporate institution (in the Huntingdonian sense), their perception of what the country needs is coloured by their own peculiar experience and ethos. The duty of the politician is therefore not to bow to every demand the police make, but to determine which ones are legitimate, and which ones are not. Police desire for a measure, while useful, does not form a sufficient political case without further supporting arguments. One might look to those involved in the prosecution of terrorist suspects for such supporting arguments. Here however such arguments are noticeable by their absence. Lord Goldsmith, the former Attorney-General, has said “the case has not been made for that extension and I can’t personally support it”. The Director of Public Prosecutions has expressed no desire for an extension of the period of detention without charge. He considers the existing legislation “sufficient”. Furthermore, members of the Crown Prosecution Service have admitted that, in the past three years, only three suspects have been held beyond fourteen days. Such high-profile independent criticism by expert practitioners undermines any case for extended internment.
The argument that the powers should be granted now because they may be needed in the future is asinine. It is tantamount to an admission by the government that they have no justification. Granting the government the powers anyway because they may be able to make a case in the future but are unable to do so now is to promote complacency and arrogance. The logical response is to make the case in the future when it exists. As Sir Ken MacDonald points out, there is a difference between possibility and probability. It is entirely possible that a giant purple dragon called Morris will destroy my house tomorrow. It is however highly improbable. Just because something may be needed in the future does not means it will be. When citizens’ fundamental freedoms are at stake, the decision should favour the rights of the citizen. It is the sort of pre-emptive condescending legislation that is an affront to liberty.
There is little tolerance for the person who arms himself with a knife because it is possible he may be attacked. We all know that such self-armament risks escalating violence. Likewise it is irresponsible to extend detention without charge without good reason at present. It is an unnecessary escalation that may well put British citizens at greater risk. When political capital can be made by extremists about any measure that may be conceived as illiberal, it is ludicrous to suggest that further illiberality without a clear, present and pressing need is a vital weapon against those same extremists and their followers.
The safeguards suggested are little of the sort. In practice they make no difference; the executive retains unaccountable power. The Home Secretary is not going to challenge the assumptions the security apparatus make, and Parliament will not be availed of the information to challenge the Home Secretary as do so would be prejudicial to a trial. Home Secretaries frequently place themselves as the opponents of liberty, and to suggest that their opinion is the safeguard of it is so ludicrous it would be funny if it were not so serious. In a genuine emergency situation, the period of detention without charge can already be extended under the Civil Contingencies Act. What this new legislation changes is the ease with which such extensions occur, and the requirement for judicial oversight. It is the executive seeking to appropriate more power over the lives of citizens without justification.
My prediction is that the Bill will pass in the Commons by a narrow margin. Labour is running scared of a Conservative resurgence and some backbenchers will rally to their party to prevent a further defeat. Others will uncritically accept the safeguards without challenging their fundamental assumption that the executive can self-regulate, or understanding that the measure is abhorrent in its entirety, not in part.
Things could get interesting however in the House of Lords. The Upper House has consistently demonstrated that it is on the side of liberty against the government. The advice of such prominent figures as Lord Goldsmith and the Law Lords could sway many undecided peers. Combined with a divided Labour bench, Conservative and Liberal Democrat benches opposing the measure and the support of crossbenchers, the House has a good chance of defeating the Bill. Sending it back to the House of Commons may well change the outcome insofar as wavering supporters of the Bill, faced with a resounding rejection by the experts in the Other Place, could change their minds. Assuming that they did not, by dragging out the legislative process, the Lords could delay the passage of the Bill to the point where a government more friendly to civil liberty takes power and defeats it.
Legislation tends to be scrutinised in more detail in the Lords. Through a longer legislative process, the House could include safeguards worthy of the name into the final Bill. Although this is not the best outcome, it is nonetheless far preferable to the legislation in its current form. By drawing out Parliament’s debate and therefore the controversy surrounding the measure, the government could also be forced to make further concessions.
The nuclear option of the Parliament Act could ultimately see the Bill’s defeat. Curtailing Habeas Corpus is illiberal enough, but overriding the objections of experts in the Lords to pass it would be even worse. The possibility could be enough to encourage further Labour MPs to rebel against such a drastic measure, enough to see its defeat, or to encourage ambitious young Cabinet ministers to use the issue to force Brown’s departure.
UPDATE: It appears that the Bill is to be debated on Wednesday. If that is the case it is unlikely that I will be able to cover it fully. I’ll keep you updated on Twitter.
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