Straw man’s argument on liberty

During the Labour deputy leadership campaign while supervoc Hazel Blears called for armed police on the streets (an intervention that generated remarkably little interest), Peter Hain proclaimed his support for civil liberties.  At that time I noted that,

“when pursued further it is the same old same old: “while remaining tough on security, we need to ensure we do not sacrifice hard fought for civil liberties, and get the right balance between the power of the state and the freedoms of the citizen.”  Perhaps Mr Hain would explain if this would involve stepping back from control orders, detention without charge or trial, and the other delights so reminiscent of apartheid South Africa (which Hain so vehemently opposed) introduced by his party while he has sat in the Cabinet .”

My view on the Labour government approach to civil liberties is summarised above.  Imagine my surprise, then, as I opened my Guardian this morning to see an article by JAck Straw proclaiming that,

“This period has seen a greater improvement in our democracy and people’s sense of rights than any time since the development of the franchise between 1832 and 1928. But the difference is: that took a century, this has taken a decade.”

He lists some of the government’s achievements: the incorporation of the European COnvention on Human RIghts; the Freedom of Information Act (which is not quite as powerful as the Scottish equivalent introduced by Jim Wallace but never mind); devolution; and various pieces of anti-discrimination legislation.

This is true.  These are all positive advances.  However, some of it is overstated – the right to a fair trial, one of the elements crowed about by Straw as being a central plank of the ECHR, is not new.  Funnily enough the Scottish courts did not just introduce fair trials in response to the ECHR.  As Lord Gill said last month in the HIgh Court of Justiciary on appeal (at para 64), “It seems at times that contemporary practitioners believe that the Convention introduced the principle of fair trial into Scottish criminal procedure. Scottish criminal procedure is founded on that principle. It is the duty of this court constantly to reassess what fairness requires and to re-examine the presuppositions on which existing rules and practices are based. Where it is recognised that an accepted aspect of procedure is unfair, this court puts the matter right. In this way Scots law has extended its protection to accused persons in relation to such matters as pre-trial publicity …; police questioning … , and detention of witnesses in open court … . In its consideration of the procedure for dealing with contempt of court, the court’s appreciation of fairness has developed stage by stage from the robust approach of a century ago.”

There are though some issues that Straw only touches on.  He says, “particularly since 9/11 [or 11/9 as we should refer to it], there have been some acute issues about whether protections we have sought – especially over pre-charge time for terrorist suspects – are proportionate and fair. We are all acutely aware, as Jacqui Smith has spelt out, of the care that has to be taken – for example over any extension of 28 days. But consider what might have happened if there had been no Labour government over the last 10 years.”

Yes, consider what would have happened over the past ten years – without these protectors of human rights in place.  

Over the past year and a half since I started on this LJ I have occasionally (among comments on Doctor WHo, bad television, Scottish politics and Tommy Sheridan) posted on issues relating to civil liberties.  Each piece of legislation I’ve commented on was introduced by this government and all apparently justified by the war on the abstract noun.  They include:

The terrorism legislation which is framed in such a wide way that “terrorism” is defined (in the Terrorism Act 2000)  to include acts against the British or any foreign government  and s 1 of the Terrorism Act 2006 makes it an offence to directly (or indirectly) encourage terrorism (as defined in the 2000 Act).  Such encouragement includes the bizarre offence of glorifying terrorism.  This means that, for example, Nick Cohen in What’s Left calling for the overthrow of Saddam Hussein’s regime would under current law potentially be liable under the 2006 ACt, or those poets that eulogised the Irish independence movement could have seen themselves prosecuted – given the breadth of definition of the offence.  Or, if you call for the population of country X to rise up against the brutalising despotic leader and his family/theocratic supporters/single party system then this is encouraging acts to overthrow government X and would be an offence.  “Proportionate and fair” Mr Straw?

The introduction of the Special Immigration Appeals Commission.  This involves deporting people on grounds of national security but subject to a couple of peculiar procedures for a formal legal process – first, they don’t know why they’re being deported (for national security reasons); second, they don’t know the case against them and consequently cannot find out the reasons for the request for deportation (for national security reasons); third, they are represented by someone they didn’t appoint, who has been vetted by the security services and cannot reveal anything from points one or two to the prospective deportee or his solicitor; oh, and fourth, they can’t find out the full reasons for any decision (for national security reasons).   And with all the evidence secret as I pointed out the spooks can give contradictory evidence in cases with little risk it will be picked up.  “Proportionate and fair” Mr Straw? 

The proposal to extend the period of detention without charge from 28 days to a period which appears to be fixed by dutch auction, currently 42 days.  This period has little support aside from that of the police, there has not been a case which has got near the current 28 day limit, there is little comparative evidence (from comparable liberal democracies) warranting an extension.  When I posted on this Alastair replied,

“It’s a pretty fundamental principle of a free Parliamentary Democracy that police powers should be severely limited, and one of parliament’s principal functions is to PREVENT the extension of police powers, NOT facilitate them!!

“It is in the nature of police officers to want to lock up more and more people, to bug more and more phone lines, to search more and more persons and properties. The police are always hungry for more powers. We must be vigilant to ensure that they don’t ever get more than the barest minimum.”

There’s not much to add to that, other than to note that at liberalconspiracy they’re running a campaign against the extension of this 28 day period. There’s a lot of good stuff in there.

Three and a half  years ago in the Belmarsh case Lord Hope made an impassioned argument in support of civil liberties.  He said

“It is the first responsibility of government in a democratic society to protect and safeguard the lives of its citizens. That is where the public interest lies. It is essential to the preservation of democracy, and it is the duty of the court to do all it can to respect and uphold that principle. But the court has another duty too. It is to protect and safeguard the rights of the individual. Among these rights is the individual’s right to liberty.

“It is impossible ever to overstate the importance of the right to liberty in a democracy. In the words of Baron Hume, Commentaries on the Law of Scotland respecting Crimes, 4th ed (1844), vol 2, p 98:

 “As indeed it is obvious, that, by its very constitution, every court of criminal justice must have the power of correcting the greatest and most dangerous of all abuses of the forms of law, – that of the protracted imprisonment of the accused, untried, perhaps not intended ever to be tried, nay, it may be, not informed of the nature of the charge against him, or the name of the accuser.””

This government has steadily eroded these fundamental principles in a way that is disproprtionate and lacking fairness.  And, the legislation was introduced and supported by a government largely made up of lawyers – including Straw, and Blears.  They should be ashamed of themselves.

PS I began writing this before becoming aware of the excellent reply to Straw by Henry Porter, who follows up his series of articles in The Observer, with a list of infringements of civil liberties introduced by this government.  Porter details the restrictions on the right to protest, the legislation allowing covert interception of e-mails and other mail, the establishment of the identity databases controlled by government (from a government that managed to mislay 25 million records); legislation which restricts freedom of expression including the ridiculously wide law on “glorifying terrorism”; and the terror law generallys; as well as some of those I identify above.

About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
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