The phoney 42 days war

UK prime minister Gordon Brown has rightly been ridiculed for his puffed-up claim that the security of the UK depends upon extending the period a terrorism suspect can be detained without charge to 42 days. His opponents also deserve a public drubbing for their equally risible claim that civil liberties in our society depend upon maintaining the current limit of a mere 28 days.

Welcome to another phoney war in British politics, this time between an empty definition of security and a degraded notion of liberty. Whoever finally claims victory in the ‘knife-edge’ vote in parliament today, the result of this clash looks set to be the latest defeat for democratic debate.

It is typical of Brown’s premiership that he has chosen to make his one great stand while effectively standing on nothing. There is no security rationale for claiming that the 42-day detention proposal is a life-and-death issue. The current UK limit of 28 days detention without charge for terror suspects is already extraordinarily long by international standards – no other Western democracy comes close to it.

Unsurprisingly, the police have never felt the need to hold any suspect for 28 days. The security establishment itself is split over the proposal to extend the limit, and the complex legal provisions of the plan are seen as unworkable by many who understand these things. Almost the only argument Brown’s supporters have been able to come up with, deploying the familiar ‘what-if?’ scenario of the terror scare, is that things could get so bad that Britain would need the tougher law in the future. But in times of real crisis, emergency legislation has been passed overnight, not years in advance – and that was to cope with actual wars, not the threat of a relative handful of zealots.

And why 42 days, exactly? It is clear to many that 42 is a number plucked from the air. Tony Blair wanted 90-day detention without charge but had to settle for 28; Brown first said he would go for 56 days, then withdrew to 42 with a pledge to be flexible. Now his government seems to have decided that 42 must be set in stone as the be-all-and-end-all of the ‘war on terror’ (albeit with plenty of concessions to win over dissenters).

This is not about the security of society, but the insecurity of the government. With New Labour’s public standing and authority collapsing as if it really was under a sustained bombing offensive, Brown is falling back on the clunky old politics of fear, trying (as even his ministers admit) to turn himself into ‘the security prime minister’. The government will have noted that, even in recent polls showing Brown’s ratings at an all-time low, the vast majority of respondents support tougher anti-terrorism laws. Having done so much to instil the fear of terror into the public mind, they now hope to reap some benefit by playing the ‘security’ card. If it has any effect, the result – as ever with the politics of fear – can only be to reinforce public insecurity.

And even on this issue, ‘Bottler Brown’ appears unable to put his tough talk into action. His claims that the 42-day measure is a principle vital to national security have been badly undermined by his willingness to make one concession after another in his desperation to win a hollow victory in Parliament. Most recently, he has apparently proposed that suspects who are detained for up to 42 days but not charged may be eligible for a few thousand quid in financial compensation. Like all cynics, New Labour knows the price of everything and the value of nothing.

So transparently opportunist has the government’s case for 42 days been that its opponents have been allowed to take the moral high ground on this issue. We have heard many high-minded statements about civil liberties and the rule of law from rebel Labour MPs, from Shami Chakrabarti of the human rights lobby group Liberty, and from the opposition parties. They have claimed that opposing the extension to 42 days detention without charge is a ‘vital principle’, that Britons have ‘fought for centuries’ for our civil liberties and should not throw away now on this vote, and even that the future of democracy in the UK depends upon defeating this government proposal.

What, the future of democracy and liberty is dependent upon maintaining the legal provision for detention without charge at 28 days rather than 42? I have read the Magna Carta, the works of John Stuart Mill and Tom Paine, the US Constitution and many other great works of the historic struggle for liberty and freedom from state oppression. Maybe I missed something, but I do not recall the part where they say that the key principle of liberty at stake is defending the state’s right to lock people up without charge for only four weeks rather than six…

This is a badly degraded view of liberty, what looks like a case of trying to free the prisoner after the door has been bolted. When I joined campaigns against Britain’s draconian Prevention of Terrorism Act back in the early 1980s, civil liberties activists considered a law that allowed for seven days detention without charge to be an outrageous attack on democratic rights. Now it seems that the ‘principled’ position is deemed to be to defend a legal limit four times as long as that. Such is the extent to which the politics of insecurity has advanced and the politics of freedom retreated over the past 25 years.

Many of the most prominent opponents of the 42-day proposal are lawyers who take a narrowly legalistic view of the specific measure, and miss the wider issues about what is happening to liberty in society. This looks like what Lenin might have called legal cretinism. Indeed, so narrow are their concerns that they even appear willing to sacrifice important defendants’ rights in order to stop this one, fetished proposal becoming law. Thus Liberty has suggested that police should be allowed to continue questioning suspects after they have been charged; some lawyers believe that the introduction of ‘post-charge questioning’ could lead to ‘repeated and oppressive’ interrogation of defendants. In other circumstances such a proposal might have been denounced as the policy of a police state, allowing prosecutors to ‘charge them first, get the evidence later’. Now it is supposedly the liberal alternative!

Opponents of 42 days are also promoting their own version of the politics of fear, scaremongering about how these measures will only alienate more Muslims and encourage Islamic terrorism. And they are promoting an attitude to our liberties that is, if anything, even more elitist that New Labour’s.

When confronted with the argument that most people support the government’s tougher anti-terror measures, opponents such as Liberty’s Chakrabarti or Trevor Phillips of the Human Rights Commission will look down their noses and say that they are being ‘principled’, and not ‘populist’ like the government. In other words, they know better than the ignorant masses. And rather than try to persuade people of their case, they would rather sidestep the great uninformed and appeal to the human rights courts, at home or in Europe. Their fundamental belief is that what they deem liberty is far safer in the non-horny hands of an educated elite of lawyers and judges than if it were entrusted to the mass of people – those who, by the way, really did fight for centuries for their freedoms. For these lawyerly activists, ‘human rights’ are something that seem to exist in a rarefied atmosphere far above the real world of humanity.

Where are these great crusaders for liberty when other freedoms, outside of their narrow world and ‘legal cretinism’, are at stake? When it comes to New Labour’s more insidious attacks on personal and public freedoms – such as the smoking ban, the planned vetting of 11million adults who work with children and the elderly, the attacks on ‘offensive’ free speech, and so on – many of them are either nowhere to be seen or on the wrong side of the debate entirely. Nor do they seem so keen to campaign on behalf of less fashionable objects of authoritarian law than Islamic terror suspects.

Yes, both sides are right to claim that this is an important argument with much wider ramifications – but not in the way that they mean. Whichever way the vote goes, the strange affair of the 42 days should stand as an indictment of the criminal state of political debate and the degraded view of liberty today.

Mick Hume is editor-at-large of spiked.