Liberty vs liberty
Campaign group Liberty seems more interested in proposing an alternative authoritarianism than defending freedom.
This week, the UK government decided to shelve its plans to increase the period that terror suspects can be held without charge from 28 days to 42 days, after its proposal was voted down in the House of Lords. Britain’s leading civil liberties group, Liberty, immediately declared the decision a ‘victory’ for its campaign to prevent the increase. Yet the law that Liberty should really be worried about is not the Counter-Terrorism Bill but the Trades Descriptions Act – because Liberty, along with many others, doesn’t seem very interested in defending liberty at all.
The government’s decision to shelve the extension was simply a pragmatic one. Its Bill calling for an extension to 42 days’ detention without charge only scraped through the House of Commons in June this year thanks to the support of nine Democratic Unionist MPs: bigots from Northern Ireland that no self-respecting government should cuddle up to. New Labour’s whips in the House of Commons believed that if the measure went to a vote in the House again, it could well be defeated. Furthermore, even if the Bill did get through the Commons, the unelected House of Lords could continue to block it for up to a year before the Parliament Act could be used to force the law through; this would have delayed all the other measures in the Bill. The government scrapped the 42-days proposal in order to avoid embarrassment in the Commons and a potential delay by the Lords.
However, parliamentary calculation was not the only reason for a change of mind. There was also opposition to aspects of the Bill from those who should have been its keenest supporters: the police. In an article in The Times (London) a week before the Lords’ vote, Andy Hayman – until recently Britain’s most senior anti-terrorism officer – declared his support for the principle of 42 days’ detention while denouncing the proposed mechanism by which it would be put into effect: ‘[T]he government’s current proposals are not fit for purpose: they are bureaucratic, convoluted and unworkable. The draftsman’s pen has introduced so many hoops to be jumped through that a police case for detaining a terror suspect will become part of the political game.’
Others argue that the government erased 42 days from its Bill for strictly party political reasons. In June, with Prime Minister Gordon Brown flailing about in a sea of unpopularity and desperate to appear like he had some purpose, he was keen to push through a measure that looked tough on terrorism. But the current economic crisis has given him a new lease of life. Now he is praised in the press not only for saving the British banking system (allegedly) but for providing a framework through which the US authorities and European governments might intervene in the financial arena, too. The 42-day proposal, which must once have seemed like a potential vote-winner, is now a messy and divisive idea at a time when Brown is milking the financial crisis. With all eyes focused on the economy, it was the perfect moment to drop the 42-days idea.
Liberty believes the decision to drop the proposal was a stunning vindication of its campaigning. Never mind that everyone from senior police officers to the prime minister himself was getting cold feet about the whole thing. After the Lords vote, the Liberty website declared: ‘Last night saw a resounding victory for Liberty’s long running “Charge or Release” campaign. Common sense and common decency prevailed as the government dropped plans to detain terror suspects for 42 days without charge, following an overwhelming defeat in the House of Lords… We have consistently urged the government to drop these damaging proposals and have condemned the measures as wrong in principle, unnecessary and counter-productive.’
This is a strange kind of ‘victory’, rather like a football manager declaring that being beaten four-nil was cause for celebration because at least it wasn’t six-nil. Both are crushing defeats. The same applies to the current rules on terrorism offences. The power to lock someone up and question him repeatedly without charge for a disturbing 28 days – the victorious settlement in this civil liberty war – has no equivalent in any other democracy, as Liberty itself has pointed out frequently. Indeed, terrorism offences aside, the legal maximum for detention without charge in England is 96 hours – even in murder cases.
Worse, Liberty has argued that 28 days should be maintained and that other important principles of legal protection for suspects should be thrown out in lieu of introducing the 42-day extension. Liberty argues that the government should ‘remove the bar on intercept (phone tap) evidence in criminal trials’, ‘review the way in which people that have already been charged can be re-interviewed and recharged as further evidence is uncovered’ (opening up the possibility of oppressive post-charge questioning), and ‘bring in existing powers under the Regulation of Investigatory Powers Act 2000 (RIPA) which enable a civil court to require an individual to hand over an encryption key (which unlocks data on seized computers)’.
These legal rules that Liberty wishes to water down or override provide protection for individuals when the overwhelming power of the state is brought to bear upon them. Yet Liberty seems willing to trade them in for the administrative convenience of the police when investigating terrorist offences. As the Labour peer Martin O’Neill pointed out in the New Statesman earlier this year, in relation to the 42-day proposal, ‘certain liberties – like the freedom from detention without charge – are simply too fundamental to be traded-off against gains in our personal security. This is because personal security may itself only be truly worthwhile as long as these liberties are protected. It may do us no good to be kept safe from harm if it is at the cost of living in a country that is no longer a civilised liberal democracy.’ The same applies to these other pillars of civil liberty, too.
Furthermore, Liberty has remained silent – at best – on a range of recent restrictions on our freedom, from the Safeguarding Vulnerable Groups Act, which requires the state vetting of 11million people who work with children and old people, through to the bans on smoking and drinking in public. Shami Chakrabarti, the head of Liberty, has even threatened to use the libel laws – England’s famously anti-free speech rules – to stop malicious statements being made about her. That’s hardly the instinct of someone truly interested in freedom.
Instead of declaring victory in cases where draconian government powers are reinforced, what is needed is a more fundamental defence of individual liberty in Britain, something that spiked has put forward in our ‘Slash 42 days to 24 hours’ campaign (see The fight for individual liberty starts here, by Brendan O’Neill). We need to defend existing protections and reinstate important principles like the right to silence – but we also need to go beyond the law to re-establish the idea of the active political citizen in contemporary society. Until the authorities feel the breath of active opposition on the backs of their necks, we will be stuck with the alternative authoritarianism of legalistic wonks like Liberty.