For the love of liberty
In what now seems another age, Keith Ewing co-authored a book entitled Freedom Under Thatcher - the joke being that there wasn't very much. Now he turns his attention to New Labour, which has, he claims, put freedom to the torch. He confines his thesis to issues of national security, however, and cannot decide whether to blame Tony Blair or Osama Bin Laden. His "Old Labour" solution - distrust the judges and leave human rights at the mercy of MPs - will elicit a hollow laugh from readers who have followed his account of how parliament sheepishly votes for terrorism acts that prescribe grossly unfair treatment of suspects.
Ewing complains that "it is the fate of most books that only the introduction and the conclusion are ever read". This would be a great pity in the case of his book, which has an entirely unconvincing introduction and conclusion, but core content of considerable value that tracks the law as it relates to the vast tentacles of the security state brought into being by the "war on terror". It explains how justice for those under surveillance and in detention depends on secret evidence and on "special advocates" who merely purport to represent them, without the ability to take their instructions.
There is an excellent critique of the use of sitting judges to reassure the public that telephone-tapping and burglary and other activities of the security services are all for the best in this best of all possible worlds. Their uncritical reports have annexes that go to the Prime Minister, but no further.
Our old liberties have been submerged in the wash from the terrorism patrol boats. The police now have powers to arrest without a warrant for virtually any offence, however trivial. Anti-social behaviour orders are being used against prostitutes and beggars, and about 50 per cent of those who are served with them end up in jail. Stop-and-search powers have inadequate legal authority, while telephone and email interceptions are growing at an alarming rate. There is large-scale but unregulated police infiltration of protest groups, with no safeguards against informers turning into agents provocateurs. Police "kettling" (cordoning off) of demonstrators affects the right to protest, and MPs were so disturbed by Brian Haw's solitary anti-war protest in Parliament Square that they passed a law empowering the police to remove him in the dead of night. "There is a continuing corrosion of liberty," Ewing writes, all the more striking because it is happening on the watch of a Labour administration.
Plus ça change. Think back to freedom under Harold Wilson and Jim Callaghan, when Duncan Campbell was threatened with 30 years in prison forrevealing the existence of GCHQ and Mark Hosenball was deported for mentioning it in Time Out; when the attorney general Samuel Silkin tried to jail Pat Arrowsmith for talking to soldiers, and booksellers were threatened for stocking Inside Linda Lovelace. It was Old Labour that resisted a Freedom of Information Act, because, in the immortally stupid words of Merlyn Rees, home secretary, in answer to the MP Chris Price, "only two or three of your constituents would be interested". Ewing barely mentions FoI, the companion to the Human Rights Act from New Labour's first term, thanks to which millions of constituents have become very interested indeed in the greed and opportunism of their MPs - the very people Ewing naively believes can be relied upon to safeguard our liberties.
“The Human Rights Act has been hopeless," he asserts, though he analyses its impact only in relation to security issues, and admits that those who work with the disadvantaged will take a different view. That is because there is compelling evidence (none of which he mentions) that after ten years the act has improved the position of the most vulnerable citizens.
As for terrorism, just compare the Stalinist rhetoric of Lord Denning when seeing off Hosenball (the gist of which was that the state can be as unfair as it likes in the name of national security) with the severe criticisms of MI5 made by the current Master of the Rolls, Lord Neuberger, in the Binyam Mohamed case last month. Decisions taken under the Human Rights Act in terrorism cases have sometimes disappointed, but, as the legal philosopher Ronald Dworkin predicted, the legislation has served to educate the judiciary and give them the principles (if not the power) to stand up to the secret state - for example, by prohibiting the use of evidence obtained by torture and rejecting the government's attempts to detain suspects indefinitely without trial.
Ewing's problem is that he measures court decisions on human rights against an unrealistic template: he is most outraged, for instance, by a decision that resulted in a vicious serial rapist of old women being brought to justice by use of a DNA sample the police should have destroyed after an earlier acquittal. But potential rape victims have human rights, too. "Here, under the supervision of the Home Office," he rages, "we have a surveillance regime that would cause Erich Honecker to glow with pride." Similarly, Stephen Sedley, one of our more liberty-minded judges, is excoriated for proposing that everyone should be entered on the DNA database, a proposal which shows no more than that the question of privacy is rather more complicated than Ewing thinks.
His solution is to sideline the courts and rely on what he describes as "the enduring strength of parliamentary sovereignty". Coming at the end of a book that details how our sovereign parliament and its members have thrown liberty to the wind in anti-terrorism legislation, his argument utterly fails to convince. Too often have we seen these MPs, soundly whipped and thinking of partisan advancement, troop into the anti-liberty lobby.
Ewing lavishly over-praises the work of the Joint Committee on Human Rights, the deliberations of which are often too little and too late, although it would be sensible to have its reports formally considered by both the Lords and the Commons at some stage in the legislative process. He is right to caution that we should look at what judges do rather than what they say (the Human Rights Act has improved their rhetoric, though often to little effect), but to describe them as a "juristocracy" is jejeune.
Ewing wants a more "radical" (his favourite word) approach. He urges "radical parliamentary reform" and "radical parliamentary scrutiny of legislation". But these days "radical MP" is almost as much of an oxymoron as "radical barrister". Those who want a truly radical, and indeed workable, solution to the crisis of our liberties should look to a British Bill of Rights, embedded in a written constitution and applied by judges who - as in the United States - have the power to ensure that the liberties won by Milton and Cromwell, Wilkes and Paine, are not abandoned by MPs more interested in flipping their second homes.
