“NO FREEMAN shall be arrested or detained in prison or deprived of his freehold or outlawed or exiled or in any way molested . . . except by the lawful judgment of his peers.” Magna Carta, 1215.
It is near incredible than in 2005 ministers of the Crown should need reminding of Magna Carta. There is only one question after yesterday’s decision of the Home Secretary in effect to repeal it. How can he be stopped?
The Government’s proposed control orders against anyone it considers “a threat” are proof positive of the corruption of power. Charles Clarke and his Commons henchman, Peter Hain, dismissed all opposition as “complacent and ignorant of the facts”, albeit facts they decline to reveal. They seem oblivious of the parallel with powers enjoyed by Zimbabwe’s Robert Mugabe, Russia’s Vladimir Putin, Libya’s Colonel Gaddafi and Pakistan’s General Musharraf. All pleaded state security to justify executive justice, some with better reason than Mr Clarke. This is not guilt by association. It is guilt by imitation.
In the Commons yesterday Mr Clarke appeared to give ground to his critics. He did not. He said he would not impose house arrest on his suspects without seeking a subsequent (not prior) “resolution” of both Houses of Parliament allowing him to ignore the European human rights convention. But he would use other powers of tagging and indefinite restriction. The new orders would be subject to judicial review, but with vetted lawyers meeting in camera and without the right to see or cross-examine evidence. The court is a kangaroo.
Aimed at the IRA, anti-nuclear protesters or anti-vivisectionists, these proposals might seem questionable enough. In the case of Muslim fundamentalists the Home Office has obtained High Court permission to use intelligence culled by torture. This may come from Syria, Egypt, Iraq or anywhere that takes the fancy of the CIA’s policy of “out-sourced” interrogation. Such arbitrary justice by a liberal modern state is wholly unsound. Only the most craven anti-libertarian could be its apologist.
We are asked to accept an infringement of civil liberty because Mr Clarke believes, beyond any of his predecessors, that Britain is now “in a state of public emergency threatening the life of the nation” from forces out to “destroy our society”. He claims to have “no way to control terrorists” other than by new special powers. This suggests an extraordinary lack of faith both in the British police and in the robustness of British democracy.
On Monday Mr Hain added his pompous pennyworth. He declared that “the greatest attack on civil liberty in 300 years would be a suicide bomb attack”. Apart from grotesquely understating London’s ability to withstand a bomb, the remark is historically ignorant and an insult to those who faced the sustained threat of the Second World War. Mr Hain is clearly not a man who would risk his life to protect liberty, but would risk liberty to protect his life. He has already turned the House of Commons into an over-armed camp, leaving London’s public services to their own devices.
Dossiers were being published last night to set out this new threat. We hesitate to ask who wrote them and who edited them. We note only the return to the heart of government of a certain Alastair Campbell, impresario of the Iraq weapons dossiers. Any man who could see nuclear missiles staring at him from the Mesopotamian desert can doubtless find suicide bombers under every bed and a sarin factory in every mosque. Two years ago Downing Street tried to scare the nation over Iraq’s “threat to Britain” and took it to war as a result. There was no threat.
Now the dossier writers are at it again, so that Britons can be branded as a threat to the State on the say-so of the security services. The one safeguard squeezed from a reluctant Home Secretary is that a judge may ask if he, that is his security advisers, were “reasonable” in their suspicions. But the judge must do so without questioning the evidence or hearing from the suspect. No lawyer should be party to such a judicial travesty.
The yen of the security services for absolute power is traditionally curbed by ministers. The present Cabinet has not done so. The Patricia Hewitt who in 1982 inveighed against executive arrogance in The Abuse of Power has turned her coat. The Jack Straw who in 1994 castigated executive prerogative has rejected his past. The Mr Hain who once claimed that he was “framed” by spies has drunk deep at their trough and found it nectar. Ministers have capitulated to the blood-curdling rhetoric of the security lobby. As Lord Hoffmann said last December in opposing the original detention orders, it is ministers who are currently the “threat to society”. They are marionettes dancing to Osama bin Laden’s tune.
In the March issue of Prospect magazine, David Marquand notes the conversion of the enragés of the 1970s student and municipal Left into the new authoritarians. The Browns, Straws, Blunketts, Hains and Clarkes combine “a strong dose of political cunning with a remarkable capacity for jettisoning inconvenient principles when the wind changes.” They explained their first jettison as being simply to “make Labour electable”. Now embedded, they apply to government the habits of autocracy learnt in student unions and council chambers. Parliament stands proxy for the NUS and the socialist republic of Sheffield. How can Mr Blair lecture Mr Mugabe or the Iranian mullahs on the rule of law when he passes measures such as this?
Last week, to their credit, Michael Howard and Charles Kennedy told Mr Clarke that they could not be party to such casual draconianism. Security was the business of government but the rule of law as commonly understood was absolute. Yet the Opposition can put no tanks on the Government’s lawn.
For its part, the Parliamentary Labour Party is cowering behind the whips. During the Iraq weapons affair, its leaders cut pathetic figures. Ann Taylor, of the Commons security committee, Donald Anderson at foreign affairs and Bruce George at defence were Government patsies. The only person to whom they gave a hard time was poor David Kelly. They will give Mr Clarke all the power he wants — and rack and thumscrew if need be.
The contrast with the executive oversight displayed in the past year by the American Congress remains humiliating to the reputation of Parliament. Labour backbenchers are like Herdwick sheep, who know only to graze in home pasture. The one time they rebelled in large numbers was when faced with paying higher university fees for their offspring. Any one of them who now defends civil liberty is dubbed a maverick (not least by the BBC).
Where else can civil liberty turn? The law is no good. It was the supreme court, the law lords, who told the Government its internment of foreigners was unlawful. Mr Clarke now means to reverse that decision by making lawful whatever he says is lawful. Such is the thin ice on which freedom skates.
The only bulwark that remains is one we never thought to welcome, the ramshackle agglomeration of cronyism and heredity that is the House of Lords. No constitutional evolution has been more remarkable under Labour than the revival of this place, given a new lease of legitimacy by Mr Blair’s half-hearted reform. He may have appointed twice as many peers a year as any of his recent predecessors, but they have shown little gratitude. The Government is defeated in the Lords more often that at any time in the past quarter century.
It must be defeated again. Mr Clarke and Mr Hain want to railroad detention without trial through the Commons in six days. They will doubtless succeed. The Lords is made of stronger stuff. If it can vote against hunting it can surely vote against the control orders until the election. If the measure is reintroduced by a new government, the Lords should go on defeating it until the Parliament Act is invoked. If this is to be the last deed of old House of Lords, I cannot imagine a nobler baronial epitaph than to die fighting for the Great Charter against a dictatorial Crown.
simon.jenkins@thetimes.co.uk
