In what now seems another age, Keith Ewing co-authored Freedom under Thatcher, the joke being that there wasn’t very much. Now the whirligig of time brings him to New Labour which has, so he claims, put freedom to the torch. But he confines his thesis to issues of national security and cannot solve the chicken-and-egg question of whether to blame Tony Blair or Osama bin Laden. His “Old Labour” solution – distrust the judges and leave human rights to the mercy of MPs – will be apt to raise a hollow laugh from readers who have followed his account of how parliament sheepishly votes for Terrorism Acts which prescribe grossly unfair treatment of suspects and proscribe organisations that fight for democracy in Iraq and Iran and Burma.
Mr 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 a core content of great value in tracking the law relating to the vast tentacles of the national security State brought into being by the so-called “war” on terror. It explains how justice to those under surveillance and in detention can be achieved by reliance 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 – ie. judges sitting hugger-mugger with the buggers – to reassure the public that telephone tapping and burgularing and other secret activities of the security services are all for the best in this best of all possible worlds. These uncritical reports have secret annexes which go to the Prime Minister, but go no further.
In less sinister circumstances too, our traditional liberties have been submerged in the wash from the terrorism patrol boats. Police now have the power to arrest without a warrant for virtually any offence whether trivial or serious; ASBO’s are being used against prostitutes and beggars, and about 50% of its subjects end up in gaol: stop and search powers have inadequate legal authority: telephone and email interceptions grow at an alarming rate: there is massive but unregulated police infiltration of protest groups with no safe guards against informers turning into agents provocateur; police “kettling” (cordoning off) of demonstrators affects the right to protest and our pathetic MPs could not even face Mr Brian Haw’s protest in Parliament Square against the Iraq war, so they passed a law empowering the police to remove him at the dead of night. (At least you can see his placards in the Tate gallery). “There is a continuing corrosion of liberty” says Mr Ewing, “which is singularly more striking for the fact that it is happening on the watch of Labour administration.”
Well, plus ça change. Think back to freedom under Wilson/Callaghan, when Duncan Campbell was threatened with 30 years gaol for revealing the existence of GCHQ, when Mark Hosenball was deported for mentioning it in “Time Out”, when Sam Silkin tried to gaol Pat Arrowsmith for talking to soldiers and booksellers 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 in answer to Chris Price MP, “only two or three of your constituents would be interested”. Mr 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 who Mr Ewing naively thinks can be relied upon to safeguard our liberties.
“The Human Rights Act has been hopeless”, he asserts, whilst analysing its impact only in relation to security issues and admitting that those who work at its coal face helping disadvantaged people will take a different view. That is because there is compelling evidence (none of which he mentions) that after 10 years it has measurably improved the position of many classes and kinds of vulnerable citizens. But even sticking with terrorism, just compare the Stalinist rhetoric of Lord Denning in seeing off Mark Hosenball (ie the state can be as unfair as it likes in the name of national security) with the language last month of the current Master of the Rolls in the Bin Mohamed case. Decisions taken under the Human Rights Act in terrorist cases have sometimes disappointed, but as Ronald Dworkin predicted it has served to educate the judiciary and give them the principles (if not the power) to stand up to the secret state by (for example) prohibiting the use of evidence obtained by torture and rejecting the government’s attempts to detain suspects indefinitely without trial.
Mr Ewing’s problem is that he measures court decisions on human rights against an unrealistic and extremist template: he is most outraged, for example, by a decision that a vicious serial rapist of old women could be brought to justice by use of his DNA sample the police should have destroyed after an earlier acquittal. Well, potential rape victims have human rights too. But “here, under the supervision of the Home Office” he hyperventilates “we have a surveillance regime that would cause Erik Honecker to glow with pride. “No doubt, but unlike Erik Honecker, the Home Office does not assassinate all those it sees trying to escape over a wall. Stephen Sedley, one of our more liberty-minded judges is excoriated for proposing that everyone should be entered on the DNA database – a proposal that shows no more than that the question of privacy is rather more complicated that Mr 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 winds in anti-terrorism legislation and have demonstrated (in the Damien Greene affair) an abject ignorance of their own sovereign duties won by the Civil War, his argument utterly fails to convince. Too often have we seen these MPs, soundly whipped and thinking of personal party advancement, troop into the anti-liberty lobby.
Ewing praises over-lavishly the work of the Joint Committee on Human Rights which is often too little and too late, although it would be a sensible procedural reform to have its reports formally considered by both Lords and 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, sometimes to no avail) but to describe them as a “juristocracy” is jejeune.
Mr 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 a tautology as “radical barrister”. Those who want a truly radical and indeed workable solution to the malaise in our liberties should look to a British Bill of Rights embedded in a written constitution, applied by judges who – as in the United States – have the power to ensure that the liberties won by Milton and Cromwell and Wilkes and Paine are not abandoned by MPs more interested in flipping their second homes.