Some eight years after Gordon Brown's notorious eulogy to Lehman Brothers, the Labour party appears to have
finally understood the damage caused by irresponsible capitalism. I insert the
caveat because, for all the condemnation of the Barclays and HSBCs, I still doubt whether, as prime minister, Ed Miliband would
introduce the checks and balances required to turn our worst financial
institutions into decent enterprises serving broader society. Still, something
is better than nothing, and one can only hope that this belated conversion
manifests itself in effective legislation and regulation.
Labour's obsequiousness to the super-rich,
demonstrated by Brown's fear, and Tony Blair's adoration, was one of the main
reasons so many people gave up on the party. The other equal trigger, for me,
was its authoritarianism. The two were linked. Having raised the white flag to
the bankers, ministers instead sought to exert their power elsewhere, at the
level of the citizen, seeking ever more ingenious ways of watching us,
listening to us and telling us how to lead our lives. I called it at the time
Labour's displacement theory.
Throughout this period, it was left to the
Liberal Democrats and to a motley band of libertarian-minded Conservatives to
raise the alarm. They were joined by an even smaller group of backbench Labour
MPs. The then government's plans to increase the period of pre-trial custody were resisted
and proposals to extend the snooping on email and other electronic communications
were shelved. These were mere pinpricks, however, amid a raft of other measures
– almost invariably justified by the fight against terrorism – that turned Britain into one of
the most surveilled states in the western world.
The most intrusive piece of legislation of all
(and there is much competition for this prize), was the Regulation of Investigatory Powers Act (2000). Ripa has allowed
hundreds of state organisations – not just the spooks, but local councils, the
Health and Safety Executive, the fire service and many more – to use informers
and direct surveillance, to listen to phone calls and to intercept emails.
Countless such operations have taken place in the decade since, under the
flimsiest of pretexts and with precious little accountability or transparency.
Specifically targeted terrorist suspects are one
thing; fly-tipping or antisocial behaviour, no matter how undesirable and
annoying, is quite another. Nevertheless, the mechanisms are in place for
anyone, anytime, to be watched for pretty much any reason. Not satisfied with
the powers it had already given itself, the government extended them in several
subsequent, but little publicised, orders in 2003, 2005, 2006 and 2010.
Still that's not enough. The security services
are now back, demanding that all internet searches, emails and social network
messaging be stored for a year – just in case there is anything, from anyone,
that might be useful.
The communications data bill has been presented to parliament in draft
form. First it is being considered by a joint committee of Lords and Commons
led by Lord Blencathra (the former Conservative minister David Maclean). This
inquiry's membership gives little cause for optimism, with only one member –
the Lib Dem MP Julian Huppert – demonstrably exercised by civil liberties. Still
there is a process; it is taking evidence from a number of sources and, for
want of anything better, it should be engaged with.
The problem, when it comes to having an input
into this bill and to other measures driven by the securocracy, is that no
political party is prepared to fight hard for individual liberties. The
Conservatives dabbled with it in opposition, producing the Protection of
Freedoms Act in the first session of parliament, which withdrew the ID card
plan and restricted the DNA database. Since then they have been in full retreat
as the securocracy has convinced David Cameron and his ministers, including the
justice secretary, Ken Clarke, that national security takes precedence at all
times. The Lib Dems have tried to introduce the odd caveat into the snooping
bill, such as the parliamentary inquiry, but these are largely meaningless.
Some among their number have taken to justify it by saying it merely builds on
Ripa. As if that constitutes justification.
Another equally alarming piece of legislation has
made further progress through parliament. The justice and
security bill, which is winging its way through the Lords, will allow
ministers to demand secret hearings – or, in the jargon, closed material
proceedings – in any civil court case where they believe evidence might damage
national security. They will also be able to prevent a case going to court at
all, if it produces difficulties in international relations.
The security services are still smarting from the
case of Binyam Mohamed who in February 2010 won his case in the court of appeal
over the collusion of MI5 and MI6 in his torture. Whitehall did everything
it could to suppress an earlier high court judgment that condemned the UK for
its "cruel, inhuman and degrading" behaviour. With further cases
pending about the role of senior British officials in the illegal rendition of
Libyan dissidents into the hands of Colonel Gaddafi's secret police, it is
hardly surprising that everything is being done to try to remove these cases
from public scrutiny.
The UK's propensity to ever more intrusive
surveillance makes a mockery of its foreign policy exhortations. Every time the
Chinese and Russians are criticised for clamping down on the internet, the
courts or the rights of public protest, they can afford a wry smile.
Faced with these conundrums, what will the Labour
high command do? Shortly after taking over, Miliband indicated that the Blair
era had shown an excess of controlling zeal. But rhetoric and generalities only
get you so far: Miliband now has two golden opportunities to recalibrate
Labour, in the detail, back towards civil liberties.
He needs to face down the wizened authoritarians,
pointing out that a careful balancing of security and liberty is not the
preserve of Hampstead liberals (to
borrow Jack Straw's phrase). The targeting of terrorists and organised
crime does not require secret courts or giant data hoover operations. Does
Labour get it? I'm not convinced. The next few months will help provide the
answer.
Clearly, the market is open for a party of
liberty. And the appearance of Shami Chakrabati as a platform speaker alongside Ed Miliband and Tom Watson at the Durham Miners’ Gala made it perfectly clear who alone was, and is, in any position to fill that gap.
Light sentences and lax prison discipline are both expressions of the perfectly well-founded view that large numbers of those convicted, vastly in excess of the numbers that have always existed at any given time, are in fact innocent. We need to return to a free country’s minimum requirements for conviction, above all by reversing the erosion of the right to silence and of trial by jury, and by repealing the monstrous provisions for anonymous evidence and for conviction by majority verdict. And we need to return to proper policing. Then we could and should return to proper sentencing, and to proper regimes in prison, with no suggestion that prisoners should have the vote. But only then.
We need to return to preventative policing based on foot patrols, with budgetary sanctions against recalcitrant Chief Constables. We need police forces at least no larger than at present, and subject to local democratic accountability though police authorities composed predominantly of councillors, not by means of elected sheriffs, which, like directly elected mayors, have no place in a parliamentary rather than a presidential res publica, and are wholly incompatible with the defence, restoration and extension of the powers of jurors, magistrates and parliamentarians.
We need to restore the pre-1968 committal powers of the magistracy, restore the pre-1985 prosecution powers of the police, and restore the network of police stations and police houses placing the police at the very heart of their communities. We need each offence to carry a minimum sentence of one third of its maximum sentence, or of 15 years for life. And we need a single category of illegal drug, with a crackdown on the possession of drugs, including a mandatory sentence of three months for a second offence, six months for a third offence, one year for a fourth offence, and so on.
We need to abandon the existing erosion of trial by jury and of the right to silence, the existing reversals of the burden of proof, conviction by majority verdict (which, by definition, provides for conviction even where there is reasonable doubt), the admission of anonymous evidence other than from undercover police officers, conviction on anonymous evidence alone, both pre-trial convictions and pre-trial acquittals by the Crown Prosecution Service, the secrecy of the family courts, the anonymity of adult accusers in rape cases, identity cards or any thought of them, control orders or anything like them, police confiscation of assets without a conviction, stipendiary magistrates, Thatcher’s Police and Criminal Evidence Act, the Civil Contingencies Act, the Legislative and Regulatory Reform Act, and the Official Secrets Acts.
We need to raise the minimum age for jurors at least to 21. We need to extend to the rest of the United Kingdom the successful Scottish extension of the right to serve on a jury without compromising its restriction to those with a tangible stake in society. We need to repeal the provision for “no win, no fee” litigation, while at the same time protecting, restoring and extending Legal Aid. We need the current judicially imposed arrangement on privacy to be enacted into the Statute Law, but with the burden of proof in libel actions placed on the plaintiff.
We must insist on a return to the situation whereby a Bill which ran out of parliamentary time was lost at the end of that session. On the restoration of the power of a simple majority of the House of Commons to require a General Election, whether by rejecting a motion of confidence or by approving a motion of no confidence. On the restoration of the supremacy of British over EU law. On the requirement that EU law apply in the United Kingdom only once it has passed through both Houses of Parliament exactly as if it had originated in one or other of them. On the requirement of a resolution of the House of Commons before any ruling of the European Court of Justice, or of the European Court of Human Rights, or of the Supreme Court, or pursuant to the Human Rights Act, can have any effect in the United Kingdom. On the restoration of British overall control of our defence capability. On the removal of all foreign forces and weapons from British territory, territorial waters and airspace. On the repeal of one-sided extradition arrangements. And, especially now that Norman Baker is a Minister, on the coroner’s inquest that has mysteriously never been held into the death of Dr David Kelly.
There must be an extension to Scotland of the historic liberties, largely as set out above, which have never applied in that far more oligarchic country, where middle-class institutions and upper-middle-class power have been defined as the esse of national identity, a situation which has been made even worse by devolution’s weakening of the Labour Movement. While this might have been a factor contributing to the retention of more rigorous minimum qualifications for jurors in Scotland, criteria which should be applied nationwide as surely as should be the Scots Law requirement of corroboration of evidence, nevertheless it means that, while there is an automatic right to trial by jury for serious offences in Scotland, the decision on which way to proceed in an ‘each-way’ case lies with the prosecution rather than with the defence. The police have no power to caution, and they proceed entirely under the direction of the locally unaccountable Procurator Fiscal, who does not prosecute unless it is in the public interest to do so, which it is for the prosecution alone to decide and for which it does not have to give any explanation. It is extremely difficult to bring a private prosecution, far in excess of the necessary restrictions on that practice which rightly exist elsewhere. These profoundly illiberal arrangements must change.
And we need legislation with five simple clauses. First, the restoration of the supremacy of British over EU law, and its use to repatriate agricultural policy and to restore our historic fishing rights (200 miles, or to the median line) in accordance with international law. Secondly, the requirement that, in order to have any effect in the United Kingdom, all EU law pass through both Houses of Parliament as if it had originated in one or other of them. Thirdly, the requirement that British Ministers adopt the show-stopping Empty Chair Policy until such time as the Council of Ministers meets in public and publishes an Official Report akin to Hansard. Fourthly, the disapplication in the United Kingdom of any ruling of the European Court of Justice or of the European Court of Human Rights unless confirmed by a resolution of the House of Commons, the High Court of Parliament.
And fifthly, the disapplication in the United Kingdom of anything passed by the European Parliament but not by the majority of those MEPs certified as politically acceptable by one or more seat-taking members of the House of Commons. Thus, we would no longer subject to the legislative will of Stalinists and Trotskyists, neo-Fascists and neo-Nazis, members of Eastern Europe’s kleptomaniac nomenklatura, neoconservatives such as now run Germany and until lately ran France, people who believe the Provisional Army Council to be the sovereign body throughout Ireland, or Dutch ultra-Calvinists who will not have women candidates. Soon to be joined by Turkey’s Islamists, secular ultranationalists, and violent Kurdish Marxist separatists. Any provision for a referendum on EU membership must be only the sixth clause of what would therefore become this six-clause Bill, the other five clauses of which would come into effect anyway.
That would be a start, anyway.
Over to the Lib Dems? Hardly! They had been all ready to vote for yet further secret courts, as proposed by Ken Clarke, supposedly the last big beast of liberal Toryism, but in fact a man who was never out of the Thatcher Cabinet, being given responsibility for her flagship health and education policies by the Prime Minister who also signed the Single European Act.
Over to the Daily Mail, then? Up to a point. But you cannot vote for a newspaper.
Rather, Ed Miliband and Jon Cruddas, over to you. As much as anything else, what would the Daily Mail then say? If not “Vote Labour”, then why not? All that Blair managed was The Sun, always a floating voter. Bagging the Daily Mail would put Miliband in a different league altogether. Like winning 60 per cent of the vote in Southern villages that Labour had not contested since the 1970s or earlier, in fact. Or winning Chipping Norton.
Light sentences and lax prison discipline are both expressions of the perfectly well-founded view that large numbers of those convicted, vastly in excess of the numbers that have always existed at any given time, are in fact innocent. We need to return to a free country’s minimum requirements for conviction, above all by reversing the erosion of the right to silence and of trial by jury, and by repealing the monstrous provisions for anonymous evidence and for conviction by majority verdict. And we need to return to proper policing. Then we could and should return to proper sentencing, and to proper regimes in prison, with no suggestion that prisoners should have the vote. But only then.
We need to return to preventative policing based on foot patrols, with budgetary sanctions against recalcitrant Chief Constables. We need police forces at least no larger than at present, and subject to local democratic accountability though police authorities composed predominantly of councillors, not by means of elected sheriffs, which, like directly elected mayors, have no place in a parliamentary rather than a presidential res publica, and are wholly incompatible with the defence, restoration and extension of the powers of jurors, magistrates and parliamentarians.
We need to restore the pre-1968 committal powers of the magistracy, restore the pre-1985 prosecution powers of the police, and restore the network of police stations and police houses placing the police at the very heart of their communities. We need each offence to carry a minimum sentence of one third of its maximum sentence, or of 15 years for life. And we need a single category of illegal drug, with a crackdown on the possession of drugs, including a mandatory sentence of three months for a second offence, six months for a third offence, one year for a fourth offence, and so on.
We need to abandon the existing erosion of trial by jury and of the right to silence, the existing reversals of the burden of proof, conviction by majority verdict (which, by definition, provides for conviction even where there is reasonable doubt), the admission of anonymous evidence other than from undercover police officers, conviction on anonymous evidence alone, both pre-trial convictions and pre-trial acquittals by the Crown Prosecution Service, the secrecy of the family courts, the anonymity of adult accusers in rape cases, identity cards or any thought of them, control orders or anything like them, police confiscation of assets without a conviction, stipendiary magistrates, Thatcher’s Police and Criminal Evidence Act, the Civil Contingencies Act, the Legislative and Regulatory Reform Act, and the Official Secrets Acts.
We need to raise the minimum age for jurors at least to 21. We need to extend to the rest of the United Kingdom the successful Scottish extension of the right to serve on a jury without compromising its restriction to those with a tangible stake in society. We need to repeal the provision for “no win, no fee” litigation, while at the same time protecting, restoring and extending Legal Aid. We need the current judicially imposed arrangement on privacy to be enacted into the Statute Law, but with the burden of proof in libel actions placed on the plaintiff.
We must insist on a return to the situation whereby a Bill which ran out of parliamentary time was lost at the end of that session. On the restoration of the power of a simple majority of the House of Commons to require a General Election, whether by rejecting a motion of confidence or by approving a motion of no confidence. On the restoration of the supremacy of British over EU law. On the requirement that EU law apply in the United Kingdom only once it has passed through both Houses of Parliament exactly as if it had originated in one or other of them. On the requirement of a resolution of the House of Commons before any ruling of the European Court of Justice, or of the European Court of Human Rights, or of the Supreme Court, or pursuant to the Human Rights Act, can have any effect in the United Kingdom. On the restoration of British overall control of our defence capability. On the removal of all foreign forces and weapons from British territory, territorial waters and airspace. On the repeal of one-sided extradition arrangements. And, especially now that Norman Baker is a Minister, on the coroner’s inquest that has mysteriously never been held into the death of Dr David Kelly.
There must be an extension to Scotland of the historic liberties, largely as set out above, which have never applied in that far more oligarchic country, where middle-class institutions and upper-middle-class power have been defined as the esse of national identity, a situation which has been made even worse by devolution’s weakening of the Labour Movement. While this might have been a factor contributing to the retention of more rigorous minimum qualifications for jurors in Scotland, criteria which should be applied nationwide as surely as should be the Scots Law requirement of corroboration of evidence, nevertheless it means that, while there is an automatic right to trial by jury for serious offences in Scotland, the decision on which way to proceed in an ‘each-way’ case lies with the prosecution rather than with the defence. The police have no power to caution, and they proceed entirely under the direction of the locally unaccountable Procurator Fiscal, who does not prosecute unless it is in the public interest to do so, which it is for the prosecution alone to decide and for which it does not have to give any explanation. It is extremely difficult to bring a private prosecution, far in excess of the necessary restrictions on that practice which rightly exist elsewhere. These profoundly illiberal arrangements must change.
And we need legislation with five simple clauses. First, the restoration of the supremacy of British over EU law, and its use to repatriate agricultural policy and to restore our historic fishing rights (200 miles, or to the median line) in accordance with international law. Secondly, the requirement that, in order to have any effect in the United Kingdom, all EU law pass through both Houses of Parliament as if it had originated in one or other of them. Thirdly, the requirement that British Ministers adopt the show-stopping Empty Chair Policy until such time as the Council of Ministers meets in public and publishes an Official Report akin to Hansard. Fourthly, the disapplication in the United Kingdom of any ruling of the European Court of Justice or of the European Court of Human Rights unless confirmed by a resolution of the House of Commons, the High Court of Parliament.
And fifthly, the disapplication in the United Kingdom of anything passed by the European Parliament but not by the majority of those MEPs certified as politically acceptable by one or more seat-taking members of the House of Commons. Thus, we would no longer subject to the legislative will of Stalinists and Trotskyists, neo-Fascists and neo-Nazis, members of Eastern Europe’s kleptomaniac nomenklatura, neoconservatives such as now run Germany and until lately ran France, people who believe the Provisional Army Council to be the sovereign body throughout Ireland, or Dutch ultra-Calvinists who will not have women candidates. Soon to be joined by Turkey’s Islamists, secular ultranationalists, and violent Kurdish Marxist separatists. Any provision for a referendum on EU membership must be only the sixth clause of what would therefore become this six-clause Bill, the other five clauses of which would come into effect anyway.
That would be a start, anyway.
Over to the Lib Dems? Hardly! They had been all ready to vote for yet further secret courts, as proposed by Ken Clarke, supposedly the last big beast of liberal Toryism, but in fact a man who was never out of the Thatcher Cabinet, being given responsibility for her flagship health and education policies by the Prime Minister who also signed the Single European Act.
Over to the Daily Mail, then? Up to a point. But you cannot vote for a newspaper.
Rather, Ed Miliband and Jon Cruddas, over to you. As much as anything else, what would the Daily Mail then say? If not “Vote Labour”, then why not? All that Blair managed was The Sun, always a floating voter. Bagging the Daily Mail would put Miliband in a different league altogether. Like winning 60 per cent of the vote in Southern villages that Labour had not contested since the 1970s or earlier, in fact. Or winning Chipping Norton.
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