Getting It Right

Peter Hitchens writes:

During the frenzy of unreason which followed the July 7th bombing in London and the various thwarted and theoretical bombs involving liquids, underpants and shoes (none of which has ever actually gone off in non-laboratory conditions), the government decided it needed the power to lock terrorist suspects up for 42, and then for 90 days without charge or trial. Many of us objected to this on the grounds that it breached a principle of the law, which forbids imprisonment without trial. And, that principle once having been breached, who knows where it might end?

Now Edward Balls, once a prominent member of that government, accepts that this was unnecessary. He thinks we could settle on 14 or 28 days of arbitrary imprisonment. Well, it's an improvement, and a welcome admission of a mistake, for which Mr Balls should get some credit. I doubt, though, if anyone would be admitting it was a mistake if wiser people had not campaigned so fiercely against these deeply unpleasant and unjustified measures. I'd just about be ready to allow 48 hours at an outside stretch, though I think it far wiser to stick to 24. If the police really can't think of a holding charge by then, or come up with a good reason to deny bail, then the magistrates should automatically order the release of the arrested person.

As for the supposed 'terror' danger, isn't it axiomatic that a person known to the authorities is more or less useless to any serious terrorist plot, which relies totally on surprise to achieve its aims? Once a person has been so much as interrogated, his name will always attract attention on any passenger manifest, his movements will always be subject to a certain amount of surveillance, and only a complete incompetent would use such a person in any terror enterprise.

The reasons advanced for the reintroduction of arbitrary detention for the first time in 300 years (outside wartime) were not only feeble. They were deadly dangerous to the real liberties we enjoy (instead of the fanciful ones, like the alleged ability to choose our rulers, actually non-existent). Why? Because arbitrary detention, as the wise authors of England's (and the USA's) Constitutions knew, means that the state has arbitrary power to ruin the individual's life. Such power will always tend to grow up anyway, and only constant vigilance will keep it at a manageable level. An increasing amount of British law effectively abolishes the presumption of innocence (particularly in some cases involving children), and badly needs to be reformed.

Anyone who has committed a real objective crime, for which evidence can be produced, will not in any important way be protected by these ancient safeguards. If there is convincing evidence against him, he can be found guilty and punished all the more severely because of the strong likelihood that he is actually guilty. What makes these safeguards so worthwhile at any cost (and I note some judge complaining about the cost of Jury trial as if a price could be set on liberty) is that they make it very difficult for those in power to use the courts to persecute their critics and opponents.

This is the reason for the Habeas Corpus Act of 1679, for the existence of Jury Trial, and the presumption of innocence which is meaningless without it, the Petition of Right in 1628, the Bill of Rights of 1689 which reasserted its principles. And that in turn gave rise to the US Declaration of Independence, Constitution and Bill of Rights, whose authors consciously traced their roots to England's Great Charter and the long battle between Parliament and the House of Stuart. I have mentioned here before that, during the making of a programme on the growing threat to liberty, I was allowed to hold in my hands the actual vellum original of the Bill of Rights, and found myself trembling as I did so.

Yet these tremendous documents are now largely forgotten or unknown by supposedly educated people, and their hard, old lessons ignored in the modern passion for 'Human Rights', which sounds as if it is the same but is in fact a wholly different thing. Wise and learned men, whom we look down on as ignorant country squires but whose minds were in many ways richer and more informed than ours will ever be, knew one big thing - that power would be abused if it were not restrained. They knew it because they had seen it at first hand. They protected us against the thing they feared by hard, unrelenting laws which said that the state could not do certain things.

The language of their documents is not usually flowery and rhetorical, like the various Declarations of Rights of Man which have so often been a prelude to dreadful assaults on men. The one exception to this is the American Declaration of Independence, which is rather lovely, but which had to be ballasted and contained soon afterwards with the workmanlike carpentry of the Constitution and the emergency repairs to that Constitution, known as the Bill of Rights. In the grumpy tradition of Coke, Selden and the other authors of the Petition of Right, the British and American Bills of Rights are bald, cold, hard limits on power.

'Congress Shall make no law …’ they say.

As in: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’

Or, in the English original of a century before: ‘That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

‘That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

‘That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;

‘That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

‘That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

‘That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

‘That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

‘That election of members of Parliament ought to be free;

‘That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

‘That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

‘That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;

‘That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

‘And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.’

Or, from the Petition of Right: ‘No freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.’

And: ‘no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by Act of Parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same or for refusal thereof; and that no freeman, in any such manner as is before mentioned, be imprisoned or detained; and that Your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come; and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed or put to death contrary to the laws and franchise of the land.’

All of this led to the USA's even harder, clearer and more codifed defences of free debate, protection against arbitrary arrest and the punitive billeting of troops, not to mention the right to bear arms which, technically, all British subjects still possess (though see my 'Brief History of Crime' for a discussion of how this important liberty has been bureaucratically revoked by stealth). And that is why, despite a startling Germanic culture of bureaucracy and over-willing acceptance of authority, English liberty has survived as well as it has (though now much under threat) in the USA. It has also survived in different conditions in Canada, Australia and New Zealand.

The simple point is that humans can only be free where the state is restrained. 'Human Rights' being an attempt to codify a secular morality on the basis of competing group rights, actually strengthens the state by making the courts the umpires in this competition. It also gives the courts the power to legislate, because its showy vagueness allows them to 'interpret' various phrases to their own satisfaction. Now, it is true that the US Supreme Court has managed to do this with bits of the Bill of Rights, notably the phrase 'cruel and unusual' (itself taken from the 1689 English Bill). But this is obviously intellectually shabby, as no serious person could imagine that the men who drafted this thought that the death penalty was cruel or unusual, or intended that meaning to be conveyed. But it is so much easier to do with the various universal declarations, European Conventions, Canadian Charters and now the European Charter of Fundamental Rights.

This last is full of horrible weasel phrases whose effect is often quite different in practice from its apparent meaning. Nobody may be deprived of his possessions ‘except in the public interest’ (Article 17) which is as tough as wet tissue-paper. The rights of freedom of expression and to privacy ('private life') inevitably conflict. The right to marry and found a family conflict with non-discrimination on the grounds of sexual orientation, which alter the meaning and status of the word 'marry'. The promises of religious 'diversity' make all faiths equal, thus diminishing the role of the one faith which has actually defined Europe and shaped its distinctive civilisation - Christianity. The rights of children are in effect the rights of states and their agencies to intervene in supposedly free families. Articles 47 and 48 on 'Justice' are airy, open to subjective interpretation (and without any means of enforcement). What is a 'reasonable' time? Who judges the impartiality of a tribunal?

We should be prouder of, and better-informed about, the keystones of the astonishing and unusual liberty which we enjoy in these islands and which also exists in the rest of the Anglosphere (though nowhere else). Many other countries may appear on the surface to be as free and open as we are. Switzerland alone has a comparably powerful (yet utterly different) set of mechanisms for keeping the state at bay. Examined closely, most of the world's post-1945 democracies aren't that free. And we are becoming more like them.

If Mr Balls, and others, are prepared to reconsider their rather ruthless view of these matters (and of such monstrosities as identity cards) then it is a good thing for all of us. It is beginning to dawn on lots of people that the terror bogey is an excuse for governments to take powers, rather than a real issue seriously addressed by relevant measures. But if we are to continue to educate Mr Balls and his colleagues on such basic matters, we must know our own history better. It would help if Oxford graduates had heard of the Bill of Rights.