Tuesday, April 25, 2006

The Great Civil Liberties Debate

Over the past few days, a quite startling debate has opened up in the UK between the Government and journalists from the country's left-wing broadsheets, most notably the Independent and the Guardian. Of course, the Government's record on civil liberties since the terrorist attacts of September 11 2001 have long been the object of criticism from both left- and right- wing columnists, and these attacks have intensified as proposals for the introduction of national ID cards have concretized.

The debate seems to focus around two journalists, Henry Porter from the Guardian and Simon Carr from the Independent, who have been among the most vocal recent critics of the Government's record on civil liberties. Porter, in particular, has published a number of opinion pieces in this regard. Blair attempted to respond in very much his usual manner, with a broad sweep at the issues in general in an article in the Observer. All of the familiar elements are there in this piece: his acknowledgement of the bona fides of his critics, while asserting that they are wrong; his refusal to characterise the debate as one of liberalism v. illiberalism, insisting that instead it is in terms of modernity that it must be understood; the related claim that the world in which we are now living is fundamentally different from that of even ten or fifteen years ago, requiring different legal solutions; and his plea for the public to trust him.

It was, however, by his standards something of a lacklustre article; and it certainly didn't serve to quieten the growing criticism on the issue. Thus it is that the Government has decided, in the past week, to get personal. The Observer published on Sunday an email exchange between the Prime Minister and Henry Porter, in which the latter responds directly to the claims of the former. Furthermore, in what must have been a concerted move, Charles Clarke, the Home Secretary, released a lengthy, point-by-point rebuttal of the claims made in one Independent article by Simon Carr. Clarke has gone even further, publishing a comment piece in todays Guardian, accusing the Government's critics of "lazy and deceitful" journalism - a far cry from Blair's earlier recongnition of their bona fides.

To me, these latest pieces by the Government are a much more effective means of taking their arguments to the public than the general approach adopted by Blair earlier porved to be. For almost the first time, we get a glimpse that there is genuine anger about the way in which their actions have been portrayed by journalists who, until now, could expect not to be singled out by name for any errors, reductions or half-truths in their work. That, it seems, has changed; consider Blair's opening paragraph in response to Porter's email: "Frankly it's difficult to know where to start, given the mishmash of misunderstanding, gross exaggeration and things that are just plain wrong".

What the pieces by Blair and Clarke do, and do well, is to point out the technical reasons for the introduction of certain laws, and through this manage to make the self-important, almost pompous tone that someof the criticism occasionally and regrettably descends into appear a little absurd. For example, where Porter claims that the Goverment's curtailing of the right to trial by jury is part of a paring down of our liberty at an "astonishing rate" (making Blair in the process "a serious threat to British democracy"), the Prime Minister calmly points out that this is to be done only in a number of serious fraud cases, which can last years and put unreasonably time pressures on members of the public. Further, it is clear that, given the techincal complexity of these cases, having a lay jury may well be an impediment to rather than a guarantee of justice. He makes similar points in relation to the right to silence, amongst others, and, to my mind, comes across, in that exchange at least, as the more measured and reasonable of the interlocutors.

And this is perhaps the most frustrating thing about the debate. By seeking to attack the Government on as many civil liberties questions as possible at once, its critics all-too-often allow for weak argument, which rely upon hyperbole and the existence of the other, stronger arguments for all apparent strength of their own, to creep into their work. For example, in the second paragraph of his piece, Porter attacks the fact that

the right to trial by jury, the right to silence, the right not to be punished until a court has decided that the law has been broken, the right to demonstrate and protest, the presumption of innocence, the right to private communication, the right to travel without surveillance and the details of that journey being retained - all have been curtailed by your legislation.

As suggested above, many of these can be responded to with relative ease: jury trials are gone for limited serious fraud cases only; the right to silence was curtailed, in very limited cases involving children or vulnerable adults as victims, as far back as 1994; etc. In attacking these claims one by one - which, in reality form a very small part of Porter's criticisms - Blair appears to be giving a very full, frank and reasoned rebuttal of all of the points raised. In fact, to my mind, he does not even begin to formulate a response to the most powerful of the criticisms.

Thankfully, in the conext of the Porter - Blair exchange, subsequent emails allow the former to return to make the more important points again. One is the point that, for all Blair's protestations of the highly limited cases in which new powers will, in fact, be used, it may well be more difficult to limit the precedent once it has been set, so that "Lord knows how all this may be abused by future governments". To this point, Blair does not really respond. Also, Porter quizzes Blair in terms of one of the central themes of his defence - that these protections are what the public wants, and that those who criticise them are "out of touch" with what the public want - with the very valid assertion that civil liberties are often there to protect individuals from the whim and caprice of the majority; in this regard, Blair's populist justifications appear to be simply the wrong type of argument to achieve the result he seeks. Again, Blair does not answer this particular criticism.

A related, but more interesting defence formulated by the Prime Minister, however, is the idea that, by insisting on civil liberties for suspected criminals, we of necessity infringe upon those of the law-abiding majority:

I just think the practical effect of following the course you set out is a loss of civil liberties for the majority. In fact, a better criticism of the politicians, including myself, is that we need to do more on rehabilitation for prisoners, activities for young people, and community engagement with the disaffected and alienated within our society.

He is, of course, quite right regarding his second point. He is, I think, also correct in his assertion that human rights have moved beyond simply that of the individual against the state, and that individuals can be seen as violating the human rights of others. Blair thus talks of the right to go on the tube without being bombed, the right to live without being the victim of antisocial behaviour, etc. These rights, of course, will always have to balanced against each other in a necessarily messy and imperfect dialectic, the outcome of which will always be debatable. One thing to bear in mind here, however, is that, as Blair openly acknowledges, a set of laws already exist within ordinary criminal law to defend the majority against these infringements of their rights; granted, they are never 100% effective, but the protections are nonetheless in place. Against the overwhelming coercive power of the state, however, the individual has little or no protection beyond his civil liberties. When seeking to impair these to defend those of the majority, the already-existing protection imbalance must be taken into serious consideration; Blair's claims simply do not do this.

This debate, then, could be about to get interesting. Too much of it for too long has been conducted in generalities, reductions, simplifications and pompous rhetoric - on both sides. If it is allowed to stagnate into an abstract "Civil liberties v. security of the majority" controversy, then nothing of any intellectual or practical use will be achieved. If, on the other hand critics begin accepting those Government arguments that are persuasive on certain points, and cease the attempt to beat it with the biggest and broadest stick possible, and the Government is prepared to moving beyond the repetition of mantras ("out of touch", "civil liberties of the majority", "tragic events of 7/7") and engage with the strongest, as opposed to the weakest, criticisms of their actions, then we may just have the makings of an interesting and useful conversation.

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