The Obscurer

David Davis’s decision to stand down as an MP and fight a by-election on the subject of civil liberties, be it brave, foolish, principled or vain (and it is probably all four), will only become interesting to me in the unlikely event that it resolves some of those unanswered questions raised during the debate over 42-days detention. I have to doubt that Davis can provide me with those answers by fighting shadows in a by-election when a he didn’t manage it as shadow home secretary, but if he pulls it off he will have done me a great service.

I think I am a bit erratic on the matter of civil liberties. I am dead against ID cards, although for now it is mainly for the pragmatic reason that they are a monumentally ineffective waste of time and money. I similarly oppose the proposed database that will run alongside the cards, but I can see some worth in the similarly gargantuan NHS “spine”. The DNA database’s reach is far too extensive, but the profusion of CCTV cameras, whether state or privately owned, does not leave me over-fussed. On the matter of detention without charge I opposed the extension to 90 days in terror cases and I oppose the 42-day move now. I’m all over the place really, although perhaps no more than David Davis himself, a curious “libertarian” who despite his recent protestations is socially conservative and an authoritarian on many issues, supporting the repeal of the Human Rights Act and also – as many have pointed out – in favour of the death penalty. So while he is appalled by the metaphorical “slow strangulation of fundamental British freedoms” he is far more relaxed about the literal, brisker, honest-to-goodness strangulation of a human being in a noose. He is against the state retaining our DNA and storing it in a vial but is happy to afford it the power to erase us from the face of the earth.

It is easy to pick holes in what passes for the government’s case for 42-days. I have little doubt that Labour’s main reason for pushing the bill forward was political, to triangulate and to sound tough on terror while painting the Tories as weak. Certainly it is the case that some terrorists have been held right up to the current 28-days limit – just as the previous limit of 14-days was occasionally approached – but isn’t that the way with deadlines? If I am given 4 weeks to complete an assignment then it will take me 4 weeks; give me a 2-week extension and it will take 6 weeks.

And yet; I am not whole-hearted in my opposition to this bill, primarily because as I have no experience of investigating a terror plot I have no knowledge of what it actually entails. Certainly the government hasn’t effectively made the case for why the change it is needed, but the opposition hasn’t convinced me that it isn’t. It is an unpleasant feature of our parliamentary democracy that the whips operate to push MPs through the lobby to vote for their party rather than with their conscience and some of the reported horse-trading in last week’s vote reflects badly on the government, but I have heard far worse cases of bullying and intimidation under previous votes and governments; the whips work on both sides and it would be interesting to see how a genuinely free vote would have gone when many Tory MPs would have voted for 42-days rather than against the government. Much of the opposition case seems to be shrill and hyperbolic, to exhibit some unavoidable gravitational pull towards Latin, where Magna Carta, habeas corpus and cave canem get waved around for no very good reason, and where opposing 42-days is made to sound synonymous with supporting civil liberties. Sure, many of those in favour of 42-days can also some make utterly stupid points in response by, for example, saying they don’t care how long terror suspects are banged up for as long as we are kept safe, but I can easily dismiss such Daily Mail-style wing-nuttery as I don’t feel the need to understand and sympathise with such rabid nonsense. Not so the arguments made by liberals, and David Davis; but the latter’s speech to parliament in the debate on the bill was typically full of emotive talk of innocent people being dragged from their homes in the early hours and hurried away from their famillies and jobs to be slammed in a cell for weeks on end; true, of course, and uncomfortable to admit perhaps, but these facts apply as equally to the 28-day limit which Davis supports as to the 42-day limit he opposes.

But it is when the bills opponents compare the UK’s record with other countries that I become most concerned about the arguments being made. It is commonplace to blithely state that we already have the most draconian terror laws going, and Liberty published a document detailing how out of step the British legal system is, but what does that mean? Some things don’t seem to add up. Italy, for example, is said to be able to make do with a mere 4 days detention prior to charge, yet in the Meredith Kercher case I remember it being stated that the suspects can be held for up to a year pending investigation, the 4 day limit apparently being for the courts to authorise the initial arrest. Italy is a civil-law country and so the comparison may not be exact (which is part of the problem here) but what of other common-law countries? In the United States, when not being held indefinitely in Guantanamo Bay, Liberty state that suspects can only be held for 2 days prior to charge, but again comparisons seem misleading. My understanding is that in the States it is the norm to charge suspects with a lesser crime and then use post-charge questioning to get at the real reason for the arrest; but is that really any improvement on the British system? It doesn’t seem a victory for civil liberties if we move over to a procedure where you can be arrested for some trumped up trifle – tax evasion…jaywalking? – and to then be held for as long as a friendly judge refuses bail. You still won’t know why you have really been arrested, you still can’t prepare your defence for the genuine case ahead, and it all seems to lead to a far less transparent system, with nothing like the judicial oversight that exists in the UK. In Canada, another common law country, under most circumstances charges actually need to be laid prior to an arrest – which certainly suggests a low level of evidence is required – and anyway within 24 hours. It beggars belief that the Canadian and British police are working under truly comparable systems or else we have to believe that our coppers are 42 times more lazy than the Canadians; but I guess I don’t know.

My problem here is that while I instinctively support Liberty in its endeavours some of its claims seem disingenuous which undermines the case, as if they are playing fast and loose with the evidence in order to take a utopian line on civil liberties. It is easy to oppose 42-days on a high-minded principle when it isn’t your arse on the line if the current 28-day limit means you have to let a genuine terrorist go free; easy to tell others how to do a job you have no intention of doing yourself and to still keep yourself free to criticise if things do go wrong; easy enough to do it and stay put. No, the antis haven’t convinced me of their case; ultimately it comes down to how much time the police actually need to do the job, and that is something I simply don’t know.

But the antis don’t have to convince me, it is the pro-42-dayers who are seeking a change to the status quo, it is they who have to do the convincing. Some senior police officers may well want more time to question suspects, but who wouldn’t like more time in which to do their job? Just because they want it doesn’t mean they need it; if the police are given 42 days then they will certainly use them, but while that could be out of necessity it is as likely to be out of risk-aversion, to continue to hold people against whom there is no evidence just to be on the safe side. Neither side in this argument has persuaded me, but liberty is too vital an issue to take lightly. As in law, then, it is for the Crown to make its case beyond reasonable doubt. This is something it has signally failed to do.