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Magazine
CAMBRIDGE LETTER
How right is it for a wrong?
BILL KIRKMAN
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The legislation that has come in the wake of undoubted threat of terrorism has evoked controversy in the U.K.
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AP Photo
In the face of criticism: Gordon Brown
By the time this article appears, the United Kingdom House of Commons should have voted on a government proposal to increase from 28 days to 42 the period for which someone may be held without charge. The government has claimed that the increase is a necessary response to the undoubted threat of terrorism which the country faces.
The proposal has been highly contentious. There has been great anxiety about it on the back benches of the Labour party, the party which forms the government. The decision to introduce the legislation has led to great criticism of the judgment of the Prime Minister, Gordon Brown. There has, of course, been no suggestion that the new detention powers would be used other than in exceptional circumstances, and, faced with strident criticism, the government has tried to build in safeguards.
Quite clearly, the controversy over this legislation has reflected and underlined serious political disagreements. Quite clearly, too, criticisms of the proposal to put it forward, at a time when the government, and Gordon Brown in particular, have been under much pressure, have added to the doubts about his leadership.
Fundamental issue
For many people and it is certainly my view the real issue about the legislation is not party political, and not, indeed, mainly political at all. Much more importantly, it raises a fundamental issue of constitutional rights. As many people have pointed out, it touches on a right introduced to Britain in 1215 by Magna Carta. This charter, which over the years has been crucial as a constitutional basis (for a country which still does not have a written constitution) required the King to renounce some royal rights, and made his power subject to the law. Most significantly, it introduced the writ of habeas corpus, which allows appeal against unlawful imprisonment. This point was strongly made by Sir John Major, the former (Conservative) prime minister, in an article in The Times on June 6. He wrote that “In their response to the security threat ministers have dragged us ever closer to a society in which ancient rights are seriously damaged. I doubt this is the Government’s intention, but it is the effect. It began with Iraq”. He makes the point that if we defend our values in a manner which does violence to them we run the risk of losing the values, and what is more the fall in our standards will serve to recruit terrorists “more effectively than their own propaganda could ever hope to”.
The proposals have been strongly criticised also by the Joint Committee on Human Rights. Andrew Dismore, who chairs that committee, stated that ministers had not provided any evidence that would justify the extension to 42 days of detention without charge, from the current 28-day maximum, which is itself controversial.
Critics of the proposed legislation include the director of Public Prosecutions, and a former Attorney General. Furthermore, it is significant that other countries in Europe, and the United States, do not have similar provisions.
John Major’s point about this legislation being likely to encourage the terrorists whose activities it is intended to tackle rings true. If it is true, it provides an important practical and political argument against the legislation.
Significant factor
That, however, is still not the main point. Basic constitutional rights, and their protection by the law of the land, are surely more important than political expediency. We all know that there are occasions when someone we feel to be guilty escapes conviction because the evidence of guilt is not found. In a legal system in which people are innocent until proved guilty that can happen but that is surely better than a system under which someone whom a government thinks may be guilty can be locked up without charge. Indeed, one of the main points about an independent and objective legal framework is that its objectivity and independence are not qualified by political concerns or by popular prejudices.
To say that is not to argue that the threat of terrorist attack is not real. Nor is it to imply that the threat is exaggerated. Most of us, obviously, hope that potential terrorists will be caught before they can carry out their terrorist mission. Most of us are conscious that it is not possible to achieve perfect protection against risk.
That hope, however, and that recognition of the reality of risk, surely do not provide justification for draconian legislation that is counter to one of the fundamental principles on which our legal system is based.
Bill Kirkman is an Emeritus Fellow of Wolfson College Cambridge, UK. Email him at: bill.kirkman@gmail.com
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