The House of Commons has voted for the provision to enable terrorist suspects to be held for up to 42 days without charge. Though its majority was reduced, the Government nonetheless achieved a majority to get it through. Opinion polls show a majority of the public supporting the provision. One poll also shows that more people think the House of Lords would be wrong to reject the provision than those who think it should reject it.
The House of Lords does not exist to act as a conduit for public opinion, but neither is it oblivious to what people think. My view, which I expressed in response to a comment on an earlier post, is that we have to be prepared to engage with those outside the House prior to taking a decision and then be willing to explain our reasoning once we have done so. We have serious and informed debate in the House but it should not, and does not, take place in a vacuum.
On the provision for 42 days detention, it is likely that the House will vote against it. There is, though, plenty of time to listen to those who take a contrary view. It looks likely that we will not reach the provision until after the summer recess. One problem I have with support for the provision, though, is getting to grips with the argument. Popular support tends to be expressed in rather vague terms, some commentators writing disparagingly of civil liberties – indeed putting the term in inverted commas – and saying that we should be willing to keep people in custody if it will save lives. However, this appears to be premised on an acceptance that the provision is needed for that purpose. My view is that there has to be a compelling case if we are to take such a major step. I would be inclined to support it (a) if there were problems with the existing (extended) period for detention; (b) if the police or security services were making a united call for it and (c) if there was no alternative. None of these applies. There is no clear evidence that an extension is needed (it is designed as a reserve power), there is no clear call from the police and security services (they are divided), and there are alternatives both in the existing law and in proposals such as allowing post-charge questioning.
The provision has been subject to criticism from both the Joint Committee on Human Rights and the Home Affairs Committee in the Commons. There are also major problems with the intended safeguards now included in the Bill. It is clear from the report of the Joint Committee that the provision may well fall foul of Convention rights. Given that, we could always take the line ‘well, let us pass it and leave it to the courts to deal with’. That would be an abdication of our responsibilities. If we believe it to be unjustified, then we have to vote accordingly. We may be wrong, and unpopular, but unless there is a strong case made, which we have so far not heard, I for one will not be supporting the provision.
It’s a tired quote, but very apt in these troubled times:
– Benjamin Franklin.
The British people will regret giving away their freedoms. Any decrease in terrorism will soon be made up for by increases in police abuses of power.
These commentators are just wrong. The cost to society of keeping innocent people in jail is greater than the cost of letting a few guilty people go free (am not just talking about cost in monetary terms either). Just read Tolstoy’s Resurrection to see how well the police state worked-out in Tsarist Russia.
This circumvention of the judicial process is a step along the road to autocracy and a police state. Those commentators would be the first to suffer if the BNP got into power and start abusing those police powers to lockup anyone who criticises them.
If you don’t mind me making a suggestion here: would it not be better to go on the offensive? Using the Internet you can generate real, grass roots support. This blog, and the YouTube videos are a good start, but there’s a lot more you can do (and with relatively little effort/cost).
As a start: get a webcam and spend perhaps ten minutes recording yourself explaining, to the unwashed masses, why 42 days detention is a bad idea. Upload it to YouTube and watch the furious debate begin. There are a lot of demographics who will support you. Geeks being one of them. People on Slashdot (a notable geek gathering ground) are relying on the Lords to throw this bill back to Parliament (read the comments from 1/4 the way down the page, past the rubbish jokes).
It would be good if the Lords would become the conscience of the nation, instead of just the Commons.
Sorry for the rant. 🙂
I like Lord Norton’s reasoning, and find it difficult to fault his examination of the issues – and his conclusion.
In my eyes the case for 42-days has not been demonstrated.
Saying “because we say so” is not a sound argument – and is a position that would not be tolerated in the commercial world.
Facts, gentlemen, facts.
Kill 42 Day Detention !!
Kill Lisbon !!
Kill Kill Kill !!!
You state:
“(b) if the police or security services were making a united call for it”
Excuse me, but when did the Police or the Security services suddenly have a say in how our freedoms are determined. That is the fine line to what is called a Police State.
Is this is the same security services who advised on going into Iraq, or the same police force that has been proven to be institutionally racists? Hardly a bastion of what is right or wrong for the public. They are public servants do not forget that.
I am astounded that you even cite this as a possible reason for acceptance. So what if they were making a united call for it? It is absolutely no reason at all.
Let’s have none of this non-sense please.
Sorry for the multiple posts but Liam’s comment on
It would be good if the Lords would become the conscience of the nation, instead of just the Commons.
No it would be a sad state of affairs if the Lords became the conscience of the nation. We have too many ‘consciences’ of the nation already (Press, TV, certain Radio Stations, Single Issue Parties) aside from this being a myth and of which none does a particularly good job. Or are you talking about mob-rule?
After all, don’t polls continuously show that the ‘conscience’ of the nation would like to bring back capital punishment? and that the nation apparently (64% I think) want the 42 day detention?
I look for impartiality with the Lords and at least some kind of debate without the personal/party interest and hystrionics that we see in the Commons at times.
Let’s not forget either that many people haven’t forgiven the Lords over the Fox Hunting debacle and as to the slashdot comments, I have read that thread too – even there it seems that people simply think that the commons will ‘just use the parliament act’ to force it through anyway. I don’t happen to believe that (yet), but I want my Lords as far away from the nation’s conscience as possible.
I’m not convinced that the majority of the public are in favour of 42
days. Certainly in my circle of friends I have yet to find someone
argue in favour of it.
I think I lot of the heat comes from the framing of the question.
You’ll get very different responses from the question “Should we lock
up terrorists for up to 42 days so we can be really sure of convicting
them rather than letting them go free to blow up your children?” to
the question “Should we hold an innocent person in prison for up to 42
days because they are a Muslim and we haven’t finished looking at
every aspect of their life yet”.
Obviously I exaggerated those two questions for effect however I
suspect most people answering the polls are thinking of actual
terrorists rather than innocent until proved guilty suspects. The
strong implication the government makes is that people held for
28 days and released have been terrorists they haven’t been able to
charge yet, while some are certainly just innocent people. It would be
interesting to hear from people released without charge about
exactly what sort of effect 28 days detention had on them. All I can
think is it would make me more distrustful and resentful of the state
which is hardly the wanted effect.
It’s my hope the Lords will reject this bill and send it back to the
commons to think again about what they are about to do. And I really
really want a proper national debate about these issues. Not the
megaphone hectoring of certain sections of the press lumping us civil
libertarians as bin Ladens biggest fans!
We’ve already seen some sensible discussion here about referendums; why should we consider polls to be a better gauge of public opinion? Polls are even more likely to be spun, depending on the payer, and the public are even less likely to give considered thought to the question when they know it won’t affect anything.
Surely the only important criteria for judging legislation should be: will it be effective? and: does the outcome justify the cost (social as well as monetary)? I don’t see that 42 days detention qualifies on either of these.
(In terms of the poll, I wonder what the result would have been had the question been:
“If the Police suspected you of a terrorist offence, would you object to them holding you for 42 days without charge?”
When framed in terms of some other person, I would imagine one is more likely to presume guilt, whereas the basis of our legal system is the presumption of innocence.)
I think it is highly laudable that you, Lord Norton, can sit down and look at the facts without the lens of party politics, lobbyists, or public opinion. It seems that recently, the free world which champions our democracies and freedoms so much to the rest of the world has been giving them up, inch by inch, in the name of protection from terrorists. The UK is not alone here, as the US has been trying to take freedoms from its citizens guaranteed by the constitution in the name of terrorist protections (see: gun rights, Patriot Act, etc). We definitely need more people like Lord Norton in this world who are in government. I think the following quote sums up the best general rule of thumb for government:
“That government is best which governs least.” — Thomas Paine
James
Texas, USA
Mob rule? No. Am talking about an intelligent, reasoning counterpoint to tabloid journalism.
The Lords will hopefully throw this back to Parliament; there’s nothing wrong with garnering support among the people for that.
I share the comments by Alex Bennee. I’ve tried to find the original question, too. However, looking through the Telegraph comments to see if 69% of their readers shared the YouGov results (they don’t) I came across this:
“…Under Corpus Juris (invented by the Roman Emporer [sic] Julian for the benefit of other dictators) once a warrant is sworn out by a Justice anywhere in the EU, the accused will be transported to a jail in the region of issue of the warrant. There he will be incarcerated for up to 90 days, without necessarily being informed of the charges against him, or being shown the evidence. At the end of 90 days, the Justice who issued the warrant can issue an extension of 30 days, not just once but again and again. It is not unheard of for an accused to spend two and a half years in prison, without being informed why.” (Comment #78)
http://www.telegraph.co.uk/news/yourview/2106506/Do-you-back-42-day-detention.html
I was under the impression that CJ had been thrown out by the UK, and the EU. However, the fact that in 1997 the EU had dreamed this little number at all means I would be concerned to depend on the robustness of the Human Rights Act at the EU level.
Keep out this 42 days provision for as long as possible, force Brown to use the Parliament Act, and we’ll see if 69% vote for him in the General Election.
No smiley intended – the comment’s number is 78, for reference.
I think many of these replies have been rather disingenuous.
For instance, and these are quite prevelant examples;
I think it is highly laudable that you, Lord Norton, can sit down and look at the facts without the lens of party politics, lobbyists, or public opinion. It seems that recently, the free world which champions our democracies and freedoms so much to the rest of the world has been giving them up, inch by inch, in the name of protection from terrorists.
The way this is phrased implies that Public Opinion, Lobbyists and Party Politics are all somehow to be derided, and yet the word democracy is used. Tell me what democracy is without Public Opinion? Do you really mean that Public Opinion is not your own opinion and therefore it must be a ‘negative’ thing?
I don’t mean to be offensive or berate here, but again in another thread above;
We’ve already seen some sensible discussion here about referendums; why should we consider polls to be a better gauge of public opinion?
Again, how are we to guage public opinion without polls? What is public opinion but someone asking another person a question. How does this discussion differ from the letters page or radio phone-ins, television discussions etc?
Of course the way a question can be phrased can mislead the questioner, but it is simply not good enough to ignore or disparage public opinion just because you don’t happen to agree. What is a referendum if not a poll of public opinion?
What irritates me is the inconsistency here from all parties (and to some extent the Lords), Public Opinion was that Fox Hunting should be banned yet it took the Parliament Act to push that through. Then we come to the ‘Europe, in or out’ question and again, Public Opinion (no matter how it is spun) was brought to the fore, yet here with the 42 day detention question, Public Opinion now seems to be irrelevant and has scorn poured over it.
Also, the comment about let’s see if 69% of the population vote for Labour at the next election is also rather missing the point. People won’t vote out Labour because of the 42 day issue, they will vote out Labout because of the economy – inflation, job losses, house prices and so on. Remember how everyone (look! Public Opinion again) was so against Iraq, and yet…yet Labour got voted back in.
I’m sorry to belabour the point, but we cannot simply disregard what the Public Opinion is, no matter where it comes from. Also, I would be interested to know what kind of ‘Lobbyists’ would be lobbying for 42 day detention?
@wcobbet:
You said, speaking of my previous comment: “The way this is phrased implies that Public Opinion, Lobbyists and Party Politics are all somehow to be derided, and yet the word democracy is used. Tell me what democracy is without Public Opinion? Do you really mean that Public Opinion is not your own opinion and therefore it must be a ‘negative’ thing?”
Certainly lobbyists are to be derided. Paying representatives (through perks) to get a bill passed that favors them is cowardly and underhanded. Representatives need to listen to the people that they represent, not some big corporate entity. Lobbyists are exactly the reason why prescription drugs cost so much money in the United States (there was never any legislation passed to regulate it). Even though the representatives need to listen to the people, there are certainly times when the people are clueless about a certain bill because they have been misinformed by the media (which is the only way most people can know what is going on in politics). I know of several examples of this that has happened in the US where the media coverage causes people to believe certain things that are simply not true. There are also times when the people have been scared by some traumatic event (see: Sept. 11th, 2001) and due to hysteria are willing to give up their freedoms. In that instance, it takes a representative who can see past the hysteria and media antics and try to discern what the founders of the constitution originally had in mind when writing it. Finally, party politics will put pressure on representatives to vote a certain way to fit the party agenda rather than looking at the facts and weighing the consequences of passing the bill or not. For most of party politics, right or wrong is irrelevant to them; the only goal is to achieve the party’s agenda.
Obviously, the people are the source of democracy, but there are many times when the people as a whole become like that of a mob and are willing to just throw in the towel on freedoms. Should a representative allow their own countrymen to give up freedom that was fought and died for? I say certainly not.
Thanks for the comments. It is very encouraging that this post has attracted the interest that it has. (Likewise with the other posts on this blog – the level of interest and willingness to comment is appreciated.) I am grateful for the points advanced in support of what I write.
wcobbet: My inclusion of the views of the police and the security services as one of the factors to be considered did not mean that if they were united in calling for 42 days detention that this would be decisive. It would, though, along with the other factors I listed, be something to be taken seriously. The same with public opinion. One should not slavishly follow either, but then again I would not simply brush either aside. One would need to know why they were taking that view and consider it in the light of the arguments against extending the period of detention. I agree with your point about political parties. They tend to utilise public opinion polls in rather the same way that drunks use lamp-posts: for support rather than illumination.
I think Alex Bennee, Jonathan Hogg and others make a valid point about the nature of the question. Much does depend on how you word it – which is why you have to be careful in checking the wording of survey questions (and indeed referendum questions). I think Jonathan Hogg makes the point well with his suggested question.
On the question of whether the House of Lords should become the conscience of the nation, it rather depends on what you mean by conscience. It strikes me that the argument here is premised on different definitions. I would not interpret it as meaning expounding the will of the majority but rather taking a stance on the basis of clearly articulated principles.
Sorry, it sounded like a good sound-bite, probably bad use of language.
Exactly. Use your own, reasoned, intelligent views to inform the public. Extra kudos points for disagreeing/debating/questioning each other in public (this sort of thing, for example). Am not thinking of a propaganda tool here, but ways of helping the public overcome the fear and anger mongering of tabloid journalism. This blog, and the accompanying YouTube videos are the first step down this road, in my opinion. There’s lots more that could be done though, I expect the Lords probably know all this and I’m just preaching to the choir. 🙂
There are two other points about polls that don’t seem to have been mentioned:
The context of the question: with no context, ‘do you agree that terrorist suspects should be detained for 42 days in exceptional circumstances?’ Almost sounds reasonable (substitute that for whatever the question actually was). However, put this question in the context of the current government, whom very few people seem willing to trust, and there is an outpouring of anger against it. Maybe people believe the current government will abuse this power (as has happened with RIPA). Not sure that Have Your Say is entirely representative, however it does lead to a second point: consensus.
Consensus: if ~70% of people glibly answer ‘yes’ to a poll question (without really thinking it through and actually just wanting to get on with their shopping), yet ~20% of people have thought it through, and are vehemently opposed, should the bill still be passed? If the people were educated on the subject, and had proper guidance, would the answer still be ‘yes’?
Fantastic analogy. Not trying to tell us something about your journey home last night are you, my lord? 😉
Liam: Walter Bagehot, in ‘The English Constitution’ identified among the functions of the House of Commons an ‘educative’ function, informing people of that of which otherwise they would be unaware. I think the same applies to the House of Lords. However, that does not mean that the flow is one way: we have to have mechanisms in place so that we can hear what others are thinking. However, where we have a strong case I think we should be prepared to argue it and, I agree, not necessarily in a defensive manner. When I believe in something, I am more than prepared to argue it in the House and in any arena. You also raise an important point in terms of what weight we attach to views that are expressed. This observation has relevance also to the discussion on referendums. Do we go for breadth or depth? On your final point – I’m teetotal! And lest I be accused of plagiarism, I should report that the lamp-post analogy is not original to me.
It saddens me that the Government is so adamant about a proposal that attacks Civil Liberties and does nothing to protect. If they don’t value that our values, life and democracy stem from Civil Liberties then I have a practical argument for them:
Wrongful holding of people for such serious charges would increase the alienation felt by those who already feel alienated.
I am so glad that the House of Lords exists to consider things in calmer light.
I believe in democracy and fear that this Government is hell-bent on destroying it.
Ah, please forgive me that silliness. Radio 4 comedy has tainted my view of The Lords. 🙂
Unrelated, are you interested in hearing suggestions for the site? I’ve a couple of ideas, but will keep quiet if you’re already being advised/still finding your collective feet.
I’ve been looking around trying to find the governments justification(s) for 42 days detention (why that specific number and not 40, or 44?) but haven’t been able to find it.
Anybody got any leads?
Sorry for the late comment. protectthehuman.com have just launced a petition.
JJS: My understanding is that the figure of 42 is essentially an arbitrary one and there is no ostensible rationale that would render it preferable to, say, 38 days or 44. I have yet to see anything compelling to render it preferable to 28 days.