Simon Carr: Brave New Britain

How the government is stealing our freedom - a sobering thought for the New Year
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The third of the dark rules of politics states: "Pay no attention to what politicians say, only what they do." The Government declares itself committed to restoring a vibrant, civil society. But the political theme that has emerged over the last five years is, predictably perhaps, precisely the opposite.

The third of the dark rules of politics states: "Pay no attention to what politicians say, only what they do." The Government declares itself committed to restoring a vibrant, civil society. But the political theme that has emerged over the last five years is, predictably perhaps, precisely the opposite.

In a wide range of laws, often opportunistic reactions to one-off events, ordinary people are disempowered while officials and experts are given the whip hand. Increased surveillance, intrusion, arbitrary powers, detention, seizure, state secrecy and the suppression of dissent are the hallmarks of New Labour in action.

Here, then, follows a selection of some of the measures taken, about to be taken, or proposed to be taken. One by one, they may seem inoffensive. As a collective, they are impressive.

Disclosure

The freedom of officials and experts to access information on our private lives has been given a generous boost in the last couple of years. Information from a wide range of sources – the Office for National Statistics, the National Health Service, the Inland Revenue, the VAT office, the Benefits Agency, our school reports – can now be collated into a file on a citizen, without a court order showing cause why.

David Blunkett's Anti-Terror Act says: "Public authorities can disclose certain types of otherwise confidential information where this is necessary for the purposes of fighting terrorism and other crimes." The phrase "other crimes" is not defined.

Some proposals put forward in Bills

Phone and e-mail records to be kept for seven years. The extension of child curfews. Keeping DNA of those acquitted of crimes and of "ex-suspects". Restrictions on travel of those convicted of drug offences; the extension of compulsory fingerprinting for those cautioned of a recordable offence; and public authorities authorised to carry out speculative searches of the DNA database.

It will be a criminal offence to disobey a police officer who has told you to leave a demonstration outside any residential property. It will be an offence to attend a demonstration wearing a mask or painted face.

Liberty, the human rights organisation, comments: "A substantial number of the much-trumpeted powers brought in over the last 10 years are in fact unnecessary, because the police and others have been Hoovering up new powers since the beginning of the 1980s (about 85 Acts dealing with crime and criminal justice since 1981).

Social Security Fraud Bill

This will allow officials to compile a financial inventory from our bank accounts, building societies, insurance companies, utilities companies, telecom companies, and the Student Loan Company. Every number on our phone bills may be reverse-searched for an address. There may be no evidence that we are involved in fraud for us to be investigated – we may merely belong to a demographic group of people that experts feel is "likely" to be involved in fraud (men, perhaps, or women).

Trial by jury

Jury trials are to be abolished for a wide range of offences including assault, theft and drugs. A magistrate will decide what form the trial will take – whether by magistrate, stipendiaries or by jury.

The House of Lords has twice blocked attempts to abolish this ancient right. The Government's third attempt has been bolstered by a report written by Lord Justice Auld (at the Government's request). Lord Justice Auld says abolition of trial by jury will limit the number of "perverse decisions" by juries.

Interestingly, Lord Devlin was a great defender of "perverse decision", as giving "protection against laws that the ordinary man regards as harsh and oppressive".

Indeed, 19th-century sheep-stealers, modern mercy killers, peace protesters, whistleblowers and elderly shoplifters have all benefited from "perverse" juries refusing to convict them. Such juries defy evidence, the law and the judge's instructions. Perhaps they believe the sentences are disproportionate to the crime. Perhaps that the law is odious or idiotic.

Justice for 18,000 people a year will now be delivered by legal experts and officials rather than by a jury of peers. Magistrates convict very significantly more than juries.

Planning

Elected county councils are to have their planning powers stripped from them, to allow faster building development. It now appears that the planning permission for 3.8 million homes will be approved by officials and experts, with advice from politicians. Stephen Byers describes the proposed system as "fairer".

Habeas corpus

In response to the events of 11 September, the Home Secretary David Blunkett determined that terrorism was "threatening the life of the nation", so he abolished habeas corpus. As a result of the Anti-Terror Bill passed before Christmas, certain people may be locked up without trial. If tried, the court proceedings may be in secret. Prisoners needn't hear all the evidence against them. Defence lawyers would be hired by and respon- sible to the court. The lawyer wouldn't have the right to see the accused or the evidence. Officials, legal experts and politicians will administer this system of justice in secret.

Business bribery

Officials in Britain will have the power to regulate exporters' commercial behaviour outside Britain. Exporters dealing with countries where bribery is culturally tolerated (indeed, required) will find a new difficulty: exporters may be prosecuted in Britain for offering inducements, perks, commissions, gifts to local business people.

Freedom of Information

This was promised as a significant addition to the power of individuals vis-à-vis the state. The White Paper drafted by David Clark was hailed as a state-of-the-art piece of legislation. The then Home Secretary Jack Straw and Tony Blair had it dismantled and rebuilt on very different lines. The Act is no stronger than the code of practice laid down by the Tories – it requires public bodies to provide citizens with information, unless ministers don't want it to be provided. The Information commissioner may insist the information be released, but the decision doesn't have to be obeyed. A charge may be levied for each document released.

European arrest warrant

Offences committed anywhere in the EU can be pursued on a standard Euro-arrest warrant. If a British national returns from holiday having committed an offence in Greece (photographing planes, say), a warrant can be issued in Athens, the accused will be arrested in Britain, taken to Greece and held for trial. The warrant applies to offences not against the law in Britain. Xenophobia is a criminal offence in Europe. Lord Lamont asked whether a tabloid editor using the term "Huns" or "Frogs" before an international football match might be arrested in Britain under this arrangement. Lord Scott said that the answer was, essentially, yes. Lord Lamont says: "It will no longer be necessary for any evidence to be produced against the suspect. Nor will the accused be allowed to argue that he won't get a fair trial. The request is the end of the matter."

Combating the new class of terrorist

European interior ministers have agreed on a definition of terrorism. It includes people "who hoped to seriously alter the political, economic or social structure" of the EU. This will include Eurosceptics, Marxists, hunt saboteurs, GM crop activists, anti-road protesters, fuel protesters, and carnivalists against capitalism.

Double jeopardy

A defendant acquitted of a crime can be re-prosecuted, if new evidence emerges. Liberty says that no acquittal will ever be felt as final. The draining experience of a court trial will never be dispatched. The reputation of acquitted defendants will never be fully cleared: "At a time when the criminal-justice system is straining under the weight of numerous changes, we question the virtue of such a proposal on pragmatic as well as principled grounds."

Taking passports from football hooligans

The court must be satisfied merely that there are reasonable grounds to believe that making the order would help to prevent violence or disorder. Presumably, any previous involvement in related offences would provide reasonable grounds. A football-related offence might include drink-driving to and from a match. Or celebrations at an after-match function. Or disorder in a pub where a match was playing. A player's offensive gesture to the crowd could attract a private prosecution for disorderly conduct.

Convictions could result in an up-to-10-year ban from all football matches, restriction of foreign travel and perhaps de facto imprisonment at a police station during domestic football matches. An officer might issue an order to a fan requiring him to attend a magistrate's court the next day to defend their right to attend matches. Failure to comply would represent an imprisonable criminal offence.

Detaining mental patients without treatment

"An individual with any form of mental disorder can be detained against their will, even if they cannot be effectively treated and have not done anything wrong, on the basis that they pose a risk to others." Liberty says: "Predicting dangerousness is an inexact science, as is assessing personality disorders. Detaining people who've done no wrong and to whom the system can't offer treatment will benefit no one."

Forfeiture of assets

The courts can now confiscate your assets if they think you've been involved in crime. If you have inherited, won or been given money, you may be sued for it by the police in a civil court. The standard of proof in a civil court is lower than in a criminal court (not "beyond reasonable doubt", but on "the balance of probability"). The police are suing you because you are probably a criminal. The burden of proof has shifted away from the presumption of innocence. As the Cabinet Office said in 2000: "Civil forfeiture would be a significant extension in the powers available to the state ... because it extends the circumstances where assets can be forfeited without a conviction to the criminal standard."

 

TAKEN TOGETHER, all this adds up to the hidden theme of the Government, the reality behind the brave new world promised five years ago. Traditional structures are dismantled, power is inexorably, and probably irreversibly, transferred from individuals and communities to the state. Increasingly, the political class reigns as well as rules. It's just as well our politicians' track record is so good. Otherwise we wouldn't put up with it.

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