Howard Jacobson: Civil liberties or civil protection – which is the more important?

When freedom becomes ideological it invariably ends up our jailer

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Here's a scene to warm the cockles of a liberal heart. I'll leave you to set it where you like. Airport terminal, Palace of Westminster, nuclear power plant. You choose. As long as it's somewhere innocuous, where no one can possibly intend harm.

Policeman: "Is that a stick of explosives I see poking out of your trousers or are you just pleased to see me?"

Terrorist: "That's for me to know and you to find out."

Policeman: "Watch it, Sunshine, unless you want my hands on your valuables."

Terrorist: "Just try it, pig, and I'll have you up before the European Court of Human Rights. And that'll cost you 30,000 big ones before you can say Al-Muhajiroun."

And so is another precious civil liberty preserved against the creeping depredations of the state in general and Section 44 in particular. And not before time, the denizens of Bleeding Heart Yard tell us. The police have been abusing their powers. Last year alone 265,000 people were stopped. Doesn't seem a lot to me, but then, I am reminded, I wasn't one of them. One of them or not, I don't know how you can tell how many's a lot or a little. In the abstract, there can be no right or wrong number of searchees. Depends how great the danger, doesn't it? Depends who's out there.

So what dangers do the little white old ladies out buying a tin of something fishy for the cat pose? This is a reference to the patently non-criminal, ineffective and barely mobile citizens whom the police have been stopping to show they are not prejudiced against ethnic minorities. Don't know the ratio. Ten wearing explosive belts to one carrying a can of Whiskas? It doesn't matter. To this absurdity have the police been driven by the catch-22 which Section 44 has become. If they stop only those who answer to the profiles of the terroristically inclined they are accused of racist discrimination. If they are even-handed in their searches they are accused of not being discriminate enough. And as often as not it's the same human rights lawyer making both accusations. Who'd be a policeman?

The consensus, anyway, is that the police haven't been executing Section 44, if that isn't too tasteless a verb, as intelligently or humanely as they should have been. So serves them right. They had it coming. Well done, yet again, Strasbourg.

But hang on. Where are we in all this? By "we" I mean the moderate and timorous who ask only that we get on and off the bus intact each day. If the police, no matter how clumsy, are our protection, how does it benefit us to have lawyers in another country hampering their operations? View it how you will, this victory for the civil libertarians is nothing short of an overwhelming defeat for the people whose liberties they claim to uphold. Let's say it and have done: civil liberties, in the context of our times and as currently interpreted by those who professionally espouse them, are pestilential. Quite literally damaging to life and health. A blight.

We shouldn't any longer be surprised to discover that the warriors of our freedoms turn out to be more interested in their own running battles with authority than in preserving us. When freedom becomes ideological it invariably ends up our jailer. Marxist-Leninism was a cult of proletarian liberation whose sole effect was the misery and murder of millions. What have the sweeping educational reforms of the past half-century given the children they were meant to assist? We took away the concepts of actual and intellectual authority and left the young rudderless, without even the language to cry for help, in a sour sea of relativism. Like the jihadist who can now take the British to Strasbourg every time he thinks somebody is looking at him the wrong way, they learnt – the only thing they learnt – the rubric of their rights and made the teaching profession a living hell. And if you think it's of benefit to pupils to be taught by frightened and demoralised men and women, think again.

Of the rights not worth winning in the past 50 years none has been so horribly self-defeating as the right of the violently disruptive school kid not to be put firmly in his place, whatever it takes to put him there. Unless it's the right of his mother to turn up at the school with a knife in her handbag and a lawyer at her shoulder. "You must have done something to provoke them," our parents used to say with a shrug when we came home complaining that our teachers were cane-happy psychopaths. They weren't always correct about that but their being wrong was rarely damaging. We vowed to kill our teachers, we vowed to kill our parents, but in the main we did neither. It wasn't ideal. We were hit too often. But at least we acquired a rich vocabulary of outrage and injustice. And were taught a number of important philosophic lessons: life is imperfect, you lose a little to win a little, context is everything, and a sense of unfairness, however burning, is not always justified.

Were we still in Eden we wouldn't, I grant you, have to clip schoolboys round the ear, or stop and search suspected terrorists. In Eden no one means to blow us up and children sit peaceably at our feet. But we are long gone from Eden. And the greatest threat to our liberty comes from those who won't accept that fact.

If we lose our civil liberties, the lawyers tell us, we surrender precisely what the terrorists wish to take. Drivel. The sum total of Taliban ideology is not an overweight policeman in the Strand going through our underwear. Al-Qa'ida, building up its weaponry in Yemen, isn't dreaming of the day when Shami Chakrabarti is out of a job. It isn't our civil liberties they are after, gentlemen of the jury, it's our living souls.

Our health as a nation used to be judged by how savagely we satirised the law. You wanted a villain? You went to the law courts. Now, because we would rather pillory the police or parliament than avail ourselves of their protection, we applaud these vainglorious ghouls as the peasant once cheered on the revolution that would lead him to the gulags.

Liberty is a fine and precious thing, but we won't find it in Strasbourg. Every time a human rights lawyer wins a victory against an agency of security it isn't a brand new dawn he ushers in, it's an age-old night. Unless you've got a stick of explosive in your trousers and your idea of a brand new dawn is an age-old night.

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