Where are we going with this, and where do we want to end up? (Part 3)
(Part 3 of an ongoing, indefinite series of ‘observations’.)
I’ve so far touched on erosions to the right to trial by jury, inquests, diversions away from the courts, unnecessary law, lowering and unreasonably reversing the burden of proof, and all sorts of civil orders that in fact may amount to criminal sanctions, and whether or not we are living in a surveillance state.
But how do such objectionable proposals get to the statute book in the first place?
Ideally you could do with an army of loyal and unthinking drones.
But sometimes they aren’t quite enough, so here are a few other methods for the aspiring Government Minister.
You could create a really objectionable proposal that makes you look extremely ‘tough’ on something people are fearful of, say, terrorism – e.g. proposing to detain people suspected of terrorism for 90 days. You know that it is unlikely to get through Parliament and that there will be loads of opponents who will make a big fuss about it.
This is brilliant, because:
1. You will look ‘tough on terror’ and all the fuss will get you tons of favourable publicity in popular national newspapers, such as the Sun and the Daily Mail;
2. Your opponents will look like airy-fairy, sandal-wearing, yoghurt-knitting, intellectual pygmy, commie-pinko beardy liberals who clearly support terrorists;
3. You can offer lots of ‘concessions’ and ‘safeguards’, which will make you look fair and magnanimous (it’s like being a market trader, starting at a high price but being content to sell for less);
4. In other words, you don’t particularly mind being haggled down to 28 days, say, because you still look tough, and you can always propose another extension in the future, where you will put Parliament and the country through a similar process.
And hardly anyone will notice if such a power will even be commenced (i.e. actually come into effect) despite you banging on about the urgency of it before we all get blown up on our way to work.
Another way of getting an objectionable proposal is the “red rag and smuggle”. Beardless but liberal David Howarth MP explains:
A red rag is a provision in a Bill that is designed to attract the attention of hot-headed Members of this House, and about which the Government do not, in reality, care very much either way, while they smuggle in, largely unnoticed and unchallenged, a lot of significant stuff that otherwise might attract severe criticism.
It helps if the Bill is a relatively long, supermarket trolley of provisions and if you haven’t allowed Parliament enough time to scrutinise them all. The Coroners and Justice Bill is a case in point: the ‘red rag’ is the inquest without jury and specially appointed coroner bit; while the ‘smuggle’ is the data sharing bit, toward the end of a 232 page bill consisting of 161 clauses and 21 schedules.
And of course there are machinations and broken promises, such as the allegations of dishonesty in relation to the Fraud Trials (without jury) Bill. Hansard possibly only records the tip of the iceberg.
Why bother troubling Parliament at all?
Of course the above may seem like a lot of bother. Sometimes you just want to be able to do things without troubling Parliament with the specifics. So here are a couple of ways to do that.
There’s a handy type of legislation for this: so-called ‘enabling’ legislation. What you need to get through Parliament is legislation with broadly drawn provisions (in the form of principles rather than clauses relating to specifics) that allow you, the Government Minister, to draft secondary legislation that will de facto get on to the statute book by default. An infamous example of this was the first draft of the Legislative and Regulatory Reform Bill – it was quite ridiculous in scope and power. But there are lots more like this, including the Coroners and Justice Bill data sharing provisions.
So here you need your army of drones and provisions that don’t sound scary, indeed quite boring.
Alternatively you could launder policy through a client (i.e. you fund it) organisation, such as ACPO. ACPO is a private company (and therefore exempt from the Freedom of Information Act) and funded by Home Office grant (and therefore somewhat beholden to it), unaccountable to the public. But of course we can blame that organisation if anything bad happens.
What sort of policies might we launder, you may ask. DNA, fingerprint, and cell sample retention is a good example. All the law says is that samples may be retained. There is no detail about what they may be retained in, for how long, and under what circumstances, and who will have access, and so on. In other words, there is no statutory basis in law for the DNA database. There has been no bill followed by scrutiny in Parliament – it exists apparently because of the policy of our unaccountable client organisation. The situation is similar with the protestor database held by the National Extremism Unit (Netcu), a branch of ACPO – again no statutory basis. And no doubt many more.
You can also launder policy via organisations outside the country, for example the European Union. An example of this is the European Data Directive, which has resulted in our Intercept Modernisation Programme, recording the details of our phone calls, emails and internet access. The advantage of this method should be clear: people against such policies are likely to blame evil Europe and those Johnny Foreigners trying to run our country, rather than the people who actually pushed this through Europe via the Council of Ministers, such as our old friend Charles Clarke, then Home Secretary, when the UK was President of the Council (and again there were a number of machinations here).