I used to be a political partisan, with instincts to laud one political party and to damn all the others.
However, as I watched the course of domestic and international politics, I began to realise the force of George Orwell's observation at the very end of Animal Farm:
"No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which."
Party politicians have a great deal in common with each other: those whose careers consist only of seeking and, if possible, obtaining political power tend to do similar things once they have power.
There is actually little that the UK Labour government has done since 1997 in respect of criminal law and policy which would have been inconceivable coming from a Conservative government.
In particular, in respect of my own civil libertarian interests, the record of the Home Office shows no break at 1997 or at any other time: it still urges ID cards and a database state; and it still takes its political function to be the meeting of police demands for further power.
It does not matter whatsoever if the Home Secretary calls themself a Tory or a socialist, New Labour or Notting Hill Conservative.
Imagine a Martian, quite unaware of the supposed "political parties", being invited to observe British politics.
Imagine now that Martian being supplied with Edmund Burke's classic definition of a party:
"Party is a body of men united for promoting by their joint endeavours the national interest upon some particular principle in which they are all agreed."
Putting aside the sexist implication of this maxim, what would the Martian see as constituting the parties in contemporary politics?
I suspect the Martian would see a "Law and Order Party", consisting of the Home Office, the Metropolitan Police, the various constabularies, the secret services, and the government ministers of the day, of whatever purported political affiliation.
I hope that the Martian would also see a "Liberal" party, formed of those of any political affiliation, or none: those who who adopt a principle-based approach to questioning the use of the coercive power of the State, and those whose presumption is against the acquisition and exercise of powers by State agents against individuals.
I would further trust the Martian would be able to separate this "Liberal" party from those "Libertarians" who maintain that there is no role for the State, rather than there being a firm presumption against the State's use of coercive power.
The contest between this "Law and Order Party" and the "Liberal Party" can be seen, for example, in the controversy about section 44 of the Terrorism Act 2000.
As a modern Madame Roland could say:
"Oh Anti-Terrorism, what crimes are committed in thy name!"
Section 44 stop and search powers are routinely used - and in my view, abused - by police constables. They treat it almost like a formidable spell, invoking and chanting the magic word "terrorism" just so as to invade the privacy and autonomy of pedestrians, ranging from train spotters to architectural photographers.
Thousands of people have been stopped using this power: individuals who simply would not have been otherwise lawfully stopped.
What was most alarming was that this power can and is exercised by constables without any real accountability or control.
Today, however, there was a blow to the "Law and Order Party" in their ongoing abuse of section 44 powers.
The European Court of Human Rights, in a powerful judgment, held that section 44 was contrary to the individual's right to privacy under Article 8 of the ECHR.
The Court noted:
"84. In this connection the Court is struck by the statistical and other evidence showing the extent to which resort is had by police officers to the powers of stop and search under section 44 of the Act. The Ministry of Justice recorded a total of 33,177 searches in 2004/5, 44,545 in 2005/6, 37,000 in 2006/7 and 117,278 in 2007/8 (see paragraphs 44-46 above). In his Report into the operation of the Act in 2007, Lord Carlile noted that while arrests for other crimes had followed searches under section 44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of section 44 abounded, there being evidence of cases where the person stopped was so obviously far from any known terrorism profile that, realistically, there was not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop.
"85. In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. While the present cases do not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons is a very real consideration, as the judgments of Lord Hope, Lord Scott and Lord Brown recognised. The available statistics show that black and Asian persons are disproportionately affected by the powers, although the Independent Reviewer has also noted, in his most recent report, that there has also been a practice of stopping and searching white people purely to produce greater racial balance in the statistics (see paragraphs 43-44 above). There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protesters in breach of Article 10 and/or 11 of the Convention.
"86. The Government argue that safeguards against abuse are provided by the right of an individual to challenge a stop and search by way of judicial review or an action in damages. But the limitations of both actions are clearly demonstrated by the present case. In particular, in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.
"87. In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention."
That 2007/8 figure is startling, and presents one with a stark choice: either 117,278 stops were made on genuine terrorism grounds in one year, or the police were (as I suggest) routinely abusing their power.
The European Court rightly focused on the lack of legal safeguards. But there are many other human rights grounds for opposing such an illiberal provision, but the Court did not feel the need to decide these once it had determined the illegality of section 44 on Article 8 grounds.
I do not take terrorism lightly: indeed, a member of my family could have been easily killed in the Birmingham Pub bombing.
However, section 44 really has nothing to do with terrorism, but a grab for further power by the police and the Home Office in the name of anti-terrorism.
I would go so far to say that the relationship of the police and the Home Office to "terror" is similar to that the old Military-Industrial complex to communism. It is an excuse and not a reason.
Burke and Roland spotted that things done in the name of a good cause are not necessarily good; and Orwell showed how the pigs in Animal Farm and the Party in Nineteen Eighty-four sought ever more power on the back of contrived scares.
Nonetheless, today saw a victory for the "Liberal" Party.
It is sadly a rare victory, and one whch may have little practical effect; but it was a good victory all the same, in a real party battle which still continues.
And it is a party battle well worth fighting.
For an excellent blogpost prompted by Sir Ian Blair's pathetic reponse to the European Court judgment, see The Heresiarch.
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