Tuesday, November 15, 2005

Wormwood Scubs Blues

The recent defeat of the government over proposed plans to detain terror suspects for up to 90 days has me in two minds.

For the record, I ought to state right away that my instincts were entirely against the legislation. However, I think a few points need to be made that don't really seem to have filtered through into the overall debate.

First of all, I think the government made a right old pig's ear of things. They banged on and on about the fact that a) we should listen to the police and security services and do what they recommend and b) that the public was overwhelmingly in favour of the measure, an argument that falls flat on its face when one considers that we live in a representative democracy where parliamentarians should, in theory, make up their own minds on issues and neither be slaves to professional advice, nor adopt an attitude towards their constituents that sets them in the position of a mere cypher or delegate and that is made doubly unappetising by the fact that the government regularly chooses to ignore expert advice and a vast swathe of issues from education to pub opening hours.

The government then proceeded to muddy the waters by claiming that the legislation would merely "bring us into line" with countries on the continent, who have already adopted similar legislation and award their security services powers that our own people are denied, thus leaving them compelled to fight with one arm tied behind their back. This later turned out to be complete codswallop (had it been true it would merely have been a crap argument, rather than actively pernicious) and in reality had the legislation been passed the British security authorities would have had powers of detention unrivalled in any liberal democracy.

The most shocking aspect of the whole situation however, in my view, is simply the fact that the government had to be prodded and poked kicking and squealing in order to grudgingly include two safeguards in the legislation that should never, ever, have been in question in any legislation of this type in a modern democracy - independent judicial oversight and a sunset clause.

On the other hand, I think we can be too hasty to dismiss the notion that the government, slippery and authoritarian and un-British though it may be, is not struggling to deal with a very real problem. There is evidence that the system is not working and, frankly, some of the civil libertarian pressure groups - while right to raise vigorous concerns - are coming dangerously close to crying wolf (is there a single aspect of the counter-terrorism effort that Liberty and co. have not announced will be likely to act as a "recruiting sergeant" for terrorism?).

I don't know the figures offhand but of the suspects arrested since 9/11, an alarmingly high proportion (I believe upwards of 95 per cent) have been released without charge. The common left-wing explanation for this is that the security services are a bung of buffoons who are going on endless fishing trips and plucking perfectly innocent Muslims chaps off the sreet with gay abandon, only to find they've done nothing wrong. There may be some truth to this. However, I don't think it's the full story. The reality is that there seem to be very real problems in terms of the police being able to get the cases to court. There are a number of factors underpinning this. First is the fact that the Security Service is not empowered with the same powers of arrest as the police and, more importantly, few of its officers have any real experience within or knowledge of the legal system; once the security services have swooped everything passes out of their hands and starts a slow grind along the police/Crown Prosecution Service conveyor belt. As a result it seems likely (and I don't KNOW, obviously, but I've read and heard enough to put the pieces together with what I reckon has a certain whif of truth about it) that the Security Service and the police/CPA are not reading from the same hymn sheet and the Security Service is building cases on evidence that ultimately turns out either to be insufficient to lead to prosecution or simply inadmissable in court.

On top of this there is the ongoing debate over standards of evidence in terrorism prosecution. The claim that the Security Service often cannot proceed with prosecutions in open court for fear of compromising sources and methods should not be dismissed out of hand (for an accessible look at this, Michael Smith's "The Spying Game" [not to be uncritically relied upon with regard to its coverage of the conflict in Ulster] provides a basic popular account of some of the issues). Additionally, the breezy claims of opponents of change that "We coped ok with the IRA without any of this nonsense" don't really stand up to scrutiny. Apart from the fact that a number of extraordinary measures were introduced to deal with the Irish threat, a number of the cases in which Republican suspects were convicted in British courts on charges that were later thrown out on the grounds of the security forces fixing up the evidence may well have occured not due to a desire on the part of the powers that be to just lock up any random Paddy they could pin something on but due to the fact that they believe they knew suspects were guilty without being able to prove it under the system then in existence (this doesn't necessarily excuse the actions of the security services, it's just an attempt to illustrate that the notion of everything being peachy and workable during the Troubles doesn't entirely stand up - though the flip side is that it also lends weight to the argument that the security forces can't be trusted to keep their own house in order).

So I think it's a blurry picture and I do wonder to what extent the attempt to push for 90 day detention was a trade-off against keeping current evidentiary (is that a word?) standards unsullied. What surprises me is the extent to which it doesn't really seem to have surfaced in the popular debate, with the government's side accusing opponents of being soft on terrorism and motivated by rank opportunism and the government's opponents accusing the government of introducing an "apartheid" system that will, hoover-like, suck massed ranks of Muslim youth into the dustbag of Islamikaze wackiness.

Anyway, I'm buggered if I know and frankly I think the recent debate has generated far more heat than light. I do know that if the 90 day mechanism had gone through and the current arrest:prosecution ratio endured we would be looking at an unmitigated disaster. I also know that we'd be crossing a painful threshold, whether the Man In The Pub recognises it or not. Had I been an MP I would have voted against. But I think there may well be a case to be made that the system as it stands doesn't work and for all the ranting that has gone on over the past few weeks I feel that we aren't really any closer to real clarity and joined-up thinking on the issue, at least not in the public forum.


Blogger Richard Veryard said...

Let's agree for the moment that the system doesn't work.

In a democratic system, we are surely entitled to evidence-based legislation. In other words, some evidence should be put before parliament that a 90-day detention would actually produce the outcomes that are claimed for it. And why 90 rather than 60 or 120?

But instead of evidence we get opinion. The police like it. Foreigners like it. 90 seems like a nice number, because we couldn't possibly contemplate 100.

The first-order evidence problem is that the evidence needed to support prosecution can't be presented in court, either because the evidence is inadmissable or insufficient, or because it cannot be revealed.

But apparently this leads to a second-order evidence problem, which is that the reasons for the changed legislation cannot be presented in parliament. We have to trust the experts, even though this (making piecemeal interventions into complex systems) isn't necessarily what they are expert at.

Meanwhile, cynics might say that the present system worked okay, even in the Irish troubles. Perhaps it's cheaper to lock the wrong people up (or the right people for the wrong reasons) and pay them compensation later, if it gets everyone off the hook.

As Stafford Beer put it, the purpose of the system is what it does (POSIWID).

4:19 AM  

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