Marina Hyde:
In bed with the DUP? This is the really curious journey
Andy Burnham's remarks about Shami Chakrabarti and David Davis were those of a man with a very New Labour talent'The individual has no right to anonymity," Andy Burnham once explained during a robotic defence of identity cards. "The state has a right to know who you are." Yet despite his concerted efforts to draw attention to himself with dazzling feats of brown-nosery, the cloak of anonymity has hung heavy on the current culture secretary, with very few citizens of this state having the first clue who he is. Indeed, for most of the final years of Tony Blair's premiership, he was presumed to be lodged in the prime ministerial colon, only emerging blinking into the daylight the minute Gordon took over, whereupon he announced to the press: "I was a Blairite, and now I am a Brownite."
This week, however, Burnham gave people a better of idea of who he is, when he broke his silence on David Davis's endearingly misguided decision to trigger a byelection to campaign against the government's plan to detain terror suspects for up to 42 days without charge. Burnham found "something very curious", he told Progress magazine, in Davis's "late-night, hand-wringing, heart-melting phone calls with Shami Chakrabarti".
Mmm ... Could you bring the sledgehammer down one more time, secretary of state? There's a chance that a couple of slightly backward 10-year-olds still haven't understood what you were on about. And yet Andy is now upset that his comments have been interpreted as anything other than the cogent engagement with the 42-days issue that they so obviously were, and cannot for the life of him work out why the Liberty director is taking offence - "if personal offence has been caused", as one of his flunkeys put it. (Read on)
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David Aaronovitch was one of a number of commentators who have argued that there is an incompatible contradiction in David Davis claiming to defend civil liberties while also supporting the death penalty for serial murderers. Personally, I feel that although there are strong arguments against the death sentence, I don't see an inherent contradiction with seeking to preserve due process while at the same time supporting the death penalty. Peter Hitchens, who agrees with David Davis on civil liberties and the death penalty, has an interesting post on this subject:
Why weak justice means the end of freedom
I mentioned in my column that there's no contradiction between supporting the gallows and defending English liberty. On the contrary, the two things go together like roast beef and horseradish sauce. The good old English hanging judge, as George Orwell once unwillingly conceded, was also an incorruptible figure of impartial justice. But I'd go further than that. Feebleness towards wrongdoers will eventually mean the end of freedom.
This is my quarrel with Shami Chakrabarti, the Director of Liberty. I am a paid-up member of Liberty because I think conservatives and liberals can and should unite against tyranny. I signed up at the invitation of John Wadham, its previous director, after we'd clashed in a debate and I'd told him he and his organisation were only interested in soppy left-wing freedoms, rather than in proper conservative ones. "So join", he said. And I did. "And argue your position". Which I have since tried to do.
I think Shami Chakrabarti has actually grasped this point, that the right has something to say about freedom. She has been willing to cooperate with David Davis, because she recognises that Mr Davis is in fact genuinely concerned about freedom, from a conservative position. Previous bosses of this organisation (which used to be called the National Council for Civil Liberties and was founded by left-wingers rightly outraged by police treatment of Hunger Marchers) often acted as if political conservatives were the enemy. They could not have conceived of working with them. But perhaps their attitude has been rather undermined by the fact that one of Ms Chakrabarti's most left-wing forerunners, Patricia Hewitt, ended up as a Labour Cabinet Minister, voting for the introduction of identity cards. I've always wanted to know how she squared that with her many years working full-time for an organisation dedicated to freedom.
But I digress. Conservative liberties are really just the freedom to mind your own business, provided you don't break the law. And in a conservative society, the law does not concern itself with thoughts or opinions or speech (unless it is incitement or deliberate provocation to violence) . It only restricts and punishes actions. The things known as 'rights' are restrictions on the state - jury trial, the presumption of innocence, the right to bear arms, the right to a fair and speedy trial, in which you can confront the witnesses against you (I'll be coming back to that).
Under this code, you can expect that people who rob, kill , cheat rape or destroy will be deterred by stern laws, and caught and punished if deterrence fails. Also that people who break the law will get no advantage out of it.
Left-wing liberties are significantly different. The basic difference is that, under the Old English system,. everything was permitted unless specifically prohibited. Under the New European system, everything is prohibited unless specifically permitted. Man is not assumed to be free, and fit to be free within a limited law and under a limited government. He is the client of the benevolent state, to be granted specific 'rights' by that state.
For example, it never occurs to the conservative that there is any doubt that he owns the property he has bought and paid for, or that he isn't free to marry and found a family, or bring up his children as he wishes. These are absolute things, which existed before there ever was a state, and the state shouldn't encroach on them. It should also defend them against outside threats, or it has no 'right' or rather reason, to exist.
But the liberal libertarian ( who is in fact a power-worshipper who thinks the state is the embodiment of his own human goodness) wants there to be a 'right' , issued by the state, to private property , to marry, to found a family. He also often speaks of a bizarre thing called a 'right to life' which is mainly an excuse to ban the death penalty for murderers, and certainly doesn't save unborn babies from selfish abortions.
These rights are granted by authority, not assumed to exist naturally. They are also limited and weakened by conditions, most of which are excuses for the state to forget them when it doesn't suit it. That is partly what is wrong with them. The state giveth, and the state taketh away. In fact a brief study of the European Convention of Human Rights, and its many imitators, will show you that almost every one of its grandiose 'rights', especially the 'right to life' can be withdrawn if the government wants to withdraw it.
When a left-wing British government brings back the death penalty ( as it will during the lifetimes of most people reading this), it will be able to do so despite this alleged 'right to life'. Respect for law among supposedly civilised governments is very weak. John Laughland's fascinating new book 'A History of Political Trials' shows again and again how governments have binned the most basic rules of law - and these have often been highly civilised governments - when it has suited them to do so.
Many of the rights are contradictory and open to different interpretation. The right to follow a religion, for instance, clashes almost constantly with the right not to be discriminated against, as the recent adoption laws show. The US Supreme Court led the way in imaginative interpretation of documents which are quite clear, somehow using the US Constitution and Bill of Rights to ban the death penalty and legalise abortion - when they were obviously not intended to do either, and were drawn up by men who were both untroubled by lawful execution, and appalled by abortion.
How much easier it is for the Strasbourg Human Rights Court ( or for liberal British judges operating the ECHR) to turn the foggy protocols of the convention to their advantage. The sad thing is that even proper liberty-loving judges now tend to rely on this dreary document, rather than on Magna Carta, the Petition of Right , the Bill of Rights, or the Habeas Corpus Act, when defending conservative liberties. It is almost as if there is a collective wish that these majestic documents ( whose power to obstruct a tyranny is huge) should be forgotten. After all, they can never be repealed. That would be too obvious. So they must be quietly replaced. It seems to be working. Many British people have never heard of them or don't know what they say. But who, from the highest in the land to the lowliest council estate feral, doesn't know about 'Human Rights'?
Now to the point. The government is now talking about allowing evidence from anonymous witnesses in criminal trials. Its justification for this is a House of Lords ruling last week (R v Davis) which ruled that it was unfair to rely on evidence from anonymous witnesses to convict anyone.
As a 'right-wing' columnist, I'm no doubt supposed (and, alas, expected by some of my readers) to be furious with these soft judges and to back the government.
On the contrary, I think the judges were dead right, even if they should have taken their justification from centuries of English common law rather than from the continent. An accused person must be able to confront and challenge the witnesses against him, or there can be no justice. How can a proper cross-examination take place, if the person being cross-examined does so from behind a screen, with his voice disguised? How can the jury possibly judge his evidence? I think the nasty practice of allowing evidence to be given by video link is bad enough. But actual anonymity is indefensible.
But what about the intimidation of witnesses? Well, the answer to this is so blindingly obvious that only a modern politician wouldn't know it. Witnesses cannot be intimidated where the authorities are in charge, where criminals fear the police and the prisons. Witnesses can only be intimidated where the law is feeble. The same goes for 'jury-nobbling' the pathetic excuse for introducing dangerous majority verdicts in all English criminal trials 40 years ago. The reason for this danger is that our criminal justice system is now so weak and unconvincing that most sensible people fear the criminals much more than they fear the law. This needs to be the other way round. An enforced death penalty for callous murder, and severe, austere imprisonment for the violent criminal would soon set this right and make us more free.
But our feeble government would rather sacrifice the freedom of us all, and destroy a fundamental principle of justice, than fight a real war against disorder.'
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