29 June 2006Henry Porter
In the shadow of Winston Churchill's statue opposite the House of Commons, a rather odd ritual has developed on Sunday afternoons. A small group of people - mostly young and dressed outlandishly - hold a tea party on the grass of Parliament Square. A woman looking very much like Mary Poppins passes plates of frosted cakes and cookies, while other members of the party flourish blank placards or, as they did on the afternoon I was there, attempt a game of cricket.
Sometimes the police move in and arrest the picnickers, but on this occasion the officers stood at a distance, presumably consulting on the question of whether this was a demonstration or a non-demonstration. It is all rather silly and yet in Blair's Britain there is a kind of nobility in the amateurishness and persistence of the gesture. This collection of oddballs, looking for all the world as if they had stepped out of the Michelangelo Antonioni film Blow-Up, are challenging a new law which says that no one may demonstrate within a kilometre, or a little more than half a mile, of Parliament Square if they have not first acquired written permission from the Commissioner of the Metropolitan Police. This effectively places the entire centre of British government, Whitehall and Trafalgar Square, off-limits to the protesters and marchers who have traditionally brought their grievances to those in power without ever having to ask a policeman's permission.
The non-demo demo, or tea party, is a legalistic response to the law. If anything is written on the placards, or if someone makes a speech, then he or she is immediately deemed to be in breach of the law and is arrested. The device doesn't always work. After drinking tea in the square, a man named Mark Barrett was recently convicted of demonstrating. Two other protesters, Milan Rai and Maya Evans, were charged after reading out the names of dead Iraqi civilians at the Cenotaph, Britain's national war memorial, in Whitehall, a few hundred yards away.
On that dank spring afternoon I looked up at Churchill and reflected that he almost certainly would have approved of these people insisting on their right to demonstrate in front of his beloved Parliament. "If you will not fight for the right," he once growled, "when you can easily win without bloodshed, if you will not fight when your victory will be sure and not so costly, you may come to the moment when you will have to fight with all the odds against you and only a precarious chance for survival. There may be a worse case. You may have to fight when there is no chance of victory, because it is better to perish than to live as slaves."
Churchill lived in far more testing times than ours, but he always revered the ancient tradition of Britain's "unwritten constitution". I imagined him becoming flesh again and walking purposefully toward Downing Street - without security, of course - there to address Tony Blair and his aides on their sacred duty as the guardians of Britain's Parliament and the people's rights.
For Blair, that youthful baby-boomer who came to power nine years ago as the embodiment of democratic liberalism as well as the new spirit of optimism in Britain, turns out to have an authoritarian streak that respects neither those rights nor, it seems, the independence of the elected representatives in Parliament. And what is remarkable - in fact almost a historic phenomenon - is the harm his government has done to the unwritten British constitution in those nine years, without anyone really noticing, without the press objecting or the public mounting mass protests. At the inception of Cool Britannia, British democracy became subject to a silent takeover.
Last year - rather late in the day, I must admit - I started to notice trends in Blair's legislation which seemed to attack individual rights and freedoms, to favour ministers (politicians appointed by the Prime Minister to run departments of government) over the scrutiny of Parliament, and to put in place all the necessary laws for total surveillance of society.
There was nothing else to do but to go back and read the Acts - at least 15 of them - and to write about them in my weekly column in The Observer. After about eight weeks, the Prime Minister privately let it be known that he was displeased at being called authoritarian by me. Very soon I found myself in the odd position of conducting a formal e-mail exchange with him on the rule of law, I sitting in my London home with nothing but Google and a stack of legislation, the Prime Minister in No 10 with all the resources of government at his disposal. Incidentally, I was assured that he had taken time out of his schedule so that he himself could compose the thunderous responses calling for action against terrorism, crime, and antisocial behaviour.
The day after the exchange was published, the grudging truce between the Government and me was broken. Blair gave a press conference, in which he attacked media exaggeration, and the then Home Secretary, Charles Clarke, weighed in with a speech at the London School of Economics naming me and two other journalists and complaining about "the pernicious and even dangerous poison" in the media.
So, I guess this column comes with a health warning from the British Government, but please don't pay it any mind. When governments attack the media, it is often a sign that the media have for once gotten something right. I might add that this column also comes with the more serious warning that, if rights have been eroded in the land once called "the Mother of Parliaments", it can happen in any country where a government actively promotes the fear of terrorism and crime and uses it to persuade people that they must exchange their freedom for security.
Blair's campaign against rights contained in the Rule of Law - that is, that ancient amalgam of common law, convention, and the opinion of experts, which makes up one half of the British constitution - is often well concealed. Many of the measures have been slipped through under legislation that appears to address problems the public is concerned about. For instance, the law banning people from demonstrating within one kilometre of Parliament is contained in the Serious Organised Crime and Police Act of 2005. The right to protest freely has been affected by the Terrorism Act of 2000, which allows police to stop and search people in a designated area - which can be anywhere - and by antisocial behaviour laws, which allow police to issue an order banning someone from a particular activity, waving a banner, for instance. If a person breaks that order, he or she risks a prison sentence of up to five years. Likewise, the Protection from Harassment Act of 1997 - designed to combat stalkers and campaigns of intimidation - is being used to control protest. A woman who sent two e-mails to a pharmaceutical company politely asking a member of the staff not to work with a company that did testing on animals was prosecuted for "repeated conduct" in sending an e-mail twice, which the Act defines as harassment.
There is a demonic versatility to Blair's laws. Kenneth Clarke, a former Conservative chancellor of the exchequer and home secretary, despairs at the way they are being used. "What is assured as being harmless when it is introduced gets used more and more in a way which is sometimes alarming," he says. His colleague David Davis, the shadow Home Secretary, is astonished by Blair's Labour Party: "If I had gone on the radio 15 years ago and said that a Labour government would limit your right to trial by jury, would limit - in some cases eradicate - habeas corpus, constrain your right of freedom of speech, they would have locked me up."
Indeed they would. But there's more, so much in fact that it is difficult to grasp the scope of the campaign against British freedoms. But here goes. The right to a jury trial is removed in complicated fraud cases and where there is a fear of jury tampering. The right not to be tried twice for the same offence - the law of double jeopardy - no longer exists. The presumption of innocence is compromised, especially in antisocial behaviour legislation, which also makes hearsay admissible as evidence. The right not to be punished unless a court decides that the law has been broken is removed in the system of control orders by which a terrorist suspect is prevented from moving about freely and using the phone and internet, without at any stage being allowed to hear the evidence against him - house arrest in all but name.
Freedom of speech is attacked by Section Five of the Criminal Justice and Public Order Act, which preceded Blair's Government, but which is now being used to patrol opinion. In Oxford last year a 21-year-old graduate of Balliol College named Sam Brown drunkenly shouted in the direction of two mounted police officers, "Mate, you know your horse is gay. I hope you don't have a problem with that." He was given one of the new, on-the-spot fines - £80 - which he refused to pay, with the result that he was taken to court. Some 10 months later the Crown Prosecution Service dropped its case that he had made homophobic remarks likely to cause disorder.
There are other people the police have investigated but failed to prosecute: the columnist Cristina Odone, who made a barely disparaging aside about Welsh people on TV (she referred to them as "little Welshies"); and the head of the Muslim Council of Great Britain, Sir Iqbal Sacranie, who said that homosexual practices were "not acceptable" and civil partnerships between gays were "harmful".
The remarks may be a little inappropriate, but I find myself regretting that my countrymen's opinions - their bloody-mindedness, their truculence in the face of authority, their love of insult and robust debate - are being edged out by this fussy, hairsplitting, second-guessing, politically correct state that Blair is trying to build with what he calls his "respect agenda".
Do these tiny cuts to British freedom amount to much more than a few people being told to be more considerate? Shami Chakrabarti, the petite whirlwind who runs Liberty believes that "the small measures of increasing ferocity add up over time to a society of a completely different flavour". That is exactly the phrase I was looking for. Britain is not a police state - the fact that Tony Blair felt it necessary to answer me by e-mail proves that - but it is becoming a very different place under his rule, and all sides of the House of Commons agree. The Liberal Democrats' spokesman on human rights and civil liberties, David Heath, is sceptical about Blair's use of the terrorist threat. "The age-old technique of any authoritarian or repressive government has always been to exaggerate the terrorist threat to justify their actions," he says. "I am not one to underestimate the threat of terrorism, but I think it has been used to justify measures which have no relevance to attacking terrorism effectively." And Bob Marshall-Andrews - a Labour MP who, like quite a number of others on Blair's side of the House of Commons, is deeply worried about the tone of government - says of his boss, "Underneath, there is an unstable authoritarianism which has seeped into the [Labour] Party."
Chakrabarti, who once worked as a lawyer in the Home Office, explains: "If you throw live frogs into a pan of boiling water, they will sensibly jump out and save themselves. If you put them in a pan of cold water and gently apply heat until the water boils they will lie in the pan and boil to death. It's like that." In Blair you see the champion frog boiler of modern times. He is also a lawyer who suffers acute impatience with the processes of the law. In one of his e-mails to me he painted a lurid - and often true - picture of the delinquency in some of Britain's poorer areas, as well as the helplessness of the victims. His response to the problem of societal breakdown was to invent a new category of restraint called the antisocial behaviour order, or Asbo.
"Please speak to the victims of this menace," he wrote. "They are people whose lives have been turned into a daily hell. Suppose they live next door to someone whose kids are out of control: who play their music loud until 2 am; who vilify anyone who asks them to stop; who are often into drugs or alcohol? Or visit a park where children can't play because of needles, used condoms, and hooligans hanging around.
"It is true that, in theory, each of these acts is a crime for which the police could prosecute. In practice, they don't. It would involve in each case a disproportionate amount of time, money and commitment for what would be, for any single act, a low-level sentence. Instead, they can now use an Asbo or a parenting order or other measures that attack not an offence but behaviour that causes harm and distress to people, and impose restrictions on the person doing it, breach of which would mean they go to prison."
How the Asbo works is that a complaint is lodged with a magistrates' court which names an individual or parent of a child who is said to be the source of antisocial behaviour. The actions which cause the trouble do not have to be illegal in themselves before an Asbo is granted and the court insists on the cessation of that behaviour - which may be nothing more than walking a dog, playing music, or shouting in the street. It is important to understand that the standards of evidence are much lower here than in a normal court hearing because hearsay - that is, rumour and gossip - is admissible. If a person is found to have broken an Asbo, he or she is liable to a maximum of five years in prison, regardless of whether the act is in itself illegal. So, in effect, the person is being punished for disobedience to the state.
Blair is untroubled by the precedent that this law might offer a real live despot, or by the fact that Asbos are being used to stifle legitimate protest, and indeed, in his exchange with me, he seemed to suggest that he was considering a kind of super-Asbo for more serious criminals to "harry, hassle and hound them until they give up or leave the country". It was significant that nowhere in this rant did he mention the process of law or a court.
He offers something new: not a police state but a controlled state, in which he seeks to alter radically the political and philosophical context of the criminal-justice system. "I believe we require a profound rebalancing of the civil liberties debate," he said in a speech in May. "The issue is not whether we care about civil liberties but what that means in the early 21st century." He now wants legislation to limit powers of British courts to interpret the Human Rights Act. The Act, imported from the European Convention on Human Rights, was originally inspired by Winston Churchill, who had suggested it as a means to entrench certain rights in Europe after the war.
Blair says that this thinking springs from the instincts of his generation, which is "hard on behaviour and soft on lifestyle." Actually, I was born six weeks before Blair, 53 years ago, and I can categorically say that he does not speak for all my generation. But I agree with his other self-description, in which he claims to be a moderniser, because he tends to deny the importance of history and tradition, particularly when it comes to Parliament, whose powers of scrutiny have suffered dreadfully under his government.
