42 Day Detention: some other vital aspects

On this issue, I shall try to cover ground other than that which has been well trod elsewhere. 

 A most basic concept of a democratic constitution is the separation of powers between executive, legislature, and judiciary.

While the practical independence of the executive and legislature from each other is highly now doubtful in this country (contrast to England in the 1600s and 1700s or the US) we have had a reasonably independent judiciary since Lord Chief Justice Coke (pronounced Cook) told Charles II that he was not allowed to sit as a judge even if the Court sat in the King’s name.  The phrase “lions beneath the throne” was coined by Coke to describe the relationship of the judiciary to the executive: ready to protect the Crown’s position but also to bite the Crown should ministers go beyond or misuse their powers.

Since Montesquieu described the three part system there are, arguably, further types of branch of government that have evolved.  The EU’s Court of Auditors or Comptrollers in the US perform a scrutiny of public accounts distinct from other organs of the state and in the American case sepertely accountable to the electorate.  In the UK, the auditory function is performed by a District Auditor for local government but at a national level is entirely vested in the legislature (Parliament’s Public Accounts Committee).  You could argue that the civil service are effectively a seperate branch of government.  Civil servants are appointed by the executive but manage their own entry through competitive examination and in reality, you could argue, no British government could dismiss a vast swathe of senior civil servants without grave political consequences.  Civil servants undoubtedly have some significant effect on the way the state conducts itself. 

The idea of an independent civil service based on competitive exmination was first applied by an ancient Chinese emperor.  It was brought to this country by Gladstone.  In his time, the idea of appointing a civil service based on examination rather than money and family connection was highly controversial.  Gladstone believed that examinations test not only knowledge and intelligence but also deeper character traits like honesty, diligence, and fortitude. 

As someone who, when a student, was very much an exam-person rather than a coursework-person (my exam room adrenalin was above average, my motivation at home was not) I am bound to concur with Gladstone and the Imperial Chinese.  At the risk of sounding like a pub landlord (i.e. I’m not being altogether serious) we won the Battle of Britain because of our national Gladstonian affinity for competitive exams- we slacked off for ages (appeasement during the 1930s) then having done next to no prep, played our aces out of the blue in June and July 1940 (June and July, it’s exam season after all).  Contrast to the French who spent the 1930s building the Maginot Line but only got a D minus when the exam question was not as expected (i.e. “What do you do when the Germans invade via Belguim, where you have no defences?” rather than the hoped for ”What do you do when they come through Alsace, where you pointlessly erected massive foritifications?”).

The present government are neither coursework people nor exam people.  Their longterm projects go wrong and they never meet short-term unexpeted challenges with courage, conviction, or instincts for the right thing to do.  Just to go on about the war for a bit longer, if New Labour had been around in 1940, our strategy would have consisted of passing 53 Acts of Parliament and hoping new legislation would be adequate to be tough on Nazis and tough on the causes of Nazis.

In the new terror detention plans for 42 days the government is dismantling the notion of power distributed between distinct branches of the constitution.  I might add that the title of a Clegg article in the Guardian “42 is not the answer” (which I cannot now find, else I would provide a link) was perfectly apposite with the obvious allusion to Hitchikers Guide to the Galaxy and the implication that Labour policy is from another planet.

The illogicality and illiberalism of 42 days has been fully expressed elsewhere.  But entailed in this “package of measures” (Labour likes laws to sound like something wrapped in benign brown paper) is that detention would have to be approved, in any individual case, by Parliament.

This is profoundly dangerous.  It makes the people who decide the law that binds everyone the same people who determine the application of that law to individual cases.  The effect is that they are no longer, in a real sense, making laws binding everyone equally and having purported to make the law, can then interpret it how they please, removing the need for law to contain a clearly expressed intent in the first place.

Putting the liberty of an individual citizen up to the decision of elected politicians is not much different to throwing them to the passions of a mob.  Politicians will make their decision based on half-facts and prejudices, reflected in the partial reporting of near-monopolised mass media.

If you want a democratic element in these decisions put it in the hands of a representative sample of the public presented with all the facts, in a calm environment, under no pressure of time, bound by a solemn oath, where all sides have a right to be heard in debate conducted on civilised lines, helped by arguments produced by elite advocates for each side.  It’s called the jury system.

Labour’s plan is procedurally insane in that Parliament’s delibertion on the case may take place after 42 days has already expired, as The Times notes here.

It is possibly in breach of the European Convenion on Human Rights.  Article 6(1) provides (edits and emphasis inserted):

In the determination of his civil rights… everyone is entitled to a fair.. hearing [i.e. one conducted according to the rules of natural justice where the prisoner cn address the tribunal and not decided on populist or political grounds]

 …within a reasonable time… [i.e. not after the detention period has alredy expired]

…by an independent and impartial tribunal… [I think no comment is needed] 

…established by law. [i.e. the tribunal derives its competence from somewhere other than from itself.] 

It is a rotten irony that the government which, rightly, reduced the Home Secretary’s role in deciding the fate of individual life sentence convicts, should now risk the politicisation of the detention of mere suspects who have not even been charged let alone convicted or sentenced.

UPDATE: “Gladstone and the Imperial Chinese” would, IMHO, make a very acceptable name for a band and “Competitive Examination” the title of their first platinum album.