On Liberty (9 page)

It was a bruising time. We were devoting so much energy to this fight and good news was thin on the ground. In addition to public advocacy, we began what one national newspaper called the ‘Battle of the Tea Rooms’. At the time, opposition – Conservative and Liberal Democrat – policy was firmly against longer pre-charge detention, but as the political stakes rose,
Labour MPs would find it increasingly difficult to vote against the measure. Seeking to unite, rather than divide opinion across the political spectrum is never an easy proposition for human rights campaigners. My colleagues and I, desperately trying to gain a foothold within the Labour Party, sought one-to-one meetings with any Labour backbencher who would see us. In private, many were genuinely troubled by the policy, but hesitated to defy their party whips, who have a fearsome influence. Other backbenchers, trying to put a spoke in the wheels of our campaign, took up our offer of a meeting in order to waste valuable time as the crucial parliamentary votes loomed. The Home Secretary, herself a former whip, embarked on her own round of meetings as it became ever more obvious that the Chief Whip, Geoff Hoon, was promising much but delivering rather less in terms of rallying troops behind the increasingly unpopular policy. In a strange game of cabinet cross-dressing, Prime Minister Brown micro-managed the policy from Number 10 rather than the Home Secretary, who instead tried to whip the Labour Party into line. The not-so-loyal Chief Whip, anticipating a damaging defeat for the government, leaked stories to his own advantage in an attempt to come out of the crisis better than his senior colleagues.

A few short weeks before the crucial House of Commons vote in June 2008, our intelligence – based on direct discussions with those involved – indicated a Labour rebellion of sixty, more than enough to defeat the bill outright. At this point, the Prime Minister himself began to lobby to secure the vote. Subsequent newspaper stories recorded the offers made and deals done in an episode that does no credit to the Mother of Parliaments to achieve a nine-vote majority, equivalent to the number of Democratic Unionist Party MPs. This number was significant, the DUP having been in meetings with both major party leaders even as the debate in the main chamber raged on.

On 11 June 2008 I sat in the Strangers’ Gallery – an area set
aside in the Commons for the public to watch proceedings – despite being initially warned away by the office of the former Speaker Michael Martin. He got word to my colleagues earlier that afternoon that he didn’t want ‘Labour MPs to be distracted by visible presences’ – presences who might no doubt stir their consciences. In the event I hotfooted it to Westminster and, when phoned by BBC Radio 4 presenter Martha Kearney, about to present the
World at One
, expressed my surprise at my own short-term ASBO designed to keep me away from the action. ‘Tell the Speaker’s office,’ she replied, ‘that you will either be preparing to take your place in the gallery this lunchtime or appearing on the radio to explain why not.’ I took her advice and, on arrival at the Palace of Westminster, I found the gates of heaven strangely open.

Despite the tawdry behind-the-scenes wrangling, the debate itself was one of the best, with veteran Diane Abbott giving the speech of her life for which many plaudits and prizes rightly followed. The pressure on her was considerable. Although former Health Secretary Frank Dobson MP had assumed the role of chief rebel, with Abbott his loyal deputy, marshalling the rebels through the complex ins and outs of votes and amendments, the Speaker refused to call Frank. It fell to the MP for Hackney North and Stoke Newington to be the principal voice of the Labour Party’s civil liberty conscience:

I am a Londoner and I heard the last major IRA bomb, at Canary Wharf, from my kitchen in east London. Like thousands of Londoners, I waited for the early-morning call that assured me that friends and family on their way to work and school had not been caught up in those bombings. I will not take lectures from ministers about not taking terrorism seriously.

I do not believe, as ministers continue to insist, that there is some trade-off between our liberties and the safety of the realm. What makes us free is what makes us safe, and what makes us safe will make us free …

… Of course the people whose rights some of us are trying to defend are unpopular and suspect. But if we as a parliament cannot stand up on this issue, and if people from our different ethnic communities cannot come here and genuinely reflect their fears and concerns, what is parliament for?

The full speech is worth reading – more than once. The Shadow Home Secretary, David Davis, himself a veteran of the forty-two-day campaign, described it as one of the best he had ever heard in the House of Commons. And that’s how it was that evening as the debate unfolded: left and right united around democratic values. I sat in the Strangers’ Gallery alongside law students and tourists, heart in my mouth, receiving periodic visits from MPs of different stripes in solidarity and hope. In the chamber below, it was like Grand Opera, government loyalists sidling up to potential rebels on the benches, sometimes in a pincer movement from either side. Then came the moment of voting; those around me wished me good luck. At what felt like the eleventh hour, the DUP stood up and went through to vote en masse – for the government. When the tellers announced the result, the DUP were greeted with scorn from the Conservative benches, who had united against forty-two days with only one exception in the form of Ann Widdecombe. Amid the cries of ‘Judas’ and ‘thirty pieces of silver’, I saw the Prime Minister give a little nod to the DUP leader before the uproar was quelled by the ever-dutiful Speaker Mr Martin. We had lost the Commons vote.

To this day a whiteboard – now framed – sits in Liberty House in Westminster showing the state of the parliamentary Labour Party as we understood it, twenty-four hours before the vote – when we had been, just, ahead. The board is titled ‘The Battle for 42 Days’. It serves to remind us and, I hope, future generations of human rights campaigners of the value of committed, painstaking work – and that hope springs eternal.

For the story did not – does not – end there. The next day’s newspapers were full of accounts of the dodgy deals and strong-arm tactics that the government had used to secure its vote. Later that day, David Davis announced that he was resigning his Yorkshire seat of Haltemprice and Howden to fight a by-election on the issue of forty-two days specifically and civil liberties in general, in protest at the way the government was playing fast and loose with hard-won freedoms.

Unsurprisingly, perhaps, Labour decided not to field a rival candidate: a surefire way to defuse Davis’s campaign. For a while there was talk of the
Sun
newspaper putting up a candidate to make the authoritarian case, but this failed to materialize. Instead, ‘sources close to the government’ chose to attempt to discredit the former Shadow Home Secretary (replaced by Dominic Grieve QC MP) and our cause, with secret briefing to the media lobby that Davis was having an affair – with me. It was the lowest of political smears. I was as distressed for David’s wife, my friend Doreen, as I was on my own behalf. It was a tough time, one of the toughest.

I have never experienced the adversity faced by human rights campaigners the world over who risk arrest and physical maltreatment at their governments’ hands. I feel I’ve had a charmed life. Even after I’ve criticized senior ministers in print or national television, they’ve, for the most part, been ready to give me the time of day and sometimes a drink. But there was something about being personally briefed against by politicians in a way I believe would never have happened to a man, that made me feel very vulnerable and even jaded. Mercifully, however, the support of friends, colleagues and so many women in politics and the media, in particular, turned my spirits around before too long.

The moral and logical argument having been won, on 11 July David Davis won his by-election resoundingly and hosted a festival of liberty in his constituency in which a number of great campaigners participated. In the autumn of 2008 the bill returned to the House of Lords.

The House of Lords is a curious place. Its existence is difficult to justify to democrats from almost anywhere else in the world. How can you argue for a legislative model in which those who have inherited or been appointed to power, but not voted in, sit in a legislative chamber, even if it is invested with the ability only to scrutinize and delay rather than to make law?

I agree that if there were a nuclear holocaust or revolution, we would not design a new constitution in the way that ours has evolved. We would probably draw up a written constitution – in the manner of the US or France or South Africa – with a genuine separation of powers, in which the executive and legislative branches of the state are elected and the judicial branch is independent, or as independent from politics as one can imagine or contrive. But, make no mistake, such a model has its problems too, not least for the power that is inevitably invested in the highest or Supreme Court as the ultimate referees of the written constitution. Indeed, British politicians who frequently and conveniently balk at our unelected judges in a system that ultimately preserves parliamentary sovereignty – though in practice, too often, a sovereignty of the executive or government, even in the face of gross violations of fundamental values – might occasionally reflect on the far greater powers that are given to judges under written constitutions and bills of rights almost everywhere else in the free world.

When I was a young undergraduate at the LSE, we were regularly set essay questions about the UK’s unelected second chamber, and whether it was a good thing. In those days one word would probably have done: ‘No’ – or, for better grades, ‘Hell, no.’ But I have to say that my last two decades of work at the heart of the UK constitution – both from the inside and the outside – have given me pause for thought. It seems to me now that democracy, like any other piece of fine-tuned machinery, must have both fixed and moving parts. The moving parts
are of course the elected components that represent the heat and light of politics, which most people understand as the animating features in democratic life and rightly so. But the fixed components – usually in the form of independent referees or judges of ‘the rules of the game’ – are necessary too. In fact, in the absence of a written constitution and a Supreme Court with strike-down powers, they are vital. In our system, senior independent judges who possess only moral authority are complemented by the independent examiners of legislation in the upper chamber. In the end, the Lords too have only delaying powers, by virtue of the Parliament Acts, and moral authority but, in a climate of fear and feverish party politics, such delay – and with it the possibility of calm, rational debate – can be important and enough to persuade the elected components of our constitution to think again. And this was precisely what happened with the forty-two-days bill.

In the second chamber, the party whips have less sting, and the mood of the Labour Party suggested that the government was going to struggle much more this time. A narrow defeat for the bill in the Lords might have been expected, but the government could easily reverse such a setback – as is typical – when the bill returned to the Commons. A major drubbing in the Lords, however, would present the government’s internment policy with a rather greater political challenge. And the government knew it. Once more government voices were out in force, including the Home Office minister Admiral Lord West, who once described himself as a ‘simple sailor’, when seeming less than completely fulsome in his support for the policy.

Former ‘securocrats’, many of them now on the cross benches of the Lords (the non-party political expert seats that are another point in the second chamber’s favour), were obviously crucial mouthpieces for the government’s argument. The very recently retired MI5 chief Baroness Eliza Manningham-Buller had been in the Lords a matter of days. In the end her
early-evening speech – her first in the Lords – was as important as Diane Abbott’s had been in the Commons. The government, clearly, had hoped for a crucial intervention from Baroness Manningham-Buller. It did not anticipate the form her intervention would take.

Thanking the second chamber for its warm welcome, the Baroness admitted that she would have liked more time to settle in and learn how things were done before ‘opening my mouth’, as she put it. However, she continued, she had already picked up one convention, ‘which has been drummed home to me’, which is that maiden speeches were to be short and non-controversial. ‘I can do short,’ she said,

but non-controversial is a bit trickier in the circumstances.

Since 9/11, we have had a great deal of terrorism legislation. One point that has not been made so far is that successful counterterrorism work depends on a number of things, but in particular on good intelligence and good police work, not necessarily on changes in the law. That said, all the legislation has had some important and enabling provisions.

I applaud the fact that we are discussing now, rather than against the background of an atrocity, where this country wants to draw the line on issues such as pre-charge detention. I have considerable sympathy with the police on the collection of evidence which is very challenging given the need to move early, the amount of seized data, the complexity of cases and the forensics. I congratulate the anti-terrorist branch of the Metropolitan Police for the superb job it does. But arguments can be made to justify any time of detention, just as in other countries, although mercifully not here, they can be made to justify any method of interrogation.

In deciding what I believe on these matters, I have weighed up the balance between the right to life – the most important civil liberty – the fact that there is no such thing as complete security and the importance of our hard-won civil liberties. Therefore, on
a matter of principle, I cannot support the proposal in the Bill for pre-charge detention of 42 days.

I understand that there are different views and that these judgments are honestly reached by others. I respect those views, but I do not see on a practical basis or on a principled one that these proposals are in any way workable for the reasons already mentioned and because of the need for the suspect to be given the right to a fair trial.

Finally, I have been fortunate in my career to have dealt with national security. It has been a great privilege. Our legislation covering the Security Service refers to the protection of parliamentary democracy. I have a plea: handling national security should, as far as possible, be above party politics, as it has been for most of my career. Faced by a severe terrorist threat, we should aim to reach, after debate and discussion, a broad, cross-party consensus on the way ahead. Polarized positions are damaging to what we are all trying to achieve in preventing – I underline that – detecting and countering terrorism.