An authoritarian state is in the process of construction
Without a single terrorist attack in Britain, our liberties are being removed
Monday February 23, 2004
The news that M15 is to increase its numbers by a thousand is merely the latest instance of David Blunkett's rampant authoritarianism. The secret state's claim that it is losing the never-ending, unprovable war against terror will play its part in the government winning a far greater prize. Across the range of his responsibilities - immigration, policing, the criminal justice system and prisons - Blunkett has either proposed or actually introduced measures whose repressive nature should shock us. That, by now, we may have become inured to them, does not take away from the fact that New Labour is trying to radically change the constitutional environment in which we live.
The home secretary has, among other things, sought to remove sentencing powers from judges; weaken safeguards for those accused of criminal offences; remove the right of jury trial; criminalise asylum seekers; and form a national gendarmerie. While five of the British citizens detained at Camp Delta are to be repatriated with the possibility that they will not face criminal charges, the government continues to run its own little Guantanamo at Belmarsh prison. A number of foreign nationals suspected of having links with terrorism are being detained indefinitely and without trial. Blunkett is assembling a body of repressive legislation of a type not seen in western Europe since the second world war.
There is a stock of evidence to suggest that the home secretary is pursuing a deliberate line which, if unchecked, will result in a significant constitutional shift. The source of this change does not originate with Blunkett or his New Labour predecessor, Jack Straw. Its roots are to be found in the clash between Thatcherite attitudes to criminal justice, immigration and - to a lesser extent - terror, and those integrationist values expressed in the post-1945 social democratic consensus.
Blunkett has continued to build on the foundations laid by Howard, Waddington and Baker. But where the Conservative government had to wage an ideological war against still powerful enemies, New Labour is free, thanks to the Iron Lady, to pursue an agenda which expressly rejects that which has gone before - witness the abolition, at a stroke, of the 1,000-year-old office of lord chancellor.
The timing of these proposals has been fortuitous for the government. Circumstances have conspired to allow Blunkett to announce policies and pass laws that would have been any Thatcherite home secretary's dream. Without a single terrorist attack taking place, or a single civilian in the UK being killed, a climate has been created so that when we are told by the home secretary that our liberties must be removed in order to ensure our freedom, we meekly accept.
The fact that the government has had to derogate from its 1998 Human Rights Act obligations in order to legitimise its policy of internment at Belmarsh is proof that it is talking the language of rights without understanding its meaning. New Labour rights chatter is a devalued currency.
We shouldn't wonder at this. If Blunkett's public pronouncements are examined, they reveal an obsession with authoritarian concepts. In several speeches, he has compared the situation in Britain with that of the Weimar republic, his message being that tough measures taken today will prevent even tougher ones being taken later.
It would be fascinating to know whether Blunkett is familiar with the work of the infamous Weimar - and later Nazi - jurist, Carl Schmitt, whose aphorism "Sovereign is he who decides on the exception" comes closer to describing Blunkett's political practice than does all the cosy communitarian talk about social capital, partnership and mutuality in which the home secretary likes to indulge.
Schmitt was the first political philosopher explicitly to speak of "the other", the enemy who must be identified not only in order to be defeated but also to sustain the coherence of the state. For Schmitt, politics was war. Blunkett's politics also appear to depend on mobilising the masses against the marginalised - those suspected of crime or terrorism, and immigrants and asylum seekers.
The symptoms of the underlying structural change affecting our constitution can, most recently, be seen in the announcement that a British "FBI" is to take over the fight against serious crime from the police. Whatever the arguments for its establishment, there is also important symbolism in dismantling the functions of regional constabularies in favour of a government-controlled super-agency. A fundamentally different, authoritarian paradigm of the state is being created before our eyes.
In his essay, On the Character of a Modern European State, Michael Oakeshott wrote of two modes of association known to Roman law, which may assist in mapping this constitutional metamorphosis. Societas, in its pure form, encompasses the ideal of disinterested rule-based partnership, and universitas suggests focused leadership and directed purpose. In explicit political terms, the former suggests the functioning of participative practices and the workings of democratic institutions, while the latter lays an emphasis on centralised government and teleological leadership - at whose extreme lies totalitarianism. In theory, liberal democracy rests somewhere in between these two ends of the spectrum.
In Britain, which lacks a formal separation of powers, notions of reasonableness are crucial in coordinating the workings of the state. But we are no longer dealing with a reasonable government. We are dealing with one that is failing to respect traditional constitutional values of justice and balance. This government believes less in participative democracy than in governing as an exercise in domination. With each increasingly draconian proposal, the home secretary removes a constitutional safeguard or gathers more power into the executive. By placing the country on a permanent war footing against "the other", we advance rapidly towards the polarity expressed by universitas.
Shouldn't this government's strident moves towards corporatist, directorial government give us pause? The time has surely come to formally delimit the powers of the different actors - government, parliament and judiciary - in the constitution. The home secretary relies on the fact that most of us are not affected by his illiberal experiments to govern by way of the exception. We remain docile in the face of his extraordinary measures against those we are encouraged to consider as outcasts. But if he is allowed to continue imposing measures unsuited to our liberal conception of the state, how long will it be before we too become "the other"?
· John Upton is a barrister specialising in criminal law