An authoritarian state is in the process of construction
http://www.guardian.co.uk/comment/story/0,3604,1153873,00.html


Without a single terrorist attack in Britain, our liberties are being removed

John Upton
Monday February 23, 2004
<http://www.guardian.co.uk/>The Guardian

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

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