Henry Porter and Tony Blair: The letters

This exchenge of letters between Henry Porter to Tony Blair were published in The Observer earlier this year.

From: Henry Porter To: Tony Blair Re: Liberty

Dear Prime Minister,

Nine years ago, as I watched you arrive at the South Bank on the night when you became Prime Minister, I would never have imagined that I’d come to view you as a serious threat to British democracy. But regrettably I have. Either by accident or design, your ‘modernising’ Labour government has steadily attacked our rights and freedoms, eroding the Rule of Law and profoundly altering the relationship between authority and the people.

Successive laws passed by New Labour have pared down our liberty at an astonishing rate. The right to trial by jury, the right to silence, the right not to be punished until a court has decided that the law has been broken, the right to demonstrate and protest, the presumption of innocence, the right to private communication, the right to travel without surveillance and the details of that journey being retained – all have been curtailed by your legislation.

While hearsay has become admissible in court, free speech is being patrolled by officious use of public order laws. In Parliament Square we now see people parading with blank placards to make the point that they are not allowed to demonstrate within one kilometre of the Square under the new Serious Organised Crime and Police Act (SOCPA). And this in the land once called the Mother of Parliaments.

For a democrat, this is all profoundly troubling. I hope that you believe you are acting in good faith; that you are simply motivated by the need to respond to the threats of terrorism and organised crime and the nuisance of anti-social behaviour, but I wonder if you have any idea of the cumulative effect of the 15 or so bills which have incrementally removed or compromised our liberties.

Forgive me, Prime Minister, if I say that the country has faced far greater threats under many of your predecessors and they did not go in for this wholesale assault on the Rule of Law. One of the results of your modernising zeal is that while the state has become invisibly more authoritarian, we all to some extent have become suspects. Under the SOCPA, a person can be arrested for any offence – even dropping litter. Before charges are laid he is fingerprinted, photographed and required to provide a sample of his DNA for indefinite retention by the police database.

That says a lot about the state’s attitude to the individual’s innocence before he has been tried, but even more about the state’s odd sense of entitlement to the essence of each person. Defenders of this practice say it is justified if a single murderer is prosecuted. With the same reasoning you would ban the use of cars if it saved a single life claimed in road accidents.

Reasoning is so often the problem with laws hurried through to show that the government is doing something in response to yesterday’s headlines. The reasons for the ID card scheme are serially given as a means to combat terrorism, benefit fraud, illegal immigration and identity theft. You will agree the ID card could not have stopped the British bombers of 7 July last year.

Government figures estimate benefit fraud due to identity theft at between ’20-’50m per annum, a fraction of the LSE’s low cost estimate for the scheme of ’10bn. There is no ID system in the world that cannot be breached by determined gangs. And illegal immigrants? Well, a card might make their lives more difficult but it won’t stop people-smuggling.

Set against these ‘benefits’ are the cost to the tax payer (how many schools or hospitals would ’10bn buy?) and the implications of the total surveillance of people’s lives, the details of which will be retained in the National Identity Register database for the inspection of joined-up authority. I have nothing to hide, but I fear this scheme beyond any of your measures, for it is the dream of every authoritarian government to be able to monitor its citizens around the clock.

Just as harassment, anti-social behaviour and terrorism laws have been used to limit free speech and protest, so the ID card scheme will come to control the life of this country in ways that we can barely imagine. I conclude that this is its primary purpose and that your government has shamelessly used the fear of terrorism and the loathing of scroungers and illegal immigrants to attain this goal of total supervision.

I could be persuaded to put a more benevolent interpretation on so much of what you have done, if it weren’t for the fact that parallel to the assault on liberty has been your move against Parliament in favour of giving the Executive more arbitrary powers. You say that you respect Parliament, that you answered more questions than your predecessors and that you are the first Prime Minister to appear before a select committee, but in other ways you seem thoroughly hostile to the idea of scrutiny by elected representatives.

The Civil Contingency Act, presented as modernising emergency powers for the age of terrorism, allows ministers in an emergency, which they only have to believe is about to occur, to make practically any provision without reference to parliament. The Inquiries Act, in effect, allows ministers to scrutinise their own behaviour, while the Legislative and Regulatory Reform Bill proposed an extension of law by ministerial decree. There has been a government retreat – or ‘clarification’ – on this. I pray it is real.

It is possible that many of your measures have been subject to a law of unintended consequences. That is also my deepest concern. Whatever your motives today, it is clear that by ignoring the ancient traditions of the unwritten British constitution you have provided all the laws that a hard-line leader would need to drive this country into dictatorship. You have offered us a trade-off between freedom and security: I fear we will lose both.

Yours sincerely,

Henry Porter

From: Tony Blair To: Henry Porter Subject: Liberty

Dear Henry Porter,

Frankly it’s difficult to know where to start, given the mishmash of misunderstanding, gross exaggeration and things that are just plain wrong. A few explanatory facts might help.

You say I have ‘pared down our liberty at an astonishing rate’, then list a whole lot of fundamental rights, as if these had all been drastically curtailed. We are proposing that the right to trial by jury be changed in one set of circumstances: highly complex serious fraud cases. The reason is simple. The cases last for months, sometimes years – they are incredibly difficult for juries for time and complexity reasons; it is over 30 years since Lord Roskill recommended the change because otherwise such cases often collapse at huge expense and the guilty go free. The estimated number of cases per year is around 20, out of a total of 40,000 jury trials.

The right to silence was already restricted by the Criminal Justice and Public Order Act 1994 (Sections 34-38), which enables a court, if it wishes and in certain circumstances, to draw an adverse inference from a defendant’s failure to answer questions on any charge. The only change introduced by this Government was to clarify (in the light of subsequent case law) the circumstances under which inferences can be drawn from silence in cases where the charge is one of causing the death of a child or vulnerable adult. This again is in a tiny number of cases.

You say people can only have blank placards outside Parliament and can’t protest. Go and look at the placards of those camped outside Parliament – they are most certainly not blank and usually contain words not entirely favourable to your correspondent. Outside Downing Street, virtually every day there are protests of one sort or another.

It’s correct that, again in a small number of cases, we have introduced unusual restrictions to combat terrorists. There are 12 control orders in place. But we did suffer the death by terrorism of over 50 of our citizens last July. In common with virtually every major nation in the world, we are tightening our restrictions but there are, in every case, elaborate mechanisms of scrutiny and oversight.

And, of course, the reason why even these types of restrictions can end up in our courts and be struck down, is that this Government gave British citizens for the first time ever the power to challenge Executive action or legislation, through the incorporation of the European Convention.

We enter the realm of fantasy with your and others’ strictures on the Regulatory Reform Bill. This legislation is proposed for a straight-forward reason. Much regulation becomes redundant over time. It’s a real problem for business. It costs money and causes hassle, often in circumstances far removed from its original purpose. The problem is that if it is in primary legislation then only by formal Act of Parliament can it be changed. In a busy schedule where usually the legislation is very arcane, it can take years, if ever, for necessary change to occur.

The proposal is that in circumstances closely defined and expressly where it doesn’t interfere with people’s basic rights, ministers can propose removing the regulation by order. But before this can actually happen, first the order is subject to public consultation; second, it is scrutinised by independent committees of both houses of parliament; third, there is then a debate before the order is passed in Parliament, which can naturally refuse to accept it. To describe this as the ‘abolition of Parliamentary democracy’ – as some critics have – is more than a little far-fetched.

However, having said all of this, there is a genuine issue of contention between us. I have now read Lord Steyn’s Attlee Foundation lecture. I would love to give a more considered intellectual and political response. But for these purposes let me just say: it shows how far out of touch much of the political and legal establishment is today with the reality of people’s lives.

Go and talk to people living on estates blighted by anti-social behaviour. Until the new laws allowed them to put restrictions on offenders, close down houses used for drug dealing, seize dealers’ assets, disperse gangs of youths, fine vandals on the spot, the victims had nothing to protect them except the usual process of the criminal law, which was hopelessly inadequate. Recently I visited East Manchester and Camden, where, I am proud to say, Labour councillors had, with the police and local residents used the new laws to put some respect and decency back into their communities.

When we talk of civil liberties, what about theirs, the law-abiding people; the ones who treat others with courtesy and good manners and expect the same back? Don’t theirs count for anything?

You complain of the DNA database samples being retained. Since we allowed this, over 14,000 offences have been successfully matched to over 8,000 suspects including over 100 murders and 100 rapes – and as far as I am aware, no one is on the database for dropping litter!

You can’t deal with the levels of sophistication in today’s organised crime by traditional methods. That’s why we are giving the new agency new powers to force suspects to disclose information, to open up their accounts; to ensure that their advisers can’t conceal evidence; and to track their movements not just in Britain but abroad. But look at what these people do. They traffic in human beings, often, as I heard for myself a few weeks back, young girls sold into prostitution; they deal in drugs, with levels of violence unimaginable in the past.

I am sorry to tell you: I want us to go further in all these areas. The alternative is that they, who do not play by our rules or any rules, get away with it.

The issue of ID cards is a little different, because I think there are very good reasons of practicality why, in today’s world, people should be able to protect their identity from fraud or abuse. The figure of ’10bn for the cost is ludicrous; and in any event 70 per cent of the cost is because of the move to biometric passports, happening round the western world.

Ultimately, for me this whole issue is not about whether we care about civil liberties, but how we care for them in the modern world. If the traditional processes were the answer to these crime and law and order problems that are an age away from Dixon of Dock Green and the stable communities of 50 years ago, then we wouldn’t be having this debate. But they’re not. They’ve failed. They are leaving the innocent unprotected and the guilty unpunished. That’s why we need them changed.

Yours sincerely,

Tony Blair

From: Henry Porter To: Tony Blair Re: Liberty

Dear Prime Minister,

Thank you for a very revealing reply. My case is that your government has cumulatively attacked the Rule of Law by reducing liberties in many different areas. I believe you confirm that in a way, though you say in mitigation that the numbers of people affected by control orders and who have been tried without a jury are small. True, but a precedent has been set – people are being punished without trial. And they are not allowed to know the evidence against them, or be represented by their own legal team when it is being heard. Lord knows how all this may be abused by future governments which in terms of numbers may be rather more ambitious than yours.

There are two other points I wish to take you up on. The first is about demonstrations in Parliament Square, which are banned without written permission under SOCPA. The only reason you see placards in Parliament Square today is because the anti-war protester Brian Haw’s demonstration preceded the introduction of the act, which is not retrospective. His presence in the square is still being challenged by government lawyers. As to the incorporation of the European Convention on Human Rights, surely it is the case that British citizens cannot challenge such things as control orders because the courts have no power to ‘strike down’ measures introduced by primary legislation in a sovereign Parliament.

The philosophical difference between us is sharp. I don’t know whether Lord Steyn is out of touch, though, judging by his evident humanity, I would guess he’s not as removed as you suggest. Either way, the job of the law lords is to uphold the law and see that justice is available to every citizen. Fortunately, their authority does not come from being elected. This may be irritating to the government and diminish their importance in your eyes, but part of their purpose is to be less swayed by the convulsions of public opinion than politicians are.

In the anti-social behaviour legislation you have reacted to an outcry about delinquency – often justified – but you have produced bad law which allows gossip and rumour to be heard before the order is granted. And that hearsay may very well end with a person’s imprisonment for an action which is not classed as an offence under British law.

The broader point is that in these and other laws you have eroded the profoundly important principle of the presumption of innocence. To tamper with the Rule of Law is not the right way for a healthy democracy to meet the modern threats which you describe so vividly. Last week, Lord Steyn quoted Churchill on the dispassionate rights affecting the accused and convicted. ‘These are the symbols – remarked your great predecessor – which mark and measure the stored-up strength of a nation, and are a sign and proof of the living virtue in it.’ This ‘stored-up strength’ is what you are ignoring and harming in these laws. I worry when you say you want ‘to go further in all these areas.’ Can you say how?

Finally, I don’t understand the difference between caring about civil liberties and caring for them. To someone like me – a democrat above any party loyalty – the distinction is false. A nation either protects a body of civil liberties, or it doesn’t. I fear that Britain is slipping into the latter category.

From: Tony Blair To: Henry Porter Subject: Liberty

Dear Henry Porter,

We are getting to the heart of the difference between us which, I agree, is of immense importance to the way our country is run and the values that govern it. You are right when you say we have disturbed the normal legal process with the anti-social behaviour laws. You are wrong when you say action is taken under them on the basis of ‘gossip and rumour’.

Please speak to the victims of this menace. 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 2am; 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. And yes, because often these thugs terrorise those who challenge them, we allow the police to give the evidence as hearsay. But the result is that where these powers are being used, the law-abiding no longer live in fear of the lawless.

And yes, I would go further. I would widen the police powers to seize the cash of suspected drug dealers, the cars they drive round in, and require them to prove they came by them, lawfully. I would impose restrictions on those suspected of being involved in organised crime. In fact, I would generally harry, hassle and hound them until they give up or leave the country. I would make it a presumption that those who deal in drugs to young children should go to prison; and I would make breach of a drugs treatment order an arrestable offence. But at the same time, we should increase, as we are doing, the provision and speed of drug treatment.

The point about the Human Rights Act is that it does allow the courts to strike down the act of our ‘sovereign Parliament’. The anti-terrorist legislation was struck down in precisely this way. Take asylum. We have introduced measures which… have allowed us to cut asylum claims dramatically. We are now, for the first time, removing more failed claimants than we are receiving unfounded claims. If we hadn’t legislated, the impact would have been felt in deteriorating community relations and in racists exploiting the issue. The reason is that there were real abuses of the system; organised gangs behind bulk claims; shady advisers cooking up scams. If we hadn’t acted, even reasonable people would have become unreasonable. Even so it remains, as we have seen, a highly charged problem.

The same is true as we now try to deport people who are inciting hatred and fomenting extremism in the Muslim community. Again, every step will be fought over in the courts. But again, the reason we are acting is not a desire to be dictatorial but a genuine desire to protect our way of life from those who would destroy it.

Incidentally, I would never suggest either you or Lord Steyn were anything other than humane. I respect entirely your motives. I just think the practical effect of following the course you set out is a loss of civil liberties for the majority. In fact, a better criticism of the politicians, including myself, is that we need to do more on rehabilitation for prisoners, activities for young people, and community engagement with the disaffected and alienated within our society. But that’s another topic.

From: Henry Porter To: Tony Blair Re: Liberty

Dear Prime Minister,

On the evening of 7 July last year I was in a pub in Euston a few hundred yards from where the bus was blown up. The TV was on and you were making a speech which included this statement: ‘When they try to intimidate us, we will not be intimidated; when they seek to change our country, our way of life by these methods, we will not be changed.’ I admired your staunchness at the end of what must have been a draining week.

But we have changed. The fear of terrorism has allowed you to bring in laws that a Conservative government would not have dreamed of. I understand that there is a huge constituency out there for this kind of anti-terror and also crime-busting legislation – and it won’t do you any harm in the run-up to the local elections to be sounding as tough as you do in this exchange – but it is worrying that nowhere in the paragraph when you describe hounding criminals and drug dealers do you mention a court of law. I am not asking you to be weak on criminals, merely to adhere to the Rule of Law. If there is no respect for its traditions, any government may do what it likes.

The point about anti-terrorist law is that we do have control orders and this is causing concern in Europe, as the EU report on human rights in the UK makes clear. I don’t believe we should rely on Europe to define our rights but I am now certain after this correspondence that the country needs a wider debate, in which the best democratic minds assert the need for government restraint when it comes to personal freedom and the sidelining of Parliament.

This has been highly illuminating. Thank you for responding so frankly.

From: Tony Blair To: Henry Porter Subject: Liberty

Dear Henry Porter,

Thank you for what you said about 7/7. Londoners responded with extraordinary unity. But that doesn’t mean they didn’t also want action against those who do such terrible things, precisely to protect those values we both and they share.

The question for me is: whose civil liberties? Of course the offender has rights; but so has the victim. If the practical effect of the law is that people live in fear because the offender is unafraid of the legal process then, in the name of civil liberties, we are allowing the vulnerable, the decent, the people who show respect and expect it back, to have their essential liberties trampled on.

This is why I say this is as much an issue of modernity as liberty. We are trying to fight 21st century crime by 19th century means. It hasn’t worked. It won’t work. The terrorism is different. The street crime is different.

This new terrorism requires a separate debate. But on anti-social behaviour I agree the causes of this are very deep – to do with shifting communities, dysfunctional families, globalisation and myriad influences, not all benign, to which our young people are subject. And, at the risk of opening another front, the remedies here are quite stark too. The system intervenes once kids are off the rails. This is usually hopeless. We need intervention at an early age.

I agree with you on one other thing. The politics of this cross left/right lines. Interestingly, in British politics today many Tories, the Lib Dems and a part of Labour (but really only a small part) would agree with you. I truly believe they are out of touch with their own voters. Anti-social behaviour is not a big issue for the Westminster village. Out in the country, it is predominant.

People aren’t naive about it. They know the old days aren’t coming back. The age of deference has passed and a good thing too. But people mourn the loss of respect. That is something utterly basic to any society. They want it back; and if, in order to get it back, we have to alter our traditional way of thinking and doing, then people, and I mean wholly reasonable, moderate people, will make a very conscious decision to do just that.

Anyway, as you say, it is an important debate and thank you for the chance of participating in it with you.

The new laws: right move or wrong?

‘ The right: To be tried by a jury

What happened? Abolished in cases of serious and complex fraud in 2003. Remains for all other crimes.

Critics say: Judgment by one’s peers is a cornerstone of British law.

Labour says: Juries were baffled by complex evidence, trials were prone to collapse.

‘ The right: To protest

What happened? Since 2005, demonstrations outside the House of Commons must be pre-notified to, and approved by, police.

Critics say: It’s gagging free speech

Labour says: Since August 157 demonstrations have been held.

‘ The right: Not to be convicted on hearsay evidence

What happened? The Anti-Social Behaviour Act 2003, targeting low level offending and intimidatory behaviour. Hearsay evidence can be submitted to get an anti-social behaviour order (Asbo).

Critics say: Courts are dispensing Asbos at everything from kids wearing hoodies to a farmer whose pigs kept escaping. Breach of Asbo can attract custodial sentence even if the original behaviour couldn’t.

Labour says: Try living on a sink estate and you’ll see why it’s needed. Youth Justice Board research found most juveniles jailed for Asbo breaches had committed other serious offences.

‘ The right: To trial

What happened? Under the Prevention of Terrorism Act 2005 the Home Secretary can undertake control orders restricting the liberty of individuals suspected of terrorist involvement – without trial.

Critics say: That’s internment: it never worked against the IRA.

Labour says: The suicide bomber threat is different and requires a different response. Better than jailing people without trial.

‘ The right: To freedom of movement

What happened? The Civil Contingencies Act 2004 gives Cabinet ministers sweeping powers in designated emergencies including quarantine areas, restricting travel, handing control of essential industries to the army.

Critics say: These are police state powers.

Labour says: They’d only be used in extremis.

‘ The right: To privacy

What happened? DNA samples taken from anyone arrested but acquitted or not prosecuted are now retained on a national database. The Identity Cards Act 2006 introduces (initially) voluntary ID cards with biometric identification.

Critics say: ID cards are a Big Brother concept.

Labour says: Matching crime scene samples with the database has helped solve murders and rapes. ID cards tackle identity fraud, illegal immigration and terrorism.