Is 42 days dead?

by Stephen Tall on October 6, 2008

The BBC’s Nick Robinson thinks it is in spite of the Labour Government’s official denials.

The Lib Dems’ shadow home secretary Chris Huhne wrote here on Lib Dem Voice back in the summer explaining why detaining without trial terrorist suspects for 42 days was wrong both in principle and in practice:

Detention without charge for terrorist suspects has already risen from 7 days, to 14 days, to 28 days just since 1997. The sad truth is that ministers are using this simple number as a proxy to persuade the public that they are tough on terror. In fact, such blunt instruments runs the substantial risk of alienating the communities that we need on board to fight terror.

After all, the police need intelligence and witnesses prepared to give evidence. Britain’s most senior Muslim police officer, Assistant Commissioner Tarique Ghaffour, has warned that these arbitary powers could have a counter-productive effect in the Muslim community, exactly as internment did in Northern Ireland in the seventies.

The fight against terrorism is far too important to be reduced to populist symbols which would substantially curb our hard-won freedoms. This cause is central to our party’s belief in the rule of law and in checks and balances to arbitrary power.

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Apparently the government is facing a massive defeat in the Lords on this. Given how hard they found it to get through the Commons the last time then the chances of them getting it passed using the parliament act are negligible

by Peter1919 on October 6, 2008 at 2:10 pm. Reply #

Ahhh, more of the smoke and mirrors politics of fear.

42 days is being scrapped because it was challenged by the Council of Europe.

http://tinyurl.com/3tjnuh

They produced a report last week. We should all know that this government, nor an incoming Tory one can do anything without the EU making the decision first.

by IanPJ on October 6, 2008 at 2:52 pm. Reply #

IanPJ – the Council of Europe and the EU are two different things, dimwit.

by James Graham on October 6, 2008 at 3:26 pm. Reply #

It is important to realise that the Council of Europe is not to be mistaken with the Council of the European Union or the European Council, which unfortunately in this case I did get mixed up.

Hardly the stuff of derogatory remarks however, nor does it deflect from the outside influences over the decision on 42 days.

by IanPJ on October 6, 2008 at 6:23 pm. Reply #

Sod it, I’m going to bite.

Let’s get this straight. You are in favour of 42 days because the Council of Europe expressed some relatively mild criticisms of the proposal (far, far milder than the House of Lords’ own Constitution Committee report published over the summer)?

What I don’t understand is why a paid up member of the Libertarian Party is anything other than pleased that this authoritarian law may be headed for the dustbin.

by James Graham on October 6, 2008 at 6:35 pm. Reply #

Oh, don’t get me wrong, I want it in the dustbin, I really do.

What I object to is the theatre going on that tries convince everyone that Westminster is still in control of what laws are made.

by IanPJ on October 6, 2008 at 6:43 pm. Reply #

This is a silly argument. We signed up to the ECHR. Damnit, we wrote the ECHR. So we can hardly complain if the Council then suggests that a law of ours might be contradictory to it.

The idea that Brown is dropping this bill because of a Council of Europe report and not because of domestic politics (specifically a House of Lords who will almost certainly reject it and a House of Commons which only adopted it by the most slender of majorities and may well have second thoughts about forcing it through via the Parliament Act) is absurd, laughable and entirely lacking in evidence.

What I really don’t get is why a libertarian would have a problem with the principle of a government having to abide by the rule of law. Would you seriously rather have Labour adopt authoritarian laws than have them stricken down by the courts?

by James Graham on October 6, 2008 at 6:53 pm. Reply #

I most certainly want the government to abide by the rule of law, the rule of law created over centuries to keep the people of the UK free from the Government authoritarianism we are seeing today.

I have read both reports, however, when I read in the HoL constitutional report, which I dont personally feel goes far enough in ensuring the liberty of an accused, conclusions such as this.

“We do not regard habeas corpus as significant to the debate about judicial control over extensions of detention time”.

then I have to wonder who’s rule of law is being used as the baseline. That of our forefathers, or the Napoleonic law of others.

To suggest that this does not matter, that we are just watching domestic politics, misses the point entirely, because it shouts loud and clear as to whether we are still masters of our own destiny in parliamentary terms.

by IanPJ on October 6, 2008 at 7:25 pm. Reply #

Excuse me? The European Convention of Human Rights is “Napoleonic”? Winston Churchill was a Frenchman?

Have you even read the thing? How can you possibly claim it is anything other than a document firmly embedded in the English rights tradition, written as it was by English lawyers?

by James Graham on October 6, 2008 at 8:02 pm. Reply #

My, you have a nice touch in twisting an argument. I have not suggested in any way that the ECHR is Napoleonic. and yes, I have read it, in detail many times.

What I have been driving at is that the Counter Terrorism Bill, of which the 42 days detention is only a part, like most (80%) other legislation drawn up, in merely acting as a translation agent to EU directives is no longer solely using English Constitutional law as its legal base, but rather the Napoleonic base that is used by the EU.

That change has been long, slow and subtle, and has been confirmed by Geoff Hoon in the past, when as the Europe Minister openly admitted that Labour policy was to ignore the legal basis when voting for European legislation.
http://tinyurl.com/4cdvsy

To then have a HoL constitutional committee dismiss habeas corpus as insignificant is outrageous, and suggests that the interests of those committee members may possibly lay elsewhere, as suggested by Lord Rannoch during the Lords debate on the Lisbon Treaty.

Which brings me back to my opening comment, the smoke and mirrors and politics of fear, and that what we see domestically is only theatre.

IMHO the ECHR report IS having a greater impact than our own domestic politics, which at the moment is only to the good, and will be the primary reason for Brown and the Home Office to drop it.

by IanPJ on October 6, 2008 at 9:51 pm. Reply #

I do love it when a pro European and an anti European, take an issue which they agree on and argue whose fault it is. Good on you guys. My fivepennyworth, for what it is worth is Europe is good when it supports liberal democracy and bad when it doesn’t. Hence I am not consistently pro or anti. The difference in legal systems between ours and the Napoleonic is a prime example of the problems with big government; one example where two equally valid approaches just don’t mix well.

by David Evans on October 6, 2008 at 10:49 pm. Reply #

“We should all know that this government, nor an incoming Tory one can do anything without the EU making the decision first.”

When did the EU make the decision on 42 days first?

Please cite the body making the decision, the date and if possible a link to the relevant proceedings.

“What I have been driving at is that the Counter Terrorism Bill, of which the 42 days detention is only a part, like most (80%) other legislation drawn up…”

A nonsensical statistic which relies for its basis on equating the Companies Act 2006 with the SI implementing a directive on the classification of courgettes.

by Hywel Morgan on October 6, 2008 at 11:45 pm. Reply #

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