Addicted to law?

democracy, human rights, justice, progressive politics, UK politics

Author(s):  Will Straw
Published date:  08 Aug 2011
Source:  Fabian Review

A future Labour government must avoid the pitfalls of the Blair and Brown era while retaining the right to create new laws where they are truly the only way to address a new or persistent problem.

The murder of Holly Wells and Jessica Chapman by Ian Huntley, in August 2002, shocked Britain. After his conviction it was revealed that Huntley had previously been investigated for one act of indecent assault on an 11-year old, four acts of underage sex and three rapes. Although he had only been charged with one of these alleged crimes and was never convicted, the police had come to regard him as a potential serial sex offender. A sample of his DNA was held by the police. But this record, including the allegations against him and a conviction for burglary had not been properly considered when he applied for a caretaker job at Soham Village College.

Home Secretary, David Blunkett, set up an inquiry to look into what lessons could be learned. It was found that Humberside Police had deleted information about Huntley’s previous behaviour, while Cambridgeshire Police had not followed vetting guidelines. As a result, rules around how police share information were tightened. But although Huntley had been caretaker of a different school and knew the girls through their teaching assistant, Maxine Carr, Labour introduced primary legislation to create a new process for vetting over nine million people who worked or volunteered with children.

As implementation of the scheme approached in 2009, the outcry was deafening. It was revealed that Watford Borough Council planned to ban parents from its adventure playgrounds because they had not been given a Criminal Record Bureau (CRB) check. The NHS was criticised for insisting that each trust carry out its own checks regardless of whether an employee had already received one. Philip Pullman , the popular author, called the plans “outrageous, demeaning and insulting” and said he would not appear in schools again because of it. And it emerged that Lord Carey, the former Archbishop of Canterbury, had needed five separate checks.

The saga seems to epitomise the criticisms levelled at the Labour Government about its overweening statecraft and addiction to legislation. Critics have argued that New Labour was illiberal in its instincts, managerial in its problem solving, and mollycoddling in its implementation of policy. The result, they claim, was a disempowering state where decisions were taken centrally, removing all common sense from risk assessment and enforcement.

Blame for this has been laid squarely at the Fabian Society’s bright red door. “Labour was the child of a cross-class marriage between a decent working-class Dad and an educated middle-class Mum,” writes Maurice Glasman, the scion of ‘Blue Labour’. ‘Mum’ was the Fabian Society, Hyndman’s Social Democratic Federation and the Anglican Church, with “all the advantages of class – resources, eloquence, confidence and science – and none of the experience of hardship”. The result was “technical complex policies” and a party “increasingly dominated by middle-class policy technocrats”.

A related criticism comes from those concerned with civil liberties and human rights. John Kampfner, chief executive of the Index on Censorship, wrote in 2009 that, “The 12 years of New Labour have seen an erosion of civil liberties without precedent in modern British history”. A year earlier, Shami Chakrabarti, Director of Liberty, wrote that Labour was “the most authoritarian government in living memory”.

The charge has appeared to stick and during the Labour leadership election, Ed Miliband conceded that, “in government we were too draconian on aspects of our civil liberties.

We have to be able to say we won’t go back to ID cards. Stop and search went too far.” Labour’s new leader went even further at conference: “too often we seemed casual about [civil liberties]. Like the idea of locking someone away for 90 days – nearly three months in prison – without charging them with a crime. Or the broad use of anti-terrorism measures for purposes for which they were not intended.” But if in the cold light of opposition the policies seem so wrong, why were they pursued in government? Was there something in New Labour’s DNA that made it adopt these policies at the expense of individual freedom or is there a more complicated story about the pressures on a government of the centre-left? Libertarians have long taken the view that liberty is at odds with egalitarian aims, a notion which has been fundamentally rebuked by social democrats. As Dr Stuart White, a politics fellow at Jesus College, Oxford, has written, “poverty – the most extreme and alarming manifestation of economic inequality – seems to reduce liberty quite directly”. John Kampfner shares the view that egalitarianism is a means of delivering greater individual freedom. However he has been critical of Labour’s “meddling in people’s lives”, which he told me was driven by a belief that “the state knows better than you do that you need to be protected”.

But while liberty and equality need not be in conflict in a social democratic or ethical socialist framework, there has always been justification for the encroachment of one group or individual’s liberty at the expense of another’s. As JS Mill set out in his famous ‘harm principle’: “ the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Labour’s former Home Secretary Jacqui Smith told me that many of Labour’s policies which have since been criticised – such as closed-circuit television cameras and Anti- Social Behaviour Orders (ASBOs) – were implemented to protect the liberties of those who were the least economically and socially powerful.

It is worth addressing these two policies in turn. Britain now has a quarter of the world’s CCTV cameras but that in itself is not an argument against them. In 2008-09, CCTV helped the Metropolitan police bring a charge, summons or caution in 23,000 cases – a decent haul. Critics point out that the number had fallen over a five year period but that is partly due to declining crime levels. Indeed, the policy splits civil liberties advocates. While Alexander Deane, former Director of Big Brother Watch, claimed that “the experiment with CCTV has failed”, Shami Chakrabarti of Liberty says that “CCTV has its place” while criticising them on grounds of cost.

ASBOs are an altogether more difficult policy area. They were introduced in 1998 to deter “conduct which caused or was likely to cause harm, harassment, alarm or distress.” The National Audit Office found in 2006 that after receiving an intervention, including in some cases an ASBO, 65 per cent of individuals did not re-engage in antisocial behaviour. This rose to 86 per cent after the second intervention and to 93 per cent after the third. Critics claim this blurs the picture and explain that 55 per cent of ASBOs were breached. Put another way, it means that 45 per cent were successful, which is not a bad return, given that much of the behaviour went unchecked before their introduction. Perhaps the greatest evidence of the policy’s success can be found in Theresa May’s decision to re-label them as Criminal Behaviour Orders despite claiming to have abolished them.

On the other hand, Chakrabarti believes that the policy has trivialised criminal behaviour by “blurring the lines between naughty kids and criminals”. While she accepts that ASBOs may have moved problems from one place to another, they have not necessarily stopped them from happening altogether.

That aside, the policy has certainly been undermined by overzealous enforcement, including in some cases on individuals with a history of mental illness.

By returning to those policies that Labour’s leadership now accept were wrong, is it possible to explain why the party lost sight of its liberal roots? Labour’s rejected policies can, perhaps, be put into three categories. First, there are those instances where the naked politics of triangulation prevailed over an evidence-based approach to policy making. ID cards are a case in point, as the Government was never able to articulate clearly the intention of the policy. Indeed, the lack of a principled commitment to their implementation was exposed when Labour’s negotiators were so quick to drop the proposal when they went into coalition talks with the Lib Dems.

Gordon Brown’s attempt to increase pre-charge detention from 28 to 42 days is another example. Sir Ken Macdonald, who was then head of the Crown Prosecution Service, told The Times that 42 days were not needed and unlikely to find favour with the judges who would have to approve them. “In our experience, the 28-day limit works well,” he said. Indeed, it is well known in Westminster that the plan to extend the period to 42 days was without intellectual merit and entirely geared at creating a dividing line with the Tories as the election approached.

A second group of policies appear to be those that are pursued following a criminal or terrorist act where the clarion call that ‘something must be done’ encourages a new piece of legislation rather than the more politically risky strategy of breathing deeply and looking for lessons learned rather than new rules. The extension of CRB checks following the Soham murders fit the bill here. Millions of adults have been inconvenienced by the policy. But although tighter checks – or, indeed, more attentive record keeping by police forces – might have prevented Ian Huntley from becoming a school caretaker, they would not necessarily have prevented the murders since the girls went to a different school. The difficult truth for politicians – as well as the public and media – is that bad people do bad things and sometimes there is little that the state can do to prevent it.

David Cameron appeared to recognise this following the shooting dead of 12 people in Cumbria last June by Derrick Bird. “Of course we should look at [gun ownership]”, said the Prime Minister, “but we should not leap to knee-jerk conclusions on what should be done on the regulatory front. We do have some of the toughest legislation in the world.” Nonetheless, Jacqui Smith believes that it is harder for Labour politicians to do nothing because they have to prove they are ‘tough on crime’ to a hostile media.

Control Orders are perhaps another example where new, tough-sounding rules do not actually do the business. Seven of the 45 suspects believed to be on Control Orders have disappeared. Another was able to attend a high-level conference featuring then Justice Secretary, Jack Straw, Nick Clegg, and Scotland Yard’s assistant commissioner John Yates in 2009. The Coalition’s difficulty devising an alternative policy suggests that there is no simple solution to dealing with these people – many of whom are foreign nationals who cannot be deported to their own country. But focusing greater resources on surveillance budgets and allowing telephone tap evidence to be admissible in court might be a good way to bring at least one of them to prosecution.

A third category includes policy areas where a more localist approach could be used to reach the same outcome with a greater degree of public legitimacy. Maurice Glasman has criticised the smoking ban as “the most authoritarian, nightmarish, anti-English and anti-pleasure thing.” But the policy is expected to save 40,000 lives over 10 years and is arguably Labour’s greatest public health achievement.

In the United States, smoking bans are determined on a state-by-state basis but the number keeps on increasing as the public health benefits become clearer to see. Public health, as opposed to crime and terrorism, might well be an area where a more localist approach – allowing some areas to lead by example rather than forcing a decision everywhere at the same time – becomes appropriate.

A future Labour Government must avoid the pitfalls of the Blair and Brown era while retaining the right to create new laws where they are truly the only way to address a new or persistent problem. A set of principles should help underpin when a universal, centrist approach would be justified. First, ministers should justify whether there is really a problem that needs addressing in order to avoid fiascos like ID cards and 42-days. Second, they should ensure that a legislative approach – rather than tighter enforcement of existing rules or closer working between different government agencies – is absolutely necessary. Third, they should explain why a national rather than a local approach is the right answer.

Perhaps the most striking reason for adopting this new approach is that it could be a vote winner. With a centralising instinct to its ‘tough on crime’ mantra, Labour managed to simultaneously lose both Guardian reading liberals and salt of the earth centre-ground voters. 42 days appalled the first; CRB checks inconvenienced the second. A future approach that is more honest about risks and smarter about implementation will be critical to persuading voters that Labour has changed. After all, the advancement of egalitarianism – whether reducing economic inequalities or improving dignity and quality of life for the dispossessed – need not come with a big stick.


Our people

Will Straw, Associate Director for Climate Change, Energy and Transport