The other day a passing troll on Lib Dem Voice asked why the Lib Dem blogosphere had neglected Lord Carlile’s statement that detectives might need longer than the current 28 day detention period when dealing with terrorist suspects. Why are we ignoring such a blatantly illiberal statement from within our own ranks, while freely attacking illiberalism in others, says Mr Troll with every appearance of reason? I like trolls whose eyeballs don’t fall out all the time, so I am responding.
First, a disclaimer: it goes without saying that it is not the obligation of the Lib Dem blogosphere to report or discuss anything. We’re not slick and co-ordinated because, well, no-one is co-ordinating or slicking us, and long live that. Individually and collectively we miss things, and it’s not always to our convenience either. We’re just as likely to miss something we could make hay with, as Ed Maxfield pointed out the other day. On the other hand, a relatively obscure issue can be dramatically foregrounded in the course of a day if enough imaginations are caught by it, when the aggregator comes to resemble the main deck of the submarine in Voyage to the Bottom of the Sea under attack by a green latex underwater alien (again). Y’know, the bit when the cameraman would tilt to forty-five degrees and all the actors would rush to one side of the set.
Gratuitous geek-pic to break up 1,000 word post and maintain interest of average expected readership
Having said all that, never let it be said that the People’s Republic of Mortimer operates in its own whimsical vacuum checking in and out of reality as it pleases with no regard to topicality or even, half the time, grammar. A Liberal Democrat’s discussion of Lord Carlile’s statement was requested, and discussed it surely shall be.
The first thing to say is that Lord Carlile is a dusty old judge with a big stick up his arse. No-one’s had the balls to tell him he’s wrong for about forty years. This is why he says things like:
The number of days is a political decision, there’s no logical answer as to how many days is ideal as a maximum.
I think that is a fair separation. It might send big-scary-computer type shivers down a libertarian spine, but good lawyers extrapolate and pontificate in this heartless way as a matter of course, and Carlile is famous for it. If logic takes you off-message, off-message is where you go. Ultimately it is a political decision, and a matter for parliament to pronounce on. And since Carlile is speaking as an independent advisor and not as a Liberal Democrat, he is not taking political decisions. The QC wig is firmly on. It is problematic to suggest that because he is so influential in the field he should not be making statements like this even in the context of independent advice. The fact that he is very influential in the field is why he is giving the independent advice in the first place.
So I would defend him from the basic charge of making a blatantly illiberal statement. My reading is that he thinks he has made it clear he is not talking with his political hat on. To what extent it is possible for anyone to compartmentalise like this is a separate issue, but I reckon someone whose entire career has been based on constantly scrutinised integrity and many years’ training in having a stick up their arse should attract fewer accusations of disingenuousness than most. Nope. He isn’t being illiberal. It’s far more serious than that. He’s being stupid.
Having said that there is no logical number of days for a detention limit, Carlile proceeds to give instances when a longer period of detention is icily logical. Like the Glasgow terror suspect who eventually died of his wounds more than twenty-eight days after arrest. Had he survived and regained consciousness, the police would have been technically unable to interview him. Even more damaging is the generalised example of highly complex terrorist networks which take more man hours to unravel than can be crammed into twenty-eight days. You can’t say there’s no logically ideal number of days and then start extending the logical limit in individual cases. Individual cases will always buck trends. What this shows is that logic, beloved of the law as it may be, is about as helpful here as a [insert metaphor of your choice for extremely unhelpful. I've got other things to do today, you know.]
The decision to set a limit on detention absolutely has to be taken in a higher political register than gathering in all the evidence from the latest police reports. Carlile has it precisely backwards when he says:
I think that the Liberal Democrats, along with the other political parties, ought to look at this as an issue which goes far beyond what I call big politics. It needs to be looked at on its merits
No. Merits change. Big politics doesn’t, or not as fast. There may not be a logical number of days’ detention, but there is an ideal number, and that number is zero. The argument that if 28 days is arbitrary (which it is), it might just as well be 56 days or 90 days is perfectly logical, but it’s been beamed in from another planet. Every decision that infringes liberty is a compromise; the infringement is in protection of a greater liberty. The greater liberty should always have primacy, and in an ideal world that would mean no detention. That seems like a perfectly workable abstract baseline to me.
More interesting therefore is Carlile’s visualisation of a system where detention cases are under constant review from the judiciary from an early stage. Some people, he says, are held for 28 days when there’s no real justification, and they should be released earlier. Well, yes. Why didn’t you say so? The Republic will reach an agreement with Lord Carlile: he stops invoking his silly misconceived version of logic as the arbiter and admits that “big politics” has a role – the starring role – to play in the notion of laying out the guidelines for detention, and I will let him judge each individual case on its merits. That’s what judges are for, after all.
November 8, 2007 at 3:29 pm
[...] post by Alix This was written by . Posted on Thursday, November 8, 2007, at 9:20 am. Filed under [...]
November 8, 2007 at 4:10 pm
Not true. Liberator has put the boot into Carlile. His interest in the law extends into threats of litigation….
November 8, 2007 at 6:43 pm
Alix, thank you for responding to the request from, this troll!
It is very important that Liberal Democrats challenge Carlile. He is being quoted by Government people as a supporter of this change in his role as an “independent overseer of terrorism law”. If we are going to stop this removal of our liberty, we all need to do our bit.
readingliberal, which Liberator issue is that response to Carlile in?
November 8, 2007 at 7:48 pm
Ah, extra comma (or should that be ‘coma’).
What I took from Carlile’s comment about logic was indeed that there was no period of time that could be calculated ‘logically’, which is pretty much what you’re saying. I do agree with you that he seems to be coming at it from the wrong angle – as a liberal and a Liberal I want him to be looking for the lowest period possible that allows the police to do their jobs effectively. (I don’t agree this should be zero, for ‘normal’ crimes you must be charged within 24 hours of arrest and this can be extended for a defined period – any kind of effectiveness requires some time for the police to carry out their investigations and to decide what, if anything they’re going to charge you with).
I simply don’t buy this idea that terrorism is such a special situation that you require nearly three months to hold someone before you decide if there’s going to be a prosecution – I don’t believe there are or should be situations where the police “know” that you’re guilty but don’t actually have evidence they can use in court. A far more liberal response would seem to me to be to allow the use of phone-tap evidence . . .
I feel the same about control orders, and before that attempts to deport people (where’s the logic in the latter? Very important policeman says “This’ere pris’ner is extremely dang’rous Guv, he’s going to kill thousands of people if we leave him free – so let’s send ‘im back to where he came from, where we’ve no idea what he’s up to . . .”.) Hey, I should get a job writing scripts for The Bill
November 8, 2007 at 7:50 pm
Alix says “with no regard to topicality or even, half the time, grammar.”
Aw come on, I occasionally say something of worth! ;o)
November 8, 2007 at 8:57 pm
Hehehe – maybe occasionally.
Zero days is my silly-talk for “in the best of all possible worlds, when all evidence is available instantly and the perpetrator is fully co-operative and very sorry anyway and everyone has a little cry together before they go home”.
I’m genuinely unsure about how long is too long – I hear what you’re saying, Grammar, but how on earth can we know? I suppose that’s why I think it should be reduced to a non-question. The default position should be that it can be done (as good as) instantly. Now obviously you couldn’t just build that into the current system, because then daily applications for extension would have to be made, which is ridiculous.
On a re-reading, Carlile doesn’t seem to me to be actually advocating an extension of the deadline. He’s saying some cases will need longer than 28 days, and he says that in the context of a wider review of the process. But the govt are quoting him as if this is backing the change, as FYI says. This is the problem with letting lawyers mess with politics
They will talk theoretically at the drop of a hat, and think everyone can differentiate. When you look at the progress of the interview, Carlile was being channelled into talking about the 28 days first and so he did – without disclaimers. I am reluctant to sound sympathetic towards him – particularly because I haven’t read the Liberator piece yet, and readingliberal’s ominous ellipsis suggests dirt has been dug… But I do think inbuilt legal pomposity is part of the problem here. Having said that, he could have been highly vocal about being misinterpreted, and he hasn’t been, that I’ve heard.
Should we be expecting him to approach this as a Liberal or a liberal? As an independent advisor, doesn’t he have to leave Liberalism, at least, at the door? A much stronger argument against him, to my mind, is the fact that the change he advocates (or is quoted as advocating) makes no sense. Over and above any question of liberalism, messing with numbers of days is a stupidly short-term way to change the law. A revision of detail just sets us up for another revision when circumstances change again. And that means new regulations, and you and I, Grammar, know what that means – the NOTER-UP.
November 8, 2007 at 9:07 pm
I don’t know, I think you’re suggesting something much more effective against terrorists – the NOTER-UP is all the deterrent I’ll ever need.
Seriously though, I do expect someone to be a liberal when they’re advising independently, because that should, as a Liberal, play some sort of role in his philosophical make-up (along with the mascara of doubt, and the lipstick of humility).