Freedom works.

Please note: this post was written at my request by Michael Dowsett, after yet another European policy which breached the Rule of Law, as classically understood. – Steve

The rule of law is a phrase which is widely used but perhaps little understood. Far from being merely the sum total of all the laws passed by a particular central or local administration plus courts to enforce them, the term ‘the rule of law’ draws on a higher concept of laws and practices which promote equality before the law, general and abstract rules for citizens and an independent judiciary.

So, where did the rule of law originate? What does it mean? And why is it relevant to the conduct of politics today?

‘An unjust law is no law’:

The principle was first seen in Ancient Rome and Ancient Greece that the laws under which citizens live should evolve gradually over time and not merely be decreed by sources of arbitrary power. For this reason, greater trust was put in the hands of the judiciary to develop law, through a process called common law: law developed through ‘case and precedent’ established through various cases. This approach was formed from a number of principles:

Accountability:

All are able to be equally held to account under the law, regardless of power status within the particular jurisdiction. As such, rulers are as liable to be held to account as ‘the ruled.’

Natural justice:

Natural justice implies that all laws are predictable so that an individual can be sure how they will be treated under the law, should they proceed with a particular action. In conjunction with this, the law should be clear and stable. It should also avoid retroactivity; that is judgement on the basis of laws which were only passed after the act in question was committed. As Bastiat states in The Law, the law of the land should be ‘negative,’ and not perpetuate injustice through retroactivity; or indeed the confiscation of liberty or property through regulation or redistribution of wealth.

The rule of law in practice

The application of the rule of law is multifaceted, and ranges from an independent judiciary to the conduct of economic policy. However, the core principle advocates of the rule of law would embrace is the assertion that its principles are incompatible with a planned society. As Hayek said in The Constitution of Liberty, although a person in a planned society “…is not fundamentally deprived of the use of his capacities; he is deprived of the possibility of using his knowledge for his own aims.” Fundamentally, the rule of law and a free society go hand in hand.

Defenders of the rule of law also advocate the adoption of written constitutions, such as the United States Constitution, to formally codify the duties and restrictions on the power of particular parts of government. In the absence of such formal written constitutions, a gradual creep towards an arbitrary use of power can occur, thus undermining the rule of law. The threat of such a development is only increased by the greater power now enjoyed by supra-national organisations, such as the European Union. The lack of democratic legitimacy and accountability the EU has helps to explain why it consistently seeks to acquire new competencies and powers through ‘ratchet clauses’ and similar mechanisms, which undermine the principles of predictability and generality at the heart of natural justice.

In conclusion, the rule of law is crucial to the functioning of a free and prosperous society. It is as relevant today as when the principles at its heart were developed in Ancient Greece and Rome. Governments should be vigilant that their actions and approaches to policy do not undermine the principles of ‘natural justice’ and should avoid the temptation to wield arbitrary power in the pursuit of political gain.

You can read more on these fundamental principles by downloading: Principles for a Free Society by Dr. Nigel Ashford.

Over the past few days, many constituents have written to me expressing anger and dismay about the riots, policing and justice. I share this anger and dismay.  As I said in my article on Wednesday, we must establish that the state’s duty is to protect the law-abiding and their property first and foremost and that the police do not require the consent of rioters before acting with reasonable force.

The Prime Minister has said that we will do whatever it takes to restore law and order and to rebuild our communities. His statement yesterday may be found here.

As the Prime Minister has said, too few police were deployed and their tactics did not work. They faced widespread, simultaneous looting, not concentrated public disorder.

More police have now been put on the streets, more people have been arrested and more criminals are being prosecuted.  No phoney concerns will get in the way of publicising the faces of those wanted for crimes.  The police are already authorised to use baton rounds (“rubber bullets”) and there are contingency plans in place to make water cannon available at 24 hours notice.  The Government will give the police the power to remove face coverings under any circumstances where there is reasonable suspicion that they are related to criminal activity.

The Prime Minister also announced measures to support victims and to tackle the culture of criminality which has grown up in our country. There is a difference between right and wrong: a culture which glorifies violence, disrespect and irresponsibility is unacceptable. The Government is setting out to do those things which will change our broken society.

I was glad that the Prime Minister yesterday reasserted the old principle that the public are the police and the police are the public. Given that people are entitled under law to use reasonable force in defence of their lives, their property and their communities, it is important that the public are given appropriate guidance. I will be writing to the Home Secretary seeking that guidance.

Similarly, the police should be guided by the principle of reasonable force. Occasionally, an individual police officer has used excessive force in a difficult atmosphere but, over the past few days, the police have not used that force which it appears the majority of the population would have endorsed. I personally do not approve of ‘kettling’ peaceful demonstrators. We have to recognise that the police are in an extremely difficult position in this area. However, Parliament and the Government must ensure that the police are able to use that force which is reasonable in the circumstances, even if that includes the use of baton rounds, water cannons, tear gas or other tactics which may cause serious injury or even death.

We now face the problem of inadequate sentencing. I will be writing to the Justice Secretary on that subject.

All in all, I believe we now see clearly the legacy of a century of misguided statism and surrender of basic human values. The police have not drawn the correct distinction between policing legitimate demonstrations and intervening in criminal riots: unreasonable force has sometimes been used where none was appropriate and reasonable force has not been used where it was required. That must be resolved.

How so many people have come to be so reckless, irresponsible, immoral and downright criminal will be a subject for discussion over many years. I am reminded of the warnings issued by C S Lewis in The Abolition of Man and by Alexis de Tocqueville, who wrote in the 19th century of the dangers of the nanny state:

Subjection in minor affairs breaks out every day and is felt by the whole community indiscriminately. It does not drive men to resistance, but it crosses them at every turn, till they are led to surrender the exercise of their own will. Thus their spirit is gradually broken and their character enervated [...]. It is in vain to summon a people who have been rendered so dependent on the central power to choose from time to time the representatives of that power; this rare and brief exercise of their free choice, however important it may be, will not prevent them from gradually losing the faculties of thinking, feeling, and acting for themselves, and thus gradually falling below the level of humanity.

It is my view that many in our society have sunk to the present level because, for generations, we have progressively surrendered ourselves to the embrace of the state. It is past time that we rediscovered the classical English values of liberty under the law, which means responsibility. That would include building a straightforward system of justice based, not on the state’s attempt to shape the individual’s character, but on the protection of life, liberty and property.

However, on the positive side, I have been deeply heartened by the way communities have come together to defend themselves and to clear up the mess created by those who have betrayed their fellow man. Moreover, the young people I meet in Wycombe schools and during their work experience unfailingly lift my spirits with their sincerity, good intent and earnestness. Our young people are, on the whole, a cause not for despair but for hope.

The disgraceful events of the past days contain many lessons for us all. We should now strive to build a better society based on personal and social responsibility and those values which have sustained every civilisation, foremost of which is this: do as you would have others do unto you.

I spoke last night in the debate on the Terrorism Prevention and Investigation Measures Bill, expressing my contempt for the surrender of our highest values in the face of cowardly enemies.

9.10 pm

Steve Baker (Wycombe) (Con): As I follow my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), I am reminded of something that I learned shortly after I arrived in the Chamber—that is, that some of the finest and most informative speeches are delivered after the glare of the media has departed from the Front Benches. I found his remarks very interesting, although I have not agreed with all of them.

I associate myself with the remarks of my hon. Friends the Members for Newark (Patrick Mercer) and for Esher and Walton (Mr Raab). Listening to the remarks of my hon. Friend the Member for Bournemouth East (Mr Ellwood), I found myself disagreeing with him somewhat. I hope he will forgive me if I say that I think the threat that we face today is not the same as the threat that we faced during the cold war. We do not face total nuclear war or mutually assured destruction. During the cold war we did not capitulate our highest values. Instead, we sought to emphasise them. As my hon. Friend mentions the cold war, I hope the House will forgive me if I quote Reagan in 1964:

“You and I know and do not believe that life is so dear and peace so sweet as to be purchased at the price of chains and slavery. If nothing in life is worth dying for, when did this begin—just in the face of this enemy?”

I could go on, and I am sure some Members would enjoy it if I did. Just in the face of this enemy? No. Some values are higher than life itself.

I particularly associate myself with the remarks of my hon. Friend the Member for Keighley (Kris Hopkins). Like him, I have a large Muslim population in my constituency and I have come to be very fond of those fine people. I have found that we share a commitment to justice and to objective morality as the basis for our liberty. It is true that a very small number of my constituents have been convicted of terrorist atrocities, so I approach this subject with considerable care.

As a gallant Member of the House, Mr Deputy Speaker, you may recognise in me a sense of missing the clarity of serving in the armed forces. When I first considered the subject of the prevention of terrorism, I had just come out of university and the law of armed conflict in the UK and carrying firearms in the UK was being explained. It was made perfectly clear to us, fresh out of university, that the correct response to a terrorist caught in the act of committing a terrorist atrocity was a bullet—a single aimed shot at the centre of the chest. We were shocked and appalled when that instructor explained to us that he would be disappointed if any member of the armed forces did not take the opportunity offered by the rules of engagement to shoot a terrorist.

That is only the first category of ways we might deal with terror. The second is that which we are all perhaps more used to—investigation, arrest, charge, conviction, imprisonment. I think the mood of the House is that we would all prefer that standard criminal process to be followed. The final category seems to be the strange twilight which we have entered, the twilight of semi-guilt and shadow justice, where we cannot bring people to prosecution, yet we fear them. What has happened to us?

Some words are so powerful and represent concepts so important that people will lay down their very lives for them—words like “liberty” and “justice”, inseparable words, hooray words, which unfortunately, as I have discovered in my political journey, are subject to interpretation and political conflict. But our forebears laid down their lives for liberty and justice. I was asked once on my journey here if there was one thing I could change about the state that Britain finds itself in, what would it be? Before I was asked, I thought I would say we should leave the European Union, but on reflection and having read the brilliant book by my hon. Friend the Member for Esher and Walton, “The Assault on Liberty”, I found myself thinking briefly and saying, “I would repeal control orders.”

Control orders disgust me. They represent the capitulation of our highest values in the face of cowardly enemies. We should not tolerate them, so like some of my hon. Friends, I welcome clause 1. Clause 1 is a glorious and joyful clause, perhaps the finest I have seen in the House.

We face, we are told, a serious and sustained threat. I find myself returning to Pitt. We have come a long way since 1783 when he said:

“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”

I might go less far, but I would say that the response to fear and to threat is not the abandonment of our highest values; it is courage. It is to reach deep within ourselves and to find the courage to face down cowards. That is what I wish the Government would do.

I meet clauses 2 to 27 and the eight schedules with profound misgivings, but I can hardly vote against them as they represent a move in the right direction. The shadow Home Secretary, although offering us a confused analysis of the Bill, has said that they water down control orders, and I think that a good thing. Lord Macdonald said that this measure is

“an unmistakeable rebalancing of public policy in favour of liberty”.

I welcome that, and I will be supporting the Government tonight, but with a very, very heavy heart.

Finally, I should like to quote Benjamin Franklin:

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

I wish that we did not face such choices, but we do. We should reach within ourselves for that courage to face these fears, these threats, and move forward, keeping our values.

I spoke yesterday on clause 3 of the Protection of Freedoms Bill in committee. It relates to the retention of DNA from those arrested but not convicted. Via Hansard:

Steve Baker: I support the clause. We have heard a great deal this afternoon about balance; in particular, the balance between evidence and principle has come out in hon. Members’ remarks. Consideration of that balance speaks very much to the nature of the clause. A lot of the talk has been about evidence, but it struck me that it has also been a conversation about counterfactuals. How many crimes will we not detect if we adopt the measure? I am not sure how one proves how many crimes have not been detected.

The hon. Member for Darlington complained that the measure might be political and not evidential, and she said it with considerable passion. For me, the hon. Lady ably demonstrated that we have adopted a kind of managerialism on the subject that is not driven by principle. It is a fear of consequences, perhaps, rather than what we stand for fundamentally.

If I remember correctly, the hon. Member for Glasgow North West mentioned the Scottish principle of “not proven”, which I would like to pick up. When the Minister talked about our commitment to innocent until proven guilty, which I welcome and fully support, I was reminded of the hon. Gentleman’s remarks. Pressure groups such as the Adam Smith Institute have written to us on this, and if we adopt the measure, in doing so we somehow pick up the Scottish idea of not proven. We charge someone, they are not convicted and yet we put them under the taint of suspicion by retaining their DNA. The hon. Lady mentioned criminologists and their notion that—forgive me if I misphrase this, I am only an engineer—the fundamental pointer to criminality is having been arrested.

Mrs Chapman: I am not a criminologist either, or a lawyer or an engineer; in fact, I was a housewife before I came here.

Michael Ellis: Nothing wrong with that.

Mrs Chapman: Thank you. The point I made was that arrests were an indicator. There are many indicators, but that is the most reliable one we have.

Steve Baker: I am most grateful to the hon. Lady for that clarification; nevertheless, I say that that principle stands in stark contrast to the notion of innocent until proven guilty.

The clause is a balance. It is already a balance between the principle of innocent until proven guilty and, knowing what the hon. Lady has told us, concern that we might not detect certain crimes. It is by no means a dogmatic application of principle, and I know that many will criticise it, but it heads in the right direction in what I could describe—without wishing to be overly pejorative—as a slightly neurotic atmosphere of concern. I believe that we should go further and be more principled. We should assert innocent until proven guilty. If we were to adopt the Scottish notion of not proven and have people living under the taint of suspicion simply because they had been arrested, I would like us to make that decision plainly and clearly, so that we know what we have adopted. Nevertheless, I shall support the Government.

A couple of weeks back, I visited a prison to see the Sycamore Tree Prison Fellowship in action, delivering victim awareness and restorative justice. I was able to see prisoners take clear responsibility for their actions and the hurt and harm caused to victims. It was moving to see men (in this case) whose lives have been blighted by their own crime recognise their opportunities for individual change and restoration.

I understand the programme has significant benefits in reducing reoffending…