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Friday, November 09, 2018

After Brexit: civil rights

A major theme in the almost haphazard evolution of the British Constitution is the restraint of executive power. By contrast, the carefully designed constitution of the EU is about unification, at any cost. This is why the UK's entry into what is now the EU was a marriage doomed from the outset.

As North and Booker's book "The Great Deception" makes clear, the roots of the EU go back to the 1920s and the desire of visionaries like Jean Monnet to establish a supranational body that would once and for all end the deadly rivalry of France and Germany. Who could oppose such an aim?

But which aim? There were not one, but two in the preceding paragraph.

As so often in life, aim is translated into method, and the method becomes the new - often fatally modified - aim. If Peace requires a Unifying Power, anything that is a threat to Unity or to Power must be suppressed.

Also, since the functions of the new super-government are reified in institutions, struggling for control of the latter - and for the status and perquisites gained by servicing them - becomes an end in itself, even for those who still sincerely believe in the ultimate goal (if they can remember what it was.) As with many of our own British party political organisations and charities, Idealism and Ambition are near-inseparable stablemates.

Almost inevitably then, the EU has become a well-upholstered gentlemen's fight club for politicians and bureaucrats, with a faux-democratic structure that allows a voice but almost no power to the common citizenry, and a dangerously ill-engineered economic machine grinding down its peripheral member States; all costs deemed worth paying for a Millennium that is forever just around the corner.

The bloody history of Britain has taught us to adopt a more skeptical and pragmatic attitude. "Rulers," said Coleridge, nine years into the French Revolution, "are much the same in all ages & under all forms of government: they are as bad as they dare to be."(1)

If only we had more power, cry the leaders; if only you knew how to use it better, cry the people.

For look what powers the leaders give themselves, and how they use them:

22 August 1485: Henry Tudor defeats King Richard III on the field of Bosworth, and makes himself King Henry VII - with effect from the day before! The backdating allows him to prosecute for treason anybody who fought on Richard's side. It is ten years before Henry feels sufficiently secure on his throne to permit this bloodthirsty abuse of power to be ruled out by the Treason Act of 1495 (still in force today.)(2)

The penalties for treason used to be mandatory, gruesome and irreversible, so trial was carefully fenced round with procedure. This was administratively inconvenient in May 1940 when one wanted to kill not only traitors but German spies and saboteurs, who did not owe allegiance to the Crown. So a new offence of "treachery" was invented. The Home Secretary, Sir John Anderson, explained: "... the Treason Acts might not be applicable to persons who are not normally resident within the King's jurisdiction; and moreover the Treason Acts are antiquated, excessively cumbrous and invested with a dignity and ceremonial that seems to us wholly inappropriate to the sort of case with which we are dealing here."(3)

The new 1940 Treachery Act was rushed through Parliament in a fortnight.

But when it feels the necessity, the Executive in Britain can move a lot faster than that. On 24 August 1939 Parliament was recalled and on the same day passed previously-drafted emergency powers. A week later, Defence Regulation 18B was passed, suspending habeas corpus and allowing for the internment of suspected Nazi sympathisers.

Technically, Parliament's prior approval was not even essential: "It was originally intended that Code B would be imposed by an Order in Council, with retrospective indemnity being granted by an Act of Parliament should anyone dispute the actions of the authorities."(4) There it is again, the ability of the Executive to travel backwards in time to empower and protect itself.

Enter an inconvenient little man: Robert Liversidge(5). Born Jacob Perlsweig, the son of a Russian-Jewish rabbi émigré, he had made money in Canada, returned to England and changed his name. He joined the RAF in WWII but was rounded up with other suspects - an informer reporting him to MI5 as one of a group of "notorious Jew swindlers" - and interned on 26 April 1940.

But he didn't leave it there. He sued for false imprisonment and when reference was made to Code B applied to know the grounds for the order made in his case. The Crown refused to disclose and the case ended up with the Law Lords, who gave their final ruling - against him - in November 1941. Notwithstanding, Liversidge was released on this day, 9 November, 77 years ago.

Although Liversidge lost his case - and for the rest of his long life greatly resented the treatment he had received - it is memorable for the dissenting speech of one of the judges. As required by the Code, the Home Secretary claimed to have "reasonable cause to believe Jack Perlzweig alias Robert Liversidge to be a person of hostile associations." The other judges were happy to take the Home Secretary's assurance that he had such cause; Lord Atkin said that having thereby abdicated their responsibility to investigate and control the executive, they were being "more executive-minded than the executive." He went further, saying that in order to please the executive they were content to twist language out of shape:

"I know of only one authority which might justify the suggested method of construction. "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean, neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be the master, that's all." After all this long discussion the question is whether the words "If a man has" can mean "If a man thinks he has". I have an opinion that they cannot and the case should be decided accordingly."

Reviewing A.W.B. Simpson's "In the Highest Degree Odious: Detention Without Trial in Wartime Britain", Richard Posner of the University of Chicago Law School was inclined to take a sanguine view, comparing Britain's actions under conditions of extreme national peril somewhat favourably with the American approach to internment.(7)

Nevertheless, the watchdogs must be prepared to bark, for the same overweening tendency of the executive is alive today. Less than 10 years ago, a British Government Minister, Harriet Harman, was proposing to backdate law in order to deprive a bank executive, Fred Goodwin, of his pension, citing the "court of public opinion."(8) Whatever one may think of the man in this case, the blithe willingness to leap over legal defences is horrifying. As Robert Bolt's Sir Thomas More says, "This country's planted thick with laws from coast to coast [...]  and if you cut them down [...] d'you really think you could stand upright in the winds that would blow then?"(9)

The EU is set up to allow centrally-issued policies and directives, but its impulse to dictatorship is not unique. And see how quickly civil liberties can be overridden by our Privy Council.

When - if - we escape the EU's rule, the work of establishing and maintaining freedom and justice in this country will scarcely have begun.
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(1) http://inamidst.com/coleridge/letters/letter238
(2) https://en.wikipedia.org/wiki/Treason_Act_1495
(3) https://en.wikipedia.org/wiki/Treachery_Act_1940
(4) https://en.wikipedia.org/wiki/Defence_Regulation_18B
(5) https://en.wikipedia.org/wiki/Robert_Liversidge
(6) https://en.wikiquote.org/wiki/Totalitarianism
(7) https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.co.uk/&httpsredir=1&article=4993&context=journal_articles
(8) http://news.bbc.co.uk/1/hi/uk_politics/7917361.stm
(9) https://en.wikiquote.org/wiki/Robert_Bolt

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