News from the front

Johann Hari has dared to cross the monstrous regiment of home educators in his article in the Independent today. In a carefully ambiguous article, he manages to imply that there are lots of home educated children who are simply not learning anything at all, and insinuates that HE parents are little better than child abusers.

Having bad-mouthed the HE community, Hari manages to compound his error by a bit of blatant misrepresentation. He quotes research by someone called Rob Blackhurst, who apparently found that children in HE families, as old as twelve, couldn't read and write. Now if you look up Rob Blackhurst and home education on Google, you will find that Mr Blackhurst is a journalist rather than an academic, and that he wrote a very sympathetic piece about HomeEd in the FT some months back. In it, he does indeed talk of children who didn't learn to read until very late...

One of our children didn't read until he was nine or 10...

says the quoted home educator. Full marks to Mr Hari then? Not exactly. The rest of the quote is

and he's just completed an MA in creative writing.

Not exactly what Mr Hari would have you believe that Blackhurst found, I would say.

There has been a great swathe of media comment about HE in the last week or so, presumably timed to coincide with the return of the English schools. The unions and the left wing commentators have been attacking really quite hard, with vague insinuations of child abuse, and heart-rending tales of children shut up inside for months at a time, deprived of the alleged benefits of a state education and the national curriculum.Reading between the lines though, there are two factors driving them. Firstly they are frightened that the trickle of children out of the state system and into HE will become a flood. If this happens then the state education system will be put under enormous strain and enormous pressure to change. And of course, change is the last thing that the teaching unions want. But most of all, they want access to people's homes. If you read Hari's article, he wants all children to go to school, but most of all he wants education and welfare officers to be able to turn up to check that home educating parents are not abusing their children. He is really that much of a fascist. And rest assured that once education and welfare officers have access to HE homes to check up on children there, the same outraged voices that question why nobody can check up on HE children now, will be raised again to demand why HE homes can be inspected, but not the homes of other children.

HE families are the front line in the fight against the big brother society. They may not realise it, but their fight is the fight of all of us. They deserve our support.

Tagging bank notes

There is an interesting FoI response up on WhatDoTheyKnow? The request was to see what documents there were relating to plans to put RFID tags in bank notes. The response is that there is too much to give within the prescribed cost limits for a request, from which we can presumably conclude that plans are at a relatively advanced stage.

The civil liberties implications of this will very much depend on the range of the particular tags used. Could we have government detector vans driving round the streets looking for stashes of cash? Will the police know how much cash I have in my pocket?

We need to know.

Self-defence

Brian Mickelthwait wonders if the government's recent announcement of a right to self-defence means that the tide of gun control has reversed and that we are soon going to be able to go out and buy six-shooters to our hearts' content. Actually, he doesn't say exactly that. He has taken on board that it may well just be a restatement of the common law and that's it's probably just spinning anyway, but he reckons that the very fact that the subject is being raised means that something has changed.

Having trawled around the interweb, I came across this posting from Tim Lambert's old site, in which he details a series of cases in which people used deadly force and then successfully argued that their actions constituted self-defence. Where they stabbed their attackers in the chest, they even seem not to have been prosecuted, which only seems proper. I can't therefore see how anyone can reasonably argue that self-defence was not allowed before the announcement last week. This does therefore seem to confirm the idea that what we are seeing is what the naysayers think - which is to say a restatement of the common law.  This may well be a disappointment for those on the other side of the pond, who have acclaimed the return of a right to self-defence. Sorry guys, but it never actually went away.

But all of this doesn't mean that there isn't a problem.

Let's imagine what happens when I'm awoken by the sounds of an intruder in my house. I go downstairs to investigate. I take a tool from the toolbox so that I'm not completely defenceless. I don't think this would be construed as unreasonable by a jury. I creep through to the living room where I see the burglar helping himself to valuables from a drawer. There's a crowbar by his side.

What next?

Imagine he hasn't seen me. I am not in fear of my life, because he doesn't know I'm there. What should I do? I can't, I think, bash him on the head or stab him in the back. That wouldn't be self-defence. The Telegraph article on the annoucement says that homeowners are able to "stab or shoot a burglar if confronted".(My emphasis). At the moment there is no confrontation, so I cannot use deadly force. I don't think any reasonable person would want to either.

I think it's instructive here to think what the situation would be if, instead of me, it was a policeman who caught the burglar in the act (and we should remember that the police have no special powers in these situations). Our officer of the law would first have to identify themselves and tell the burglar not to move. If the thief failed to do so, then the policeman would be justified in using his truncheon and other physical force to subdue him. The policeman (or more likely policemen) are fully dressed and as well as being armed with truncheons, they come equipped with mace sprays and stab-proof vests and the like.

Returning to our original scenario then, I have none of the arms and armour that the policemen have. Nevertheless, I wonder if the reasonableness test requires me to order the burglar to stop, or at least to advertise my presence in some way. I think it probably does. It seems fairly clear that my objective has to be to subdue him rather than kill him on the spot, and morally this seems correct.

However, we must notice that once I have told him to stop, or otherwise made my presence known, I have instantly given away what may be my only advantage over the burglar. He is almost certainly younger, stronger and fitter than me. So if he does decide on violence, I will almost certainly lose and I might even lose my life. I may still lose even if I am armed and he is not. The law gives me a bit of a consolation prize, in that I can die in the knowledge that I could use deadly force against him if only I was twenty years younger, but I'm not sure that I consider that to be adequate recompense for the loss of my life.

It seems pretty clear to me that the homeowner, unless young and strong, is placed in an impossible situation. If the burglar is violent, they will probably die. If not, then the thief will be able to make good their escape unmolested.

Actually, apart from the young and strong, there is one other category of people who avoid this unenviable situation. Those few who have shotguns are, of course, able to deal with this situation in the way expected by common law. They can (assuming they can retreive their guns from the gun cabinet in time) identify themselves and order the burglar to stop, with little risk to themselves. They can actually subdue the burglar until the police arrive. They cannot shoot the burglar in the back, any more than I can stab him in the back at the moment, but what they can do is prevent the crime and bring the criminal to justice without undue risk to themselves.

So the question we must ask of Jacqui Smith is, why the only people who can deal effectively with an intruder are young strong men and a few farmers. What about the rest of us?

Frank Fisher on civil liberties

An interesting post on CiF from Frank Fisher, with a really excellent comments thread. Look out for the contributions from commenter WheatFromChaff.

Basher for Liberty news 20

Polling day at last. The weather looks OK. As one DD supporter notes, "Whatever happens, history will record David Davis as the man who took a stand for British freedom".

Following hot on the heels of yesterday's polls showing support for Davis comes the Politics Home tracker which shows that his campaign has made no difference at all. Conservative Home asks "Was it worth it?" and gets taken to task for undermining the Davis campaign by Donal Blaney.

Longrider notes the introduction of curfews in Cornwall. Parents whose children are found out after the government prescribed hour will be punished.

Natalie Rothschild, writing at Spiked, wonders if we'd still be facing surveillance even if there was no terror threat. Sweden, which Mr bin Laden says will not be targeted by Al Qaeda has just instituted some of the most draconian anti-terror legislation in Europe.

Bob Geldof in the Telegraph calls for a big turnout in H&H.

The Guardian apologised for misleading its readers. Davis didn't say that the LibDems had 'funked' the H&H election. Funny that the apology was issued well after the polls were open, and too late for today's edition of the paper.

Our Kingdom thinks the debate has been too much about trivia and not enough about the trade off between liberty and security.

Basher for Liberty news 19

An opinion poll on behalf of the Joseph Rowntree Reform Trust found little support for 42 days among the general public, especially when it was pointed out to them that 6 weeks was the kind of jail sentence you get for assault. Meanwhile, a poll for politics.co.uk finds significant support for Davis's actions.

Commenters are noting these polls and are concluding that Davis is winning the arguments. (see for example Iain Dale, Benedict White, Tim Roll-Pickering, Donal Blaney, The Guardian). The authoritative Polling Report however reckons that the levels of support shown by the polls are only because the questioners told the subjects about the context of Britain's legal traditions.

4 David Davis 4 Freedom is running a poll too.

The Guardian reckons Davis is making progress in his campaign.

Johann Hari in the Independent reckons it's all very complicated. I think he means he's right behind 42 days.

Spy Blog discusses the exposure by newspapers of a fantasist who claimed he was a former SAS man. Measures in the new Counter-terrorism Bill would make this kind of reporting illegal in future.

Tom Griffin reports on a meeting between Bob Marshall-Andrews and Labour's chief whip. It doesn't inspire much hope that the government actually mean well.

Stephen Tall says that DD is a bounder and a cad or some such. Davis has been quoted as saying that Labour and the LibDems "funked it" by not putting up a candidate in H&H. The LDs of course didn't put up a candidate because he asked them not to. Did he really say it though?

Basher for Liberty news 18

Some kinds of satnav systems are reported to be retaining data about their users' movements. This information is being accessed by the police.

Davis says he will never forgive Michael Martin, the speaker of the House of Commons, for refusing to allow him to make a resignation statement.

Geoffrey Robertson QC describes attempts by Jack Straw to reinstate the admissability of anonymous evidence in trials as "a perjurers charter".

Tom Griffin considers a little-noticed section of the Terrorism Bill - the proposal to remove coroners from some inquests. This will effectively allow the state to hide behind a wall of secrecy if one of its officers kills someone illegally.

The FT blog points out that the timing of the 42 days debate in the Lords is perfect for DD's campaign. People who know about the issues, like ex-MI5 head Pauline Neville-JonesEliza Manningham-Butler, are queuing up to condemn the proposals as unworkable.

Basher for Liberty news 16

Will Hutton said that liberty belonged to both left and right.

Davis himself has an article up at the Spectator arguing that the government's security strategy is the worst of all worlds - "draconian, expensive and ineffective".

And finally, someone from the government is going to debate Davis in public. Creepy Tony McNulty will face off against the forces of light on Sky news on Sunday.

Tim Collins, he of the eve of battle speech in Iraq, writes a piece about fighting terrorism without giving up civil liberty.

The campaign

The Greens say that David Davis won't debate with them.

" Just give us the bloody civil liberties!" Bob Geldof is going to Hull to speak on behalf of Davis.

The BBC are campaigning for Labour - "move along, nothing to see here".

Is gun control behind our loss of civil liberties?

This is a question that has been bouncing round in my head, probably for years. Maybe I've been visiting too many libertarian blogs. But then again, maybe there's something in it. We'll see.

A couple of things prompted me to write all this down. Firstly a line in Jan Morris's recent article about civil liberties on Comment is Free and secondly an article on gun control by an American campaigner called Dave Kopel.

Morris first.

Even the middle classes, once the very backbone of robust individualism, are not immune to the contagion. They all think twice about expressing their views in case they say something that is politically incorrect.

She might as well have been speaking about me, because the idea that gun control might be behind our loss of civil liberties is deeply, deeply politically incorrect. It's an idea which is likely to get one labelled as a "nutter". A couple of years ago, I couldn't have imagined holding this kind of belief. But perhaps things are changing, now the civil liberties debate is in full flow, and maybe it's time to try the idea out for size. We'll see.

Morris goes on the predict our eventual decline into submissiveness and eventually into totalitarianism.

A few more generations of nagging and surveillance and we shall have forgotten what true freedom is. Young people will have foregone the excitements of risk, academics will temper all thought with caution, and the great public will accept without demur all restrictions and requirements of the state. Ours will be a people moulded to docility, perfect fodder for ideologues.

And you can see it happening all around you as the surveillance state grows, and freedoms that we once took for granted are legislated into the history books. It really is time to make a stand.

And what about Dave Kopel? Kopel is a libertarian writer and researcher;  he was formerly professor of law at New York University and the [Update: an assistant] attorney general for the state of Colorado. Clearly then, he is a man of some intellectual stature. However he is also a prominent supporter of the right of the American public to carry firearms and his stand on this issue would surely lead a majority of people in this country to categorise him as a "gun-nut". I'm sure I am doing myself no favours by mentioning his ideas on this side of the Atlantic, but as I said, perhaps people might now be ready to consider a different view. We'll see.

Some weeks back, I came across an article Kopel co-wrote with another lawyer called All The Way Down The Slippery Slope: Gun prohibition in England and some lessons for civil liberties in America (link). Like Jan Morris, Kopel also sees Britain ceasing to care about civil liberties - he describes how a people can lose what he calls their "rights-conciousness". He then tries to explain this in terms of the history of gun control in the UK.

After tracing the history of gun ownership from its nineteenth century apogee to full prohibition today, Kopel sets out the effects of the ban on civil liberties in Part IX of the essay. Although his view is that gun prohibition in Britain was not behind the loss of civil liberty, he doesn think that it played an important part:

[A]ll civil liberties in Great Britain have suffered a perilous decline from their previous heights. The nation that once had the best civil liberties record in Western Europe now has one of the worst. The evisceration of the right to arms has not, of course, been the primary cause of the decline, although, as this Essay will discuss later, it has played a not inconsiderable role. More generally, the decline of all British civil liberties appears to stem from some of the same conditions that have afflicted the British right to arms. 

This section of the essay is worth reading just to feel the sense of incomprehension that Kopel has as he reels off the list of restrictions on their liberty that the British have allowed their rulers to inflict on them.

While Kopel makes a strong case against what is currently being called the salami slicing of civil liberties, his thesis that gun control hasn't been a primary cause is starting to seem to me to be wrong, at least for some of the civil liberties problems we face.

Take CCTV. Our city streets are, by common consent, violent, dirty unpleasant places for the most part. Only young strong men are likely to feel safe in many parts of the country, and then only if they are in a gang. As Justin Webb's recent article on violence in America made clear, American streets just aren't like this. 

Why is it then that so many Americans - and foreigners who come here - feel that the place is so, well, safe?

A British man I met in Colorado recently told me he used to live in Kent but he moved to the American state of New Jersey and will not go home because it is, as he put it, "a gentler environment for bringing the kids up."

This is New Jersey. Home of the Sopranos.

Brits arriving in New York, hoping to avoid being slaughtered on day one of their shopping mission to Manhattan are, by day two, beginning to wonder what all the fuss was about. By day three they have had had the scales lifted from their eyes.

I have met incredulous British tourists who have been shocked to the core by the peacefulness of the place, the lack of the violent undercurrent so ubiquitous in British cities, even British market towns.

"It seems so nice here," they quaver.

Well, it is! [...]

Ten or 20 years ago, it was a different story, but things have changed.

And this is Manhattan.

Wait till you get to London Texas, or Glasgow Montana, or Oxford Mississippi or Virgin Utah, for that matter, where every household is required by local ordinance to possess a gun.

Folks will have guns in all of these places and if you break into their homes they will probably kill you.

They will occasionally kill each other in anger or by mistake, but you never feel as unsafe as you can feel in south London.

It is a paradox. Along with the guns there is a tranquillity and civility about American life of which most British people can only dream.

Webb is clearly surprised by this, but he deserves praise for telling it as it is. To Americans it's probably less of a shock. The science fiction writer Robert A Heinlein was pointing out the connection between civility and arms as far back as 1942, when one of his characters opined that "an armed society is a polite society". And when you think about it, the paradox that Webb sees is only on the surface.  As soon as you realise that noone in their right mind would get aggressive with or be rude to someone carrying a gun, it all becomes painfully obvious.

So in America, an armed people has retained old-fashioned manners and old-fashioned civil liberties. This is the common law approach to public order that we used to have here. Civil society was responsible for law and order, and every member of the public was required (that's required, not advised) to intervene if they saw a crime being committed.  Perhaps partly because of that requirement people were able to carry arms for their defence. An article from the Telegraph from a few years back tells the story of a group of Latvian anarchists who attempted a wages robbery in Tottenham. Their intended victims fought back and they were forced to flee, pursued across London by a posse of doughty citizens, both armed and unarmed, who eventually apprehended them. (The police had lost the key to their gun cupboard, and were unable to assist).

This is how it used to be. However it simply doesn't happen like this any more. In the twentieth century we took an entirely different approach to firearms, with the freedom to go armed being steadily eroded by means of successive small legislative and administrative steps - what is now called "salami slicing". First there was licencing and registration, and then tighter and tighter restrictions on who could have a gun, followed by tighter and tighter restrictions on what guns they could have, and how many, and how they had to store them. Eventually the populace was entirely disarmed, and now society can only fall back on the police for its defence. 

The first thing to notice about this process is that it has reduced the number of law enforcement officers on the streets to a tiny fraction of what it was. In the nineteenth century, as we've seen, every adult was responsible for upholding the law and preventing crime. Now we are, quite correctly, advised to leave all this to the police - obviously they are now the only ones with the wherewithal to come out alive from a brush with the criminal classes.

With such a devastating loss of policing manpower, there is now a fleetingly small chance of a law enforcement officer being on hand when a crime is committed. This in turn has meant that the former state of affairs, where  the law could intervene as a crime was committed or soon afterwards, has become impossible to pursue with conviction any longer. There is simply not the manpower to do so. With a horrible inevitability, the state has had to try to convince criminals not to commit crimes in ways other than presenting them with a risk of being caught in the act.

The traditional way of doing this was of course to make the punishments severe enough to discourage people, but with much of the middle classes persuaded that long prison sentences were illiberal, this approach too has suffered. Capital and corporal punishment have likewise fallen by the wayside, and because of the same erroneous presumption that such punishments were irreconcilable with liberalism.

As a result, the state has had to resort to methods used in places where the state doesn't have the confidence of the people. It has taken on all the powers of surveillance that we would associate with a police state - CCTV, DNA database, warrantless searches, fingerprinting children, ID cards, in a desperate bid to convince criminals that the risk of being caught is so high as to make the effort pointless.  But with prison sentences handed out so sparingly, and so regularly cut short by parole boards, the criminal classes are simply not convinced that the risks outweigh the rewards. They know where the CCTV cameras are and the crime wave simply shifts to somewhere less overlooked. 

Looked at this way the root cause of the wave of authoritarian legislation which threatens to swamp us is not authoritarianism so much as "woolly liberalism". We won't punish criminals adequately, so we get more criminals. We won't allow the law-abiding to uphold the law, so our streets get swamped with CCTV. Witnesses can't defend themselves guns, so we have to allow anonymous evidence in court. Women can't defend themselves from rapists, so they shouldn't go out alone. The opinionated can't defend themselves from retribution, so better to legislate them into silence.

We find ourselves between the horns of a dilemma. The idea of rearming the populace is greeted by most "right-thinking" members of the middle classes as evidence of a kind of madness, an idea to get you cast out from polite society. "We don't want to end up like America", they will say, as they check the locks on their doors and windows, and test the burglar alarm one more time.

But the alternative is to continue our increasingly precipitous slide down the slippery slope that ends up with the UK resembling North Korea. 

America or North Korea. You decide.

Basher for Liberty news 15

So here it is, the fifteenth round up of what's happening on the civil liberties front. Lots of people trying to attach their pet causes to the campaign, lots of jostling for party political advantage.

The debate

A trio of posts at Comment is Free: Guy Herbert makes the case for privacy as the basis of civil liberties, John Kampfner talks about Singapore style repression without ever seeming to condemn it, and Geoff Cahill tries to sell us on the alleged virtues of the RIPA Act (not an easy task).

And more today: Diane Abbott says hooray for freedom from arbitrary arrest but she'd like more money for black people. I refer the right honourable lady to the comments I made some moments ago about not conflating two different issues. 

Meanwhile Guy Damann says that liberty is nothing without compassion for others. I refer the right honourable gentleman to the comments I made some moments ago.

The campaign

David Cameron visited H&H to support Davis' campaign. Were his teeth gritted, we wonder?

Tory members don't support Davis' resignation, but seem to support his stance.

Council House Tory reckons the media are lettting the civil liberties issue drop.

The rest

Strong evidence that Keith Vaz's vote on 42 days was bought. Gordon Brown is still denying it.

Boulton & Co says that Vaz's claims that Sky didn't want a debate between the government and Davis because they would have had to give equal time to the other candidates is not true. In fact, Downing Street refused to put up a candidate.

Stephen Tall wonders how the LibDems can get a party political advantage from l'affaire DD.  You would have thought civil liberties would be the priority, wouldn't you?