What are we fighting for? Libertarians and nationalists must make common cause

There has been much discussion recently – including on this blog – about whether English nationalism can be reconciled with progressive politics; and whether progressives need to espouse the nationalist cause, associate it with left-of-centre values, and thereby prevent it from falling into the hands of the far right.

I would go further. I would say not only that English nationalism could and should be taken up as a progressive cause but that it should also be at the forefront of the great cause célèbre of the moment: the fight to preserve our civil liberties, currently being championed by the former Conservative shadow home secretary David Davis through the by-election he has called to force a public debate on the issues.

I would recommend to my readers the excellent article by Anthony Barnett of the OurKingdom blog on David Davis’s stand and its significance, if they haven’t already come across this. I left a long’ish comment on it, which I reproduce here, as it summarises my thinking and leads to the point I want to make now:

“This is why we should have the confidence to celebrate the fact that a leading politician is taking issues of principle and government to the people, irrespective of his party politics.

“Especially in Britain (or should I say England, as arguably Alex Salmond has already done this in Scotland).”

Naturally, I see this caveat – “or should I say England” – as key. You won’t see Scottish or Welsh nationalists mounting your barricades, as they’re not interested in building open, representative and constitutional British democracy.

The way I’m interested in framing the issue is as follows: is the British state and parliament losing its democratic legitimacy as a consequence of measures such as 42 days and identity management; or is its recourse to such measures a consequence of the fact that it is losing its legitimacy? One of the truths that the database society manifests is that government no longer trusts the people; and it no longer trusts the people because it has lost the trust of the people.

But it’s not just about government but about the state: the British state, in particular. You’re right to link the ‘transformational government’ programme to the break down of the unitary state that the Labour government itself initiated through devolution. The whole British establishment knows that it is engaged in a battle for its very survival and that its legitimacy to represent and speak for the different nations of Britain has been fundamentally and fatally undermined.

And this is why, in more than a merely metaphorical or rhetorical sense, every citizen becomes a potential terrorist: someone whom the government suspects of wishing the British state as presently constituted to fall apart – which growing ranks of its citizenry do in fact wish. 42 days and systematic identity management across all government departments are of a piece, in that they are about – as you put it, quoting from ‘Who do they think we are?’ – discovering the “deep truth about the citizen (or business) based on their behaviour, experiences, beliefs, needs or desires”.

In other words, it’s about finding out who is an enemy of the state: the enemy within. For most of us, ID cards and CCTV surveillance are ‘sufficient’ for the state apparatus to reassure itself that we are not a serious threat. For the rest of us, there’s 42 days. But the danger is in the blurring, in the eyes and state machinery of paranoid control, between legitimate, democratic antagonism towards the state, and illegitimate, physically violent hostility: terrorism.

I’m an enemy of the British state, in that I’d like to see it replaced by a federal state or abolished altogether (i.e. through Scottish and English independence). And if we had a federal state, this should have much less central power, with most of the national-level decisions taken by an English parliament and a much stronger local-government sector. Does this make me ‘suspect’ in the eyes of the database state? Probably, yes: and therein lies its true danger.

But we need to be clear that the fight is not just with ‘the state’ in some universal sense; but with the British state. And this is because it’s primarily an English struggle, as the Scots and Welsh are pursuing their own paths towards constitutional democracy. And what will emerge, if the libertarians are successful in the present fight, will almost certainly not be a new written constitution, bill of rights and representative democracy for Britain but for England. Indeed, it’s fundamentally because the people of England have lost their faith in the legitimacy of the British state to govern them that the government is so concerned to manage and orchestrate their British identity in the first place.

And it is to popular English national sentiment, and to the sense of our traditional English liberties, that the libertarian cause will have to appeal if it is to touch the hearts and minds of the Sun-reading class.

What I want to say here follows on from these points. The libertarian and nationalist cause in this country have fundamentally the same goals and should see themselves as natural allies. ‘This country’ being England, let it be understood. Put simply, we’re both pushing for an end to the British state as currently constituted, and want a proper representative democracy – responsive to the needs, concerns and sentiments of the people – backed up by a new constitutional settlement and preferably a bill of rights.

But the reality that the libertarians need to get their head round is that this new constitutional settlement must radically address and resolve the asymmetry with which the different nations of the UK are presently governed. There is no way back to the old unitary UK, and the new constitution cannot be one that applies in a monolithic way to the whole of ‘Britain’. The unitary UK no longer exists, and to pretend that it does – as the government has attempted to do since devolution – is either wilful deceit (an attempt to suppress English aspirations for democratic self-governance) or blind self-deception. Similarly, there is no stock of idealism, aspiration, energy and commitment that could unite the English, Scots and Welsh behind a common cause for a new British constitution and a system of governance that pretended to accommodate and perpetuate the present muddled and iniquitous devolution settlement.

The only way forward for the libertarian movement is to accept that there can be no unitary-British process of constitutional reform: the Scots and the Welsh are seeking and articulating their own way forward, and the aspirations of those countries for national self-determination cannot simply be subsumed and channelled into a single British constitutional process. Which means that, for the rest of us, the process is of necessity an English process. The difference, for the time being at least, between the libertarian and the nationalist is merely that the latter regards this necessity as being also a virtue. But it can become so for the libertarian, too, especially if the process results in the outcomes that libertarians have sought for so long: electoral reform; an executive accountable to parliament; a parliament accountable to the people; a truly independent judiciary respecting our age-old, English civil liberties, such as habeas corpus and privacy; etc.

Indeed, I would say that accepting that this process has got to be an English one in the first instance, and espousing this as a positive thing in its own right, actually presents the only realistic possibility of achieving the libertarian objectives in the present circumstances. This is firstly because an English solution – a new English constitutional settlement – is the only realistic goal, for the reasons I’ve set out: no more unitary British fixes to the broken Union. Secondly, it’s the only way that the libertarian cause, such as it has been taken up by David Davis, can become a truly popular cause. This is – as I set out in my comment on Anthony Barnett’s article – because the more profound reason why Westminster politicians and the British government are no longer trusted is because they are out of touch with the English people and are not properly accountable to them: a government that does dual purpose as a UK and as an English administration, elected through a ludicrously disproportionate voting system, and by the votes of Scottish and Welsh people, headed up by a Scottish PM and several senior Scottish ministers who make laws for England but can’t be voted out by English people; whereas the people of Scotland and Wales can vote for two governments – one specifically for their countries, with policy agendas directly addressing the needs and concerns of their countries; and one for reserved UK matters (and for England-only matters to boot).

And then, on top of all this, an emasculated parliament that dutifully performs the will of the executive through a combination of misplaced party loyalty and corrupt deal making, and which is therefore unable to defend the freedoms or represent the will of the people; but which still has the nerve to claim that its ‘sovereignty’ is sacrosanct – as if this had anything to do with the sovereign will of the people, rather than being merely a reference to the sovereign power of the monarch as enacted by an executive whose only claim to a democratic mandate is an election held at its own whim where it is awarded sweeping majorities purely and simply because of the crazy electoral system – and certainly not because of the actual votes of the English people.

This has got to stop. And we need a new constitutional settlement for England. Forget about the British dimension for the moment; that’s out of our hands – ‘our hands’ meaning, of course, the hands of the English. As English people, we have to seek a democratic solution for England, and leave the Scots and Welsh to work out their own destiny. What we can do, however – and this is perhaps the only chance for any British state to survive – is frame our new constitution in such a way that the Scots, Welsh and Northern Irish can choose to join us or not. By this, I’m referring to the fact that there are two dimensions to the reform process:

1. an English bill of rights, which would enshrine the fundamental, universal principles and liberties I’ve alluded to, e.g. parliamentary accountability, representative democracy, judicial independence, freedom until charged of an imprisonable offence, innocence until proven guilty, etc. There’s nothing wrong in such a bill of rights being referred to as English rather than British; if such a statement is a product of the English people themselves freely articulating and agreeing to a set of fundamental principles, then it should justly and proudly be called English. There’s nothing to then prevent the Scots and Welsh adopting those principles wholesale as laying the foundation for their own governance, or adapting them to their different circumstances and, in the case of Scotland, juridical principles;
2. the specific forms of governance that are devised in accordance with such principles, and which would form the basis of a new English constitution. In this aspect of the process, we – the English people – could devise a federal, Britain-wide system that could accommodate the Scots, the Welsh and the Northern Irish if they wished to be part of it. If we got the design right, they might decide not to go off on their own. But, in order for that to happen, there would have to be a high degree of autonomy for each of the nations of the UK, so as to give expression to the aspirations for national self-determination in each of them, including, of course, in England. The nations of the present UK would become the primary sources of sovereign authority in the land – sovereign because answerable to their people – and the national parliaments would have to have equal powers, including those of initiating primary legislation and raising all the taxes required to fund the programmes for which they were responsible.

A multi-national, federal constitutional settlement such as this could potentially balance out the four nations’ aspirations for autonomy with the wish to remain in a union of friendship and co-operation in matters of mutual interest, which would be the domain of a federal British government. A constitutional settlement which, on the other hand, tried to impose a unitary British bill of rights and written constitution would be bound to provoke resistance and resentment on the part of Scots and English alike; whereas, letting the Scots and the Welsh appropriate ever greater powers to their devolved bodies while denying the parity of a similar national parliament to the English might just drive the placid English into revolt.

But the important point is that the formulation and realisation of this new federal system of governance should be driven primarily by the English, and not imposed on them from above by the British government, as in the present government’s stymied Governance of Britain programme. We need to devise a federal system that protects the rights of the smaller nations of Britain, so their will cannot be overridden. It would have to be a system they wanted to join; and that’s really how the choice should be formulated: a comprehensive settlement, addressing English demands for freedom and democracy, that the other UK nations should be offered the choice of joining if they wish. As opposed to a process of drift whereby the other nations elect to abandon the rotten British ship, and we English will not have worked out a new system of governance to protect our rights, and give proud and positive expression to England and Englishness, which will otherwise be merely the default option in any case. Such a declaration of intent might give some decent impetus to the whole process of redrawing the national-constitutional map of these islands, and bring the agonising death of the unitary UK to a swift and merciful end. So, we – the English people – would say to our neighbours: ‘OK, you’ve been working your way towards self-governance; now we in England are going to recast our forms of governance, and reformulate our rights, and you can join us – with your national rights and democratic will protected – if you wish, or not’.

But it’s down to us, the English people, to seize the initiative and set the agenda. After all, if we don’t stand up for our freedoms, the British parliament has shown itself unwilling and unable to protect them.

Control Orders: A Better Alternative

The trouble with Control Orders – the UK security measure whereby terror suspects against whom a conventional legal case cannot easily be built can effectively be placed under indefinite house arrest – is that in practice they embody a presumption of guilt. This is in contrast to the long-established British legal convention that a suspect is to be considered innocent until proven guilty. Yesterday, the government launched an appeal to the House of Lords against a legal ruling previously obtained by six Iraqi Control-Order detainees that their detention violated their rights to liberty and a fair trial.

As in all such cases, it is important to try to strike a balance between the legal and human rights of suspects, and the right of the public to be protected against potential murderers. But the de facto presumption of guilt is clear: if the police who press for a particular suspect to be controlled did not think that the evidence they had gathered strongly suggested the person in question was a terrorist, then there would be no point in the measures – other than the exercise of political coercion to try to intimidate radical groups and individuals into behaving in a more moderate manner. But while a sense of injustice persists about the way in which suspects’ guilt is accepted by the judges who ratify Control Orders, so the suspicion that these measures are just such a coercive political measure will linger, to the detriment of the so-called battle to win hearts and minds.

There is an alternative that would bring more fairness back into the legal process surrounding suspects of this sort. If indeed there is a presumption of guilt, why not formalise this and say that it is then down to the suspect to demonstrate his or her innocence through a fair, open judicial proceeding? The suspect would have the right to know on what basis their guilt was being presumed and could appoint a legal team to build a case in their defence. The issue could then be decided in an adversarial manner just like any other case (albeit that, for security purposes, this might not involve a jury). The difference from the assumption of innocence would be that if, on the balance of evidence, it was not conclusive whether the individual either was or was not a terrorist, the Control Order or other restrictive measure would remain in place – subject to fairly regular (e.g. six-monthly or annual) review. If the verdict was guilty, however, this would enable the suspect to be imprisoned, thus doing away with the anomalous legal no-man’s land of the current system. And obviously, a not-guilty verdict would allow the individuals affected to regain their rightful liberty.

Clearly, there are potential pitfalls behind this idea, and legal safeguards protecting both the rights of the individual and the prerogatives of the state would need to be put in place. The main issue would be whether society would be able to accept a derogation from the presumption of innocence and would be able to overcome concerns that this would lead to further erosion of this basic right. But under the present set up, the presumption of innocence is in fact not working either to protect the rights of suspects or the state’s duty of protection. It’s because the formal process of law demands that the accused be presumed innocent until proven guilty that the case against them can’t be taken to court and the suspects are left in a legal limbo. And because a democratic state can’t arbitrarily impose imprisonment without trial, it has had to come up with the Control Order compromise; but this is not secure, as recent evasions have demonstrated – so society is not being protected.

The limited admission of a formal presumption of guilt that I am advocating would recognise the realities of fighting terrorism, which are that absolute guilt is sometimes impossible to prove beyond all reasonable doubt and that therefore guilt is having to be presumed in certain cases. And, at the same time, this would allow suspects to be given a fair hearing and chance to exonerate themselves if indeed they are without blame. And this would also defuse the charge made in some quarters that Control Orders are politically motivated and are placing the legal system at the service of an oppressive, anti-Islamic state.