Wise Words

The other day Jacqui Smith called - with the usual spuriousness of a government that only lauches consultations when it has already decided the answer - for a wide-ranging debate on her plans for a massive new communications database. Well, it looks like she's going to have her wish. Last night the departing Director of Public Prosecutions, Sir Ken McDonald, spoke movingly of the dangers of throwing away centuries of legal and constitutional principle in the name of security. "We need to take very great care not to fall into a way of life in which freedom's back is broken by the relentless pressure of a security State", he said. And he left little doubt that, in his mind, the present government has been careless in that regard.

Sir Ken is not the first to make such a plea; he certainly won't be the last. His intervention is most welcome, though, for two reasons. First, because he has spent the past five years, as DPP, at the sharp end in the fight against terrorism. He knows that it is perfectly possible to investigate and prosecute terrorist suspects without resorting to new and extraordinary powers, reductions in the burden of proof or mass surveillance. As he put it:

I made clear that my period as Director of Public Prosecutions would be accompanied by a relentless prosecutorial struggle against terrorism. And so it has been.

From the start that struggle has been absolutely grounded in due process and pursued with full respect for our historical norms and for our liberal constitution. We have not feared fairness.

We all know that this has worked. Our conviction rate is in excess of 90%- unmatched in the fair trial world. We have a guilty plea rate of over 40%.

McDonald's comments came towards the end of a long speech in which he focused mainly on the history of the Crown Prosecution Service and on the role it played in society. It is in this wider context that he contested the claims made by government ministers (who seem increasingly to be acting as glove puppets for the security services) that Islamic terrorism is a new and unprecedented threat which requires throwing away large parts of the rule of law. Neither investigating nor impeding terrorism, he stressed, has been hampered by the need for what McDonald calls "fairness" - the proper balance between the interests of the state and the rights of individuals.

He seems to be especially alarmed by the creeping apparatus of surveillance, not just for the dangers it brings in terms of invasion of privacy but for what it does to the soul. Technology, he declared, "gives the State enormous powers of access to knowledge and information about each one of us. And the ability to collect and store it at will. Every second of every day, in everything we do." And he warned,

We need to understand that it is in the nature of State power that decisions taken in the next few months and years about how the State may use these powers, and to what extent, are likely to be irreversible. They will be with us forever. And they in turn will be built upon.

So we should take very great care to imagine the world we are creating before we build it. We might end up living with something we can't bear.

McDonald speaks here more as a human being - a fellow citizen - who has to live in this society than as an officer of the Crown or an agent of the State. Ministers and home office officials, by contrast, often sound as though the soulless, bureaucratic, rigidly mathematical technostate to which they are striving will not apply to them. The misery will be inflicted on them, too, once they leave office.

Compare McDonald's clear statement of principle with the doublethink we keep hearing from the Home Office. Take the latest suggestion, announced (where else?) in the Times, that anyone buying a pay-as-you-go mobile phone should be required to produce photo ID and register all their details. Because, of course, life in the surveillance state is not just about having nothing to hide, it's also about having nowhere to hide. Ostensibly to tackle crime, the measure looks like yet another nudge in the direction of "persuading" people to accept ID cards. Because it would be so much more convenient.

When asked to justify the measure, the Home Office repeated a quote made by Jackboots in her speech on 15th Oct:

The communications revolution has been rapid in this country and the way in which we intercept communications and collect communications data needs to change too. If it does not we will lose this vital capability that we currently have and that we all take for granted in fighting and solving crime.

But pay-as-you-go mobile phones have been around for many years without any perceived need for such an intrusive scheme. There is no question of an existing capacity being lost. In any case, it would be easy enough for criminals to circumvent by buying SIM cards abroad or re-programming them. Criminals, indeed, are the people least likely to be affected directly by most of the government's proposals. Much more vulnerable will be the people whose identities have been stolen and find themselves implicated in crime as a result.

There's little doubt that officials in the home office regard the niceties of legal procedure and principles built up over centuries - such as the right to know the evidence on which you are being tried, the presumption of innocence, and the ancient principle that anything that is not expressly illegal is permitted - as little more than a nuisance. Rhetoric about the duty of government being protect the public serves as a transparent cover for something much more basic, which is the desire that rulers have (and always have had) to measure, control and monitor the ruled. Technology makes these eternal ambitions easier to achieve, that is all.

It is good to know, then, that there is still room for independent public servants such as Ken McDonald in influential positions - which is the other reason his speech is so welcome. Like the judiciary - who in recent times have often found themselves at odds with government - he comes from a different tradition from the basically French model of central bureaucratic oversight that reigns in the home office. As he put it, "I am a barrister. I practiced at the Bar for 25 years before I became DPP. I remain a barrister and I shall return to practice when my appointment concludes in a week or so." The Bar has always seen itself as a profession of individuals who represent their clients while preserving their own independence - even where that client is the State. Barristers still pay lip-service to the principle that everyone is equal before the law. And they imbibe the ancient wisdom that the law is there to protect the citizen against the State as much as it is there to protect society against the criminal or unruly citizen.

There was much elegance as well as old-fashioned common sense in Sir Ken's remarks about terrorism. He acknowledged that the country "faces very significant risks" from terrorism. Yet the terrorism we face is essentially crime, no more or less, and should be confronted as crime. He insisted that he was "right to resist" the "paraphernalia of paranoia" being proposed to tackle it:

Of course, you can have the Guantanamo model. You can have the model which says that we cannot afford to give people their rights, that rights are too expensive because of the nature of the threats we are facing.

Or you can say, as I prefer to, that our rights are priceless. That the best way to face down those threats is to strengthen our institutions rather than to degrade them.

It is difficult to see who will maintain a cool head if governments do not. Or who will protect our Constitution if governments unwittingly disarm it.

A good question. But I wonder if the government is quite so unwitting as politeness compelled him to maintain. And he went on:

We would do well not to insult ourselves and all of our institutions and our processes of law in the face of these medieval delusions.

As I say, the response to terror is multi-layered. But it should not include surrender.

Well said.