A small victory

"It is clear this morning that 42 days is politically dead," declared Nick Robinson with some finality. This evening, it's rather less clear, with the BBC dutifully reporting that the prime minister still believes that extending pre-charge detention is "the right thing to do". So why is Robinson so confident? Perhaps because, as the report has it, "No 10 declined to answer hypothetical questions about whether the measure would be dropped if peers reject it." And, of course, Jim Hacker's first law of politics is as true today as it was when it was formulated (by Anthony Jay) many years ago: Never believe anything until it has been officially denied.

The official line will, Nick assures us, "last only until the Lords kick the idea out." He also thinks that the departure from the home office of Tony McNulty is a sign of the way things are going, and that ministers have "warned" Gordon Brown that "to use the Parliament Act to drive the bill through would be politically suicidal." It might be; on the other hand, with their new-found attachment to unity (born of desperation, but also of the dawning realisation that Brown isn't likely to take up Charles Clarke's invitation to "go with dignity".

Well, let's say it's true. Does it mean that the government has suddenly discovered an attachment to liberty, that all those former human rights activists who trooped into the Commons on a New Labour ticket in '97 and 2001 have remembered their principles? I wouldn't bet on it. Especially since (Robinson again) "It is possible that some form of extended detention without trial may be revised and revived for Labour's next election manifesto." Indeed, given that the government has long been convinced that public opinion not only supports but positively demands such measures, this might presage a tactical withdrawal. "The Tories stopped us protecting you from terrorists before," the message will run. "Who do you trust with your security."

With Mandelson (and Campbell too, it would appear) back in the saddle, it could even be rather effective.

Still, for the moment it looks like the opponents of the proposal are in the ascendant. Perhaps David Davis did not die (politically) in vain. Anthony Barnett, for one, hails the development as a significant victory for the "forces of progress". Forces of progress like the judges, presumably, or the legal profession, or the Conservative party, or right-wing columnists like Peter Hitchens, or the majority of right-of-centre bloggers. But then most striking thing about the anti-42 days coalition, indeed, was just how broadly based it was. Human rights lawyers, minority rights activists and left-wingers found common cause with conservative believers in the rule of law and the traditional liberties of freeborn Englishmen and women. Ex MI5 head Eliza Manningham-Buller spoke out against the plans. So too did a government minister, Admiral West, if only for a few hours until he was sat upon by his superiors.

By the time the bill passed the Commons, it had been so hedged around with exceptions that it was more-or-less unworkable anyway, and the Lords would have drawn most of its remaining teeth. So from a security point of view, whether the bill passes or fails is fairly immaterial.

Andy Hayman, former Assistant Commissioner and the Yard's anti-terror chief, wrote in the Times today that the government's proposals "were not fit for purpose: they are bureaucratic, convoluted and unworkable." Admittedly he did so on the grounds that the concessions introduced to get the measure through were obstructive. Indeed, he supported the original proposal - happily defeated - of 90 days. But his comments rather underline the precariousness of the government's position.

The proposal may have been in its final form less dangerous than its opponents feared, as well as being less effective than its proponents would have liked. But that doesn't mean it was trivial or unimportant. The debate was so impassioned largely because it stood proxy for the larger battle about civil liberties. It was the field on which both sides of the issue had agreed to stand and fight. It was the line drawn in the sand.

So this victory, if victory it is, might just mark some kind of turning-point - at the very least, to turn once more to Churchill, the "end of the beginning". Might we even see the kind of campaign which David Davis spoke of in his moving resignation speech back in June, against "the insidious, surreptitious and relentless erosion of fundamental British freedoms". Anthony Barnett clearly hopes so:

I sense a fear of not just the vote in the Lords but, even worse for Brown and his colleagues, an alarm at the power of the argument against 42 days and the hopelessness of the case in its favour.

We specialise in this country in defensive campaigns, like the excellent NO2ID. Now we need a positive movement that combines democracy, freedom and fundamental rights in the context of the need for government that the credit crunch has demonstrated.

A "gathering on modern liberty" and a campaign are promised soon. They will undoubtedly be needed. A victory on 42 days will be of limited value if the government continues on its illiberal path otherwise unchecked. And one thing the 42 days campaign showed (like the campaign against the religious hatred law before it) was just how much effort is required to achieve a relatively small result.

How many more of these climb-downs may we expect? ID cards? Fat chance. The legislation has already been passed. And other dangerous schemes proceed apace. From the Sunday Times yesterday comes the news that the government fully intends to "spy on every call and email". This would entail "spending up to £12 billion on a database to monitor and store the internet browsing habits, e-mail and telephone records of everyone in Britain."

£12 billion. Of our money. They are taking our taxes and using it to spy on us. This at a time when every penny will be needed to help cope with the effects of the economic downturn/ recession/ depression/ worldwide collapse. Apparently "ministers are braced for a backlash similar to the one caused by their ID cards programme". But they fully intend to spin their way out of it, or just ignore public opinion if they can't. "Further details of the new plan will be unveiled next month in the Queen’s speech."

David Leppard reports that GCHQ's plans for an "Intercept Modernisation Programme" would require "the insertion of thousands of black box probes into the country’s computer and telephone networks." The spooks are very keen on the idea, and have been "aggressively marketing" it around Whitehall all summer.

The scope of the project - classified top secret - is said by officials to be so vast that it will dwarf the estimated £5 billion ministers have set aside for the identity cards programme. It is intended to fight terrorism and crime. Civil liberties groups, however, say it poses an unprecedented intrusion into ordinary citizens’ lives.

Aimed at placing a “live tap” on every electronic communication in Britain, it will dwarf other “big brother” surveillance projects such as the number plate recognition system and the spread of CCTV.

But of course all these things go together, don't they?

Leppard:

The spy bosses say a central database is essential to “capture” the array of communications between terrorists planning to attack Britain. Draft e-mails, chatroom discussions and internet browsing on encrypted jihadist websites are the preferred forums for Al-Qaeda cells to plan their attacks, they say.

Says Leppard, "No one yet knows exactly how to ensure police and intelligence agencies do not abuse their access to the database." What? The police abusing access to a vast database? Unthinkable. If you can't trust the police and the intelligence agencies, who can you trust?

Of course, in so vast a database, the scope for false-positives is massive. For every terrorist found to be plotting an atrocity, many innocent people will be arrested, detained, have their lives turned upside down and inside out, see their careers and families destroyed, lose their liberty for days or even weeks at a time.

As I like to say, it's only those with "nothing to hide" who have anything to fear from proposals like this. First, because everyone has something to hide. There's almost no-one who has never made the slightest deviation, intentional or otherwise, from any of the thousands of obscure laws that now exist. And secondly, because the innocent are easier to catch. The truly guilty or dangerous will find dodges: they will use encryption and anonymised accounts, or else give up on the Net altogether and start breeding carrier pigeons. The police will go after easy targets - if nothing else, this vast new tool will provide them with limitless opportunities for meeting arrest and conviction targets - and honest, harmless, generally law-abiding people who happen to catch Sauron's eye will find themselves trapped in one of Kafka's nightmares.

I wish Anthony Barnett's campaign every success, and may even join it. This is certainly no time for complacency.