Last year's fight

Speaking to the Home Affairs select committee yesterday, Alan Johnson - the first home secretary in well over a decade who doesn't make me want to throw up - quietly admitted that the government had forgotten all about detaining terrorist suspects for 42 days before charge. Asked whether he agreed with Jacqui Smith that (I paraphrase slightly) it had all been a fuss about nothing, he replied "Yes". And while he didn't rule out the possibility (they never do) of wanting to bring in the measure at some time in the future, he said "I can see no sign of that being the case at the moment ... that the security forces and the police and others would want a change to 28 days."

Not with a bang, but a whimper.

I trust you remember 42 days. It was the biggest civil liberties issue - and one of the major political stories - for most of last year. The government, backed by then Met commissioner Ian Blair (and very few others) claimed that it was essential - or would one day prove essential - for the police to "do their job" of protecting the country from the "increasingly sophisticated" plots of terrorists. Smith told the House that the power was "extremely important", while Gordon Brown's ghost wrote in The Times that the proposal was "the right way to protect national security". But while ministers raised ever more terrifying spectres to drive home just how much the power was needed, an unprecedented coalition was ranged against them: both main Opposition parties, journalists of left and right, a former head of MI5 (and current MI5 anonymous briefers), Tony Blair's attorney general, a former Inspector of Constabulary, human rights lawyers, law lords, bloggers - can I mention bloggers? - even, in the end, a former head of Counter-terrorism at Scotland Yard, although his main objection was that the proposals had become so watered down as to be unworkable. Andy Hayman (for it was he) declared himself "curious" as to why the proposal had been put forward in the first place.

Most famously, David Davis fought a by-election over the issue, exiling himself from the Shadow Cabinet in a heroic if largely unsuccessful attempt to place civil liberties at the heart of public debate.

Now, though, the issue barely merits a side-glance. Johnson was only asked about it because Jacqui Smith briefly raised it during an interview she gave to Saturday's Guardian:

Is there anything that gave her sleepless nights? Forty-two day detention for terror suspects, she says instantly. "I'm not sure the amount of effort and political capital and time we used on it was justified even had we been successful in getting it through. We spent too long on it and it distorted the focus we had on terrorism."

In practical terms she's right, of course. The proposals in the Counter-Terrorism Bill hedged the 42 days power with so many restrictions that it would probably never have been used. Even the power to detain for 28 days has rarely been invoked, and not at all in the past two years, and no police or government spokesman has claimed that the current time-limit has hampered any investigations. But then it was never really about giving the police "the powers they need". It was about PR - about Gordon Brown demonstrating his political machismo, about "sending a message" that Labour was tough on terror and the Opposition weak.

On the other side, for the defenders of civil liberties the 42 day limit assumed a symbolic significance out of all proportion to its impact on the real world. David Davis described it as "the one most salient example of the insidious, surreptitious and relentless erosion of fundamental British freedom". And indeed it was - but only one among many. It would have had far less impact than, say, data retention, the ID register or the heavy-handed policing of demonstrations, all of which are still on track. The very fact that, having humiliatingly been dropped (the final climb-down didn't come until October) it vanished so rapidly from view is proof that, in itself, it mattered little either way.

Ironically, the government almost succeeded in getting 90 days through the House of Commons in 2005, with far fewer restrictions than were suggested in 2008. Had they been prepared to do a deal with the Opposition they would probably have got 42 days, or even 56, and some of the most vocal opponents of last year's measure would have accounted it a triumph.

Nevertheless, it was an important battle. Its defeat proved to the government that traditional arguments about the rights of citizens still mattered, that uttering the magic word "security" would no longer produced unreflective assent to whatever the government or the police wanted to do. Since they abandoned 42 days, the government have been notably less blasé about civil liberties concerns. There have been partial retreats on data retention and ID cards, among other things - retreats that may have been largely symbolic, but which indicate that they are far less confident than they once were that the public was either unconcerned or positively enthusiastic about state surveillance and authoritarianism. And the rather unwieldy coalition that formed to combat 42 days has been sustained - as events such as April's Convention on Modern Liberty prove.

It is important to resist infringements of liberty even in fairly minor cases, even at the risk of seeming paranoid. The price of liberty is eternal vigilance, because the default setting of government is to seek more power - and then to misuse that power because it can, and because it is convenient to do so. The collapse of first the case for 42 days and then the policy itself shows that the government can be made to back down when its arguments are challenged - but also that winning even a small, symbolic victory takes vast and disproportionate effort. Many equally objectionable laws go through on the nod, or attract only token opposition.

Another lesson from the fate of 42 days is that we should always be suspicious of government assurances that some policy is justified or necessary. Often, as in this case, it may not matter at all. Hence Jacqui Smith's extraordinary admission that the policy on which she expended most of her energy as home secretary, one which she claimed time and time again was vital to the national interest, actually "distorted" the government's terrorism strategy. Extraordinary, yes, but almost overlooked. Simon Hattenstone's Guardian article was dominated - as was coverage of his interview elsewhere - with her reflections on the expenses scandal that terminated her career, above all the revelation that she had known and disapproved of her husband's taste in pay-per-view soft porn "because of my feminist background".

Last year 42 days was the axis around which the national debates about civil liberties, terrorism, national security and community relations all turned. Now it's of less significance than a couple of rented skin flicks. Go figure.


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