Labour and Liberty:
An Interim Report on whether the Labour Government
Elected in the United Kingdom in May 1997 is Good or Bad
for the Cause of Liberty
by Sean Gabb
(Written August 1998)
Note: This was written for money, and shows an optimism that I did not feel, and that may seem even ludicrous when later events are considered. Even so, it is a good summary of the police state inherited by Labour, and its early expansions. Except I never thought they would acquire such a taste for military aggression, what I expected of Labour and Tony Blair is roughly what we got. Looking back, though, I can sympathise with the growing horror felt at the time my my lefty friends, who thought they had elected a government of liberals, who would give the country over to softness and gentleness.
On the 2nd May 1997, a Labour Government came to power in the United Kingdom with the largest majority in living memory. Its election ended 18 years of unbroken Conservative rule, and raised both hopes and fears of radical change.
That Government has now been in power for 500 days. The purpose of this report is to assess whether and to what extent its election was good or bad for liberty. Are the British people more or less free today than in May 1997? To be precise, is the range of our choices more or less restricted by the law now than then? And are we more or less exposed to the threat of arbitrary punishment for acts which are not illegal but merely disapproved by those in authority? And are we likely to be more or less free by the time of the next election?
In answering this question, it is necessary to explain the context in which it is asked. Tony Blair has been Prime Minister for 500 days, and that is quite a long time in politics. But Margaret Thatcher and John Major were in power for 18 years, and these were years of institutional change more fundamental than any in this country since the 1830s, or even since the Reformation of the 1530s. Whether or not he likes it, Mr Blair has inherited what may be called "the Thatcher Consensus". Some parts of this appear set in stone. Even those parts that can be changed cannot be changed very quickly.
Therefore, in deciding whether the present Government is good or bad for liberty, we need to consider what it has inherited. Is the Thatcher Consensus liberal or illiberal?
The answer to this question cannot be inspiring for those liberals who believed that the last Government was committed to "rolling back the frontiers of the State". On balance, it did not.
In its favour, the last Government did pay attention to certain liberties that had for a long time been neglected. Since the 1900s, the tendency of most liberals has been to concentrate on what are called "civil liberties" – that is, the rights to freedom of speech, of assembly, of movement, of due process of law, and so forth – and to accept the prevailing collectivist opinions about economics. This is a false and a dangerously limited view of liberty. High taxes, for example, are just as illiberal as censorship. They take away the product of a person's enterprise and use it in ways that he or she would probably not use it if left alone. In this respect, taxes can be seen as a form of slavery. Again, regulations and licensing and price controls and the like are infringements of the right of people to associate with each other on their own terms.
Moreover, these infringements of liberty are not evils that terminate in themselves. They alter the balance of power between individuals and the State – exalting the latter, and reducing the former to a dull, harassed mediocrity. A State that is able to take for itself the majority of the national wealth, and has acquired a vast discretionary power over how and on what terms people can earn their living, is a despotism. This is so whether or not it decides to censor the media of imprison people without trial. And if it does decide to do these things, it has all the machinery of control already in place, and a population already fitted for control. As F.A von Hayek spent his life asserting in various ways, "to be controlled in our economic pursuits is to be controlled in everything".
In power, the Conservatives carried through a revolution in economic policy. They stopped the big inflation that had deranged economic calculation for decades and that had allowed an arbitrary confiscation of savings. They reduced the upper rates of taxation that had done so much to discourage enterprise and to remove capital from private hands. They privatised the main State enterprises, thereby freeing them from the dead hand of public control. They deregulated a number of markets, thereby allowing rapid and often spectacular economic growth.
But that was the extent of their liberalism. In economic matters, they were just liberal enough to stop the relative decline this country had been suffering since the 1950s. Bearing in mind how illiberal the economic policy of most other countries remained, not very much market reform was needed to stop the decline.
In all other matters, the Conservatives were grimly despotic. Defying their own liberal and conservative traditions, they put the Common Law through the legislative equivalent of a shredding machine. Police powers were massively expanded. Powers of search and seizure were created that had never before been known in this country. The Police were even given the right to burgle private houses, to copy any documents they pleased, and to leave listening devices behind. 1 The right to silence under police questioning was generally curtailed. 2 In the case of fraud, it was entirely abolished, and suspects were even required to incriminate themselves. 3 The burden of proof in criminal cases was increasingly reversed, and private businesspeople were conscripted into enforcing money laundering laws that abolished financial privacy. 4 The right to trial by jury was limited to about 15 per cent of criminal cases. The right to peremptory challenge to Jurors was abolished.[Note 5 There are calls to give the prosecution a right of appeal from "perverse" jury verdicts. There were also plans to issue the whole population with identity cards that would give access to every electronic record ever opened.
This despotism was most practically felt in matters of lifestyle. Our health and fitness were made into things managed by the State, with a growing system of punishments for disobeying the experts' advice. 6 The raising of our children became closely watched; and there have even been calls for procreation to be licensed by the State. 7 Our entertainments are explicitly regulated, and sometimes forbidden, in the interests of our physical and moral well-being. 8 We have a "War on Drugs" – a war that cannot be won, but that can only be fought by abolishing all remaining freedom.
The overall result of Conservative domination between 1979 and 1997 has been a police state. It may not be the sort in which the press is censored and people disappear. Unlike in Germany or Russia or in the European despotisms before 1914, the object of our police state is not to preserve the rule of a specific person or party, or in any degree to cut down on political opposition. But it is the sort of police state in which we are reduced to the status of children or lunatics, not trusted to make our own decisions, not allowed to conceal our affairs from those who rule us, not allowed to shelter from their inspection and control behind impartial and unalterable laws of criminal procedure. We stand beneath an absolute and arbitrary power. If that power is often used for benevolent ends – if the more plainly despotic laws are never fully enforced – that is because our masters please to rule us in this way. Let them please otherwise, and we shall soon discover the basics of how we are now governed.
This being said, we are now able to examine the record of the present Government in matters of liberty.
Labour and Liberty
A consideration of this record can be divided under three headings. There are sins of omission. There are sins of commission. There are positive good deeds.
The first is practically the most important, bearing in mind how new the Government still is. It has inherited a police state, but has done very little so far to dismantle it. It may not have built the new machinery of government, but it is now in charge of that machinery. Even were Labour to add nothing to what it has inherited, it would still be running a police state. Being so new, of course, it could not have done much dismantling so far. But it has not even done what little it could easily have done.
For example, one of the last illiberal measures of the Major Government was the Police Act that allowed the Police to spy on people in their homes. This was strongly opposed by many Labour Members of Parliament, and was denounced in the Lords by James Callaghan, who said that he would never have permitted such an expansion of police powers when he was Home Secretary. That it only had the Royal Consent just before the 1997 election meant that it could not come into force until after that election. To repeal illiberal laws that have been made years before is usually a difficult matter, requiring a close study of how repeal might undo much practice and case law that is good. But to prevent a new law of this kind from coming into effect is very easy. The Blair Government allowed the Police Act to come into force. In doing so, it endorsed an erosion of freedom in ways that simply tolerating the established curtailment of the right to silence could not do.
There is much else to be said under this heading. But let us move to the more relevant matter of positive sins – of illiberal laws proposed and carried into effect by this Government. As with the Conservatives, Labour illiberality has nothing to do with stopping political opposition. As with the Conservatives, it is mainly about regulating lifestyles, and freeing the State from every Common Law rule that hampers such regulation. Let us begin with lifestyle regulation.
The War on Self-Medication
No one can blame the present Government for the prohibition of recreational drugs like cannabis and amphetamine. These are prohibitions that began in the 1920s and that reached their present sophistication during the 1980s. It is to be regretted that Jack Straw since he became Home Secretary has persistently gone on record to oppose any loosening of these prohibitions. 9 They do not work – illegal drugs are available to anyone who wants them, and at reasonably affordable prices. They set a huge bounty on crime, considering the profits that are to be made by supplying the market in illegal drugs. They are now opposed by police chiefs, High Court Judges, and respectable journals like The Economist and The Sunday Telegraph. Most important, they are a denial of free choice. Adults should have the right to decide for themselves what substances they put into their bodies. The results may not always be very nice, but that is a matter for individuals themselves to decide.
But while the Government cannot be blamed for the existing measures against cannabis, there are other – presently legal – drugs that the Government has chosen to restrict. Traditional and so far unquestioned rights to self-medication are being subverted.
Until August 1998, insulin was freely available. There was no need for a prescription. Anyone could walk into a chemist and buy some. The Government ended this freedom of supply in response to a panic over the use of insulin by body builders. Rightly or wrongly, word spread through health clubs and gymnasia that insulin helps promote the growth of muscle, and a 21-year- old enthusiast injected so much into himself that he suffered brain damage. 10 Instead of shrugging at the folly of some people – or at most issuing a warning about the effects of insulin overdose – the Government made insulin available by prescription only.
Aspirin and Paracetamol
In September 1998, restrictions were brought in on the sale of aspirin and paracetamol and other non-prescription painkillers. Packets sold at supermarkets were limited to no more than 16 tablets. Larger packets of 32 were allowed to be sold by pharmacists. People able to demonstrate a chronic, painful condition, were allowed to buy up to 100 tablets from a pharmacist. Larger quantities were restricted to prescription only.
The stated reason was to reduce the number of overdoses and suicides. 11 Apparently, between 30,000 and 40,000 people go to hospital every year suffering from paracetamol overdoses, of whom between 100 and 150 die; and up to 5,000 people go to hospital for aspirin overdoses, of whom about 60 die. 12
Again, controls were brought in where warnings at most were appropriate. As for suicides, it is very much to be doubted whether the Government has the right to lift one finger in discouragement. That certainly smells of a property right over citizens that is incompatible with a liberal order.
In April 1998, the Government announced plans to restrict the availability of vitamin B6, which is claimed to be of use in lowering stress and the risk of heart attacks and certain kinds of cancer. It was proposed that the vitamin should be available in tablets of 10mg from ordinary suppliers and in tablets of 49mg from pharmacists. Any larger doses would be made prescription only.
The stated reason again was that people were overdosing, and that this might be dangerous. According to Jeff Rooker, the Food Safety Minister,
Given the strong advice that we have received from two expert committees, this is a sensible precaution and will protect consumers and their health. 13
No account was taken of those consumers who – for whatever reason – believed that doses of 200mg were good for them. The "experts" had spoken.
What is common to these cases is a belief that ordinary people do not have the ability to make rational choices affecting their own health and well-being. New Labour is easily distinguished from Old Labour in its more enlightened approach to economic management. But where lifestyle management is concerned, there is a plain identity of outlook. A straight line connects Mr Rooker in 1998 to Douglas Jay, the Labour politician who in 1947 argued that
…in the case of nutrition and health, just as in the case of education, the gentleman in Whitehall really does know better what is good for the people than the people know themselves. 14
The lifestyle regulators will let nothing stand in their way when it comes to saving us from ourselves. They are prepared to tell us what and what not to do with ourselves. If we ignore their advice, they think nothing of bringing in laws to compel us to do or abstain as they command. And they think nothing of abridging other rights that stand in their way.
The most obvious case is the censorship of tobacco advertising. In its election manifesto, Labour promised to impose a ban on the advertising of tobacco. Within a week of coming to power, the new Government announced to something called the World Health Assembly, meeting in Geneva, that tobacco was the "greatest single cause of preventable illness and death in Britain". It continued:
Over the coming weeks, the Government will be looking at ways of introducing a ban on tobacco advertising in a bid to take concerted and effective action against smoking. 15
The promised advertising ban has since then been disordered by the scandal over the Formula One exemption. But other moves against tobacco since then include a proposal to raise the age of consent for smoking from 16 to 18, and to impose actual bans on smoking at work and in certain public places. 16
It is to be doubted whether tobacco is as dangerous to smokers as we are told. It is certainly the case that the arguments in support of "passive smoking" as a danger to health are greatly exaggerated. But regardless of these matters, tobacco is a legal substance that is used and enjoyed by millions. It is not the business of Government to do anything about this. The campaign against smoking is tinged with an almost religious fanaticism. One of the greatest victories of liberalism in the past was to force governments to stop fussing about the spiritual health of individuals. One of its greatest victories of the new anti- liberals is to persuade governments into fussing about the physical health of individuals.
It is particularly dangerous when this fussing goes to the extent of banning certain advertisements. For this is a form of censorship. It is claimed that some distinction exists ordinary and commercial speech, and that only the former ought to be protected. This is an odd distinction. Take the following statements: "Brand X are the best cigarettes on the market"; "Jesus died for mankind"; "Political power, properly so called, is merely the organised power of one class for oppressing another". Though what they claim is different, these statements are of exactly the same type. Each makes a factual assertion, implicitly urging a certain course of action. Each can be supported or rejected by arguments of varying force. Suppressing any is an attack on the free communication of ideas.
The Destruction of the Common Law
We now come to the matter of procedural law. During the past 20 years, the criminal justice system has been remoulded from a machine for enforcing the Common Law into an instrument of despotic control. Unlike banning vitamins or censoring commercial speech, altering legal procedures is not often noticed by libertarians. It does not bring any immediately obvious changes in what we can or cannot do with ourselves. But legal procedures are the barriers against despotism within which liberty exists. Remove these barriers, and liberty is exposed to destruction as surely as a fort becomes indefensible when its walls are thrown down and its entrenchments filled in.
Abridgement of Trial by Jury
Let us begin with Trial by Jury. This has existed in English law at least since 1166, and can be regarded as a development of customs of participatory justice that go back into the German forests from which the Angles and Saxons first emerged in the 5th century. Since at least the 17th century, it has been regarded as a right codified in the Magna Carta of 1215 – the nearest thing we have in England to a written constitution. According to Article 39,
[l]et no free man be arrested, or imprisoned, or deprived of his property, or outlawed, or by any other means harmed – neither will we go upon him, nor will we put upon him – except by the lawful judgment of his peers, or by the law of the land.[Note 17
"Except by the lawful judgment of his peers, or by the law of the land" – these words can be interpreted as conferring a right to Trial by Jury, a Jury of 12 ordinary people chosen at random being regarded as our natural peers.
The right has various defences, of which two are the most important. The first is the tendency of Magistrates to become "case hardened" – to regard Defendants as more likely than not to be guilty as charged, and to manage their case load with an eye to efficiency rather than justice. The second is the ability of Juries – explicitly recognised since 1670 – to reach verdicts according to conscience. A Magistrate is required to take the law as a given and to reach a verdict purely on the facts. A Jury is able to consider the law as well, and to refuse to convict, regardless of the facts, if the law is thought unconscionable. Down the centuries, this has often been a bar on political prosecutions. It saved many radicals put on trial during the Napoleonic Wars. More recently, it saved Clive Ponting in 1985 from an official secrecy prosecution that was seen as an act of political spite.
The system works not only in political cases, but also in other cases where a particular law is thought unjust. An American statistician, Thomas Junker, has looked at the probabilities of conviction by a Jury. He concludes that, in cases of murder or theft or whatever – crimes that nearly everyone condemns – the chances of a conviction on the basis of the facts are virtually 100 per cent. However, as opposition to a law increases, the chances of a conviction on the facts fall dramatically. He says:
Just how hard a time will the government have in finding a jury free of your sympathizers? Ah, the exquisite perfection of it all! As opposition to a law passes 5%, the government's chances of finding a "good" jury fall below 50%. When opposition rises to 10%, the government's position falls below 29%. When opponents of a law constitute 20% of the people, the government has a dismal 7% chance or less of finding a jury willing to convict. As opposition rises past 32% the government's position falls below 1%. This means that if the population were divided into three camps on some controversial issue, no law enforcing the views of any of the three camps could be effectively enforced. Meanwhile, though, all the murderers, thieves and other miscreants against whom the government could make a sufficiently strong factual case would continue to go to prison.18
During the present century, the right has been gradually eroded. The plainest erosion is the transfer of the great majority of non-serious offences to the jurisdiction of Magistrates. In 1989, for example, the Thatcher Government "reformed" the law on official secrecy, reducing the maximum penalties, and handing over enforcement to the Magistrates. Even before then, it had largely abandoned prosecuting under the old Official Secrets Acts, making sure that the Spycatcher prosecutions went ahead in the civil courts under the law of confidence. Another erosion has been the creeping abolition between 1927 and 1988 of the right of the Defence to peremptory challenge of Jurors – that is, the right to exclude individual Members of a Jury without showing cause. Then there was the abolition in 1968 of the unanimity rule – verdicts no longer requiring the consent of all 12 Members, but only a majority of 11, 10 or in some cases of nine.
The present Government is not making a new and sudden attack on this right. Even so, it is continuing the erosion. On the 15th February 1998, the Home Office announced that Trial by Jury was to be abolished in cases of serious fraud. 19 The justification was that fraud trials are very expensive to mount in front of a Jury, and that Juries are not competent to assess the complex evidence on which guilt or innocence usually turns in such trials. Mr Straw announced that fraud trials in 1997 comprised fewer than one per cent of all trials, but cost the Crown Prosecution Service 40 per cent of its entire budget. 20
It must be emphasised yet again that this was not a Labour initiative. The proposal had first been made in 1986, and had not been rejected by the Thatcher Government, only put on hold pending further investigation. Even so, it was accepted by a Labour Government. Aside from the fact that Trial by Jury is a basic constitutional right in this country, there are three objections:
First, if a law is too complex for ordinary people to understand, that should be seen as a reason for not having the law in the first place, not for changing the mode of trial. Juries have managed for nearly a thousand years without serious problems of comprehension. If they cannot manage now, it is the law that is at fault, not the Jury.
Second, even granting that ordinary Jurors cannot understand all the issues in a fraud case, there is an old procedure under the Common Law for empanelling "special" Juries – in this case of accountants and other professionals. This is in keeping with the requirement of trial by one's peers. That this procedure has not been revived indicates a more general dislike of Juries in which this abolition is merely the thin end of a wedge that ends in the adoption of the European system of criminal justice in which matters of law and fact are decided by Judges sitting alone.
Third, justice is the last thing on which a government should think of economising. The primary function of government is to protect life and property, and to ensure that the protections are fair. To be sure, there is much simplification needed of the law – but this does not have to be at the expense of a basic constitutional right. If no other economies are possible within the criminal justice system, it is the duty of the Government to cut spending elsewhere – on social security, perhaps, or on the enforcement of needless regulations.
Another attack on the right of Trial by Jury was leaked in The Sunday Telegraph on the 30th August 1998. The Home Office said that it would look "very favourably" at recommendations from police chiefs that Juries should be told of a Defendant's previous convictions. A senior officer commented:
There is no doubt that people get away with crimes every day by presenting themselves as whiter than white. There is no reason why someone with a list of previous offences longer than their arm should be allowed to pretend that they are a complete innocent. 21
This proposed change is being presented as a common sense rebalancing of the system to prevent repeat offenders from escaping justice. In truth, it represents a serious attack on the whole English system of justice.
There is much that distinguishes a court of justice from a lynch mob. One of the most fundamental points, however, is that the latter can proceed on common fame. In the former, a man will be punished only for what he has been proved to have done – never for what he is believed to be. It is the proud boast of our lawyers that this distinction is fully realised in England. The rule under which it is realised has been called "one of the most jealously guarded and deeply rooted principles of our criminal law". 22 "The principle is" as stated by Mr Justice Channel,
that the prosecution are not allowed to prove that the prisoner has committed the offence with which he is charged by giving evidence that he is a person of bad character and one who is in the habit of committing crimes, for that is equivalent to asking the jury to say that because the prisoner has committed other offences he must therefore be guilty of the particular offence for which he is being tried. 23
Consider: A burglary is committed, and a man is shortly after seen in the vicinity of the crime. He has a string of previous convictions for burglary. This burglary is very similar in its planning and execution to those for which he was convicted. He behaves in a suspicious manner when taken in for questioning, and is unable to provide a satisfactory explanation for his presence in the area at the relevant time. Another householder positively identifies him as having been watching his property earlier in the evening. It would seem that the Police have found their criminal.
But, in the absence of his confession, or the production of good forensic evidence, there is no good case against him. Any charges against him will be rejected by the Court. The prosecution cannot open by telling the Jury of his previous crimes, and their similarities with this one. It cannot adduce his behaviour outside the other house. He might since his last conviction have turned to a life of honesty. The similarities might be coincidental – or, on a much closer examination, which the Court will have neither the time nor the ability to make, the similarities might be more apparent than real. He might have been outside the other house for any number of reasons.
If he is unwise enough to announce that he is a man of unblemished character, the prosecution will be free to produce all his known previous offences in rebuttal – so much for the complaint quoted above. Otherwise, the Jury will be allowed access only to that evidence tending to prove his guilt of the offence with which he is presently charged.
Undoubtedly, this exclusionary rule does allow many guilty persons to go free. The tabloid newspapers are forever printing accounts of how some Jury has acquitted a man of rape, only to be told at the end of his long prior history of indecent assaults. But the utility of a rule of justice is not to be seen in every instance to which it is applied. We are ignorant, limited creatures. It is flattering to our nature to talk of legal pragmatism, or the need to consider each case on its merits. In fact, we have a simple choice. We can frame abstract rules of procedure that we believe will produce the greatest number of just decisions in the long term. Or we can do without rules, and hope against all experience that unfettered discretion will not degenerate into arbitrary injustice.
It is the same with entrapment. For the past ten years or so, various pressure groups have been obsessed by the fact that some children are getting hold of strong drink. It is currently out of fashion to try restricting the rights of adults to drink, and so attention has been focussed on children. The most common cause of underage drinking, it is alleged, is the "alcopop" – a beverage that looks like a soft drink but which really contains about five per cent alcohol. The Conservatives started the governmental outcry when they were in power. Now Labour has taken it up.
Of course, it is entirely legitimate to try within reason to ensure that young people do not have unrestricted access to alcohol. But the attempt becomes illegitimate when it ceases to be reasonable – when it begins to touch on vital procedural safeguards of adult liberty. That is what is now happening.
On the 17th july 1997, the Government announced a package of measures to deal with the alleged problem of underage drinking. Shopkeepers were threatened with losing their alcohol licences if caught selling alcohol to children. So far as alcohol licences ought to exist, this is a reasonable use of them. However, the Government continued with a promise to allow enforcement of the law by sending children into suspected shops to see if they could buy alcohol. 24 This is unreasonable. For while the admission of similar fact evidence would be an obvious breach of the principle stated above – that actions, not dispositions, are the only proper objects of punishment – the use of entrapment allows an equally serious breach, if less directly.
Consider again: A child goes into a shop and asks for alcohol. It may be the shopkeeper's invariable policy to refuse to sell to children. But, on this occasion, he does sell. Perhaps he is distracted by some personal care and fails to realise what he is doing. Perhaps this is a very charming, insinuating child. It may have been cautioned not to go beyond a simple request. But there is no credit to be had from the watching adults for a day spent going from shop to shop and gathering only refusals. Children are not particularly scrupulous about matters of truth and falsehood. As any reader of Richmal Crompton knows, the kind of child that permits itself to be used as an agent provocateur will pay such matters no attention at all. The money is taken, the alcohol handed over. The authorities are informed, and the shopkeeper is summoned before the Magistrates to answer for his action.
True, on this occasion, he must answer a specific charge. But that is plainly so in none but the most technical of senses. It would, of course, be thought monstrous if one class of person were to go about tempting another class solely in the hope that a punishable offence might be committed – just as it would be if we went round a public house, knocking people's drinks over in the hope that someone might give occasion for beating him up. The one justification must be that the artificial offence will stand in place of previous real offences for which no evidence can be obtained. What we have here, then, is a means of bringing someone into court to answer for his presumed disposition.
Entrapment is an old practice. It is as old as misgovernment itself. It reached it fullest development in the despotic European states of the early 19th century, and no significant advances have been made since then in its methods. In the English-speaking world, it has always been regarded with aversion. There is at once the natural tendency to see it as an instrument of oppression, and the fact that its use has been frowned on by our courts, where not actually prohibited.
Then there is the disuse of legal procedure altogether in the enforcement of lifestyle regulations. At the same time as the entrapment proposals discussed above, the Government also suggested that the Police should be given new powers to confiscate liquor from obviously underage drinkers. 25
Such a law would also be against Magna Carta, Article 39 of which blocks punishment of any kind without trial. It would also breach the due process clauses in the constitution of just about every other civilised country. When the authorities can go about taking property without any process, they become thieves. It is no argument that the theft is for a good purpose. If the right to property is to mean anything at all, it must mean that the authorities are to be prevented from laying hands on it except by due process of law. Without this, property dwindles to an interest in good held on sufferance from an all-possessing state.
Of course, this has been happening for some time in another area of the law. We have already mentioned the growth of forfeiture laws under the Conservatives. These are tending towards the American system of "civil asset forfeiture". This dates in its present form from the [Federal] Comprehensive Forfeiture Act 1984, the purpose of which was to strengthen existing laws against "racketeering" – that is, organised crime on a large scale, usually connected with the supply of drugs. The Act allows the authorities to freeze the allegedly tainted assets of an accused person prior to conviction. Such assets can be recovered, but only if the accused person sues for them and can prove that no illegality was involved in their acquisition and in the earning of the money with which they were acquired, and that they were not used for any illegal purpose.
Since this is a civil interlocutory process, there is no Constitutional bar to reversing the burden of proof. Moreover, since all assets may be frozen, it can be difficult for an accused person to obtain the legal assistance needed to recover them. Even when some assets are left unfrozen, an American litigant must pay his own costs regardless of how his case ends. The effect of this is that only a very wealthy accused person who wants to recover very substantial assets can be expected to sue the Federal Government. For everyone else, asset forfeiture is just what it is called – forfeiture. Never mind that a jury may acquit, or even that the case may be dropped before trial, assets frozen are nearly always assets confiscated.
It is, however, the use of asset forfeiture that has transformed it into a weapon of arbitrary power. It has been extended by court decisions and further statutes to cover virtually every crime; and Federal and State agencies empowered to freeze assets now include the FBI, the Drug Enforcement Administration, the Food and Drug Administration, the United States Marshals Service, the Coast Guard, the Internal Revenue Service, The Department of Housing and Urban Development, the Bureau of Land Management, together with local police forces and the Highway Patrol. The value of assets frozen per year was $27 million in 1986, $644 million in 1991, and is now well past $1 billion. 26
To see how asset forfeiture works, consider these cases:
- In 1992, in Iowa, "a woman accused of shoplifting a $25 sweater had her $18,000 car – specially equipped for her handicapped daughter – seized as the getaway vehicle".
- In December 1988, Detroit drug police raided a grocery store, but failed to find any drugs. After dogs reacted to three $1.00 bills in the cash register, the police seized $4,384 from cash registers and the store safe. According to The Pittsburgh, Press, over 90 per cent of all cash circulating in the United States shows some drug residue.
- In 1994, a Californian farmer accidentally ran his tractor over a protected rat. The United States Fish and Wildlife Service seized the tractor, worth $50,000 and bought on credit.
- In United States v 403½ Skyline Drive (a case in which property was the defendant!), a Los Angeles Court upheld the retrospective seizure of a home for misrepresentations made to a Government-insured loan company. 28
There are proposals to extend asset forfeiture still wider, so that seizures may be made on mere suspicion, and so that the individual officers making the seizures can receive bonuses based on the value of what they seize. Armed with these powers, the authorities will only need bother themselves with due process when they want to put someone in prison.
It is disturbing to see how this perversion of justice has been silently crossing the Atlantic since 1986. It is disturbing to see how a Labour Government has continued the trend. In April 1998, Mr Straw had a meeting with Janet Reno, the American Attorney General – responsible, among much else, for the massacre at Waco in April 1993. He stopped short for the moment of proposing the full American system. But he did promise a change int he law to allow forfeitures to be made without a criminal trial. The Police are to be allowed to bring suspects into the criminal courts, and to argue that their assets have been acquired by illegal means. The standard of proof needed in such cases will be on the balance of probabilities, rather than beyond reasonable doubt, as is required in the criminal courts.
The police welcomed this, as they
have grown frustrated at their inability to seize the assets of major criminals because they cannot gather sufficient evidence to make a prosecution stick. 28
This dangerous and unconstitutional scheme was immediately welcomed by various Labour Members of Parliament. For example, Fraser Kemp MP said:
Our cities are being blighted by organised drug barons who live ostentatiously off their ill- gotten gains. We need to hit them where it hurts – in the pocket. The innocent will have nothing to fear. 29
By definition, the innocent have everything to fear. If there is no case to answer in an ordinary criminal court, then there is no case to be answered to the Police. Their job is to catch criminals, not to judge them.
The Prevention of Terrorism
We turn finally to the aftermath of the terrorist bombing at Omagh in August 1998. There is no condoning such barbarous acts. The perpetrators should be hunted down and punished to the full extent of the law. Nevertheless, the Government's promised legislation is most worrying. The main proposal is to allow conviction for membership of a banned organisation on the sworn testimony of a single police officer. The purpose of this is to allow suspected terrorists to be rounded up and imprisoned even though it is impossible to find witnesses who will testify to their guilt of substantive crimes.
The problem with such legislation is that it is far worse than the use of emergency powers like plain internment. The suspension of habeas corpus and the declaration of martial law are alarming acts. But they have the benefit of standing separate from the ordinary laws. They are imposed for a set period. They cannot be justified after the emergency for which they were invoked has passed. They are ended and replaced by the ordinary law of the land.
Attempts to incorporate anti-terrorist laws into ordinary law have the supreme disadvantage of merging with ordinary law until their origin is forgotten, and until they cannot easily be sloughed off. They do not so much replace the ordinary law of the land as become part of it. In many instances – the creeping abolition of the right to silence, for example – anti-terrorist laws in one part of the United Kingdom are allowed to become precedents for legal changes in other parts.
It is too early to say exactly what the legislative response will be to Omagh. At present, though, it looks to be just the sort of response that Michael Howard and company would not have been ashamed to make.
The first 500 days of the Blair Government have not on balance been good for liberty. Mr Blair inherited a Thatcherite police state, and has allowed it to remain in being. He has also allowed the forward momentum set in the late 1980s to continue. Bearing in mind the nature of this inheritance, the new laws made or promised by Labour would once have shocked people as the most naked despotism.
In mitigation, however, it must be repeated that the illiberality of the past 500 days cannot be blamed on Labour. The culture of lifestyle regulation and erosion of liberty was set by the Conservatives,; and Labour Ministers are simply consenting to measures that their officials have been trained to suggest.
And it cannot be doubted that the forward momentum of despotism has markedly slackened since the Labour victory. The Conservatives went into the last election promising a "voluntary" identity card scheme should they win. This would have represented one of the most important changes in the relationship between State and citizen since the introduction of National Insurance in 1911. It would have required us to identity ourselves at almost every step, and to justify our behaviour. Combined with the emerging digital technologies of smart cards and data matching, it would have allowed a level of surveillance to make George Orwell's nightmarish Airstrip One seem as discreet as a Swiss bank. Labour has no plans to introduce identity cards. It has implemented the Conservative requirement for Driving Licences to carry photographs, and these might eventually become identity cards. But there is no plan to introduced identity cards in one swoop – as would by now have happened had the Conservatives emerged victorious in May 1997.
At the same time, Labour has none of the enthusiasm the Conservatives displayed for the prohibition of strong encryption software. The Department of Trade and Industry issued a Green Paper just before the last election, proposing that the only encryption to be allowed would be the sort that the Government could break through whenever it pleased. This would have subjected our private e-mail and other electronic documents to state surveillance. Though a consultation document has been mentioned at various times, these plans have been dropped by Labour; and a commercial version of PGP encryption software was openly on sale in PC World as of August 1998.
Again, the Government has made one attempt to lower the age of consent for homosexuals to 16, thereby bringing about an equal age of consent for all. This attempt failed in the House of Lords, where Conservative opposition was more powerful than in the Commons. But another attempt will be made in the next session of Parliament. This will be a clear gain for liberty.
Above all, the Government is incorporating the European Convention on Human Rights into British law. This is not as solidly liberal a document as the American Bill of Rights. Even so, it does protect a number of basic freedoms – speech, religion, assembly, property, and so forth. By incorporating the Convention, the Government will remove the need for British citizens to exhaust all domestic redress before going off to Europe, to spend large sums of their money and bring the whole country into international disrepute when judgments go against the authorities.
Something for the Blair Government to consider is that the Thatcher revolution took a wrong turn in the middle 1980s. From being a Government committed to rolling back the frontiers of the State, to liberate the individual, it became one committed to enacting an increasingly restrictive agenda of social control. There are over a hundred Labour Members of Parliament who suffered under some of the draconian laws that resulted – there is more than one Minister. And the agenda was never popular. The Conservatives did not win in 1987 because the electors were enraptured by the creation of the Serious Fraud Office – but because the economy was doing well and Labour was a mess. One of the reasons why the Conservatives lost in 1997 was because people were sick of being pushed around by the likes of Michael Howard and Virginia Bottomley, and because Labour was now electable.
There are no votes in trying to smash the liberal, polycentric popular culture that has emerged in this country since the 1960s. In a state of rest – that is, when not manipulated into moral panics about mad dogs or guns or satanic child abusers – the majority of people in this country are tolerant of diversity in others and eager for the right to make choices for themselves. We know that people embraced the economic liberalisation of the 1980s – buying their homes, buying shares, choosing their own pensions. We know that they like the limited empowerments of the 1990s – in health and education. We know also that they are relaxed about things like drugs and pornography, so long as there is a basic protection for children.
There is also an electoral consideration that Labour may ignore at its peril. Now that Thatcherite economics are part of a general consensus, rather than the property of the Conservative Party, William Hague has a problem of branding for his Party. He cannot fault the Government on economic policy, but only on management – and that by itself is unlikely to reverse the 1997 election result within five years. The European issue, for all its importance, is not perceived as important in party terms, and will not carry Mr Hague into Downing Street.
However, there is one strategy that the Conservatives might seize on in their desperation. They could take up the full libertarian agenda in both economic and social matters. Just as they used the economic insights of Milton Friedman and F.A. Hayek in the 1970s to pull down a Labour Government, they could try the same in the 2000s with the social insights of these liberal philosophers. And they might find themselves riding the same wave of popular disenchantment at a Government that believes that "the gentleman in Whitehall" really does know best. Certainly, they would have to repudiate the legacy of John Major and Michael Howard. But just recall how successfully they dropped the legacy of Harold Macmillan and Edward Heath after 1975. They might try this and succeed.
Yet if social liberalism were to be embraced by Labour, the Conservatives would be totally boxed in. They would have nothing to say that would resonate with the liberal majority. They could make speeches about family values, and might eventually find a clear line on European integration. But they would not have the potent weapon of social liberalism to turn on Labour.
The first 500 days of Labour have not been good for liberty. On the other hand, they have not been that bad either. And both common sense and electoral logic might well push Labour before the next election into the first true rolling back of the State since the early 1950s. We can only wait and see.
1. The Police Act 1997.
2. Criminal Justice and Public Order Act 1994.
3. The Criminal Justice Act 1987.
4. The Drug Trafficking Enforcement Act 1986, the Criminal Justice Act 1988, the Criminal justice Act 1993, the Proceeds of Crime Act 1985.
For the abolition of financial privacy, see Sean Gabb, The New Tyranny of Global, European and British State Control of Financial Transactions, "Legal Notes No.23", The Libertarian Alliance, London, 1995. See also Sean Gabb, review of William C. Gilmore (ed.) International Efforts to Control Money Laundering (Cambridge, 1992), and Rowan Bosworth-Davies and Graham Saltmarsh, Money Laundering: A Practical Guide to the New Legislation (London, 1994), published in Free Life, London, No.23, August 1995.
For the reversal of the burden of proof, see J. Enoch Powell, The Drug Trafficking Act versus Natural Justice, "Legal Notes No.2", the Libertarian Alliance, London, 1987. See also Anthony Furlong and Edward Hume, review of the Proceeds of Crime Act 1995, published in Free Life, London, No.24, December 1995.
5. Criminal Justice Act 1988.
6. For an authoritative statement of the lifestyle regulators' creed, see Alweyn Smith and Bobbie Jacobson (eds), The Nation's Health: A Strategy for the 1990s: a Report from an Independent Multidisciplinary Committee Chaired by Professor Alweyn Smith, King Edward's Hospital Fund for London, London, 1988.
7. See, for example, Judy Jones, "Top doctor urges legal controls on parenthood", The Observer, London, 7th August 1994 – report of how Professor Sir Roy Calne argues "that people in Western nations should have to pass a parenting test and gain a reproduction 'licence' before being allowed to have children".
8. See, for example, the Video Recordings Act 1984, which established the first formal censorship in this country since the expiry of the Licensing Act in 1694.
9. See, for example, "Labour resists call for review of drugs laws", The Daily Telegraph, London 16th march 1998.
10. "Sales of insulin to be restricted", The Daily Telegraph, London, 6th April 1998.
11. "Painkiller curbs to cut overdoses", The Daily Telegraph, London, 27th August 1997.
12. "Store tills alerted to overdose shoppers", The Sunday Telegraph, London, 9th August 1998
13. "Vitamin B6 curb 'in public interests'", The Daily Telegraph, London, 3rd April 1998.
14. Douglas Jay, The Socialist Case, Victor Gollancz, London, 1947, p. 258.
15. "Jowell to ban tobacco ads", The Daily Telegraph, London, 8th may 1997.
16. "Ban on cigarettes to under-18s", The Daily Telegraph, London, 27th November 1997. "Pubs to be made to segregate smokers", The Sunday Telegraph, London, 16th November 1997.
17. In Latin:
Nullus liber homo capiatur vel imprisonetur aut disseisietur aut utlagetur aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus nisi per legale iudicium parium suorum vel per legem terr[a]e.
18. The whole article can be found at http://www.phoenix.net/þjunker/wang.html
The calculations only apply under the unanimity rule, which still prevails in America. However, though the odds are shortened in the Government's favour by allowing 9-3 majority verdicts, the Defence remains at a big potential advantage.
19. "Juries face axe in big fraud trials", The Daily Telegraph, London, 15th February 1998. See also: "Labour looks at ending the right to trial by jury", The Daily Telegraph, London, 15th November 1998.
21. "past crimes 'to be told to juries'", The Sunday Telegraph, London, 30th August 1998.
22. Per Lord Sankey, in Maxwell v Director of Public Prosecutions  Appeal Cases 309, at p. 317.
23. R v Fisher  1 King's Bench Reports 149, at p. 152.
24. "Labour acts to take the fizz out of alcopops", The Daily Telegraph, London, 17th July 1997.
25. "Labour acts to take the fizz out of alcopops", The Daily Telegraph, London, 17th July 1997.
26. Source: Jarret Wollstein, The Looting of America, leaflet published by the International Society for Individual Liberty, California, 1992.
27. Sources: ibid.; Jarret Wollstein, "Massive increase in Gun and Property Seizures", Freedom Network News, California, Sept/Oct 1994.
28. "We'll take homes of suspected drug barons, says Straw", The Sunday Telegraph, London, 12th April 1998.
29. Quoted, ibid.
© 1998 – 2017, seangabb.
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