Some critics of the Government’s plan to put terrorist suspects under house arrest without trial have said it would be conceding the terrorists’ case. Presumably they mean that the terrorists are totalitarians who want to crush liberal democracy. To live under a dictator is to live at the mercy of arbitrary power and to live under the arbitrary power of Charles Clarke would be similar.
Some writers, such as Bentham, understood freedom as the absence of all restraints on the individual. However, the classical liberal view is that to be free is live under law. In other words, freedom is not the absence of restraint but knowing in advance when it can be used against you. The occasions when compulsion can be used must be pre-announced in the form of laws. We must all have the chance to participate in making and changing these laws, which restrain the authorities as well as the citizens. In this sense liberty and order are two sides of the same coin.
Of course, the quantity of law may become so great, and the intrusions so frequent, that the scope for individual initiative is tiny. In this sense we can speak of a trade-off between freedom and order, or in Acton’s terminology, the sphere of conscience and the sphere of authority.
Charles Clarke’s plan for house arrest is inconsistent with the idea of ‘liberty as order’, under which we know when force can be used against us. Instead of his scheme, he should go ahead with an earlier proposal to create a new offence of ‘acts preparatory to terrorism’ and list the types of action that may lead to a charge, so that evidence can be brought forward and contradicted.
Even during the Second World War, when all the Germans were rounded up and interned, there was an independent tribunal that heard their case and released them if no doubts remained about their loyalty.
It is true that the restrictions we place on the police and the state generally make it harder for them to protect us, and it is true that many of these restrictions are only feasible in a society of largely law-abiding people. If groups seek to destroy the society by taking advantage of the safeguards we have imposed to prevent the abuse of power, then some of the safeguards may have to go, until the threat has diminished (whereupon they can be restored). One of these safeguards is the type of burden of proof faced by the authorities. ‘Beyond reasonable doubt’ may have to be replaced by the civil test of ‘on the balance of probabilities’. And if juries are intimidated, we may have to resort to trial by 2-3 judges. Perhaps trials, or parts of them, may also need to be in camera to protect witnesses.
However, even after conceding all this, and even if the threat is grave, it is not necessary to abandon the principle that a suspect should be charged and given an opportunity to reply in the presence of an independent tribunal. To abandon the requirement to declare the case against offenders and to deny them a chance to argue their case before someone independent of their accuser goes against two precepts that have been part of English law for centuries – the rules of natural justice.
The two principles are:
Hear both sides.
No man may be a judge in his own cause.
Many demands for ‘human rights’ are utopian and should be ignored. The Human Rights Act is bad law that has created legal confusion and should be annulled. But we should not abandon the fundamental precepts of English law, the rules of natural justice.