The repeal bill: what's left in, what's left out
Would Sir like Daily Mail freedom or Guardian freedom?
Analysis Today’s Repeal Bill is likely to receive an enthusiastic welcome from Big Brother Watch and a lukewarm endorsement from the Lib Dems. But as the proposal is more closely analysed, a fair few of those cheering now may soon be a good deal more gloomy; in respect of what has been left out and the fine detail of how freedoms are to be enacted.
First the good news: the Bill will go some way to pull the state back out of the lives of millions of ordinary law-abiding people. RIPA will no longer be used for minor snooping; S44 stop and search powers will be scrapped and control orders abolished; detention without trial will be reduced to 14 days; and the DNA of innocent persons will be removed from police databases.
But little of this is "new", and much is not what it claims to be. For instance, measures around RIPA, detention and control orders were announced by the Home Secretary, Theresa May earlier this month, and as close analysis of the proposals showed then, they were far from an unadulterated rollback of the state. For example, S44 powers and control orders were to be replaced by something more effective. What actually happened is that detention could be pushed back up beyond 14 days under emergency legislation if the government felt so inclined.
Even the suggestion that convictions for homosexual acts that are no longer punishable are to be removed from the records is not what it seems. "Delete" here means mark existing records as "to be disregarded" – not the same thing at all.
A further problem is that "freedom" means different things to different people. This Bill looks as though it will best satisfy the conservative heartlands – especially those happiest imbibing a particular Daily Express and Mail vintage of freedom.
Clegg can't claim his political coup here...
What of the Lib Dems, for whom this was pretty much a sacred cow: one of the conditions for entry into the Coalition? Launching public consultation on the Bill, Nick Clegg stated: "We want the British people to have their say on where the state should step in, and where it should butt out." Surely this Bill was worth it?
In fact, this rhetoric poses two problems for the Lib Dems. First, as has already been embarrassingly pointed out by Labour, what the Home Secretary announced in respect of surveillance and counter-terrorism is largely smoke and mirrors: tinkering around the edges, but not really making the fundamental changes the Lib Dems wanted – and that is likely to apply equally on other issues, with problems coming to light only as the detail is examined.
Second, there is a clear contrast between Nick Clegg’s apparent reliance on the consultation process as a means to test public opinion – and a natural political desire to pursue his own agenda regardless.
A helpful link allows the public to view all 13,954 proposals put forward by the public in respect of either "restoring liberty" or "repealing laws". Many of these proposals are duplicated. Some, such as a proposal to ban bathplugs, are ludicrous: some, as the request for a £100 birthday present law, hopeful; and others, including the ban on shops selling red tape in future, quite ingenious.
They are also unstructured and unaggregated. We asked the Home Office if they had carried out such an aggregation, but despite asking two separate spokesmen, the consensus appeared to have been that no one had; itself a worrying state of affairs for a process meant to take public views into account.
That may possibly be one of the reasons Nick Clegg appears to have begun distancing himself from this project last year - "floundering" as a report in the Telegraph suggests, and overwhelmed by detail. Another reason may be his realisation that the Bill would not be quite the great Liberal project he hoped it would be.
Besides, the bit about listening to the people seems to have been followed only where the people came up with proposals the government liked.
Big Brother Watch are happy with this – but should they be?
Big Brother Watch broadly welcomes the Bill. The detail and flavour of this proposal so closely follows topics covered in its recent book, Big Brother Watch: The State of Civil Liberties in Modern Britain that we would not be surprised to find the fingerprints of BBW and its supporters all over the drafting process. (Contributors to the book include Tory MPs Dominic Raab, David Davis, Damien Green [now a Home Office Minister] and Jesse Norman – as well as many other names, such as Alex Deane, Guy Herbert and Daniel Hamilton who are very much the usual suspects where issues of civil liberty are involved.)
But the group is concerned that the Bill doesn’t go far enough, merely transforms police powers to stop and search, and is silent in respect of what happens to DNA already taken.
Look more closely at what BBW is concerned with: the encroachment of EU powers, both in terms of regulation and into our legal system; the pernicious effect of diversity and equalities legislation on free speech; the growing role of administrative law - that is, powers of state officials to punish or interfere without recourse to the courts. Not all of this can possibly go into one Bill: some will reappear elsewhere, in specific legislation. Still, this only goes some way to satisfying the full-on traditional conservative lobby.
Included in the Bill are a variety of topics well-rehearsed and that we already knew were anathema to a certain sort of right-leaning tory and civil liberties supporter. But it certainly won’t go far enough for the more radical right – omitting discussion of key topics such as the state’s role in enforcing speech codes, the entrenchment of human rights, and European interference... And it certainly won’t go far enough for the general public who, on the evidence of the consultation, want the government to be generally more liberal on sex and drugs and rock and roll (aka music licensing in pubs).
You spoke, we
listened repeated a list of what we're doing already
We have not analysed all the responses, but we did a quick analysis of the first couple of hundred and found in the top 10 just two measures the government is implementing (scrapping of s44 and control orders).
Otherwise, leading the pack by a mile is repeal of the Digital Economy Bill, with drugs, sex and death all featuring highly. Plenty of support for legalising cannabis and relaxing drug laws generally: a lot of support for repealing the smoking ban and bringing back the death sentence; and a number of separate petitions around sexual issues. Decriminalising of prostitution was one: repealing the extreme porn law also scored highly – coming in at number 7 (or possibly even 6) on the "restoring liberty" category.
Alexandra Dymock of sexual civil liberties organisation Backlash told us this morning: "This law is a waste of valuable legal aid and police resources. It should be repealed. We will continue to lobby for repeal during the passage of this Bill."
Undoubtedly pro-drug and pro-hunting groups, whose causes also scored highly, would express similar sentiments.
The Bill sounds radical, but that’s only the wrapper: open it up, and the contents are likely to disappoint, with most of the main issues that the public were interested in not touched; and those that were, touched only in ways that give the appearance of change, but far less real substance. Many of the substantive parts of the Bill are already in play... and where there is change, it doesn't go far enough ... ®