Saturday, March 12, 2005

Terror Laws in Other Countries

I see that the Pub Philosopher has a post asking how other countries have dealt with terror suspects. He asks whether:

...they allow intelligence evidence in courts? If so did it blow apart their intelligence services? If not, how do they deal with terrorists? Maybe it's easier to get a conviction in other countries. Maybe their less adversarial systems give less scope for weasel lawyers to get criminals off the hook.

This brings to mind an article entitled 'September 11, Anti-Terror Laws and Civil Liberties: Britain, France and Germany Compared,' by Dirk Haubrich in the September 2002 issue of Government and Opposition (subs required, but there's an abstract (and access if you have an institutional affiliation) here). Haubrich's conclusion is that various circumstances made the British government far more able to introduce tough legislation than the French and German governments were. I've lifted a table of the various post-9/11 measures from his piece...

He writes:
In France and Germany parliamentary sovereignty is much more constrained, as written constitutions had been introduced in 1958 and 1949 respectively. Any legislation approved of by the parliaments must conform to that constitution. To ascertain whether this is so, the law can at its formative stage be referred to the Constitutional Council (in France) or, at the judicial review stage, to the Constitutional Court (in Germany). Most of the civil rights in Germany are part of the first twenty articles of the constitution that cannot be altered by parliament. They are not only negative in character but are explicitly stated so to promote liberties such as the free press and free speech. They may, as such, be a basis for finding legislation to be unconstitutional and may also be a ground for requiring action from the state. In the French case, civil rights are stated in the preamble as well as the 1789 Declaration of the Rights of Man and of the Citizen, which are both part of the constitution. In addition, the ECHR has acquired a status superior to ordinary French statutes, further improving the protection of civil liberties. The possibility of amendments to the written constitution is provided for, too, and subject to a majority in both houses, of three-fifths in France and two-thirds in Germany. Neither country, however, decided to initiate them when the anti-terror laws were implemented. Unlike Britain, the constitutional provisions available to declare a ‘state of emergency’ or ‘state of defence’ were not invoked either.

The British principle of parliamentary sovereignty, then, and the flexibility it offers to adjust to changing political realities, seem to come at a high price. Interventionism of the British government is the order of the day if the circumstances are ‘right’. For not only are there no formalized constitutional checks to executive power in British politics, but the usual political checks to prevent the government from enacting harsh legislation, intangible as they are already, were inactivated also. In the widespread atmosphere of fear about further attacks, the normal sense of self-restraint was not, and did not have to be, exercised by the executive. The same reason also greatly diminished the bargaining power of pressure groups concerned with civil liberties, usually another political checkpoint for excessive legislation. Given the second landslide victory for Labour earlier that year, the duty to respect the opposition party was also less called for than hoped for. The growing trend of marginalization of the government’s own backbench politicians and the decreasing influence of the House of Commons over the executive generally further undermined any rudimentary willingness that might have existed inside Britain’s political institutions to dissent from the executive’s viewpoint. Finally, the next election would take place far enough in the future to counter fears that voters might turn the government out over the laws introduced.

In conclusion we suggest that: the truly exceptional combination of public fear and perceived threat; Britain’s long experience with terrorism (and the legislative measures to contain it); time pressure; a constrained judiciary; a weak opposition; a recent victorious election and irresolute interest groups — all these factors enabled the executive to bypass the unwritten checks and balances of British governance and to add yet another entry to Britain’s already extensive list of liberty-retrenching laws. That Labour politicians with liberal credentials should advocate such measures demonstrates the fragile position of civil liberties in Britain when faced with claims of terrorist threats.

I'm think recent events in Parliament fit in with Haubrich's thesis: the compromises reached were pretty cosmetic and the legislation is sufficiently draconian that I harumph and eject a few "quite right"s when Michael Howard speaks on the issue (and I'm a good twenty years too young to be doing that!). I suppose the substantive point is that parliament is no protection from the whipping up of a bit of fear. What Britain needs is a written constitution, so that our rights are treated as something more than privileges granted by the home secretary.

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