09.07.2008
David Davis and democratic rights
The failure of the far left to champion democracy has allowed rightwing polititians to pose as libertarians, argues Mike Macnair
David Davis MP, former Tory shadow home secretary, is an unlikely champion of democratic rights. Davis himself is a death penalty supporter, and the Conservative Party hassupported most of New Labour’s authoritarian initiatives. Government supporters have been taking every opportunity to point this out since Davis’s resignation to fight a by-election, held on July 10.
Davis’s stunt was intended to demonstrate his opposition to the Labour government’s proposals to allow police detention of ‘terrorist’ suspects without charge for up to 42 days. Upon his resignation he extended it to the ‘surveillance society’ more generally: the ID card scheme, the overuse of CCTV, DNA databases and the Regulation of Investigatory Powers Act.1
The parties of the consensus, and the media-crats, have joined arms to attempt to marginalise Davis - in the interests of the bureaucratic state. Labour refused to stand a candidate. The Liberal Democrats announced that they would not be standing because they agree with Davis. But, of course, MPs are not just there to represent voters on single issues. The real motivation has to be participation in consensus politics.
Consensus politics also indirectly informs the decisions of the Socialist Workers Party’s Left Alternative, Respect Renewal and Socialist Alternative (the Socialist Party in England and Wales), not to stand. The leaders of these formations are desperate to appear bigger than they are and to avoid electoral ‘marginalisation’. The price is to refuse a political platform in which - unusually - it is possible to make democratic rights the central issue.
Tony Benn has endorsed Davis’s campaign. So has Bob Marshall-Andrews. They are profoundly mistaken to do so. Davis’s initiative is merely an extreme example of a common feature of capitalist politics. When the parties of the reformist left are in government, they do what the state bureaucracy and the capitalist press tell them they must do, and hence become authoritarian.
The parties of the right are then enabled to posture as libertarians in order to win votes. But put them into government and they will - in truth - be as authoritarian as the reformist left, or more so.
Rightist libertarian posturing against the statist authoritarianism of the reformist left is not restricted to politicians. Judges do it too. We have seen two instances in June 2008. The final appeal court in Britain, the Judicial Committee of the House of Lords, has reasserted the right to an open trial and with it the ancient right of the accused to ‘confront’ his accusers, which dates back to Roman times.2
And the US Supreme Court has, by a majority, held that citizens have an individual constitutional right to possess handguns, and explained this by the underlying right to overthrow the government if it becomes tyrannical.
Revolutionary Scalia?
Justice Scalia is a long-serving Republican member of the US Supreme Court, appointed by Ronald Reagan in 1986 and commonly characterised as one of the two most conservative justices. He is an advocate of the ‘originalist’ approach - that the US constitution is to be interpreted as the late 18th century ‘founders’ would have interpreted it; and has argued that the equity jurisdiction of federal courts is limited to the practices of the English Court of Chancery in 1793. He has argued that the point of a constitution with limited powers of amendment is, precisely, conservative - to prevent change. He is not, on the other hand, any sort of rightwing libertarian, but has, on the contrary, defended the autonomy of the executive power.3 He dissented in the Supreme Court’s June 2008 decision in Boumedienne v Bush that the constitutional guarantee of habeas corpus applies to Guantanamo.4 Scalia is thus an even more unlikely defender of democratic rights than David Davis.
District of Columbia v Heller (decided June 26 2008) concerned a law of Washington DC which prohibited the keeping of unlicensed handguns, prohibited the licensing of handguns except for certain limited exceptions, and required guns kept in private houses to be disassembled or disabled by the use of a trigger lock.5 The Supreme Court by a 5-4 majority struck the law down as inconsistent with the second amendment to the US constitution, which provides that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Scalia wrote the majority opinion.
To see how Scalia postures in favour of liberty it is necessary to grasp the context.
Opposition to gun control is a traditional element of the politics of the US right. Support is a traditional element of the politics of the (mainly Democrat) US reformist left, seemingly agreed by the Communist Party of the USA.6 The US far left, on the other hand, is mainly opposed to gun control: the US Socialist Workers Party, Socialist Action, the International Socialist Organisation and the Spartacists have all in different ways expressed their opposition. The pro-gun control line of the majority of the British far left is an international oddity, reflecting the dominance of left Labourism and pacifism in British far-left politics.
US gun control advocates have been arguing for some years that the second amendment protects only a collective right to keep and bear arms, perhaps as part of a state militia, and perhaps even merely a right of the states as against the federal government. The historical arguments for this position have become, frankly, desperate.
One of the most strained aspects has been the endeavour to separate the second amendment from article seven of the English Bill of Rights 1689, which asserts: “That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law” ... and its background, which was the royal government’s 1680s seizure from Whig landowners of stocks of arms for whole infantry and cavalry regiments and pieces of artillery. Article seven was transparently - from its text and its context - a provision for the right to bear arms for therevolutionary wing of the capitalist class. It was equally transparently connected to the right to overthrow the government by force in case of tyranny, claimed by Whig theorists.
The dissenting justices do not defend the full collective-rights interpretation: the debate among the historians had rendered this indefensible. Instead, they argue (Stevens) that the second amendment protects only the keeping of guns by individual state militia members and their use in a state militia; or (Breyer) that the second amendment permits the state to regulate gun use; that this regulatory power requires the balancing of conflicting interests; and that the Washington DC law is a legitimate balancing of the interest in preventing gun crime with the interest protected under the second amendment.
To answer these arguments, Scalia is compelled to restore the revolutionary context of the second amendment. He discusses the origins of article seven (pp19-21) and the British government’s attempts to disarm American colonial resisters in the American revolution (pp21-22). The “militia”, he argues, based on an earlier Supreme Court decision, “comprised all males physically capable of acting in concert for the common defence” (p22). Such a militia is the sort Marx (in The Civil war in France) and Engels (in Can Europe disarm?) argued should replace the standing army.7 “When the able-bodied men of a nation are trained in arms and organised,” says Scalia, “they are better able to resist tyranny” (pp24-25). We agree. With the restriction tomales removed, communists argue for such a militia today.
“The mountains are giving birth ... and a ridiculous mouse is born”.8 So it is with the majority judgment of the Supreme Court. Scalia restricts the right to weapons “in common use”. He comments: “It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks.” But, he goes on, limply, “the fact that modern developments have limited the degree of fit between the prefatory clause and the right granted cannot change our interpretation of the right” (pp55-56). So, according to the decision, even M-16 military automatic rifles may be banned ...
The bathetic triviality of Scalia’s conclusions from revolutionary premises makes it clear that this big-government conservative is posturing towards libertarianism, not actually defendingdemocratic rights and political liberty.
Why? The context is, of course, the US presidential election. The Democrats have generally been pro-gun control; but this is not much favoured by blue-collar voters. Barack Obama in particular has generally favoured it, and briefly embarrassed his campaign in April by the remark that small-town voters “get bitter, they cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.”9
The decision in DC v Heller thus presents Obama with Morton’s Fork: alienate gun control opponents by denouncing it; or support it and be accused of opportunism and U-turns. He has made the second choice, but how it will play is not yet clear.10 What is clear is that the Supreme Court majority in DC v Heller is in the business of embarrassing the Democrats, not that of reducing the power of the US state.
Another Davis
R v Davis (decided June 18 2008) is about conviction of a serious crime on the basis solely or primarily of anonymous witnesses.11 Iain Davis was convicted in 2004 of shooting two people at a new year’s party in Hackney in 2001 after a reportedly trivial argument: as well as killing the intended victim, the bullet went through a partition wall and killed a bystander. After the event, Davis - who admitted he was at the party but denied he was the gunman, claiming he had left before the shooting - fled to the US using a false passport.
The case against Davis depended on the evidence of three witnesses, who were accepted to be in fear for their lives if they were identified. On this basis, it was ruled at trial that the witnesses should give evidence under pseudonyms, and various other precautions should be taken, including the erection of screens and the use of voice modification to prevent identification. Davis’s defence against the evidence of the anonymous witnesses was to claim that it had been concocted by his ex-girlfriend as an act of revenge. But since the identity of the witnesses could not be used, it was impossible for his counsel to make the case effectively.
The House of Lords allowed Davis’s appeal and remitted the case to the court of appeal to decide whether there should be a retrial. The basis of the decision was that the anonymity precautions were inconsistent both with the right to confront accusing witnesses under the English common law, and with the guarantee of the right to a fair trial under the European Convention of Human Rights, article 6. The majority, led by Lord Bingham (though all the judges gave separate judgments) rested mainly on the common law rule; Lord Mance - while concurring with the majority - was slightly more sceptical about the common law rule and relied more heavily on the convention.
The law lords more or less openly invited the government to consider whether or not to legislate to reverse their judgment. Lord Mance in particular pointed out that the case-law of the Strasbourg Court of Human Rights did not invariably ban witness anonymity. The government has now responded with an emergency bill, the Criminal Evidence (Witness Anonymity) Bill.12This has promptly been denounced by the Law Society and bar as too broad.13
The government’s need for urgent action, and the breadth of the bill, are both given by the sheer number of pending cases - 580 are said to be possibly affected.14 What this tells us is that anonymity measures which are asserted to be exceptional are, in fact, gradually becoming routinised. The House of Lords judgments complain precisely of an insidious, gradual process by which exceptions to the right to confrontation have begun to normalise the practice.
This is not new: it is an inherent dynamic of the ‘criminal justice systems’ of class societies. Torture in ancient Roman criminal procedure, originally applied only to slaves and in treason cases, became normal in the trials of the humiliores (the poor).15 Trial by ordeal (where the defendant was made to walk a distance carrying a bar of hot iron blessed by a priest, or tied up and thrown into a similarly blessed pond) was used in exceptional cases in the 10th-12th centuries, then made routine in capital cases in the later 12th. (It had to be abolished after 1215, when the church prohibited priests from taking part, and was replaced in England and Denmark by jury trial.)16
Torture, again, began in medieval European law for exceptional cases - treason, heresy and witchcraft: by the end of the middle ages the accused was routinely tortured in serious criminal cases. (In England it never got beyond use in exceptional cases.)17 Several features of the Six County ‘anti-terrorist’ regime have become normalised in English criminal procedure - notably the partial abolition of the accused’s right to silence.18
So far, it may seem that the Judicial Committee of the House of Lords has been doing exactly ‘its job’ under Britain’s unwritten constitution: to uphold fundamental rights, in this case the right to an open trial and to confront the accuser. But, as with the US Supreme Court in Heller, it is not quite so simple.
Confrontation and intimidation
As I said earlier, the right to confront your accusers goes back to Roman times. The problem of intimidation of witnesses goes back just as far, as Lord Rodger points out at the beginning of his speech in R v Davis, citing Cicero’s prosecution of the Roman extortionist, Verres, governor of Sicily in 70BCE. The question posed is: if so, how come gangsters and extortionists, who could easily intimidate witnesses, ever got convicted?
The answer given by the House of Lords in Davis is: well, they got by OK without anonymous witnesses.19 But this is only a half-truth: and its character as a half-truth is the sting in the tail which presents the Labour government with politically unpalatable options, just as Heller does to Obama and the Democrats.
In Verres’ trial, the answer is that Roman criminal procedure allowed Cicero to throw at Verres anything at all that would smear his character: for example, that he had been incompetent and lazy before he became governor. The smears let the Roman jury believe that the stories of extortion were true even if they were not supported by many witnesses. Early medieval criminal procedure worked in pretty much the same way, as far as we can see from the reports of trials preserved by monastic chroniclers.
In later medieval and early modern law the sort of evidence that could be used against the criminal accused was tightened up. Professor John Langbein argues that this led to the generalised use of torture in continental criminal law: in England this was not ‘necessary’, because until the 17th century (and, according to Langbein, until the 18th) the English criminal trial jury was entitled to convict without any evidence at all.20 Certainly routine capital cases were dealt with without much evidence: on figures Langbein and other academics have collected, down to the later 18th century a jury could get through six to 10 cases in a day (they would be called on to deliver verdicts on all at the end of the day).21 In fact, it was a rule of English law in the later 17th century that a criminal trial must be completed in a single day.22
The accused was not allowed to testify in his own defence. The rule is Roman in origin and applied across Europe until the 19th century; in England, until 1898.23 This obviously made convictions easier to obtain ...
In serious criminal cases, witnesses were examined by justices of the peace, who played the role of the modern French juge d’instruction (judge-prosecutor). If witnesses subsequently failed to appear at trial and there were reasonable grounds to suspect that they had been ‘kept away’ by bribery or threats from the accused, their depositions could be read out. This exception to the confrontation right was established at common law in R v Lord Morley (1666) and Thatcher and Waller’s case (1676).24 The House of Lords in Davis recognised it, but read it narrowly to apply only to cases where witness tampering is proved.25 In addition, the evidence of tampering with witnesses was itself primary evidence of guilt of the offence charged; this doctrine has in modern times been abandoned.26
If we apply pre-modern English law to Davis - irrespective of whether he is actually guilty or innocent - his flight after the crime would, until modern times, have been a ‘violent presumption of guilt’ (sufficient evidence to convict with only slight other evidence).27 In fact, his flight out of the jurisdiction could until 1938 have had the result that he would have been outlawed, with the result that on his return to England he could in theory have been hanged without trial (or lawfully killed by any private individual); though in practice this had fallen out of use.28
Outlawry was merely an aspect of the massively greater role of forcible self-help arrangements in the pre-modern English legal system: the ‘hue and cry’ which obliged all the locals to help pursue a thief or robber; the sheriff’s posse comitatus raised from the locals for various purposes; much more extensive rights of forcible self-defence and of defence of personal autonomy (provocation defence in murder); the right to keep and bear arms under Bill of Rights 1689 article seven (which brings us back to Heller ...).
I do not mean to endorse any of these particular expedients. But it is clear from the history that as long as there is any serious problem of criminal violence and extortion and hence of witness tampering, there are unavoidable trade-offs. If you want to do without secret examination of witnesses or anonymous witnesses, you have to be willing to accept a lower ‘standard of proof’: ie, that 12 jurors are willing to convict on evidence that 20th century lawyers would regard as insufficient for conviction. And you need to be willing to accept more forcible self-defence and more locality self-policing than the law now accepts.
Politics of crime
The other option, of course, is to reduce the total incidence of serious violence and extortion. It is now very clear from the empirical evidence that the primary means of achieving this result is toreduce social inequality.29 At the end of the day, concessions to the working class made in the period of high imperialism and again in the post-war boom period, supporting a widespread perception of social solidarity, produced a degree of partial consensus about policing and criminal justice. This consensus in turn enabled the British criminal justice system to combine open trial with concessions to the accused on the front of standard of proof, etc.
This brings us to the heart of the political problem. Criminal victimisation is a real problem, even if the media exaggerate its scale. It is also a problem which particularly affects the poor, mainly because it is easier to victimise your neighbours than to victimise the rich. The shift to growing social inequality, as a result of the new policy of capital since the late 1970s, naturally tends toincrease the problem: and none of the parties of the consensus, New Labour included, actually proposes to take away the ill-gotten gains of the ‘fat cats’, tax avoiders and so on. These facts provide the basis for the ability of the political right to campaign against ‘liberalism’ on crime.
At this point we can see how the House of Lords presents the Labour government with Morton’s Fork, as Davis does on ‘42 days’, and as Scalia presents Obama with Morton’s Fork on gun control. If the government fails to act on the ‘crime problem’ - in this case the problem of intimidation of witnesses - they will be accused of being ‘soft on crime’. If they adopt the House of Lords’ open suggestions in the judgments30 and legislate to reverse R v Davis - as they are doing - they will be accused of authoritarianism. They have taken the latter choice.
The House of Lords judgments focus narrowly on the right to confrontation. They invite the government to legislate for anonymous witnesses: they marginalise or fail to mention the alternative approaches to the problem. The judges are not ‘doing the job of protecting fundamental rights’. The choices they, and counsel in the case, have made, present the problem on tramlines which point to an extension of anonymous witnesses ... and to the Labour government being accused of authoritarianism.
Vote Chris Talbot, SEP!
I wrote earlier that Tony Benn has endorsed David Davis’s campaign; and the bulk of the far left has failed to pick up the gauntlet and stand a candidate in Haltemprice and Howden. The larger groups did not do so because they are frightened of getting a marginal vote. But there is a deeper problem: their economism and tailism.
Far-left comments on David Davis’s stunt show the groups simply wringing their hands. Socialist Worker comments of the Labour left that “by abandoning the field to Davis, they have allowed the Tories to hijack yet another leftwing issue with which to beat New Labour.”31 The Socialistsays: “It shows how far the Labour Party has moved to the right that such a politician may be seen as the only sane man in the asylum.”32 Solidarity (July 1) says: “So a rightwing, authoritarian, ruling-class warrior like Davis is left to present himself as a champion of freedom, with only an even more rightwing populist and the Monster Raving Loony Party to oppose him! No wonder so many people think politics is a farce!”33
De te fabula narratur: the story is told about you. The Labour left are, precisely, Labourites: they can hardly be expected to raise constitutional issues - except, like Benn and Marshall-Andrews, by looking for a traditional parliamentarist cross-party constitutionalism.
But the far left has had 11 years since 1997 in which it could have taken the political initiative against the Labour government by posing a radical democratic alternative to Labourism. The major groups of the far left have consistently refused to do so. Starting with Arthur Scargill’s explicitly ‘old Labour’ Socialist Labour Party. Continuing with the ‘priority pledges’ of the Socialist Alliance, which marginalised the democratic demands in People before profit; with the character of Respect; and with that of the Campaign for a New Workers’ Party. The Alliance for Workers’ Liberty went halfway towards a democratic politics, but has more recently drawn back towards ‘militant trade unionist’ economism and the appeal to Tony Woodley to build a new Labour Party. (I leave on one side, for the moment, the AWL’s social-imperialism.)
The CPGB has fought so far as we can for the various ‘unity projects’ to take democratic politics seriously. We have been told that this would be too advanced for ordinary voters; or that it would be inconsistent with ‘united front’ policy aimed at ‘old Labourites’. This refusal hands the political initiative on these questions to the right. Witness David Davis; witness, also, the US Supreme Court in DC v Heller and the House of Lords in R v Davis.
Honour for the moment goes to the Northite Socialist Equality Party, which has picked up the gauntlet. Its statement is fairly standard far-left talk, but it makes the fundamental points. Forty-two days does not stand on its own, but is part of a generalised subversion of traditional democratic rights. This subversion does not stand on its own either, but is directly connected both to the turn to open imperialism (‘war on terror’) and to the commitment of the parties of the consensus to the interests of international capital and the super-rich.34 Communists do not share all the SEP’s views. But a vote for Chris Talbot in Haltemprice and Howden would have been a clear class vote and a clear vote for democracy.
Notes
1. Yorkshire Post July 7.
2. The Bible Acts 25.16; rescript of the emperor Hadrian (emperor 117-138 CE) The digest of Justinian book 22, title 5 (Witnesses), §3.3 (D.22.5.3.3).
3. On Scalia’s career and judicial politics in general Wikipedia provides a convenient summary. On federal equity, Grupo Mexicano de Desarrollo v Alliance Bond Fund 527 US 308 (1999).
4. www.supremecourtus.gov/opinions/07pdf/06-1195.pdf
5. www.supremecourtus.gov/opinions/07pdf/07-290.pdf
6. E.g. P Lozano People’s Weekly World July 7.
7. www.marxists.org/archive/marx/works/1871/civil-war-france/index.htm, throughout the text; K Marx, F Engels CW Vol 27, p367ff. The demand was, in fact, a normal element of socialist programmes until the Comintern replaced it with the slogan of ‘arming the working class and disarming the bourgeoisie’.
8. Horace Ars poetica 1, 139.
9. Obama on gun control: www.ontheissues.org/domestic/Barack_Obama_Gun_Control.htm
10. The Guardian June 27; bloomberg.com July 9: www.bloomberg.com/apps/news?pid=20601070&sid=ahDEjeP5vIAc&refer=home
11. www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd080618/davis.pdf
12. services.parliament.uk/bills/2007-08/criminalevidencewitnessanonymity.html
13. Law Society: www.lawsociety.org.uk/newsandevents/pressreleases/view=newsarticle.law?NEWSID=411423. Bar Council: news.bbc.co.uk/1/hi/uk_politics/7494960.stm
14. The Guardian July 9.
15. Y Thomas, ‘Arracher la verité’ in R Jacob (ed) Le juge et le jugement dans les traditions juridiques européennes Paris 1996.
16. R Bartlett Trial by fire and water Oxford 1986.
17. JH Langbein Torture and the law of proof Chicago 1977.
18. Criminal Evidence (Northern Ireland) Order 1988; Criminal Justice and Public Order Act 1994, part III.
19. Lord Bingham at para [27]; Lord Rodger at paras [36]-[44].
20. JH Langbein Torture and the law of proof Chicago 1977.
21. JH Langbein op cit; ‘Criminal trial before the lawyers’ (1978); 45 U. Chic LR 261 at 266-8.
22. Lord Delamere’s trial (1686): 11 How St Tr 509, at 559.
23. Roman origin: Pomponius D, 22.5.10; Criminal Evidence Act 1898.
24. R v Lord Morley Kelyng 53, 84 ER 1079; Thatcher and Waller’s case T Jones 53, 84 ER 1143
25. Lord Carswell at [60], Lord Mance at [68].
26. Still law as of the date of the second edition of Wigmore on evidence (1923), §277 (vol i pp566-70), but since abandoned.
27. Still law as of the date of the second edition of Wigmore on evidence (1923), § 276 (vol i pp560-65), but since abandoned.
28. Administration of Justice (Miscellaneous Provisions) Act 1938, s 12.
29. P Fajnzylber et al ‘Inequality and violent crime’ (2001):citeseer.ist.psu.edu/cache/papers/cs/26199/http:zSzzSzecon.worldbank.orgzSzfileszSz15757_ FajnzylberEtAlInequalityCrime.pdf/fajnzylber01inequality.pdf
30. Lord Bingham at [27]-[28]; Lord Rodger at [45]; Lord Brown at [66]; Lord Mance at [98].
31. Socialist Worker June 21.
32. The Socialist June 17.
33. Solidarity June 26.
34. www.socialequality.org.uk/newsite/statement.html
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