It used to be the case that people enjoyed an area of privacy into which the law could not intrude. The saying “an Englishman’s home is his castle" reflected the view that the law had no business to enter or spy there unless it obtained appropriate warrants by showing good cause before a magistrate.
The state has recently equipped itself with vast powers to invade our privacy without showing good cause. It now monitors our movements and our conversations and intercepts our mailings on a large scale. Powers to which parliament assented on the assurance they would be used to combat terrorism are now used to monitor the way we dispose of garbage, the toilet habits of our dogs, and whether we are using the addresses of relatives to qualify for admission to a chosen school.
Britain has a CCTV camera for every 14 citizens. Some are equipped with microphones, and on others both face and number-plate recognition technology can track our movements through cities and cross country. That private space in which a person felt secure from the prying eyes of an intrusive authority is much diminished. The balance between a responsible citizenry and state power has been shifted sharply in favour of the latter.
It’s an important safeguard that proceedings should only be brought against acts which are illegal in the place they are committed. A person should obey the law of the jurisdiction in which they find themselves. They can do things quite legally in the Netherlands which might be illegal in Britain. This principle is among those which have been eroded. Aiming to act against paedophiles, UK law has been amended so that people can be prosecuted in British courts for actions committed overseas. The belief was that overseas jurisdictions might be lax in their laws or enforcement on acts the British government is determined to prevent, even if committed abroad.
It establishes the undesirable principle that the British government can regulate the behaviour of its citizens wherever they happen to be. The principle should instead be that it reserves the right to regulate the behaviour of those within its jurisdiction.
One of the basic principles upholding a free society is that the law should be known. This is subverted when retroactive legislation is passed. No person can know they are breaking the law if the law has not yet been passed. In recent years parliament has taken to making some of its laws retrospective. This was originally used against suspected war criminals, but has more recently been incorporated into finance bills to close loopholes the Treasury calls tax dodges.
The principle should be that whatever a person is accused of should be a crime at the time they committed it. How can people keep their behaviour within the law if the laws are only enacted afterwards? Retroactive legislation is another case of the steady erosion of liberties by the subversion of the principles which sustain them.
It has been a vital safeguard of English liberties that a subject shall not be detained without trial. The normal time police could hold someone without charging them was 24 hours, with powers to apply for extension to 96 hours. The writ of Habeas Corpus could require the state to produce a prisoner in open court to prove its detention of them was legal. This right has been modified or suspended in national emergencies, including internment in World War II and during the Northern Ireland conflict.
Now, in the name of combating terrorism, the House of Commons has passed a bill allowing suspects to be detained for 42 days without being charged. It means the police can imprison someone for up to 6 weeks without having to show good cause. It runs counter to the liberties enshrined in English law to protect the citizen from arbitrary state power. Although terrorism is given as the pretext, it is not named in the act, nor are the new powers specifically limited to such cases. It should be remembered that powers already granted to resist terrorism have been used to detain a heckler and someone who walked along a designated cycle path. It is also significant that the police and government originally pushed for 90 days, without the caveats built into the 42 day law to appease some critics.
Our laws have hitherto prevented the police from holding people incommunicado, or imprisoning them for long periods without charges or trial for specific offences. In giving the state the ability to do this, yet another vital prop of our liberties has been eroded.
One of the most fundamental rights which protect our liberties is the right to be tried in front of a jury of your peers. Trial by jury allows your fellow citizens, not the state, to pass judgement on your guilt or innocence. The right ensures that whatever the state might accuse you of, it is ordinary people like yourself who will decide if your guilt has been proved. Juries have often shown good common sense, cutting through legal niceties to deliver just decisions.
The present government has moved systematically to restrict trial by jury. It has pushed for magistrates to decide whether to allow it in some cases, and to remove it altogether in what it terms "complex fraud cases." It was only restrained in its most illiberal moves by a House of Lords vote to defeat a government bill. The right to trial by jury is another of the liberties which date back to Magna Carta, and which are being eroded by a government with no feeling for the rights which shield citizens from overweening authority.
The law only had powers to punish someone who had been brought before a court and convicted of a crime after due process. This is no longer true. Like so many of the rights which underpin our liberties, this has been breached in order to prevent drug-dealers profiting from their ill-gotten gains. The law was changed recently to allow police to confiscate the property of people they believe were involved in drug-dealing. The mere suspicion allows bank deposits, houses and cars to be seized by police without any due process, and without giving the accused their day in court with all of the rights that protect against arbitrary oppression. The rule was 'conviction before sentence,' but for some cases now this is the other way round.
Nick Herbert MP, the shadow justice minister, was our guest at a Power Lunch in Westminster yesterday. A former director and co-founder of the campaigning think-tank Reform, he was, as you would expect, keen to see robust reform of the UK's prison service. One of his main concerns is that, having gone through the criminal justice system and through prison, so many people – particularly young people – nevertheless re-offend. Re-offenders cost the taxpayer something like £11bn a year. Can't we spend that money better, and do something to prevent people coming back to jail again?
The Conservative answer is yes, and they propose to do it by realigning incentives. Someone needs to take responsibility on re-conviction rates; someone needs to 'own the problem'. That's one reason why the Conservatives plan to set up prison trusts – rather like NHS trusts – and devolve power down to them. The trusts would be charged with reducing re-offending rates, and prison governors would be paid by results on this score. But exactly how they do it would be more a matter for them than for London-based civil servants and politicians.
I am sure that part of the solution is to have a meaningful drugs policy in prisons. Stories abound of people who have been turned into drug users in prisons, since drugs are all around. Hardly an environment in which to prepare people to return to the outside world as useful members of society. I am also sure that the private sector could help to drive reform on this and many other levels – if they were left to get on with it. While there are private security providers around already, the reality is that they have to follow the public-sector agenda. But it's time for some fresh thinking. Let private-enterprise ideas bloom, Nick.
Along with the presumption of innocence went the right to silence. People could not be forced to testify against themselves, and had the right to say nothing at all. Juries were not allowed to draw any inference from this, because the rule was that the state had to prove guilt, and not require the accused to prove innocence.
This is another of the eroded liberties which David Davis referred to. The right to silence has been fatally compromised by allowing the prosecution to suggest to juries that they can draw inferences from the accused's failure to speak in their own defence. They should not have to if the burden of proof falls on the state.
One thing the right to silence established was that torture or even just bullying to force confessions was not worthwhile if the accused could simply exercise their right to silence. The removal of that right weakens the protection which individuals have against malicious and presumptive prosecution.
A cornerstone of British justice was that once you were acquitted of a crime, you were in the clear. No-one could be put in double jeopardy for the same offence. This has now been changed to allow a retrial if "compelling evidence" emerges. The thinking is to catch people who "escape justice" the first time if scientific advance or new testimony emerges to make a conviction more likely.
This is a mistake. There was a good reason for the double jeopardy principle. It prevented the law playing cat and mouse with people, trying them again and again in the hope of securing a guilty verdict, maybe with a tougher judge or a different jury. The fact that they only had one shot at it encouraged the state to be rigorous in its preparation. With multiple attempts they can afford to be sloppier in their approach. More to the point, if a person could not be found guilty the first time "beyond any reasonable doubt," they were clear to continue with their lives without fear of state harassment. The abolition of double jeopardy means that this is no longer true.
The liberties which preserve between them the rule of law and the rights of individuals have been systematically eroded by recent governments. This government has been the most recent to attack them, and has also been the most determined. It has cited what seem plausible reasons for each action, but the cumulative effect has been to subvert the rules which protect us.
The ASI will point to the fundamental principles which have been abandoned or critically weakened. David Davis was correct to highlight this insidious trend, and courageous to make a stand against it. The Westminster journalists who try to trivialize this diminish themselves by doing so.
The first of these eroded liberties we identify is the presumption of innocence. It has been weakened to catch serious fraud cases. Now individuals may be required to prove that they made their money legitimately, rather than having the state required to prove they broke the law. We should not have to justify our actions to the state unless and until it does that. The erosion of this right crucially alters the burden of proof which should be required to threaten a person’s liberty. The rule which should be restored is that a person is innocent until found guilty.
It used to be the case that people enjoyed an area of privacy into which the law could not intrude. The saying “an Englishman’s home is his castle" reflected the view that the law had no business to enter or spy there unless it obtained appropriate warrants by showing good cause before a magistrate. 
It has been a vital safeguard of English liberties that a subject shall not be detained without trial. The normal time police could hold someone without charging them was 24 hours, with powers to apply for extension to 96 hours. The writ of Habeas Corpus could require the state to produce a prisoner in open court to prove its detention of them was legal. This right has been modified or suspended in national emergencies, including internment in World War II and during the Northern Ireland conflict.
Nick Herbert MP, the shadow justice minister, was our guest at a Power Lunch in Westminster yesterday. A former director and co-founder of the campaigning think-tank Reform, he was, as you would expect, keen to see robust reform of the UK's prison service. One of his main concerns is that, having gone through the criminal justice system and through prison, so many people – particularly young people – nevertheless re-offend. Re-offenders cost the taxpayer something like £11bn a year. Can't we spend that money better, and do something to prevent people coming back to jail again?