What do we do now?

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A leading Conservative politician in Britain and former shadow home secretary has broken ranks with the political and media establishment to launch a campaign linking government plans to extend the time suspects can be held without charge to a wider erosion of rights and liberties. In a sweeping essay, openDemocracy's founder (and OurKingdom editor) Anthony Barnett assesses what is at stake and sees this moment as a historic test of democratic commitment for liberals and radicals.

We are at a potentially historic moment in British politics. David Davis has raised the banner of Britain's liberty in the modern world and is attempting to appeal to the people to secure it. He has gone over the heads of the ruling elite, in parliament, the parties and the media, to take two great issues to the voters: the asphyxiation of our freedom, and the incapacity of our parliamentary system to defend us from it. The by-election he forced on 12 June 2008 with his resignation as Conservative member of parliament and shadow home secretary is only the start of what may need to be a much wider year-long campaign to prevent "42 days" - the length of time the government proposes to grant itself the power to hold detainees without charge in terrorism-related cases - from becoming law, and this will be only the opening round of a profound effort to establish contemporary democracy in the United Kingdom.

Across the network of paid commentators and politicians it was immediately agreed that the action of David Davis was a pointless, selfish, celebrity-seeking gesture. This, indeed, is what they want it to be, as his initiative threatens their monopoly over defining what is important. Whatever brought him personally to his moment of defiance the decision David Davis has taken is profoundly radical: what he was saying from the steps of the House of Commons is that parliament won't defend us because it is corrupted and suborned. It is. The whole of our political class tell us it isn't. They would, wouldn't they.

When he became prime minister on 27 June 2007, Gordon Brown knew there was a problem. He pledged that he would restore trust in parliament. He had done his reading, he seemed to have grasped the depth of people's disenchantment and its constitutional consequences. As a result I had some hope that he would indeed start a reform process that would release public energy and begin to revive British democracy. Instead, he has made it much worse. It is not just the stench of a deal with the Democratic Unionist Party (DUP) to get through 42 days. "Is it right", Diane Abbott MP asked in a strong speech during the debate on 11 June,

"that our civil liberties should be traded in such a bazaar? Is it appropriate or right that we should trade votes at the United Nations on the basis of such political pandering?"

Anthony Barnett is founder of openDemocracy and the author of many articles on the site, including a weekly "editor's note" in 2002-04 The OurKingdom section of openDemocracy tracks and participates in the debate about the future of England, Britain, civil liberty, constitutional change, party funding, electoral reform, social movements and the state - indeed all aspects of the way the United Kingdom is governedDavid Davis's views on the death penalty and low taxes are hardly appealing to progressives, liberals or the left; a Yorkshire constituency where Labour is third is not best situated for a showdown on the nature of the British state; coming at the summer solstice when parliament will soon take a holiday this is an awkward moment. But even if you think it has been done by the wrong man, in the wrong place, at the wrong time, you have to decide: is this in any important way your banner too, that he has raised.

I have been surprised at the degree of jealously and small-mindedness towards his action on the left, though mainly from those in political parties. This is one of those potentially shaping moments, which never come at your own choosing, where you need to think in a generous, strategic way. In some of the discussion threads people are saying progressives cannot "allow" David Davis to walk away with the flag of liberty or the ‘issue". But who dropped the flag in the first place? The man matters, but the cause and the potential of the moment matter much more.

Here one feels the decomposition of Labour as an influential movement. Individual MPs stood firm but there was no sense of Labour being divided in a way that had wider consequence. The overwhelming majority of its ordinary membership surely oppose the measure. But they continue to leave the party quietly and privately. The underlying cataract of their disaffection is one of the forces that is driving, literally, Labour into bankruptcy. On the issue itself MPs did not feel threatened electorally by, for example,the prospect of Labour being seen as "split" over 42 days. Thus many MPs who opposed it privately, voted for it. And it was carried. It was this, the failure of the left, that put Davis into the position where he had to make his call.

It was one of those moments when someone with influence had to make a stand. In British politics they almost never do. This time Davis did. Surprises like this mix up bedfellows (his campaign was opened by Tony Benn) which makes it all the more necessary to set out clear aims: what are the outcomes we want? There seem to me to be three, achieving the first two depends on the third:

1. To stop 42 days detention without charge from becoming law

2. To reverse the creation of "the database state"

3. To ensure constitutional issues matter in the public mind and become part of popular politics

I will address them in reverse order.

To make constitutional issues popular

When the speaker of the Commons refused to allow David Davis to give his resignation speech to the House he was obliged to walk out of the palace of Westminster to deliver it in the open air. The symbolism was perfect. If you haven't, do watch it. Davis kicked down the door, walked out the bubble and announced the end of parliamentary government as we have known it:

 

"I had always viewed membership of this House as a noble endeavour, not least because we and our forebears have for centuries fiercely defended the fundamental freedoms of our citizens. Or we did, up until yesterday...

But in truth, 42 days is just one - perhaps the most salient example - of the insidious, surreptitious and relentless erosion of fundamental British freedoms...

This cannot go on, it must be stopped. And for that reason, I feel that today it's incumbent on me to take a stand."

The groan of incredulity that swept political professionals, MPs and reporters alike was a cry of genuine pain, expressed as a condemnation of his vanity, as if they were selfless moderates all. Peter Wilby crafted an excellent summary,

"Davis was guilty of ‘flawed judgment, erratic temperament and unrestrained ego', raged the Times leader. His behaviour was ‘egregiously self-serving', his resignation statement ‘weary rhetoric'. The Guardian's Julian Glover thought Davis's decision the result of ‘some sort of extraordinary brainstorm'. The Telegraph's Iain Martin saw it as ‘monumentally wrong-headed', the Mirror's Kevin Maguire as ‘the mother of all bad political stunts', the Independent's Michael Brown as ‘truly bizarre'. And that was just in the papers that agreed with Davis, at least on being against 42-day detentions. On the pro-42 days side, the Sun's headlines were ‘Davis is a quitter', ‘Who Dares Whinges' (Davis is a former SAS man, geddit?) and ‘Crazy Davis'."

Perhaps the BBC was the worst. Committed to public-service broadcasting, its remit includes education as well as the obligation to inform and entertain. But had it educated the public about the fact that half those arrested under anti-terrorism laws are innocent? Davis was in effect challenging the failure of the media as well as parliament.

This goes deep because the inherited system of British government is designed to keep the unwashed at a safe distance. Today a democracy in name, it is an anti-democracy in spirit and always has been. It is quite untrue that parliament has until now "fiercely defended the fundamental freedoms of our citizens", as Davis claims. One example of many can suffice. Under Margaret Thatcher it voted for the poll tax to be introduced from 1989. The tax was not simply unfair, it was in part designed to drive poorer voters off the electoral register. Indeed, the Telegraph reported that Thatcher, by then defenestrated, ruefully commented when the Tories won the 1992 election, "the poll tax worked after all". Of course it was said at the time that in a free vote neither the Commons would not have endorsed the poll tax - which shows that the spineless subordination of MPs to the executive is of long standing.

Time after time, parliament has indulged in such shameful episodes. This is why the not-so surreptitious erosion of liberty has been taking place for more than a decade.

What was different this time was not the "bazaar" or even that a fundamental principle was at stake, but that - finally! - a leading front-bencher said "Basta!" No matter if he used the myth of parliament's noble role to legitimate his breach with its routines. What does matter is that a leading politician has defied the political class and taken two defining constitutional issues to voters: the "slow strangulation of our liberties" and the fact that parliament permits this.

If Davis wins the by-election will the Commons welcome him into its midst as the tribune of the people? You can bet your life it will not. The lunatic asylum will stereotype him as "mad". In the bars and tea-rooms of Westminster the old corruption is already preparing its revenge on David Davis. When he rises to speak of liberty they will shout "boring" or "there he goes again". When he poses the issues of the database state he will be greeted by groans from the payroll claque and jokes like "put him on CCTV". The chamber will drown him out with what it believes to be the laughter of sound judgment. Or its members will crawl away with only the slightest touch of inner shame, leaving him to address empty green leather benches.

Their aim already is castrate any influence he might exercise. Davis has already been assured of celebrity. The aim now is to turn this into the celebrity of a clown. The method of the machine will be to keep what Davis is doing merely personal and try to ensure that there is no message other than the messenger.

Against this background democrats need to develop and reinforce the central claims that Davis is making: that voters don't want to be governed by a state which holds the innocent without charge, conducts blanket surveillance; corrupts personal information; and hires corporations to build a unified high-tech state that manages the identity of every citizen.

This isn't about David Davis, it is about us.

How to reverse the database state

David Davis is right to link the issue of 42 days with the rise of a surveillance state, voracious in its sweeping capture of information, careless of protecting it and permissive in the abuse of stored material. Voters want CCTV to protect them from crime, say the government; but what about the growing black market in intrusive video? asks the man who knows, because he was briefed as shadow home secretary. ID cards protect us from identity theft, claim the government; but the National Identity Register will be a honeypot for crimes as well as the secret exchange of private information without the individual knowing, responds Davis. Trust the British state, say New Labour; you can't be serious, he replies.

But what is "the database state" that Davis referred to in his resignation speech? Here is another failure to educate that should make public service broadcasters blush. I am torn between three impulses: to study carefully all the material that is available and interview those responsible to work out what it means and distinguish what could indeed be efficient service from intrusive controls; to laugh off the whole experiment as expensive "bollocks" that provides a vast cash-machine for contracts that can't possibly deliver what they promise; to flee the country for fear of being enslaved, synapse by synapse, into an electronic bondage.

The transformation of government presents itself as a method of improving services for the citizen (see David Varney, Service transformation, published by the Treasury in December 2006). Its strategic aim is the coordination of all government departments, who are instructed to create and exploit their "insight" as a "strategic asset". Varney followed Brown to Number 10, which published the Service Transformation Agreement in October 2007. In this, for example, the inland revenue is committed to "participating in the development of a cross-government identity management strategy via membership of the Home Office led Identity Management Strategy Group... to inform development of proposals for a one-stop-shop for employers..." (Section A.218). Jill Kirby in her Centre for Policy Studies (CPS) pamphlet Who do they think we are? identifies the stifling combination of statism and consumerism that is leading the government to seek to gather, in its own words, the

"deep truth about the citizen (or business) based on their behaviour, experiences, beliefs, needs or desires, that is relevant to the task or issue and rings bells with target people".

I don't know what bells this rings with you, but we are now witnessing the full development of what was identified in 1999 as New Labour's corporate populism, including the false chattiness of corporate employee communications.

An important element of what is going on here is that from the Bank of England to Scotland, Labour's early constitutional reforms initiated an unprecedented degree of devolution. Arguably, this broke the "unitary state" that was essential to the functioning of what is known as "parliamentary sovereignty". Brown especially was aware of the threat. The programme of "transformational government" is in part designed to reforge the centre's grip with the aim of modernising the British regime as a uniform information state.

I have emphasised that by his walkout Davis is attempting to take two issues to the public: first, he claims that a dangerous process of authoritarianism is at large; second, that parliament is incapable of defending voters from this. Both parts of his challenge are equally important and both are constitutional in the good public sense that Americans and continental Europeans are familiar with (rather than just the anglo-legal, specialist sense).

The transformation of government is a test of his two-edged argument. Is he being paranoid about the incursions into our liberty and about parliament's inability to prevent this? Billions of pounds are being spent transforming the UK government. Strategic policies and formal cross-department agreements have been set out and published. Recently the government claimed that its current Constitutional Renewal Bill is "seminal legislation, reshaping the relationship between government, Parliament, the courts and the people". But the "transformational government" programme does this far more extensively, and in more profound and untested ways. Yet it has never been debated in the House of Commons. It has never been subject to a select-committee inquiry. The British state is being reshaped in its entirety in private by the executive.

I am not saying it is being done in secret. We can know it is happening. But that is the limit of our involvement or parliament's. The government is using its prerogative powers to put through sweeping administrative changes that reshapes the relationship of the citizen, business and the state, without so much as a legislative by your leave.

The most sustained and effective critique of this process has been Henry Porter's series of columns in the Observer when it was edited by Roger Alton. The moral basis of Porter's wonderful campaign has been the loss of historic liberties.

A lot of big themes need to be unravelled here. We can't return to 17th-century notions of liberty as if these are unchanged by the advent of nuclear, biological and information technologies. Saying "no!" to the database state does not make the existing state work as it needs to, nor provide a secure basis for freedom and equality in an open society. The problem is that while neither parliament nor the media have debated the database state, the essential instrument for its implementation - the ID card - has become a symbol for a classic binary confrontation that could displace attention from the issue that really matters. An ID card that belongs to the citizen like a passport, for him or her to use when necessary, is one thing. What is being created in the UK is not, as the public seems to believe, this kind of ID card, but rather an electronic tag which belongs to the state, and tracks and exchanges a wide range of citizen activity kept in a single National Identity Register that can be accessed without a warrant by a growing range of public and in all likelihood private bodies.

What do we do about this? Davis's double wake-up call is justified: the state is seeking to control our freedom in new ways and don't look to MPs and parliament to do anything about this.

How to stop 42 days

The Counter-Terrorism Bill with its 42 days clause will be debated in the House of Lords in early July and probably voted on in October. If it is passed, it becomes law. If the Lords reject it, it will go back to the Commons a second time in about ten months' time. If it is passed again it then becomes law despite the Lords, thanks to the Parliament Act.

Davis explained some of the consequences as he saw them when he made his announcement, noting that there is almost bound to be another terrorist attack that will be exploited to the full. With an election nearing, the Sun clamouring for 42 days and popular opinion being perceived as behind it, the government will say that parliament has spoken. The Conservative opposition, not wanting to be drawn into an unpopular distraction in the run-up to the election it can win would feel obliged to accept this, and would permit 42 days to pass into law.

If the Conservatives win the next election, and Davis becomes home secretary, it might be possible for him to reverse 42 days. But what Davis percieves (and I think he is right) is a process, an impetus towards an authoritarian state that is gathering pace. To accept defeat now and wait two years might permit limiting the period of detention without charge. But this is a symbol of a "strangulation" which is far more extensive. Clearly, Davis was not confident that his own leader (who has claimed that he is the "heir to Blair", and whose opposition to an extension of 28 days has always been carefully pragmatic and never based on principle would) should he get to Number 10, would actually let go of the authoritarian powers first Blair and now Brown have accumulated. So Davis felt he had to pull the emergency cord.

Over this whole debate in the UK lies the shadow of popular opinion in the age of Rupert Murdoch when government is unprotected by a written constitution. The argument for 42 days is wholly unconvincing. It is motivated for political reasons not those of security. But the politics is grounded on the establishment's belief about public opinion. In prime minister's question-time on 11 June, the day of the vote, Gordon Brown deployed this against the leader of the opposition:

"The Conservative party's members website, ConservativeHome, also said this morning: ‘A clear majority of the British people favour a longer detention period. We believe that the British people are right. They wont readily forgive any politicians who allow a major atrocity to occur because our detention procedures prove to be inadequate.' The right honourable gentleman must answer also to members of his own party."

David Cameron retorted:

"If the prime minister is saying that it is popular to announce that you are going to bang up terrorist suspects for longer without charging them, he is right; it is popular, but the point is that we in the House are meant to do what is right." (my emphasis)

When Cameron agreed banging up terrorist suspects is popular but the House must do what is right, it expressed the historic view of parliament. Around the world the principles are being developed of what is called "rights-based democracy". This says that democracy is not the tyranny of the majority and such fundamentals such as the rule of law and freedom of speech are essential to it even if a majority might not like them. This principle has long been built into the unwritten, informal checks of the British system which permitted a much vaunted flexibility. In so far as they once worked they are broken. In part thanks to the rise of media power, the traditional confidence of elite rule has gone and a consequence is that parliament is no longer a shield from populism and can become its plaything, a classic example being the Dangerous Dogs Act rushed through in 1991 under tabloid influence.

Brown alluded to this state of affairs as a justification for his 42 day proposal:

"(It) seems to me that we should put in place the legislation in a moment of calm. I do not want, in a moment of panic, for people to have to come to the House to bring in emergency legislation."

This observation was allowed to stand by the leader of the opposition. Traditionally, in Britain, what prevented this was that our leaders did not panic whatever the nature of tabloid opinion. Today, this historic safeguard is no more. From his vantage point on the front bench Davis was a close-up witness to the following situation:

1. The leaders of both government and opposition agreed that public opinion would support banging up suspects (many of whom they themselves knew to be innocent)

2. Neither were willing to oppose this in principle as a fundamental breach with the way the country should be governed

3. Both clearly felt the public had no interest in such principles either

4. Both accepted that in a panic (i.e. under tabloid pressure) further emergency legislation could be rushed through.

In this situation what was David Davis to do? Obviously he looked to MPs themselves. A majority of them, as he knew, would have voted down 42 days if left to their own judgment. But enough of their votes were suborned to save the government. As he explained in his brief resignation statement, we face the clear prospect of a ratchet effect. Claim after claim will be made to further confine freedom in Britain, and there is no longer any reliable element of protection to defend us.

Not even his own party. The ConservativeHome editorial that Gordon Brown quoted from claimed its conclusion had been crucially influenced by an article by Peter Clarke, the former head of Scotland Yard's Counter Terrorism Command. But his Telegraph article was manifestly self-contradictory and even tendentious. It could only have persuaded those who already wanted to be seduced. The real reason for the website editor's conclusion was the one quoted so triumphantly by the prime minister, that: "A clear majority of the British people favour a longer detention period".

Put it this way: if the view of the political class had been that the British public opposed 42 days and preferred other measures such as post-charge questioning, the use of intercept evidence and threshold charges, neither the prime minister nor ConservativeHome would have insisted on supporting the measure. While the received wisdom about the nature of public opinion went unchallenged, Tory as well as Labour electoral interests, driven by tabloid influence, would roll over the principles of liberty and the rights of the innocent.

David Davis's resignation and the by-election he has forced are designed to change the mind of the British public and win it to the principles of liberty that parliament has disposed of. In the OurKingdom debate Michael Calderbank criticises Davis and says his action threatens "to undermine the coherence of representative democracy itself" because "(whether) the by-election is seen as a narrowly defined plebiscite on the question of 42 days, or on the wider philosophical question of our basic liberties, these are surely issues of concern to the nation as a whole". Precisely! This is why we need to build on the opportunity he has provided, to reverse the fundamental terms of trade on which British politics is still conducted: that the political elite knows best while taken as a whole the populace is a mob.

To support and seek to build on Davis's call to arms involves a wager: that the public will respond positively to the concepts of a rights-based democracy. While on an everyday basis Murdoch's shadow darkens public life, there is a light of popular wisdom it shields us from. The majority got Iraq right:

"The leaders of Anglo-Saxon power who had led the world since 1945 proved less far-sighted than their citizens... [who] around the world proved themselves to be, on balance, wiser."

Davis's own view of the war is irrelevant to the extraordinary transformation this confirmed as possible. On a major issue of war and peace our rulers and most newspaper editors were wrong and the voters were right. This is why we should have the confidence to celebrate the fact that a leading politician is taking issues of principle and government to the people, irrespective of his party politics.

Especially in Britain (or should I say England, as arguably Alex Salmond has already done this in Scotland). Of course, there are leftwing forms of anti-statism that are better than rightwing forms that leave people more exposed to the market in the name of freedom. But who on the left thinks that they can defend fairness by exercising state power, without this being rooted in democratic legitimacy?

The answer, I suppose, is "many members of the Labour Party". If so they are now witnessing the fruits of their folly as the party plunges from office. The opportunity for democrats on the left (and there are many in the Labour Party still) and for liberals and Liberal Democrats is to widen out the public appeal that David Davis has launched. October is enough time to mobilise a broad public claim on their Lordships and Ladyships when they come to vote on 42 days. If they defeat the infamous clause it we want this to be seen as the expression of a public wish, not an elite dispensation.

Shaking the bars

Now many have tried to shake the bars of parliament. My experience may be relevant. In 1988 at the launch of Charter 88 and its call for a democratic constitution, as thousands started to sign, we were told that issues of principle about how we govern ourselves may be all very well for intellectuals and lawyers but were not a matter of concern to the ordinary man and woman. The "punters", itself a dreadful and demeaning term, will never be interested.

A well-known columnist who is now a distinguished expert on British government and public opinion, went out of his way to come up to me and say, "C'est magnifique, mais ce n'est pas la politique". The French made it all the more of a historic put-down. Its origins, the famous remark made by a witness to the charge of the Light Brigade in 1854 when it launched a disastrous frontal attack on the Russian cannon in the Crimean war. Tennyson memorialised the moment:

"Into the valley of Death

Rode the six hundred....

Cannon to right of them,

Cannon to left of them,

Cannon in front of them

Volley'd and thunder'd;

Storm'd at with shot and shell,

Boldly they rode and well,

Into the jaws of Death,

Into the mouth of Hell

Rode the six hundred."

You get the point. It is heroic, even magnificent to storm the great cannon of British establishment with banners calling for a bill of rights, freedom of information and a written constitution but.... futile. For centuries the bodies of radical heroes were strewn amongst the cannonball and shot, as they died gasping for breath, crying out "Electoral reform!" or "Power to local government!". Few recall their names, none their successes apart from the suffragettes. You do democracy if you want to, was the message. We know better, and we have the cannon.

Perhaps I recalled this as I am completing a chapter for a book on twenty years of Charter 88. Was this phrase still relevant, I wondered? Then the Spectator's political editor Fraser Nelson had a blast at David Davis. A protégé of Andrew Neil, Nelson is in danger of fast becoming the latest personification of what Tom Nairn identified as "Scottish butlers", recruited north of the border to serve the union as only outsiders can. First he perfectly reproduced the revulsion of Tory Westminster at Davis's action, then he concluded:

"There is something undeniably inspiring about Mr Davis forsaking his career to protest against the increasing power of the state. For the millions who despise the Westminster system, it is an encouraging gesture and it will help the Tories that the maverick in question is wearing a blue rosette.... but [this is] a one-man Charge of the Light Brigade. Westminster's reaction is the same as General Bosquet's at Balaclava: C'est magnifique, mais ce n'est pas la guerre. For a political warrior like Mr Davis it is certainly a romantic way to leave the battlefield. But Mr Cameron is now determined that there should be no route back".

When journalism becomes a cliché machine, thought evaporates in the service of the phrase. At one moment - and this is the very big, perhaps decisive change from twenty years ago - "millions despise the Westminster system". The next moment Davis is a "one-man charge of the Light Brigade".

Ironically, Nelson himself has unwittingly signalled what is at stake: the possibility that it could become a million-person charge against the Westminster system. Against the full might of the British empire state at its height, even this would not have been enough. Bot today the heavy cannon of the regime blast mainly hot air, while recording their flatulence on CCTV to try and bolster their self-confidence. Only Murdoch's Sun remains truly dangerous and even that backed off fast from a fight with Davis. A breakthrough to public support for the principles of liberty and democracy is possible. On Liberal Conspiracy a vigorous debate has broken out between those who agree with this and those who don't yet see the wood for the trees. There is a similar debate elsewhere, for example, Paul Kingsnorth in Comment Is Free or Brian Barder. Rachel North, who started her blog after being a victim of the 7/7 bombings, has perhaps put it the most eloquently:

"Davis has taken this issue away from the closed Westminster hot-house, with its arcane unspoken rules, and horse-trading, and whipping, and bullying, and nods, winks and tricks and put it right out there. The debate has been ignited in a big way. Now it is up to us to get involved, and to fan the flames, not pour cold water on them. It is time to get out of the closed mindset of party political loyalties and tribalism. It is time to storm into the debating space which has been opened up, before it closes again."

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