Closed Doors.

It is said that Edward the Confessor once demanded that the people of Dover be put to the sword. But that Earl Godwin refused to kill those to whom he owed a Feudal duty, and so he marched to London with an army...

The principle of the people being defended from arbitrary power is not a modern one. What is meant by this has changed throughout the ages. Doubtless the provisions of the 1998 Human Rights Act would be incomprehensible to the medieval mind. However, one theme persists, that of a limited executive. The Monarch, and more recently, the government, have often had huge power. Alongside that fluctuation in power has been a fluctuation in how that power is limited by the houses of parliament, the courts, and the people's suffrage. The principle that governs this relationship is that of justice.

How today do we define what is just? On the 11th September 2001 some men, twisting the wisdom of Islam to bloody purpose, engaged in a momentous and terrible work of art. They were not interested in body count or market effect, they wanted the world to witness their faith. In doing so they changed our world, and changed our understanding of justice.

'One of the central dilemmas which our Government and other Governments face can be shortly stated: what are they to do about individuals in their country who, according to intelligence, pose a serious threat to national security, cannot be deported because they face a real risk of torture or death in their own country, and cannot, at least on current understandings of the criminal process, be prosecuted because the nature of the information against them would not be admissible in a criminal prosecution?'1

The current answer to this dilemma in the UK is the use of control orders. These orders are used for those cases where criminal trial is not an option. Control orders can involve house arrest for over 10hrs a day, electronic tagging, limitations on travel, association etc... They limit and restrict the freedoms of those who pose a threat but cannot be prosecuted. It has been argued that such arbitrary power is a breach of the right to liberty. However, the Courts have held that the stringent provisions control orders are legal and do not necessarily breach the right to liberty and security (Article 5 of the Human Rights Act 1998)2

A key issue here is evidence. The security services have given reasons why evidence they hold against individuals cannot be brought into open court for a criminal prosecution. These reasons include, that the evidence is hear-say, that it is coupled with expert analysis, that it may compromise methods or sources, or, most tellingly, that it may fall below the standards of proof required for a conviction beyond reasonable doubt.3

How then is it decided if an individual should be placed under a control order? As things stand a person can be placed under a control order on the basis of evidence which would not be admissible in a criminal trial. Moreover this evidence may be, and often is, given behind closed doors, without the accused having a chance to hear it. An individual may have his freedom limited without knowing of the claims being made, and with no chance of refuting them. This use of 'closed evidence' changed the balance of the need for state secrecy in certain areas and the right to fair trial (Article 6 Human Rights Act 1998):

'The problem of reconciling an individual defendant's right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law.'4

The courts have been critical of the use of closed evidence in control order hearings, though they have not disallowed it in principle. The argument goes, that a control order is not a punishment, so the application of one is not a conviction, so there is no criminal trial, and so no issue of whether it is fair.5

There is one safeguard in place, that is the use of a special advocate who will defend the individual. In a judgment Lord Bingham acknowledged their role in the process:

'The assistance which special advocates can give has been acknowledged ..., and it is no doubt possible for such advocates on occasion to demonstrate that evidence relied on against a controlled person is tainted, unreliable or self-contradictory'6

The characterization of closed evidence given here is deeply concerning, and the learned judge seems less than enthusiastic as to the effectiveness of the special advocate system. In fact he goes on to quote Lord Wolf:

'The use of [a special advocate] is, however, never a panacea for the grave disadvantages of a person affected not being aware of the case against him'7

It should be noted that while the special advocate can hear the closed evidence he cannot relay, or discuss this with the individual affected without special permission. Permission that in practice is almost never given.8 As such the claims made in closed evidence cannot be effectively verified or disputed.

This is a remarkable development, the state now has the power to restrict the liberty of an individual on the security services' say-so. Further to that the security services may be getting these orders on evidence that can be “tainted, unreliable or self-contradictory”. Evidence which the accused may never get to hear or oppose.

So what is justice today? When the Edward the Confessor ordered the deaths of the people of Dover Earl Godwin was there to protect them. Since then we have come a long way; we now have right to make our case and a court that will protect us from arbitrary punishment. But; in a climate where curfews, tagging, and house arrest, are no longer considered punishments; in a climate where this can be done to a citizen without ever having to tell him why; who is there to protect us?

Perhaps this is the price we pay for our safety. Perhaps this power is necessary. And surely this power will only be used in the most serious of cases? Cases where the can be little doubt of the need to control these people?

“... all of them agree that groundless charges are never made and that once the court has made an accusation, it is firmly convinced of the accused man's guilt and can be dissuaded from this conviction only with great difficulty.” “Great difficulty?” asked the painter, throwing one hand into the air. “The court cannot be dissuaded at all...” - The Trial, Franz Kafka 9

__________________________________

1House of Lords House of Commons Joint Committee on Human Rights: Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention Twenty-fourth Report of Session 2005-06 / page 14

2Secretary of State for the Home Department v E and another [2008] 1 AC 499 – it should be noted that the court allowed that control orders could be in breach of art5 HRA 1998 if their effects were particularly onerous.

3House of Lords House of Commons Joint Committee on Human Rights: Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention Twenty-fourth Report of Session 2005-06 “The Main Obstacles to Prosecution” pp 15-16

4R v H [2004] 2 AC 134

5Secretary of State for the Home Department v MB Same v AF [2008] 1 AC 440 It should be noted that the court ruled there was protection under art6 in civil procedure terms

6Ibid.

7Roberts [2005] 2 AC 738

8Secretary of State for the Home Department v MB Same v AF [2008] 1 AC 440

9The Trial – Franz Kafka, Vitalis 2002

Image courtesy of www.associatedcontent.com

Proposition 8

Here's a video of Keith Olbermann's commentary on Prop 8:

It is sad thought for Liberals like myself to note the passing of Proposition 8 in the Californian Ballot Initiative. The philosophical issues underlying gay marriage are not easy to sift out, but it certainly seems to have become a cause celebré for Liberals everywhere. I too identify myself as a Liberal, but I use the term in its traditional philosophical sense, relating to writers like John Locke, Thomas Paine, and in particular John Stuart Mill.

I regard Mill's On Liberty as a useful starting point when considering the rights and wrongs of the issue. In particular, the following of Mill's principles seem relevant:

• The government should restrict no interaction that occurs between rational consenting adults that does not cause direct harm to unwilling others.

Prima facie, it might seem that this principle would militate in favour of the government legalising gay marriage. After all, it concerns two consenting individuals, and the harm it does to "the institution of marriage" is sufficiently ill-defined and amorphous to be dismissed: it is not clear who would be harmed, or precisely how, by the recognition of same sex unions as marriage. Many of the arguments against gay marriage amount to nothing more than "Straw Man" attacks - those who would link it to adoption by gay couples, and who disapprove of such a policy, should restrict their attacks to that specific policy.

Secunda facie, however, government restriction of gay marriage is not quite like drug use, prostitution, abortion, or gun ownership. It is not the case that California will now suppress gay couples from calling each other husband or wife, or forbid them from calling their union a marriage. This is not a case of the government intervening in people's private lives. In seeking legalisation of their union, gay couples are seeking from the government a particular form of recognition, together with its legal and economic privileges. The kind of arrangement they are seeking exists because of, and not in spite of, a legal framework.

However, there are still strong Liberal arguments for legalising same-sex union. In particular, marriage comes with certain legal, civic, and economic privileges, and these privileges can only be enjoyed by mixed-sex pairings. This is illiberal, for the following reasons.

The Liberal state should be a minimal organ for maximising the welfare of every citizen. It has no paternalistic mandate, and its sole obligation is to ensure the happiest sustainable society. It can justify any legislation that it passes for this reason alone. Therefore it is illiberal to base any policy on the conviction that certain social arrangement are more ethical than others or certain citizens more deserving. Therefore the state must be blind to colour, gender, and sexuality. It should, for that matter, also be blind to other non-social and non-economic factors: it would be illiberal for the state to promote rural over urban living unless this policy were derived from a clear calculation relating to the welfare of its citizens.

Blindness towards gender includes mixed gender arrangements. It is illiberal to provide greater funding to mixed sex schools than to single sex schools, unless this can be justified by clear empirical evidence showing that one or the other is overwhelmingly in the public good. Likewise, it is illiberal to restrict certain civic and legal rights to mixed-sex unions. The only acceptable liberal justification for this would be if serious and direct harm were caused by such unions to either the individuals concerned or those around them. Needless to say, this is not the case for gay marriage. Thus there is an argument to say that, even if every one in our society were as a matter of fact heterosexual, there would be no justification for legally limiting marriage to heterosexuals, even if no-one would actually benefit from it as a policy.

As it is, however, a large group of citizens would directly benefit from that policy. There would also be many less direct welfare gains. In particular, the individuals who would benefit are those who have historically had their rights illiberally restricted by the state, and who still face discrimination in many areas of life. Therefore it would have the side benefit of reducing the sense of alienation from society among many individuals, so its benefits to welfare would be amplified.

This is a clear argument for civil unions, that is, extending the same legal and economic rights to gay couples that are enjoyed by straight couples. A more difficult question is whether this union should have the name of marriage. The state's duty to be blind to gender applies properly only to substantive policy. It is not clear that it should apply to nomenclature. For example, imagine a state that required female inheritors in legal documents to be referred to as heiresses and male inheritors as heirs. This would not be in any sense illiberal. Some people would certainly feel unhappy about a nomenclature that differentiated between men and women, but without any substantive policy underlying the difference, this unhappiness would be purely ideological. And it is by no means clear that the liberal state should make decisions based on ideology. Surely, rejection of a state ideology is part of what it is to be a non-paternalistic state?

How, then, would the state settle a linguistic issue, behind which there lurked no substantive question of policy? Presumably by recourse to welfare. If it were felt that the heir/heiress distinction in naming caused a net loss to welfare for whatever reason, then the state would have an obligation to abandon it; conversely, if it caused a net gain to welfare, to retain it. Therefore, the state must judge whether the unhappiness and alienation that would follow from calling gay unions "civil unions" rather than marriages would outweigh the unhappiness and alienation caused by calling all unions "marriages." It is my suspicion that it would, but this seems a useful area of empirical research; and it would seem that the dilemma comes down solely to a matter of empirical fact rather than any normative issue.

I would like to make one further suggestion (for which I have Sarah to thank). First off, anyone should be able to claim their union, be it a heterosexual or homosexual one, as a civil union rather than as a marriage, if the former term is felt to have less religious significance: I pity any strongly atheist couples who are forced to live out their union under a despised theist title. Second, if the term marriage does have deep religious significance, then what the hell is the state doing handing it out left, right, and centre, without giving any thought to the particular confessional issues at stake? Should couples in Las Vegas casinos who get married for 24 hours for a bit of fun and then immediately divorce be religiously endorsed by the state?

If there is anything religious about the term marriage, the state either should have no role in bestowing it, or should bestow it responsibly, where "responsibly" means in accordance with a particular set of religious principles. As a religiously neutral institution, it has no business doing the latter - that is the job of particular churches - so we are left with the former as our only option. The state should recognise no "marriages" - only civil unions. It should be down to particular faiths to endorse individual unions as meeting their requirements for the title of marriage, but this should be none of the state's concern. Thus I may proudly boast that my union is recognised as a Roman Catholic marriage; you may boast that yours is recognised as a Jewish marriage. Leave the state out of it.

(On a final note, it is interesting that, etymologically speaking, there is nothing religious about the word "marriage" or "marry", as a quick glance at the online etymology dictionary will show you. It means nothing more than provided with a young man or woman: http://www.etymonline.com/index.php?term=marry )

Welcome to Charmed By Randomness.

The main concerns of the blog will be politics, philosophy, law, and economics. I am hoping that there will be contributions from a range of writers, though my focus will be primarily with the first two.

I would like to say that this blog will filter out some of the sound from the noise, but sadly that would be a vain hope. Why? It is my firm conviction that most of what passes for news is little more than entertainment, and most commentary and analysis upon it is no more consequential than debating the latest twists and turns in a soap opera. Thus I invite any and all readers to regard my commentary and opinion as nothing more than the extension of a noisy and random narrative. It is for this reason that I regard myself as not fooled by randomness, but merely charmed by it.