United against the state

There is a new alliance between the left and right in America, inspired by the threat to liberty – can the same happen here?

The New York Times has revealed an interesting new alliance between US conservatives and liberals that has formed against the criminalisation of the public by a slew of vaguely drafted criminal laws, brought in by the federal government.

Given the rancour in the American public discourse, the two sides making common ground on this issue is truly a "remarkable phenomenon," as the director of the National Association of Criminal Defense Lawyers, Norman Reimer, put it.

The left and right have bent to a point where there is now agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.

Both sides seem to blame each other for the trend of punitive laws, the implications of which few seem to understand. Still, the new consensus is important and one hopes something similar is emerging here.

Liberals blame the climate created by the Bush administration, while someone like Edwin Meese, arch conservative and attorney general under President Reagan, suggests that "liberal ideas of extending the power of the state" were to blame for an out-of-control criminal justice system. "Our tradition has always been," he said, "to construe criminal laws narrowly to protect people from the power of the state."

The right-wing Heritage Foundation, where Meese was speaking, suggests that there are some 4,400 criminal offenses in the federal code, which lack a requirement that the prosecution proves traditional criminal intent.

This chimes with the 3,000 new criminal offences created by Labour in Britain, sometimes by statutory instruments that go undebated in parliament, and especially of the erosion of the important legal concept of innocence.

On both sides of the Atlantic, a generation of politicians grew up in the incredibly tolerant conditions of the sixties and seventies but then displayed a surprising authoritarian streak when they came to power. The rebels of the permissive age often began to imitate the disciplinarian traits of an older generation but – oddly – without showing its reflex respect for liberty.

In Britain, a supposedly left government kept in step with a decidedly right-wing government in the United States, but is that really so surprising? When you dig deep into the political instincts of people like Blair, Blunkett, Clarke, Straw and Reid what you find are the trace elements of neo-conservatism, as well as the more frequently identified statism of their youthful creed. New Labour was a distinctly odd hybrid, fashioned by people with an ideological past for an age where few cared about the details of politics as long as they could spend.

We are at a different moment now and it will be interesting to see what James Purnell says about personal power at a Demos event this week because of course the whole drive of the government which he belonged to has been to remove power from the individual in favour of the state. This is something which has to be admitted by people like Purnell before Labour's rehabilitation can begin.

Something of an alliance is beginning to form here but it is perhaps less organised and activist. I often find myself joining progressive and conservative politicians on platforms to talk about the erosion of civil liberties and the growth in state power. To be honest, it would be hard pressed to slide a piece of paper between Tony Benn and David Davis on so many of these issues, or for that matter Sir Ken Macdonald and Dominic Grieve. This is because one of the great divides in our post-ideological politics is now about the power of the state. Do you trust the state and give it every sort of power at the expense of parliament and the people, or do you believe that increasing state powers are not just a menace to individual liberty but a cast-iron guarantee of bad government?

This is one of the core issues of the next election and it needs to be much better articulated by the opposition parties. One of the duties of the next government must be to repeal many of the badly drafted laws brought in during the last 12 years as well doing away with established opinion that increasingly holds that we are all potentially criminals; that we all have something to hide. "Show me the man," said Stalin's head of police Lavrenty Beria, "and I'll find the crime." It's strange to discover a noted liberal lawyer from Boston, Harvey Silverglate quoting this at the beginning of a talk about his new book, Three Felonies a Day: How the Feds Target the Innocent, but it is the measure of the times on both sides of the Atlantic that democrats on the left and the right can shake their heads at what has been allowed to happen.

Source: The Guardian