Checks and balances and the British constitution

There is a theory that says that Britain has a unified state, with Parliament supreme, more decisive and hence less considerate of individual rights than the American state, intentionally hamstrung as it is with checks and balances. Well, that’s the theory, but I’ve long had the non-expert impression that British governance has more practical checks on government power than the US federal government has. (Federalism itself is an important check on the US government, but whether it serves or vitiates the liberty of individual citizens depends very much on the nature of the state government. Germany, with both federalism and a deep understanding of the need for limited government seems substantially better at protecting individual rights than either of the U’s.)

A case in point is the government response to the David Miranda affair. The government has gone through its whole playbook, from dismissing the incident as a routine police matter to accusing its critics of condoning terrorism. The critics, both inside and outside of government, have not been silenced. And now, it turns out there is an official “independent reviewer of terrorism legislation”, with real power to interrogate police and government officials, and report to the public.

The Guardian reports

David Anderson QC, the government’s independent reviewer of terrorism legislation, who held talks with the Met police this week, will focus on schedule 7 to the Terrorism Act of 2000, which lets police detain people at ports and airports without grounds for suspicion.

This is giving cover to the Liberal Democrats, the codependent spouse of the surveillance-addicted Tories, to withhold support for the government action. And unlike American judges, who roll over as soon as the government whispers “national security”, British judges have been willing to demand fealty to the rule of law with respect to the materials seized from Miranda:

Two judges ordered the Met and Home Office to desist from using, copying or sharing the materials until next Friday unless it were for the purpose of ensuring the protection of national security or for investigating whether Miranda was himself involved in the commission, instigation or preparation of an act of terrorism.

To the extent that the security services in the US and the UK are on a rampage to demonstrate that no one can mess with them and count on them reacting in any way reasonably or proportionately (as I argued here, and more recently Bruce Schneier argued here), this is exactly the sort of moderate, calm, institutional response that is best calculated to reestablish the authority of democratic institutions. But possibly drive the security services to lash out even more ferociously.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: