The Assault on Liberty: What Went Wrong with Rights

During the debate on ninety days, Lord Condon, former head of the Metropolitan Police, raised this concern in explicit terms: ‘If we now go back and make it look like we are going to challenge yet again the point of 28 days that we have reached, I fear that it will play into the hands of the propagandists, who will encourage young men and women…to be misguided, brainwashed and induced into acts of martyrdom.’

More recently, Lord Dear, former Chief Constable of West Midlands Police and a former Chief Inspector of Constabulary, delivered an even starker warning:

Make no mistake, extending pre-charge detention would most certainly be a propaganda coup for al-Qaida…The immediate danger if we travel down this road is that we will lose the battle for hearts and minds abroad, and particularly in the minority groups in this country, whose long-term support is vital if we are to counter and remove the threat of terrorism.

Even the government’s own Security Minister, Lord West, expressed concerns about extending pre-charge detention before being forced to retract them by the Prime Minister:

I want to have absolute evidence that we actually need longer than 28 days. I want to be totally convinced because I am not going to go and push for something that actually affects the liberty of the individual unless there is a real necessity for it. I still need to be fully convinced that we absolutely need more than 28 days and I also need to be convinced what is the best way of doing that.

A growing list of security experts, with front-line experience in the fight against terrorism, are warning that extending pre-charge detention will aggravate, not mitigate, the terrorist threat level.

The second security risk in extending pre-charge is that it will cut off the flow of human intelligence to the police. In 2007, the head of counter-terrorism at the Metropolitan Police, Peter Clarke, made the case publicly that improving public understanding and trust represents the greatest current challenge we face in addressing the terrorist threat. While Clarke supported the Metropolitan Police’s line in favour of forty-two days, he has also pointed out that very few terrorism prosecutions originate from ‘community intelligence’ – namely members of local communities coming forward to the police with information or cooperation about suspected terrorist activity. This is in marked contrast to the high level of cooperation and intelligence derived from local communities in France and other countries. Clarke warned that: ‘…the lack of public trust in intelligence is in danger of infecting the relationship between the police and the communities we serve. Trust and consent are two concepts that lie at the heart of the relationship between the British police and the public.’

It is increasingly evident that the disproportionate impact of police powers on the Muslim community risks undermining their confidence in and cooperation with the police and security services. This has a direct bearing on our operational capability, choking off vital ‘community intelligence’, which is critical to counter-terrorism investigations. Even the government’s own impact assessment, accompanying the proposal for forty-two days, acknowledges this: ‘Muslim groups said that pre-charge detention may risk information being forthcoming from members of the community in the future.’

The real risk is that further extending pre-charge detention will not just sacrifice the fundamental freedoms of the citizen but also harm our security, both by increasing the radicalization of disaffected young Muslim men, and alienating the local communities whose active cooperation is pivotal to the counter-terrorism effort. Far from involving a delicate balance between collective security and individual liberty, as a security measure forty-two days’ pre-charge detention is unnecessary, if not counter-productive. That is not a trade-off – it is just lose-lose.

In contrast, senior counter-terrorism officers report that one of the most positive developments, helping to combat the climate in which radicalization thrives, has been the recent string of criminal convictions in terrorism cases. Nervous Muslim communities were alarmed by the armed raid in Forest Gate, London, in 2006, which was based on mistaken intelligence relating to a potential chemical bomb attack. Wild conspiracy theories circulated suggesting that the raid was part of a propaganda exercise to hype up the public perception of the terrorist threat. As spurious as these claims were, the subsequent public conduct of trials in other terrorism cases – and the convictions that followed – helped demonstrate, to even the most sceptical quarters, that the UK’s struggle against terrorism is all too real. That in turn has improved the confidence of, and cooperation from, Muslim communities. Peter Clarke argues: ‘The series of terrorist convictions in recent years has been a victory for the rule of law and sends out a strong, positive signal to all communities.’

Again, it is striking that the open and transparent conduct of these criminal cases – through a British justice system that respects fundamental rights – has not only resulted in the long-term incarceration of dangerous terrorists, but also had a positive impact on the climate in which police counter-terrorism operations take place.

It is a popular myth that we now face the dilemma of weighing security considerations against the liberty of the individual. In fact, the publicly available evidence on both sides of this debate points broadly in the same direction. Sustaining the fundamental liberties every individual enjoys in this country as of right provides one of our most important tools in refuting propaganda from Islamic radicals and terrorists. Protecting the fundamental freedoms of all British citizens is critical to puncturing the myths propagated by extremists and ensuring cooperation between local Muslim communities and the police, which is in turn vital to the UK’s counter-terrorism capability.

In addition to these security risks, the government’s fixation on pre-charge detention has also distracted its political focus and energies from a range of other much needed measures, which could strengthen our operational counter-terrorism edge. If the government had expended a fraction of the political capital that it has squandered on forty-two days on these measures it could have strengthened national security without sacrificing British liberties.

Take just three examples. First, removing the ban on using intercept evidence in court would help the police gather evidence that could be used in trial proceedings. Almost every other country in the world has overcome security concerns to allow the use of intercept evidence in court to prosecute terrorists. In the UK, intercept evidence can be used in deportation proceedings, control order cases and applications to court to freeze terrorist assets. But despite numerous reviews, British prosecutors – virtually alone in the world – are still banned from using intercept evidence to convict terrorists in court. In its obsession with forty-two days, the government has neglected a valuable tool that would put terrorists behind bars without undermining the freedom of the innocent.

Second, allowing police to question terrorist suspects after they have been charged would take some of the pressure off the police during the pre-charge investigation period. There have been calls for the introduction of post-charge questioning for several years, but the government inexplicably delayed until 2008 before making any formal proposals in this regard.

Third, one of the arguments used to support the case for extending pre-charge detention is that evidence on computer hard drives may be encrypted and take time to decipher. In response, Parliament created a criminal offence for withholding encryption keys and computer passwords, allowing prosecutors to charge and imprison suspects for obstructing an investigation in this way. By the time of the vote on forty-two days in 2008, there were still no convictions under this new power, despite repeated reliance by the government on the volume and encryption of computer data in terrorism investigations as part of its case for extending pre-charge detention.

The lack of commitment to these kinds of practical measures reveals serious shortcomings in the government’s security strategy. Equally, while the government has been all too willing to deploy senior police officers to try to make its case for forty-two days, it has failed to listen to – let alone act upon – the operational concerns now being expressed publicly by senior officers like Andy Hayman. In its obsession to force through controversial extensions of pre-charge detention, the government has neglected or overlooked valuable law enforcement measures capable of attracting political – and a wider national – consensus.

The presentation of a crude trade-off between security and liberty is at odds with the basic facts. The government’s sustained assault on the right of habeas corpus has exacerbated the terrorist threat rather than reduce it, and distracted it from other practical counter-terrorism priorities. Fifty-four per cent of those asked in 2008 said that the government’s main motivation for pressing its proposals on forty-two days was ‘to look tough on terror’ rather than national security. That is not a balance or a trade-off – but rather a hijacking of security policy for political ends. If the government is eventually successful in its stubborn attempt to extend pre-charge detention to forty-two days, it would set a dangerous precedent – with nothing to stop it from returning to seek yet further extensions in the future.

This pattern is mirrored more widely in the recent approach to counter-terrorism in the UK. The government has passed broad powers with inadequate safeguards and checks, which are prone to overuse or abuse in practice. Stop and search, under new terrorism powers, is running at 41,900 cases per year. Between 2001 and 2007 there were 1228 arrests on suspicion of terrorism. The rate of convictions over the same period remains, at forty-one, comparatively low in terms of overall numbers, although the proportion of terrorism prosecutions resulting in a conviction is now over 90 per cent.

A broad brush approach is open to abuse. It was disclosed that during one month in 2007 police at Gatwick airport conducted hundreds of random searches outside the (already wide) rules, without the required ministerial authorization. And the wider the powers, the greater the risk that innocent people will be caught in a security net so widely cast. In one case, in 2005, Sally Cameron, a thirty-four-year-old property developer from Dundee, was arrested and detained for four hours as a terrorist suspect. Ms Cameron, who used to walk to work to keep fit, was arrested under the Terrorism Act. Two police cars were called to apprehend her merely for walking along a cycle path restricted to cyclists under security regulations – even though there was no visible signpost indicating any restrictions on access to the pathway.

In another episode, a disabled twelve-year-old boy and his parents were detained under the Terrorism Act, police accusing his mother of people-trafficking her mixed-race son. The family were surrounded by ten police officers and detained for two hours, until officers resolved the misunderstanding.

Other security measures have undermined liberty, with minimal countervailing security gains. The government has been forced to continuously fend off legal challenge to its control order regime, rushed through Parliament in 2005 after the House of Lords struck down its attempt to detain foreign terrorist suspects indefinitely without charge. The control order legislation created wide powers that allow severe restrictions to be placed on those merely suspected of involvement with terrorism. While an order made by the Home Secretary must be confirmed by a judge, it can be imposed on people who have not been proved guilty of any criminal offence. The orders may include controls on who a person can meet with or speak to, bar access to the internet or telephone and impose restrictions on when a person can leave his home and where he can go – amounting to virtual house arrest for up to sixteen hours per day.

Control orders impose what amounts to a criminal punishment, but circumvent the basic rights of an accused to a proper trial. This deliberate evasion of one of the most basic foundations of British justice not only undermines liberty, but also generates acute resentment amongst the local community affected, with little extra security guaranteed in return. Only thirty individuals have been placed on control orders – while MI5 estimates that four thousand people pose a terrorist threat in Britain. Paradoxically, as the terrorist threat rose, the government’s reliance on control orders declined. There were eighteen control orders in force in 2006, fourteen in 2007 and just eleven by the first quarter of 2008. This trend suggests that, for all the ministerial hype, control orders have proved to be a relatively ineffectual tool in practice – otherwise the government would have made greater use of them as the terrorist threat level rose.

This inference is supported by wider experience. A fifth of those placed on control orders have escaped. A recent government review found that control orders were only suitable for a ‘small number of cases, in the absence of a viable alternative for those few instances’. Lord Carlile, the government-nominated reviewer of the control order regime, has acknowledged the difficulties in monitoring and enforcing control orders, even suggesting that anti-social behaviour orders (ASBOs), used by the police to tackle yob culture, might work just as well in practice. Other measures, to strengthen border controls and intelligence are likely to achieve far more in terms of public protection, at far less cost to individual liberty. The government should focus more on bolstering law enforcement through the courts – by using intercept evidence and post-charge questioning – not weakening safeguards designed to protect the innocent.

The government introduced legislation providing for a national identity register coupled with compulsory identity cards with similar enthusiasm. The proposals epitomize its clumsy, authoritarian approach to security.

In 2003, the government announced its plans for ID cards amidst great fanfare, another eye-catching initiative designed to portray a Labour administration taking tough measures to improve security, at the cutting edge of modern technology. The proposals involve taking nearly fifty categories of personal information on each and every citizen, to be stored on a Home Office database and shared with other government departments, agencies and even foreign governments. Privacy campaign groups like Liberty and NO2ID warn that the ID cards will intrude into our privacy, enabling government departments and companies liberally to share masses of our personal data – including name, date of birth, addresses, identity records, photographs, signature and fingerprints – allowing the state and businesses continuously to track the movements and transactions of every citizen. While the government has sought to give assurances about privacy protection, safeguards and limits, the ID cards legislation gives the Home Secretary wide powers to extend the scope and remit of the ID cards regime by order, adding a further risk of mission creep once the system is fully operational.

Privacy concerns have been further exacerbated by growing doubts about the government’s ability to implement the ID cards project. Fear of wide state powers to collect data on the citizen have only been made worse by the reality that careless and unaccountable civil servants will be charged to run the system. Government-managed databases have an appalling track record when it comes to protecting personal data (see Chapter 4), which means ID cards threaten to make us less – not more – safe.

At a more fundamental level, compulsory ID cards reverse the traditional relationship between the citizen and the state in this country. While historically in Britain the state has been accountable to the citizen, ID cards mark a significant shift, making it the presumption – rather than the exception – that the state has the right to peer into an individual’s private life and keep tabs on every citizen. Information Commissioner Richard Thomas, a privacy watchdog, has expressed ‘increasing alarm’ that ID cards are: ‘ …beginning to represent a very significant sea change in the relationship between the state and every individual in this country’.

Ministers have tried to overcome widespread concern by touting ID cards as a way of solving benefit fraud, illegal immigration and terrorism. Yet, one by one, the government’s claims for ID cards have dissolved under examination. First, it was claimed that ID cards would tackle benefit fraud. However, the overwhelming majority of benefit fraud involves people lying about their personal circumstances – only a fraction of cases involve misrepresentation of identity. Besides, the technology ID cards use is itself highly vulnerable to cloning and, therefore, fraud. So, far from protecting against scams, Microsoft’s National Technology Officer has warned that ID cards could trigger ‘massive identity fraud on a scale beyond anything we have seen before’.

Next, it was said that ID cards would prevent illegal immigration. This was difficult to sustain in light of the exemption from ID cards for all short-term visitors (under three months) to the UK. Even if that loophole was closed, independent tests have shown that the IT used in both biometric passports and ID cards can be cloned within minutes, a vulnerability that those profiting from illegal immigration are bound to exploit.

Finally, it was claimed that ID cards would help prevent terrorism. This assertion proved equally flawed since the vast majority of terrorists do not hide their identity, but rather actively seek notoriety. Spanish ID cards did not stop the Madrid bombers in 2004, Turkish ID cards did not stop the Istanbul bombers in 2003 and German ID cards did not stop the Hamburg terrorist cell that planned 9/11. In Britain, ID cards will do little to stop British-based bombers since it will not be mandatory to carry and produce the card on request. Nor could ID cards protect Britain from foreign terrorists – because short-stay visitors will not be required to hold one. Ministers have now openly conceded that ID cards will do little to prevent terrorism or crime, the Home Office website listing, as popular ‘myth’, that ‘ID cards can stop global terrorism and crime’. As the Home Office’s Security Minister candidly accepted: ‘Perhaps in the past the Government, in its enthusiasm, oversold the advantages of identity cards. We did suggest, or at least implied, that they may well be a panacea for identity fraud, for benefit fraud, terrorism, entitlement and access to public services.’

Unsurprisingly, as the ongoing debate has exposed the flaws in the government’s plans, public enthusiasm for, and confidence in, ID cards has plummeted – with support dropping from 78 per cent in 2003 to 43 per cent in 2007, with 48 per cent of those asked opposed.

In response to widespread criticisms, Home Office ministers decided to phase the roll-out of ID cards. Revised plans announced in 2008 will first target airport workers, then foreign nationals and subsequently students and other sections of the population. Rather than cancel an increasingly discredited policy, the government has shifted its approach, looking to introduce a national system by stealth.

ID cards were presented as a trade-off that would create a small amount of inconvenience but make us all much more secure. The evidence shows that the policy is a fraud – ID cards will impinge on individual liberty and jeopardize our personal security. Given these flaws, and independent estimates that the programme could cost up to £19 billion, the government should scrap its plans for a national ID card register and focus on practical security measures – including improving the integrity of the biometric technology used in visas and passports.

In addition to inroads on habeas corpus, the erosion of the presumption of innocence and reckless intrusions into personal privacy, national security has been used as a pretext for a further government assault on free speech and peaceful protest.

Freedom of speech dates back to the Bill of Rights of 1689. It has been protected by the common law in Britain for centuries, and serves as one of the hallmarks of liberal democracy. In the words of Thomas Jefferson, ‘the liberty of speaking and writing…guards our other liberties’. Nevertheless, freedom of speech has never justified violence. Mill’s classic exposition of liberty explicitly acknowledged that the exercise of individual rights can be limited where it would involve doing harm to others. In short, liberty tolerates those expressing obnoxious or offensive views, but not those who stir up violence or otherwise direct harm against other people. This distinction marks the dividing line in a free society that tolerates free speech but outlaws incitement to violence. In marked contrast, since 1997 the government’s contorted approach has curtailed legitimate free speech on spurious security grounds, but ignored – or been slow to act against – those posing a real threat, such as fanatics who preach extremism and call for violent jihad against Britain.

Widely drawn new security legislation has been over-zealously enforced by police officers against soft targets like peace activists, students and other peaceful protesters in a wholly unnecessary and disproportionate manner. New powers were used to fine the sellers of ‘Bollocks to Blair’ T-shirts (£80 per offence) and arrest, search and eject Walter Wolfgang, a refugee from the Holocaust and member of the Labour Party, who heckled ‘nonsense’ at the Foreign Secretary as he was making the case for the war in Iraq during his speech at the 2005 Labour Party conference.

New security laws have also been used to stifle free speech and protest within one kilometre around the Houses of Parliament. Originally introduced as a precaution against security threats or disorder close to such a sensitive location, new legislation has been relied upon to suppress peaceful protest no matter how small the number of people involved. In May 2006, the Metropolitan Police spent £110,000 raiding and removing Brian Haw’s one-man anti-war protest against British operations in Iraq. The same legislation was used to prosecute and convict two anti-war protesters who read the names of British soldiers killed in Iraq at the Cenotaph on Whitehall. In response to widespread opposition, the government announced a review of the legislation in March 2008, but left it unclear what security restrictions on free speech will remain in place.

ASBOs have also been used to muzzle free speech. Philip Howard, a street evangelist who regularly preached on Oxford Street, was ASBOed in 2006 by Westminster Council after receiving complaints. Mr Howard became famous for his quirky religious catchphrases – such as ‘Don’t be a sinner, be a winner’ – and was generally tolerated by passers-by shopping in central London. His public preaching may have irritated a few people, but was harmless. The use of ASBO legislation by local authorities to silence him is yet another abuse of new law enforcement powers at the expense of free speech.

In 2005, the government again cited security as the basis for its efforts to enact a crime of ‘glorifying’ terrorism. It introduced legislation that aimed to ban public expression of views that indirectly give encouragement to or condone terrorism. The offence was challenged by opposition politicians and civil liberties groups, on grounds of free speech, because it went well beyond even indirect incitement to terrorism. The final law was watered down from the original proposal, so much so that it has never been used in practice. However, critics insist that existing law for prosecuting incitement to violence is perfectly adequate, and that the new definition risks stifling legitimate debate – with legal experts arguing that the new offence is broad enough to prosecute people commemorating the anti-apartheid movement in South Africa or the Easter Rising of 1916 against British rule in Ireland.