Henry Porter

By Henry Porter. March 3, 2008 

Watch the proceedings here

(1) Two things are striking as you read through the oral evidence presented to the Joint Committee on Human Rights. The first is the measured calm of the majority of your witnesses, and indeed of the majority of the committee, in the face of the most serious attack on personal freedom and privacy ever mounted during peacetime in this country. British democracy is on the brink of being changed beyond recognition, yet nothing seems to disturb the equanimity of your proceedings. Even allowing for the well-mannered traditions of parliamentary committees, the lack of urgency and of a sense of crisis seems remarkable.

(2) The second point that occurs to an outsider unfamiliar with parliamentary routines is that this campaign against Britain’s historic rights and freedoms began at almost the precise moment the European Human Rights Convention was incorporated into British law as the Human Rights Act in 1998. In other words, the HRA – a Bill of Rights by any other name – has allowed the executive and civil service to roll back individual choice, liberty and privacy and has done almost nothing to defend the British public from the accumulation of centralised power.

(3) Let me first make it clear that the HRA has brought many benefits to ordinary people, for instance insuring that foreign prisoners who may be tortured in their countries are not deported. It has been responsible for countless cases where people have won the right to dignity, fairness and equality in their treatment. But despite the many advantages of the  HRA which has been tirelessly championed by Liberty, the reality is that it does not work effectively as a Bill of Rights and cannot guarantee the headline rights necessary for a free society – a point perhaps tacitly admitted by the appearance of Gordon Brown’s Green Paper last summer.

(4) At the end of this submission there is a brief list to remind the JCHR of the liberties and rights which have disappeared from the inventory since Labour came to office in 1997 and the HRA came into law in 2000. Though incomplete, it is a shocking picture of developments in Britain that are now being noticed with bafflement abroad by people who do not understand this turn of events in one of the oldest democracies in the world. On a book tour last month in France, I was repeatedly asked by journalists, “Why in Britain? What has happened in the British people to make them so compliant? Why are there no demonstrations?”

(5) There are complex answers to these questions but an obvious one is that in each case where freedom is compromised the Government has advanced the argument that a new law meets a singular threat from crime, terror and anti-social behaviour. The British have accepted these appeals with a rare faith in the wisdom and benevolence of our leaders – a faith, incidentally, which I increasingly do not share. After a decade the account shows a devastating loss of the freedoms that we once regarded as our birthright, the self-evident and self-perpetuating virtue of the British people and their Constitution.

(6) The shocking part of it all is that it has occurred with almost no coherent analysis, scrutiny or opposition in parliament, no debate about the direction of our society, and only a little understanding and exposition in the media. The truth is that we may have taken a false sense of security from the presence the HRA on the statute book. Indeed, there seems every reason to suspect that the act has served the executive and civil service as an alibi while the balance between state power and individual freedom has been critically altered in the state’s favour. It is for this reason that I find it very hard to share Liberty’s courageous enthusiasm for the act, even though I concede its good points. If the maintenance of rights and liberty is the best measure of a code of rights, then the HRA must surely be declared a failure.

(7) It seems to me that this is not due to any innate problem with the act but rather to the state of parliament and the decline of British democracy. I will touch on this later.

(8) To show how the act fails us in practice, I want to draw the committee’s attention to the key Article Eight in the HRA, the one that guarantees “the right to respect for private and family life, home and correspondence”. By far the most dramatic threat to ordinary people’s freedom in the last decade has been the growth of the database state. Under Labour’s plans for “transformational government” an almighty surveillance structure is envisaged, through which, by the admission of the man in charge, Sir David Varney, the state will know “a deep truth about the citizen based on their behaviour, experience, beliefs, needs or desires”. As Jill Kirby pointed out in a recent CPS pamphlet, the intention is for government to centralise and share all information on the citizen both horizontally and vertically, without the citizen’s knowledge. It is hard to imagine a more sinister apparatus of control, but the project advances untroubled by the scrutiny of parliament or the memory of George Orwell’s vision in 1984.

(9) The state’s nightmarish lust for our personal data does not stop there. Already all journeys undertaken on motorways and through town centres are recorded by the network of automatic number-plate recognition (ANPR) cameras, and the information retained for two years. Surveillance is possible in real time. Imagine that ability in the hands of a government desirous of preventing demonstrators making their way to London for a legitimate protest, or wishing to track political dissidents. Under the ID-card scheme, 49 pieces of information will be required by the state and every important transaction in a citizen’s life will be recorded by the National Identity Register during ID verification. And there is a new proposal to collect 19 pieces of information, including mobile-phone and credit-card numbers from people travelling abroad, which the government plans to use to fight terrorism and international crime, and for “general public policy purposes” – ie, the mass surveillance of a free people. I remind the committee of something the American cryptographer and computer expert, Bruce Schneier, wrote: “It is poor civic hygiene to install technologies that could someday facilitate a police state.”

(10) The story of the HRA’s failure gets worse when you reach the guarantees on the privacy of family life, home and correspondence. The act simply doesn’t perform. There are now five databases that will in various degrees breach the privacy of children and their families. The home is threatened for the first time since 1604 by new regulations concerning bailiffs who, under the Tribunals, Courts and Enforcement Act, are about to be allowed to offer violence against the householder. As to our correspondence, with over half a million intercepts of post, email, and internet connections a year, with nearly 700 authorities allowed to apply for phone records and to intercept a person’s communications on the thinnest possible pretext, it is clear that the HRA has not, and will not guarantee the privacy of our correspondence.

(11) I hope I will not be thought melodramatic when I say that if this trend continues, there will be many who will not feel able to continue to live in this country. From the emails I receive in response to my columns for The Observer – sometimes as many as 500 a week – I would suggest that there is deep bewilderment and anger about the way things began to go sour under a prime minister who said that “civil liberties arguments are not so much wrong as made for another age”. (Tony Blair)

(12) There is a profound but unacknowledged crisis in this country. Our liberties have been attacked, but we have also suffered a collapse in what I would call the liberty reflex, both in and outside parliament. Twenty years ago the measures I have described above, which are often brought into law by Statutory Instrument – effectively ministerial decree – would have been unthinkable. The media would have been inflamed; former members of the National Council for Civil Liberties (now Liberty) such as Harriet Harman and Patricia Hewitt would have been talking about a police state; and there would almost certainly have been marches and protests. But today we just let it go.

(13) This is why I believe a new Bill of Rights is imperative. But it must be a Bill of Rights that is clearly British in origin and that draws its potency from our traditions and culture, and from the settlements of 1689 and Magna Carta, insisting for example on the right to trial by jury, which is not found in European charters and conventions. There is no question that such a bill would overlap with some of the alleged guarantees in the HRA, but, crucially, the drafting would be part of a process of general political renewal, in which there was a rebalancing of powers at the very top of our democracy. To my mind it should be restricted to what I have referred to as headline rights and should not include economic rights, which seem to me to be aspirations that can dilute the potency of a Bill of Rights. At any rate, it should be a work of simplicity and eloquence in which the British people, not parliament or a team of ministerial scribblers working from some bogus consultation process, define their inalienable rights as part of a new covenant between the people and parliament and between the executive and parliament. It goes without saying that it should be entrenched: that is placed beyond the reach of the authoritarian tendencies that are obviously alive in the civil service and the current administration and permitted by an easily manipulated parliamentary majority.

(14) Conventional thinking says such laws cannot be “entrenched” and that no parliament can bind its successors. But in reality this is nonsense. All constitutions however strongly codified always allow for a process of amendment. I am not asking for an Act that would be set in stone and entrenched forever. Besides, an important point discussed by the Chairman of Mischon de Raya, John Jackson, in OpenDemocracy, based on the views of Lord Bingham, suggests that Parliament has already bound its successors in a largely unnoticed way by a sentence in the Constitutional Reform Act 2005. It says: “Part 1 provides that the Act does not adversely affect the existing constitutional principle of the Rule of Law.” This surely means that the principles of the Rule of Law override the sovereignty of Parliament.  

(15) It is not naïve to suggest that things should be arranged, perhaps by the deployment of the parliament Act, so that the new Bill of Rights could not be altered without very great difficulty and only in circumstances where there was a considerable consensus. The result would be the people’s prized possession, a thing that every child would learn at school and might perhaps quote at will later in life.

(16) As you see I do not recoil from the idea of unelected judges deciding where parliament has overstepped the mark, because in the slow descent that we are all witness to it has been judges who have often supported the principles of liberty and rights. MPs would be wise to agree with this and stop pretending to the public that they are the sole defenders of the public realm.

(17) Parliamentary Sovereignty is the reason that discussion about a Bill of Rights never gets anywhere. Its mystical power is unquestioningly viewed as the secret, or at least the guardian, of our free society. But is that really so? In the political context, the OED defines sovereignty thus: “Supremacy in respect of power, domination or rank; supreme dominion, authority or rule.” It must be evident to members of both houses that parliamentary sovereignty is a hollow phrase. Parliament is not sovereign, because the executive runs everything. The government decides on and schedules parliamentary business, appoints the chairs of select committees and controls and smothers debate by means of Standing Orders and Standing Committees. One of your previous witnesses suggested in his oral evidence that 99 per cent of law was made by secondary legislation. Even if only roughly accurate, this is an astonishing statistic and it explains why so many laws affecting our fundamental freedoms are passed without debate and take their toll on our society without proper scrutiny. Here are some examples. There is no statutory basis for the ever-expanding Police National DNA database, which contains the biological essence of hundreds of thousands of innocent people; or for the expanding network of ANPR cameras; or for the proposals to take 19 pieces of information from people travelling abroad; or for the Transformational Government Project. These things just happen without debate of the issues or any attempt to defend the people from these oppressive and high-handed measures. For MPs to protest about parliamentary sovereignty in such circumstances seems odd. Of course it is argued that Parliament is the authority for all SIs but it must be clear that it has no real control over the way Ministers use these delegated powers. As the story of the HRA shows us, the truth of the matter is that parliament can offer the public little effective protection because it is itself in the control of the executive.

(18) There is a real temptation in this debate to think in rather academic terms about concepts of law and sovereignty, yet I am struck by the vivid examples of change that you hear about every day – the spread of unnecessary and intrusive CCTV; the appearance of immigration officials – plus heavies with earpieces – randomly stopping people outside London Tube stations to question them about their status; the examples of arrogance of the police in the pursuit of people who have committed any of the 3,000 new offences introduced by Labour; the pupils being fingerprinted at their school library; the use of the “mosquito” to control young people; the commands barked through speakers telling people to behave. Certainly our society has its problems, but I feel sure that this bossy, hectoring attitude stems from the government’s fundamental disrespect for the people and their rights. Measure by measure the government has come to see us a subjects who must endlessly submit to checks and verification. This attitude is at the heart of the transfer of power from the individual to the state.

(19) Entrenching a Bill of Rights, which as I have hinted would be part of much greater process of democratic renewal, would go a long way to arresting this trend and reasserting the rights of the citizen. But what we do not need is a placebo bill drawn up by this government to act as a further alibi while our rights and freedoms are stolen in the night. I suspect there is a very good reason why a Bill of Rights has been put on the political agenda by a party that is already responsible for the HRA. It recognises the strength of the case that has been made against it by civil libertarians, and wants to answer that case before the next election with a bill that appears incontestably wedded to the principles of a free society. It is a shrewd and cynical exercise, because at the same time they will own the process and so make sure that nothing that remotely threatens the government’s power will reach the statute book.

(20) Finally, I want to say something about the phrase “rights and responsibilities” used by Jack Straw and Gordon Brown in respect of a new bill. This springs from the telling belief among ministers that rights are somehow in the gift of the government and that they are entitled to require people to sign up to a list of responsibilities in exchange. This is arrogant nonsense. The citizen’s responsibilities are defined by common, civil and criminal law, and ministers display a constitutional impertinence by suggesting otherwise.

APPENDIX: A brief guide to the loss of liberty and rights since 1997

Protest and assembly

· Protests are banned within one kilometre of Parliament Square without police permission (penalty: 51 weeks in jail and/or a £2,500 fine).

· Groups may be dispersed under antisocial-behaviour laws.

· Groups may be dispersed within designated areas under the terror laws.

· The new offence under SOCPA of trespass within a designated site (no justification for designation is required).

Communications

· Under the Regulation of Investigative Powers Act, government agencies may intercept email, internet connections and standard mail without seeking a court’s permission (the latest figure is 500,000 secret interceptions a year).

· Since summer 2007, the government and some 700 agencies have had access to all landline and mobile-phone records. There was no primary legislation and no debate in parliament.

Databases

· Without primary legislation, police introduced a national network of all ANPR cameras. The travel data may be stored for two years.

· The National Identity Register will store details of every verification made by an ID-card holder and give access to government agencies without the knowledge or consent of the private citizen.

· ID-card enrolment requires every citizen to offer up 49 pieces of personal information to the national database, with heavy and repeated fines for non-compliance.

· All children's details are to be stored on a central database, with access granted to a wide range of public bodies.

· The Children’s Common Assessment Framework database stores all details of children with problems, indefinitely.

· The Home Office has announced that it wishes to take 19 pieces of information, including mobile-phone and credit-card numbers, from everyone travelling abroad.

Free Expression

· Public-order laws have been used to curtail free expression. A man wearing the slogan “Bollocks to Blair” on his T-shirt was told to remove it by police.

· The Race and Religious Hatred Act (2006) bans incitement of hatred on religious grounds.

· Justice Minister Jack Straw proposes new laws which would ban the incitement of hatred towards the disabled and on the grounds of a person’s sexual orientation

· Terror laws are used to ban freedom of expression in designated areas. Walter Wolfgang was removed from the Labour party conference for heckling Jack Straw. People have been searched simply for wearing slogans on their T-shirts or for carrying banners. A man was detained while collecting signatures against the ID card

· The Protection from Harassment Act (1997) bans the repetition of an act. People prosecuted for repeated protest by email.

· Terror laws ban the glorification of terrorism, which has resulted in the prosecution of a young woman for writing poetry.

The Courts

· ASBO legislation introduces hearsay evidence, which may result in a person being sent to jail.

· The Criminal Justice Act (2003) allows the prosecution to make an application to be heard without a jury where there is a danger of jury tampering. This will include fraud trials.

· The admissibility of evidence concerning a person’s bad character, previous convictions and acquittals.

· The Proceeds of Crime Act (2002) gives the state powers to confiscate assets in circumstances where it does not have enough evidence for prosecution.

· Special Immigration Appeals Court hearings are held in secret. Those terror suspects whose cases come before the court are not allowed to know the evidence against them or to be represented by a lawyer of their own choice.

· The Courts and Tribunals Enforcement Act abandons the tradition of an Englishman’s home being his castle, which since 1604 has made breaking into a home by bailiffs illegal.

Terror Laws

· Terror laws have been used to stop and search ordinary citizens. The current rate is 50,000 per annum.

· A maximum of 28 days without charge is allowed under terror legislation. The government has announced plans to increase this to 42 days.

· Control orders, effectively indefinite house arrest, were introduced after the Belmarsh decision.