Security with Liberty
This speech was made to the liberal think tank, Centre Forum. The other speakers were Nick Clegg MP, then Lib-Dem spokesman on Home Affairs and Sir David Omand, former head of GCHQ and the Tony Blair’s intelligence and Security Co-ordinator in the run up to the invasion of Iraq
Henry Porter
Wednesday, 21 February 2007
Over the last year you may have noticed some government ministers and law officers making adjustments to their position on human rights. For example last May, the Attorney General, Lord Goldsmith, said of Guantanamo, "Its existence remains unacceptable. Not only would it be right to close Guantanamo as a matter of principle, it would also help remove what has become to many – right or wrong - a symbol of injustice.”
A few weeks ago the Director of Public Prosecutions, Sir Ken Macdonald, made a speech attacking both the idea of “the War on Terror” and the government’s opt out on the European Convention of Human rights to push through detention laws.
He said, “The fight against terrorism on the streets of Britain is not a war. It is the prevention of crime, the enforcement of our laws and the winning of justice for those damaged by their infringement.”
Finally, the Lord Chancellor Lord Falconer bustled to the human rights pulpit. Speaking at the Royal United Services Institute last Wednesday, he said, “Allegiance to the Rule of Law is the keystone of our society. It is non-negotiable. Protection under the law is something that every one of us shares, regardless of region or religion, background or beliefs.”
So, that’s all right then. All is well in the country that Voltaire once called “the land of liberty”. What could be more reassuring than law officers in 21st century Britain lining up to signal their commitment to international conventions on human rights and the unwritten constitution?
The trouble is that these speeches give a profoundly wrong impression of the actual state of affairs in Britain.
Your may think that after many lapses they demonstrate a genuine interest in a return to the norms of our democracy - I hope you’re right - or that these men now feel free to distance themselves from the policies of the Prime Minister – I am sure that’s true.
Either way, it’s undeniable that the Government has forced measure after measure through Parliament in defiance of the Rule of Law.
Since 9/11, the Prime Minister has maintained that it is his first duty to protect the public against terrorism and that it is reasonable to suspend a few people’s rights in that cause.
He has often said that civil liberties arguments were “made for another age” and he has edged very near to the continental way of thinking which was described by Eve Steiner at a Chatham House conference in 2005. “The French,” she said, “would say that the ability to move safely around in the collective public space is a citizen’s first freedom - more important than individual rights.”
Certainly all of us agree that liberty cannot exist without security.
But to say this and move on - as so many do - misses a crucial point.
Security cannot exist without liberty.
We cannot be secure, if our rights and freedoms are scooped up and held in trust for us by a central authority until the crisis passes. For one thing the crisis never passes - governments are rarely happy to return liberty to the people. For another, liberty and a system of rights protect us from ourselves as well as from the ambitions and sometimes madness of government.
A system of rights only works if it is universal and if there is acceptance that when one person’s rights are removed or infringed we all suffer. Their rights are in fact our rights, even if we don’t think we will ever need them.
The neglect of this principle may seem a small sacrifice to make in a age of horrific terrorist attacks, but we must remember that, apart from trying to make reasonable efforts to protect ourselves, we are also defending a social democracy that is defined by its respect for the Rule of Law.
The moment we make exceptions, we diminish the virtue of our cause and the quality of our society.
I will argue this afternoon that in the last five years the government’s terror laws are self-evidently in defiance of the Rule of Law and further that they can only be properly seen in the context of a general erosion of rights and liberty.
What was held to be reasonable exceptionalism in the War on Terror has come to colour – in my view stain – many other areas of the law. Precedents that are created in the distinct area of terror legislation - where few dare to question the motives or judgement of the government - quickly spread outwards to infect laws concerning demonstration, privacy, and the rights of defendants.
I know I don’t have to lecture this room about the meaning of the Rule of Law, but it’s worth remembering what the British constitutional expert A.V. Dicey wrote in 1885. “We mean in the first place that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.”
I agree: It’s not very modern - in New Labour terms - to be quoting a Victorian academic, but in the absence of a written constitution his words stand between us and the arbitrary detention and house arrest seen in dictatorships the world over.
That’s why we must be glad that the Lord Chancellor went out of his way to say the Rule of Law is non-negotiable and the keystone of our society.
Yet I can’t help thinking that he has got himself an entirely different definition of the Rule of Law, or that he is having it both ways – appearing to stand up for liberty while at the same time being an influential part of a government that actively attacks the unwritten constitution – and not just in terror cases.
Let me quickly deal with the some of the terror law:
Twenty-eight days pre-charge detention is unquestionably a punishment if no charges follow, for a person is deprived of their liberty, their living, and their family life without a court deciding that the law has been broken.
That is a de facto breach of the Rule of Law, yet the Home Secretary – Dr John Reid - is pressing the cabinet for 90 days on the basis that police cannot be asked in complicated terrorist cases to bring charges within a month. And now - depressingly - Gordon Brown has now indicated that he is willing to look at the arguments again.
Control orders are another case in point.
Some of you may have seen the recent Channel Four Dispatches programme in which a number of controllees, as they are known, were featured. It was illuminating, not because it made any particular comment on the likely guilt or innocence of the subjects, but because it painted a picture of what would be recognised by the Burmese military junta as plain old house arrest.
Though not found guilty by any court of law, these men are confined for anything up to 22 hours a day. They cannot live at home. They are tagged. Forbidden to use a mobile phone or the Internet, not allowed to meet friends outside and must have permission from the Home office to receive visitors.
When they appear in front of Special Immigration Appeals Court – SIAC - they are not allowed to hear the evidence against them and they can only be represented by a lawyer appointed by the court.
One of these court-appointed representatives, Ian Macdonald QC, candidly expressed his doubts at the way the SIAC functioned and how intelligence was accepted as evidence. There is also a suggestion from Lord Carlile, the government’s independent reviewer on terror law, that police use control orders as an excuse to abandon gathering evidence, while continuing to claim that there is no possibility of realistic prosecution.
This is wrong. If intelligence is firm enough to deprive a man of his liberty in Britain, it certainly can withstand examination in the normal conditions of an ordinary court.
But no. We are told that in an open hearing, methods and sources may be betrayed and so there is no option but to accept the word of the Security Services.
Generally I am not one for disparaging the work MI5. I covered the July 7 bombings and worked at Ground Zero just after the attacks – I mean actually on site – and I really do appreciate what is at stake and the scale of their task. I also believe that MI5 and the police have done a truly excellent job over the last five years, adapting rapidly to this vicious new strain of terrorism.
But intelligence is no a substitute for evidence in legal proceedings and it never will be.
We would do well to remember that when we last accepted the word of intelligence chiefs – instead of insisting on evidence – we were taken to war on completely false information.
It is undeniable that in both pre-trial detention and control orders, people suffer in Dicey’s words “in body and goods” without “a distinct breach of the law” being proved. SIAC is clearly not “the ordinary court of the land” and the hearings there are conducted in a far from the “ordinary legal manner".
So with due respect, I think the Lord Chancellor should spare us his lectures on the Rule of Law.
And by the way, the British government’s failure to oppose Guantanamo from the start and its obstruction of inquiries into rendition flights do not make Lord Goldsmith's views on Guantanamo particularly convincing.
Still, I suppose it’s better late than never.
Over the last year I have been arguing in The Observer that during the War on Terror, the balance between the state and the individual has been drastically altered by the Blair government, yet with very little actual result in the struggle against Islamist terror.
The sense of crisis evoked by that phrase the War on Terror has allowed Blair to push laws through Parliament with the minimum of opposition and scrutiny. These measures are presented as tools in the all-important task of fighting terror, although on close inspection it becomes clear that they do little more than extend the reach and power of the state at the expense of individual liberty, rights, and privacy. After watching the process for some time I conclude that this is no accident, but a kind of reflex opportunism on a very grand scale indeed, which is not only Blair’s.
So we have Walter Wolfgang hauled out of the Labour conference for exercising his democratic right to shout “rubbish” at Jack Straw. We see people arrested for wearing anti-Bush & Blair T-shirts under. And now under the Serious Organised Crime and Police Act, people are being arrested outside Number 10 for carrying quotations by George Orwell without having first gained permission to demonstrate within a kilometre of Parliament Square.
There was a vague implication that SOCPA updates police powers in the age of terrorism but what it actually does – among other things - is to deprive the British people of an inalienable right to bring their grievances to the centre of power without first asking a policeman’s permission. It may be regarded as a small sacrifice to make, but all these small sacrifices add up to a very large change in our society.
In this understandable anxiety about security, we have made many such concessions. ID cards were presented initially as a useful tool in the war of terror – until it was pointed out that the Madrid train bombers all had ID cards.
We accepted the network of ANPR cameras, which covers all British motorways and town centres and retains journey information for up to two years, could be used in an anti-terrorist measure. That this network came into being without Parliamentary debate did not seem to concern us unduly. That the ID card represents the greatest possible contempt for our personal privacy simply did not bother us.
The effect of the War on Terror legislation is truly insidious.
We were promised that Control order was an exceptional measure to deal with foreign suspects who could not be returned to countries where they were likely to be tortured.
But now the model of Control Orders is being applied to suspect criminals. The new Serious Crime Prevention Order will mean that withoutsm, but in all cases justice must be seen to be done. That is not currently happening in the sub rosa proceedings of the SIAC.
We should ditch for all time the phrase War on Terror. It dignifies what the DPP calls the “deluded narcissistic inadequate” as soldiers. They are not. They are criminals.
And finally we should guard against the infection of our laws and culture by the rushed and substandard measures that have been produced by this government. They are no model for the rest of our law. To this end we need a written constitution and a curriculum that teaches every child of whatever religion or background their guaranteed rights in our free society.
In the final analysis the speeches by Lord Falconer and Goldsmith and Sir Ken Macdonald QC were a welcome sign, for whatever the politics and manoeuvering that is going on, all three men do seem tacitly to accept that without liberty security is a fantasy.
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