The Assault on Liberty
Dominic Raab

What Went Wrong with Rights

For Erika

Table of Contents

Cover Page

Title Page

Dedication

FOREWORD

INTRODUCTION

PART I WHERE DID RIGHTS COME FROM?

1 Runnymede

PART II WHERE DID RIGHTS GO?

2 Security versus Liberty

3 Short-circuiting the Justice System

4 Surveillance Society

PART III THE WRONG KIND OF RIGHT

5 Rights Contagion

6 The Risks of Rights

PART IV PUTTING IT RIGHT

7 The Next Chapter of British Liberty

CONCLUSION

NOTES

INDEX

ACKNOWLEDGEMENTS

About the Author

Copyright

About the Publisher

FOREWORD

Liberty matters. That statement may seem self-evident, but the freedom under the law that we have historically enjoyed in Britain is more fundamental to the entire nature of our society than many realize.

Freedom is a pervasive virtue, and it has a material impact on many aspects of our national history. Freedom of speech has encouraged freedom of thought, and that is the bedrock of our extraordinary creativity over the centuries – whether it is in literature, or science, or political philosophy for that matter. In conjunction with the freedom of action available to British citizens, buttressed by property rights, it engendered the industrial revolution and made us one of the richest and most powerful nations in the world.

As a rich and powerful nation, our political ideas – foremost amongst them freedom under the law – have been disproportionately disseminated around the world. Those countries that embraced those ideas – from America to Australia to India – are amongst the most successful and civilized nations both today and in the future.

So it is a particular tragedy that we in Britain are slowly abandoning the very characteristics that have made us and others so successful and civilized. It is also ironic that we are doing so often in response to a threat from people that have no respect for those values – who despise tolerance, liberty, and diversity.

The last decade has witnessed an accelerating erosion of liberty on many fronts, all carefully documented in this timely book. The attack on the fundamental liberties, such as habeas corpus, is at the front of the public mind because of the pitched parliamentary battles on ninety days and more recently forty-two days detention without charge.

But these assaults are only the most visible part of the attack. Equally pernicious are the massive intrusions on our privacy with the growth of the huge government databases and the identity card register, the pernicious growth of a surveillance state with cameras seemingly on every corner, the creation of a ‘suspect society’ with the recording of the DNA of a vast number of innocent people, all in conjunction with the undermining of the institutional structures that have historically protected us from excessive state power, most notably jury trials.

Each and every one of these actions has a sensible idea at the core, but one which has been massively overused to the point where it ceases to be a challenge to the guilty and becomes a threat to the innocent.

Why does this happen? What has happened in government to create this soft tyranny in Britain?

Is it that our New Labour masters have decided to covertly put in place the pieces of a dictator state? Hardly, although one or two of their Home Secretaries may have had unhealthy instincts in that direction. Most British politicians are broadly altruistic, and would be horrified to be seen to be the instruments of such action.

No, the problem is more systemic than that, and as a result this is a book that should be read as a cautionary warning by would-be ministers of any political colour, and by those who want to keep an eye on them, be they elector or commentator.

The first of the culprits is the concept of the ‘continuous campaign’. This idea, imported from Bill Clinton’s America, is that political parties should not stop campaigning once they are elected, but should carry on as though they are still in mid election whilst they are in government. Although this sounds mundane, it is at odds with the real behaviour of most British governments down the decades. Most of them just thought about the campaign in the last year before an election, and up until then just ran the country in the interests of the electorate.

The danger of the continuous campaign is that it encourages ministers to use the apparatus of the state to promote the cause of one party or even one minister. The first effect of this is to make everything much more short term. Favourable headlines take the place of favourable outcomes as primary objectives to be achieved. This trend is reinforced by the twenty-four-hour media’s hunger for news.

Add this to a set of policy problems that are relatively intractable, such as Islamist terrorism, or persistent rising crime, and the tendency is to go for more and more tough and dramatic sounding headlines – and therefore for ever more draconian policies. This tendency is reinforced when politicians sell a simplistic analysis of the problem to a worried public. It is reinforced even more when the politicians overdramatize the risks.

So we end up with vast numbers of security cameras that are largely useless for crime prevention or detection, and for which there are precious few privacy protections – but the minister got his ‘10,000 new cameras’ headline. We end up with huge databases that carry vast amounts of acutely personal information on us all, and which put our privacy and even security at risk – but the minister gets his ‘High tech Health Service’ headline.

Of course history catches up. Now the papers are full of stories of lost personal details, and we see everything from bank account details to soldiers’ lives put at risk. We see stories of so-called security cameras used to spy on young women, or on a more mundane level used to maximize council revenues rather than minimize personal risks.

We can be sure that there will be much more to come. The government has begun to make a habit of trying to short circuit legal process, by curbing jury trials, cutting back the powers of magistrates courts, and replacing some court appearances with summary justice in the form of fines and cautions. The effect will make the figures for clear up of crime look good, but it will achieve the interesting double of under-punishing the guilty whilst risking destroying an innocent person’s life with a miscarriage of justice. This, and some of the other effects of the erosion of our freedoms and protection under the law, will take years to surface in the public mind. But surface it will, and when it does the British people will not be impressed.

The other assault on our freedoms comes from a complex nexus of actions whose aim, paradoxically, is to improve our rights. The growth of a rights culture, with an inflation of what fundamental rights really are, in conjunction with well-intentioned but flawed approaches like some of the decisions of the Strasbourg Court and some of the British courts under the Human Rights Act, has led to a peculiar dilution of British freedoms and a signal failure to defend some of those freedoms when they came under serious threat.

The irony here is that the vested interests that defend these flawed institutions are often those that fight a sterling battle in defence of our freedoms in other contexts. The argument is therefore harder to make, but no less important for all that.

Dominic Raab has been at the middle of the battle to defend our freedoms from these many different threats, and also brings an understanding of the international dimension to the table. He is uniquely placed to analyse the problems and propose thoughtful solutions in this book. His first-class forensic analysis is likely to provoke some strong responses, but the cause of freedom is never defended without some discomfort.

Rt Hon. David Davis MP, November 2008

INTRODUCTION

A visitor to Britain arriving on International Human Rights Day might be bemused to read the following newspaper headline: ‘The liberties stripped from the weak today could be lost to us all tomorrow’. He will be positively perplexed if he compares it to another just a few weeks earlier: ‘Human rights is merely a sweetener for rapists, murderers and violent criminals’.

This is not an isolated example of the conflicting views on ‘human rights’ in Britain today.

On the one hand, we now regularly hear that the government is seizing the ancient birthright of Britons, tearing up freedoms nurtured since the thirteenth century and ushering in a dark new chapter in British history. Over the last twelve years, the police have clamped down on freedom of speech, restricted public demonstrations and stifled peaceful protests – using an array of new powers bestowed by a blizzard of legislation, hastily enacted by Parliament on the flimsy pretext of national security. Wave upon wave of antiterrorism measures have been introduced by an increasingly authoritarian government, including proposals to extend police detention without charge that even the former head of MI5 describes as draconian. Wide new surveillance powers allow half a million private conversations between British citizens to be bugged each year by snooping spooks, including hundreds of local authorities.

Meanwhile, our traditional pillars of justice are also crumbling under the immense strain of law enforcement short cuts taken in the name of fighting crime. Basic safeguards put in place to protect the innocent have been wrenched from our justice system by politicians desperate for tabloid headlines: the presumption of innocence reversed, the burden of proof watered down, our courts sidelined and the right to trial by jury subject to sustained, and ongoing, assault.

The creeping powers of the state at every level – from the intelligence agencies through to quangos and councils – are creating a surveillance society, with neighbourhood spies even checking our rubbish and following innocent children home from school to confirm that they qualify for the local catchment area. The Home Office’s imminent national identity register will store masses of sensitive personal details, for each and every British citizen, on a vulnerable central government database. Careless and unaccountable civil servants will then liberally share our private information around the disparate, sprawling and utterly unreliable arms of government – as likely to lose or abuse as protect our personal data.

To cap it all, Britain, the cradle of liberal democracy, now has the unsavoury honour of topping a dubious array of international league tables – including boasting the largest DNA database and the most CCTV cameras in the world.

On the other hand, our visitor may draw little sense of public order or security, as might be expected from a government with such a heavy-handed reputation. On a daily basis, we read about the steady stream of human rights rulings undermining law enforcement, criminal justice and national security. Common sense turned on its head – warped by the European Court of Human Rights in Strasbourg, and magnified by Labour’s feckless Human Rights Act – allows human rights to be wielded to protect and compensate serious criminals rather than their victims. Police now invoke the human rights of fugitive killers, to protect their privacy rather than alert the law-abiding public. The Prison Service compensates drug-addicted prisoners for the hardship of going clean, and gives jailed criminals access to fertility treatment. Airline hijackers successfully claim their ‘rights’ to fend off deportation, illegal immigrants sue the immigration service for holding them in detention and bogus asylum seekers claim access to state benefits. Children show off their novel rights like new toys, challenging authority at every level – including police officers in the street, teachers in the classroom and even their parents at home.

Add in, for good measure, the reams of new government regulation that have spawned a health and safety culture – preventing the police from rescuing a child drowning in a pond, but prosecuting them for mistakes made during the heat of a counter-terrorism operation – and the prevailing sense of confusion is complete.

The conventional explanation is that these are two mutually hostile positions, set amidst a polarized debate that pits a liberal elite against a populist press. But what if, far from antagonistic, there is a kernel of truth, and some measure of substance, to support both sides in this debate?

The British idea of liberty, developed over eight hundred years, is now caught between conflicting tides, cast adrift from its natural moorings. It has been both corroded and conflated. It has been corroded by the government’s direct assault on our fundamental freedoms, including freedom of speech, the presumption of innocence and freedom from arbitrary police detention. British liberty was hard won over centuries – millions died in the struggle, revolts and wars that secured and then defended those freedoms. Yet, since 1997, in a vain effort to prove itself tough on crime and counter-terrorism, historically weak flanks for the Labour Party, the government has hyperactively produced more Home Office legislation than all the other governments in our history combined, accumulating a vast arsenal of new legal powers and creating more than three thousand additional criminal offences. As the power of the state has grown, so has the scope for its abuse, whether by police officers operating under ever-increasing pressure, invisible civil servants concealed within grey bureaucracies or over-zealous council officials relishing their windfall of extended authority over local residents. These incremental extensions in the reach and authority of government, and the mounting abuse of power by its agents and officials, have led to a tectonic shift in the relationship between the state and the citizen. As our liberal democracy becomes less liberal, the government is inflicting lasting damage on the very bedrock of what it means to be British – undermining the fundamental freedoms we enjoy as citizens, our sense of fair play as a society and the checks and balances that restrain the state’s ability to interfere in our daily lives.

At the same time, and in parallel, the British tradition of liberty has been conflated as swathes of other comparatively minor grievances, claims and interests have been shoe-horned into the ever-elastic language of inalienable, unimpeachable and judicially enforceable rights. In place of our most basic – fundamental – freedoms, steadily eroded and undermined since 1997, we have witnessed the expansion of a range of novel, often trivial, rights.

Over the last thirty years successive governments have tried to grapple with, or plain ignored, the inflation of human rights by the European Court of Human Rights in Strasbourg. But since 1997 the government has fuelled the proliferation of rights by passing its flagship Human Rights Act, importing lock stock and barrel into British law the European Convention of Human Rights and all of its accompanying case law. The Act forms part of a broader government strategy that seeks to anchor Britain to Europe and introduce a socialist conception of human rights, fundamentally at odds with the British legacy of liberty going back hundreds of years.

The result has been to upgrade endless ordinary claims – including to social services, NHS treatment, welfare payments and even police protection – to the status of fundamental human rights.

Civil servants, the courts, police, prison officers and numerous other officials have struggled to keep up, distracted by the growing number of rights they are forced to service along with the wider public interest, and baffled by the legal confusion it has created. There is a real and rising risk that this exponential expansion of new, individual rights will drown out a balanced assessment of public service priorities, displace broader social interests, fuel a growing compensation culture and undermine this country’s traditional ethos of civic duty and social responsibility.

The dramatic expansion of rights in the UK is not the result of public debate, nor has it been endorsed by our democratically elected representatives. On the contrary, it has emerged by stealth, pioneered by judges in Strasbourg – and more recently the UK – at the expense of any meaningful British democratic control. Whatever the differing views on human rights – and those on the left and the right may reasonably disagree – the massive proliferation of rights through the courts is difficult to square with basic ideas about how a democracy should function.

If these twin developments have frayed the threads of our liberal democracy, they are not yet beyond repair. As a general election beckons, with all three political parties proposing constitutional reform – including proposals for a modern British Bill of Rights – this book aims to inform that debate, by drawing on our history, constitution and a consideration of the practical impact of human rights on our daily lives. To do that it is necessary to ask – in the mother of parliamentary democracies, which enshrined the first fundamental freedoms some eight hundred years ago – what went wrong with rights?

PART I WHERE DID RIGHTS COME FROM?

1 Runnymede

‘You mustn’t sell, delay, deny, A freeman’s right or liberty. It wakes the stubborn Englishry, We saw ’em roused at Runnymede!’

RUDYARD KIPLING,

‘What Say the Reeds at Runnymede?’

Where did our ‘rights’ come from? Winston Churchill described the Magna Carta of 1215 as ‘the foundation of principles and systems of government of which neither King John nor his nobles dreamed’. At Runnymede, near the royal home of Windsor, the seeds of British liberty were sown. Centuries before the Enlightenment gave birth to the French Revolution and American Declaration of Independence, and with a fraction of the bloodshed, English nobles persuaded their monarch to cede rights and freedoms that charted a course towards liberal democracy.

Magna Carta was preceded by war between England and France, as King John strove to recover lands lost to the French king, Philip Augustus (Philip II). In pursuing his revenge, John placed an increasingly intolerable strain on what was left of the barons’ good-will and financial resources, already tested by his abuse of feudal prerogatives. John depended on financial and political support from the barons to implement his foreign policy and military strategy. In a deft reversal of his isolation – and excommunication – by the Pope, Innocent III, John turned the tables on both the French and the barons by accepting papal authority over England. Magna Carta was the embodiment of a disingenuous truce, which bought off the barons, kept the French at bay and capitulated to the spiritual authority of Rome. As such, it proved a temporary rather than lasting settlement, and one John had no intention of keeping. His refusal to adhere to its terms led swiftly to domestic rebellion, French attack and his own death.

In reality, Magna Carta’s sixty-three clauses were more concerned with the immediate interests of the barons – feudal rights, tax and trade – than the rights of man. There was no mention of any broader representation beyond the ruling class, no enunciation of democratic principles and no lofty declaration of fundamental rights. Notwithstanding this triumph of pragmatism over principle, 1215 nevertheless marks the historical starting point for the modern debate on ‘rights’. It may not have been consumed by, or the product of, some deeper political emancipation, yet three of its nascent principles – the rule of law, habeas corpus and trial by one’s peers – still represent the earliest articulation of liberty capable of resonating with a modern audience.

Numerous articles throughout Magna Carta sought to subject John to some basic ground rules in the exercise of royal power. The text is littered with articles that restrict the arbitrary use of royal authority and restrain the levying of feudal dues. Article 17 requires courts to be held in fixed location and article 40 expounds that: ‘To none will we sell, to none deny or delay, right or justice.’ This codified the most basic idea of the rule of law – requiring the authority of state to be exercised in a clear, transparent and consistent way, not at the arbitrary whim of those with power. The pervasive value of ‘legal certainty’ is easily overlooked today, as we take it for granted that the law of the land will be applied impartially and consistently through independent courts. But it provides the foundation for all the other freedoms. Predictable rules are essential not just for individuals, but also companies and even government to plan their business and lives around. So, when the government introduced indefinite detention without trial for foreign terrorist suspects after 9/11, the legislation was heavily criticized by the House of Lords, Lord Nicholls stating that ‘indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law’.

Likewise, Article 39 of Magna Carta set out one of the earliest constitutional expressions of habeas corpus and trial by jury. The right of habeas corpus – translated literally as ‘you may have the body’ – is the individual’s right to know and challenge the legal basis of his detention by the state. Today, the principle reflects a basic level of due process we expect from the police, in return for their power to interfere with our freedom. If stopped by a police officer, we expect to be told the grounds for our being stopped, let alone any search, arrest or detention. In the overwhelming majority of criminal investigations, the police cannot hold a suspect in detention for more than four days without bringing criminal charges – at that point they must justify the deprivation of the liberty of the citizen. We assume these rights as part and parcel of living in Britain. In other countries – China, Egypt or Syria, for example – dissidents and government critics live in constant fear of being arrested and arbitrarily detained, with minimal checks on the use and abuse of police powers.

Article 39 also bans serious punishment ‘save by the lawful judgment of his peers or by the law of the land’, while Article 38 prevents royal officials prosecuting an individual ‘without producing faithful witnesses in evidence’. These guarantees formed an early basis for the common law model of a fair trial – including the presumption of innocence and the right to elect trial by jury when faced with a serious punishment. If the state wishes to imprison or otherwise punish an individual – depriving him of his liberty – it must prove the criminal case against him beyond reasonable doubt. It is for the state to demonstrate guilt, not for the individual to prove his innocence. Whether the accusation is illegal parking or a bank robbery, a court will throw out on the first day of trial a case brought without the evidence to back it up.

Likewise, the right to trial by jury remains relevant today. In criminal cases, the right to elect a jury – twelve members of the public rather than a single judge – provides a check against both over-zealous prosecutors and the kind of bad law that even a functioning democracy may pass from time to time. People prosecuted for offences that they believe to be harsh, unjust or just trivial – such as dropping an apple core on the street, or selling groceries in ounces and pounds rather than kilograms – still rely on trial by jury today to challenge unfair law enforcement, putting their faith in the common sense of twelve members of the public. These are fundamental safeguards built into our common law system – and manifestly absent from continental European principles of law and justice.

The second relevance of Magna Carta to the modern debate on rights lies in its constitutional character. Replete with quid pro quos, it is premised on the coupling of rights with responsibilities, balancing the interests of the king and his subjects. Magna Carta was framed as a social bargain, explicitly designed as a contract between the king and the barons – ruler and ruled – requiring reciprocal respect. The conception of liberty, or more accurately certain specifically defined liberties, was spelt out through a series of rights that sought predominantly to check the overwhelming or arbitrary exercise of power by the monarch. The barons intended to restrain the meddling of the king in their affairs, and Magna Carta’s overarching aim was to protect their freedom from the Crown, rather than obliging the monarch to do anything in particular for them.

Magna Carta represented a compromise of competing interests, rather than any coherent blueprint for liberal democracy. According to Churchill, the barons ‘groped in the dim light towards a fundamental principle’, which they found in the ‘only half understood’ idea that ‘Government must henceforward mean something more than the arbitrary rule of any man, and custom and the law must stand even above the King.’ Those early freedoms from royal interference subsequently developed into a range of fundamental liberties demarcating the state’s ability to interfere in the lives of its citizens – including freedom from arbitrary arrest and prolonged detention without charge – and outlined the broader contours that would define the relationship between the citizen and the state. Rooted in our history, this basic idea of placing checks on the power of the state, thereby preserving the freedoms of the citizen from interference, are at the heart of the current debates on the limits of state surveillance, the reach of database state, the right of the police to take and retain DNA on innocent people and safeguards on the use of the ever-present coverage provided by CCTV cameras.

The initial constitutional cast set by Magna Carta developed piecemeal, over the following eight centuries, into a model of liberal democracy. Unlike many other countries, Britain’s constitution is not codified in a single overriding document, but made up of a patchwork of laws and conventions that have developed steadily over time. The Petition of Right in 1628 added constitutional bars on taxation without the consent of Parliament and the use of martial law in peacetime. Inspired by Sir Edward Coke – who held the posts of Attorney General and Chief Justice before standing for Parliament – the Petition of Right also provided the earliest protection of individual privacy. Coke’s famous maxim that ‘a man’s house is his castle’ informed the drafting of Article VI, which protected private homes from being forced by the Crown to house soldiers, a longstanding grievance. This established one of the first legal protections against intrusions into the home, on which later common law privacy protections were incrementally built.

Today, we expect that the sanctity of the home will only be breached in the most exceptional of situations warranted by the strict necessity of law enforcement or public safety – not on the whim of some civil servant, quango or local official. Similarly, we expect the state to respect the privacy of our correspondence, internet access and email exchanges, unless there are strong security grounds for interception or monitoring. We recognize the need for the state to gather some information on us, but only on a limited – need-to-know – basis, in order to help fight serious crime and terrorism. Few are comfortable with the idea of giving the state carte blanche to collect, retain and share our detailed, personal and sensitive information. The state is meant to be accountable to the citizen, not the reverse.

Like Magna Carta, the Bill of Rights, passed in 1689 in the aftermath of Civil War and the Glorious Revolution, was another straightforward, unpretentious text addressing in clear and concise terms a catalogue of widespread grievances. A dozen constitutional gripes were followed by thirteen general remedies, as well as redress for particular issues of contemporary concern. The Bill of Rights built on earlier rights. Fair trial safeguards were added, strengthening the independence of jury selection from bias, and requiring the prior conviction of a criminal offence before the imposition of fines or the forfeiture of property. Article 20 of Magna Carta had stipulated that ‘For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood’. The underlying idea was that criminals should get their just deserts, pay the price for their offence, but that the punishment should fit the crime. There must be a limit on the right of the ruler to punish those subject to his rule. The Bill of Rights added to this the requirement that ‘excessive bail ought not to be required, nor excessive fines imposed…’. These early constitutional innovations marked out the British idea of justice as firm but fair. Today, debates about crime and punishment still focus on these basic ideas, whether it is the debate about honesty in sentencing or consideration of the proportionality of criminal punishments.

The same clause of the Bill of Rights added a ban on the infliction of ‘cruel and unusual punishments’, an early precursor to the modern ban on torture. Today, the legal standards applied in the UK, European and UN human rights law developed from this early definition, set out more than three hundred years ago. Students, journalists, political activists and others challenge or protest against the government, confident that they will not be persecuted for their views or political activities, as they are elsewhere. There would be widespread outrage in this country if the state engaged in the kinds of murder or torture of its citizens that take place in many other parts of the world – including Russia, Iran and Sudan. Allegations of torture by British troops in combat are investigated seriously, and UK cooperation with foreign agencies accused of practising torture attracts intense scrutiny.

The Bill of Rights also contains one of the earliest guarantees of freedom of speech, declaring that ‘the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament’. The freedom to think and say what we like, without inciting violence or harming others, is fundamental to the idea of liberty in this country. This right – and the related freedoms of worship, conscience and peaceful protest – developed from the early struggle for religious freedom during the Reformation into the modern rights we enjoy today.

From the moment we wake up in the morning and pick up a newspaper, we take it for granted that a full range of competing views and perspectives will be presented on any issue of the day. We expect to hear every conceivable criticism of government and politicians. Consciously or not, we form our own views on the basis of the plethora of information and views regurgitated through an exceptionally free and exuberant media. It is difficult to imagine what it must be like to live under the blanket censorship that hides what is really going on in countries like North Korea. British protection of freedom of speech is also stronger than in many other democracies. In France, for example, there are legal restrictions on the media reporting of the private peccadilloes – and more serious improprieties – of politicians that would be unthinkable in Britain.

The scope for freedom of speech exploded with the advent of radio, television and, later, the internet – the modern medium for social interaction and popular debate, allowing individuals, groups, campaigners and businesses to exchange ideas and opinions twenty-four hours a day, seven days a week, across the world. We take these freedoms for granted in Britain, whereas others cannot. In China, for example, the government censors the internet. So, if you Google the Falun Gong, the banned spiritual movement, the Chinese service provider will direct you to those hits that provide negative commentary. China also restricts internet content on Tibet and those calling for democratic reform. Closer to home, even Turkey, an aspiring candidate for membership of the European Union (EU), censors internet criticisms of Kemal Atatürk, the founder of the country’s modern secular republic, an action that would be unheard of in this country.

From the freedom of speech inside Parliament, under the Bill of Rights, developed our freedom of speech and the right to peaceful protest outside Parliament. For the politically active, peaceful protest – from a single demonstrator through to mass rallies – serves as a means of voicing concerns, grievances or criticisms of the government. It is particularly important during periods of political controversy to allow the ventilation of strongly held views. Governments cannot satisfy everyone. But they can – and should – allow the expression of a full range of competing views. People in this country take pride in the right to peaceful public protest. Even the politically disinterested generally expect the right to be tolerated, however obscure or unappealing we may find the views of particular protesters. It is inconceivable that the tanks could roll into Trafalgar Square to crush peaceful protests against the war in Iraq, as they did in Tiananmen Square during the brutal crackdown on protesters in 1989 that left hundreds of students dead, or that Britain could routinely jail and intimidate peaceful protesters, as Chinese police did to silence democratic voices of dissent during the 2008 Beijing Olympics, at the 2012 London Olympics.

While fundamental rights began to emerge from the thirteenth century, and would become one of the pillars of our liberal democracy, they were not conceived in isolation – they were not the only pillar in the nascent democratic architecture. Magna Carta built on the emerging common law system, created by Henry II in the twelfth century and based on uniform and consistent courts respecting ‘precedent’ – the rulings laid down in previous cases. The common law underpins the rule of law in the UK – with the exception of Scotland, which operates a civil law system – but is also inextricably interwoven with the idea of freedom under law. It is based on a unique and powerful presumption of liberty, the presumption that the individual is free to do anything that has not been expressly forbidden or restricted by law.

The Bill of Rights reinforced the rule of law, by entrenching law-making power in Parliament and restraining the exercise of legislative power by the Crown. It also helped mould a separation of powers between government, Parliament and the courts – a system of checks and balances to prevent any one branch of the state from dominating the others or abusing its power. The Act of Settlement 1701 later reinforced the separation of powers, bolstering both the role of Parliament and the independence of the judiciary.

Above all, the development of freedom under law and democracy in Britain went hand in hand, preserving the liberty of the individual and decentralizing power to the people. The Bill of Rights declared: ‘That election of members of parliament ought to be free’, and required that ‘for redress of all grievances, and for the amending, strengthening and preserving of the laws, parliaments ought to be held frequently’. The constitutional design was based on the election to Parliament of those mandated to make the law of the land. Slowly but surely, the number of people entitled to vote in elections expanded. A series of reforms, starting with the Reform Act of 1832 and culminating in the Representation of the People Act 1983, widened the electoral franchise. Women first received the vote in 1918, in recognition of the sacrifices made during the First World War, and the threshold age for men and women was eventually lowered to eighteen in 1969. The Parliament Acts of 1911 and 1949 further consolidated the power of the directly elected House of Commons, at the expense of the House of Lords.

In this way our fundamental rights were originally designed to support, reinforce – but also respect – the other building blocks of our democracy: the rule of law, separation of powers and parliamentary democracy. ‘Rights’ were not something separate from democracy, but part of it. It is a worrying feature of the modern debate that the expansion of new human rights increasingly runs against the grain of the rule of law and the principle of democratic accountability for law-making.

Civil war served as a powerful catalyst and, from the seventeenth century onwards, these constitutional developments both reflected and inspired an emerging tradition of liberal British thinkers. At first blush, Thomas Hobbes appears an unlikely liberal. A royal tutor, cynical about human nature and a determinist, Hobbes advocated firm governmental authority to rescue mankind from its natural, brutish and anarchic state. Nevertheless, he was one of the first to secularize the concept of political authority, resting it on the notional consent of the people rather than divine right. He developed the idea of a social contract, between ruler and ruled, at a critical juncture in our history. He represents an early pioneer of the principle of government by consent of the people – the basic idea underpinning all subsequent theories of democracy.

John Locke built on Hobbes’ early insights. He was the first British thinker to articulate a meaningful conception of freedom under law. He did not define with precision the list of freedoms he had in mind, let alone their content, but his general direction was clear enough: ‘[A]ll men may be restrained from invading others rights.’ In particular, no one is permitted, unless for the purpose of giving effect to justice, to ‘take away, or impair…the life, the liberty, health, limb or goods of another’. Those words left their historical mark, providing the formula adapted by Thomas Jefferson to the ‘unalienable Rights’ of ‘Life, Liberty and the pursuit of Happiness’ set out in the United States Declaration of Independence. If Magna Carta and Bill of Rights strengthened the protections of the citizen from government, Locke extended this idea to include protection of our fundamental freedoms from other threats to individual liberty – whether from repressive laws duly passed in Parliament, or wider abuse from intolerant quarters of society. Today, whether it is taking a stroll round the block, voicing displeasure at politicians or just exercising the typically British prerogative of keeping oneself to oneself, we are taking advantage of this basic idea of liberty inherited from Locke.

Locke’s ideas on personal freedom were not set in a vacuum, but tied to his theory of social contract, woven together by his views on political constitution. He wrote: ‘…freedom of men under government is to have a standing rule to live by, common to everyone of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man’.

For Locke, liberty was inextricably linked to the rule of law. He recognized that government, Parliament and the courts were all capable of abusing their powers. He justified a separation of powers precisely ‘because it may be too great a temptation to human frailty apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them’. So, too, the rule of law needed ‘indifferent and upright judges, who are to decide controversies by those laws’. Locke was one of the first to foresee the importance of maintaining a balance between the powers of government, Parliament and the courts.

Britain may not have a written constitution, and there is no formal or rigid separation of powers, but as a senior judge in the House of Lords has described: ‘[it] is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts each have their own distinct and largely exclusive domain’. In recent years, that basic constitutional division of labour has come under increasing strain. Outspoken judges have been more and more critical of government policy. Ministers in turn have issued scathing remarks about the criminal sentences handed down by the courts. The Human Rights Act has blurred the lines of responsibility between all the three branches of the state. And the government has regularly been accused of marginalizing Parliament, particularly with respect to the conduct of foreign policy and the loss of parliamentary law-making powers to the EU.

If Locke is the point of departure for modern liberalism, John Stuart Mill developed his conception of individual liberty two centuries later, strengthening the case for protecting the citizen from the ‘tyranny of the majority’ as well as that of the state. Mill’s central principle remains relevant today: ‘[T]hat the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’

Mill warned against the ‘despotism of custom’ and embraced the ‘diversity of character and culture’. His vision was a pluralistic society where individuals experiment as they wish with ideas, beliefs, practices and the general business of running their own lives. His defence of liberty was based on both its value to the individual and to society, as he directly identifies one with the healthy development of the other: ‘[I]t is important to give the freest scope possible to uncustomary things, in order that it may in time appear which of these are fit to be converted into customs.’

When Mill defends particular liberties, such as the freedoms of thought, religion and speech, he also has firmly in mind a wider benefit, beyond the individual, that comes from guaranteeing the expression of competing views. His comment, ‘[h]e who knows only his side of the case, knows little of that’, shows his concern with the ossifying of lazy, untested opinions into dogmatic truths. Mill explicitly links the competition of ideas – made possible in a vibrant, free society – with human development and social progress. His instinctive hostility to paternalism remains an enduring influence on the modern debate about limits of interference by the nanny state in our daily lives, whether it is the smoking ban, rules on parents smacking their children or the introduction of compulsory ID cards.

Mill’s idea of freedom was built on a mistrust of government, even the democratic kind. He recognized that a free country needs more than just elections. It needs to preserve and protect individual liberty. As the American Founding Father Benjamin Franklin quipped: ‘Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.’

If Mill acknowledged the limitations of formal democracy, it was Isaiah Berlin who was honest about the limits of liberty. An Oxford don for most of his professional life, Berlin was born and raised in (what was then) Russia until the age of twelve. He witnessed the Russian Revolution and, as a Jew, felt keenly the horrors of German fascism. His hometown, Riga, was situated along one of the battle lines of the Cold War. Berlin rejected the idea that there was a single coherent theory of life, history or human meaning. He described the belief that ‘there is a final solution’ to the great philosophical questions in life – with the theories that underpinned both communism and fascism firmly in mind – as bearing the greatest responsibility for ‘the slaughter of individuals on the altars of the great historical ideals’. He recounted Immanuel Kant’s adage that ‘from the crooked timber of humanity no straight thing was ever made’. From this conception of history and life, Berlin made the case for pluralism and liberty. He defined and defended ‘negative freedom’, which he associated with fundamental liberties and collectively characterized as ‘the area within which a man can act unobstructed by others’. But he was not dogmatic, recognizing that the precise parameter of an individual’s rights was a ‘matter of argument, indeed haggling’.

Berlin was just as clear about the limitations of relying on liberty. Responding to the classic riposte that freedom so narrowly defined means nothing to the poor peasant or starving child, he readily agreed: ‘Liberty is not the only goal of men’ – and might not mean much to those living in poverty or squalor. Nevertheless, Berlin argued, it was preferable to discount the relevance of liberty – as an inadequate answer to social inequality – than confuse it with some wider mission to achieve social justice, let alone try to expand its scope to incorporate the latter: ‘Everything is what it is: liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.’

Berlin defended the British idea of liberty, but he kept it in perspective. He acknowledged the need to weigh liberty against other aspects of the public interest – today brought into sharper focus by the demands on law enforcement in fighting crime and terrorism. Perhaps most importantly, Berlin recognized that liberty is not the only – or even the most important – thing we value in life. You cannot pay the mortgage with habeas corpus or raise a family standing on a soap box at Speaker’s Corner in Hyde Park. Most of us will never need to rely on the safeguards that make a criminal trial fair. Berlin defended liberty as a pillar of our liberal democracy, but was under no illusion that it could somehow eradicate social inequality, cure cancer or stop global warming. At a time when every gripe and grievance in modern life can be dressed up as a violation of someone’s human rights, Berlin reminds us of the risks of inflating rights and presenting them as a panacea for every ill in the world.

These, and many other influential thinkers, contributed to the philosophical, historical and constitutional development of a unique British model of liberal democracy, a model in which freedom under law supports and reinforces a system of parliamentary democracy. Our civil and political liberties represent the first and fundamental freedoms we enjoy as citizens of this country. They are the crown jewels of our liberal democracy, carving out an area of autonomy, free from the interference of the state, which is enjoyed by every individual as of right.

We take advantage of British liberty without thinking about it. We spend most of our waking lives preoccupied with making a living, paying the bills, spending time with friends and family and pursuing the range of things that give value and meaning to our lives. Yet, in an increasingly apathetic age, it is worth recognizing the extent to which such carefree indifference is the privilege of living in a free country. The ability to dislocate ourselves from politics, public debate and the prying eye of the state is a testament to freedom under law, which has traditionally been protected in Britain and is now under threat. Even if we take our freedoms for granted, much of what we do on a daily basis is dependent upon liberty, or would soon vanish without it.

The freedom to switch off and get on with our lives unmolested is not something that happened by accident. The apathy option was won through great sacrifice. It took seven hundred years of inspiration, perspiration and, above all, struggle to crystallize the British idea of – and commitment to – liberty, in clearer and sharper form. As one historian summed up, it ‘cost blood, and took centuries’. In 1939, Churchill characterized and inspired Britain’s lonely defiance of the totalitarian menace sweeping Europe in terms of:

a war, viewed in its inherent quality, to establish, on impregnable rocks, the rights of the individual…a war to establish and revive the stature of man.

During that war alone, hundreds of thousands of British soldiers and civilians died, an immense sacrifice for the liberties we leisurely enjoy today. While the British commitment to liberty withstood the assault from fascism, it faced another serious – and more sustained – onslaught, this time from the authoritarian left.

Writing around the same period as Mill, Karl Marx was contemptuous of the idea of liberty evolving in Britain in the nineteenth century. For Marx, rights epitomized a corrupt egoism, separating the individual from his real identity, absorbed as part of society: ‘Liberty, therefore, is the right to do everything that harms no-one else…It is a question of the liberty of man as an isolated monad withdrawn into himself.’

Marx argued that the individual would only be free once he conceived himself in terms of a wider collective. Marx criticized rights as purely formal legal constructs, divorced from any real or meaningful content – a right to property is meaningless to the homeless, free speech of limited value to the starving. In fact, liberty was worse than irrelevant because it crystallized unjust – middle-class – privileges at the expense the working class. As Lenin claimed: ‘Freedom in capitalist society always remains about the same as it was in ancient Greek republics: Freedom for slave owners.’

Marx’s theory of class struggle was based on the imperative to realize the real needs of humankind rather than the artificial attachment of a liberal and bourgeois elite to an arbitrary selection of formal rights that perpetuate an unjust status quo.

Fellow communists like Engels asserted – somewhat counter-intuitively – that ‘Freedom is the recognition of necessity’. The logical implications for the individual were sobering. Individual worth must be subordinated to the overriding imperative driving a Marxist society towards inevitable class struggle and revolution. Real freedom can only be achieved by recognizing and participating in that emancipation of the downtrodden from the shackles of capitalism.

Built on these philosophical foundations, socialism and communism were constructed in direct and aggressive antagonism to individual liberty. Marxism is all too willing to sacrifice the individual for the collective good. Communist revolutionaries were thereby given ample ideological justification for repressing individual liberty, captured by Lenin’s cold observation that: ‘Liberty is precious – so precious that it must be rationed.’

Armed with this moral justification, communist governments across the world routinely engaged in the most egregious human rights abuses throughout the twentieth century. This dogmatic ideological commitment to the collective allowed the most basic individual liberties to be easily brushed aside. It is estimated that the Soviet regime killed almost sixty-two million over a seventy-year period in the name of the socialist revolution, twenty million of whom died under Stalin. Some were executed, some died during famines precipitated by coercive Soviet economic policy and others perished in the gulag or working on slave-labour construction projects. Communist China’s Great Leap Forward, between 1958 and 1962, created mass famine that killed between twenty and thirty million. Yet neither Stalin nor Mao could match the Khmer Rouge for pure ferocity. The Khmer Rouge slaughtered two million out of eight million Cambodians – a quarter of the entire population – in an effort to purify Cambodia of all bourgeois influences and drag the country towards the mirage of communist utopia.

Subsequent communist governments recognized the atrocities of earlier regimes, perpetrated in the name of socialist revolution. Deng Xiaoping declared that Mao had only been 70 per cent right and Khrushchev criticized Stalin’s reign of terror. But such abuse of power was explained as a misapplication of socialism. Ironically, Khrushchev blamed the individualism of the Stalinist cult – rather than the totalitarian state – for ‘mass repressions and brutal acts of violation of Socialist legality’. Stalin’s excesses did not give grounds for an ideological shift – Marxism and liberty remained incompatible and irreconcilable – leaving intact the ideological weapon with which to attack personal freedoms.

During the Cold War, communist governments also relied on the Marxist conception of freedom to avoid signing up to human rights treaties. Two international human rights lawyers summarized the relationship between socialism and human rights: ‘Since the State by definition represents the interests of the people, the citizens can have no rights against the State…The socialist State expresses the will of the mass of the workers, and the individual owes it absolute obedience.’

Throughout this period the Soviet Union and other communist governments relied on their very different conception of freedom, and their cynical view of individual liberty, to avoid assuming any international human rights obligations under the guise that they would ‘interfere with domestic affairs’ and ‘sovereignty’.

However, the spread of socialist ideas beyond the Soviet bloc generated a number of treaties providing for social and economic rights, a more subtle reflection of the Marxist critique that civil and political liberties did not address people’s real needs. The International Covenant on Economic Social and Cultural Rights 1966 included rights to work, a fair wage, healthcare, education, the right to take part in cultural life and the right to enjoy the benefits of scientific progress. In reality, the Covenant reflected aspirations not rights. These new rights could not be judicially enforced in domestic courts in the way that, for example, illegal detention can be challenged or the right to protest asserted in specific cases.

This attempted compromise, coupling civil and political liberties with other ‘rights’, was reflected in the approach of continental European governments, which had historically, philosophically and culturally been much more susceptible to socialist influence. The development of social democratic movements on the continent can be seen as an attempt to forge a compromise between the two conceptions of freedom that otherwise stand in clear and unequivocal conflict with each other. The influence of this attempted synthesis – between Marxism and liberalism – has extended beyond domestic politics, to the development of a common European identity through the supranational institutions of the Council of Europe in Strasbourg and the EU in Brussels.

In Britain these twin strands of socialism lay beneath the surface of the New Labour project that swept Tony Blair into power in 1997. Both ran against the traditional grain of British liberty. Marx had a less powerful, but nonetheless enduring, influence in Britain. New Labour had successfully concealed, rather than extinguished, the orthodox brand of socialism, and Tony Blair managed formally to dislocate the Labour Party from the dogma of public ownership of the means of production during his famous ‘Clause Four’ moment in 1994. Nevertheless, the Labour Party’s updated constitution still stubbornly described it as a ‘socialist’ party.

Looking around the table at Tony Blair’s new Cabinet of Ministers in May 1997 and more broadly across the corridors of power in Whitehall, a surprising number of ministers and key advisers, including John Reid and Peter Mandelson, were formerly Communist Party members, allies or associates – including two Home Secretaries, until recently the cabinet minister responsible for the Human Rights Act. Other cabinet ministers with previous communist or Trotskyite connections include Charles Clarke, Stephen Byers and Alan Milburn. Marxism had been a key influence on them during their formative years, and once in power they were not passive bystanders. They propelled the New Labour agenda and rose rapidly through the ministerial ranks. Given the Marxist antagonism towards individual freedoms, they were unlikely to provide an instinctive defence of British liberty, and more likely to join – if not drive – the imminent assault.

If what one commentator has called the ‘liberty reflex’ was replaced with a Marxist disposition amongst a leading cabal in government, there was a further – more surreptitious – thread running through the New Labour machine, most notably Tony Blair, which would further erode the British tradition of liberty from an altogether different direction. The new Prime Minister was determined to ‘lead in Europe’, putting Britain at the vanguard of European policy-making after years of Conservative foot-dragging. While successive administrations had sought to ignore the growing irritant created by adverse rulings, and the increasing rate of dubious case law, from the European Court of Human Rights in Strasbourg, the incoming government took active steps to increase the flow by enacting the Human Rights Act in 1998, thereby incorporating the European Convention and all its case law directly into UK law. The government was palpably relaxed about the prospect of importing the European approach to human rights, grounded in the social democratic tradition. It ignored the risk of diluting the British liberal tradition through an expansive European approach to human rights that pursued social and economic justice, exponentially extending the scope of ‘rights’ and inflating – rather than restraining – the role of the state.

While ideological baggage and European strategy boded ill for British liberties, New Labour tactics would only make matters worse. Tony Blair, Gordon Brown and the other architects of New Labour correctly calculated that winning back public confidence in the Labour Party meant seizing the centre ground of politics. In order to achieve this, a policy of triangulation was constructed. In crude terms, the electoral plan of attack involved dumping the most obvious outward trappings of the party’s socialist heritage, outflanking the Conservative Party by matching, if not surpassing, its tough stance on crime and security and promising Labour’s grassroots supporters a step change in investment in public services – a more subtle and publicly palatable means of redistributing a large volume of the nation’s wealth than a sustained programme of nationalization.

The second element in this equation would tempt the government, time and time again, to embark on grandiose security gestures that rode roughshod over fundamental liberties with negligible countervailing benefits in terms of public safety. The third element, massive additional spending on public services, would harness the expansion of the idea of human rights, well beyond anything previously recognized in Britain, as a visible vehicle for claiming credit for fighting the social injustice that New Labour claimed to have inherited from the Thatcher years.

The outcome of the election in May 1997 added a further practical consideration, which strengthened the government’s hand in the looming assault on liberty. Having secured a landslide overall majority of 179 seats in the House of Commons, the new administration was well placed to force through virtually any legislation without serious risk of defeat. The sheer volume of new criminal law and security measures, introduced by the new government over the course of a decade, would displace the common law presumption in favour of personal freedom that held sway in this country for centuries.

In this way, a constellation of disparate factors gathered that would pose the most serious threat to the British legacy of liberty in post-war history. Built from scratch, nurtured and defended – through periods of monarchical despotism, civil war and attempted foreign invasion – ancient British freedoms found themselves under siege from an unconventional and unscrupulous wolf in sheep’s clothing. The previous rough consensus on the minimum fundamental rights of the citizen – shared more or less by successive Conservative and Labour governments – was cast aside, as the new Labour administration prepared to embark on a relentless and historically unprecedented assault on British liberty.

PART II WHERE DID RIGHTS GO?

2 Security versus Liberty

‘We must plan for freedom, and not only for security, if for no other reason than that only freedom can make security secure.’

KARL POPPER

Since New Labour came to power Britain has suffered a sustained attack on its tradition of liberty, with the government regularly claiming that stronger measures are justified to strengthen our security and make us safer. This unprecedented assault on our fundamental freedoms has been waged on diverse fronts, with justifications clustered around three principal rationales.

First, the government has argued that decisive action is needed in response to a unique danger, namely the terrorist threat posed by al-Qaeda and related fanatical groups. Second, it has justified its actions in the sphere of law enforcement and criminal justice on the basis of the overriding imperative to cut crime and tackle anti-social behaviour. Third, it has massed a range of powers to watch, intercept and gather private details on its citizens on the basis that such inroads on our privacy will make the individual, and our society as a whole, safer. The common denominator is the assumption that, when push comes to shove, security can be traded for – and should be prized above – liberty, a tough but necessary choice that many, at least at first sight, may intuitively be inclined to accept.

The difficulty with this analysis is that liberty and security are rarely stark alternatives or juxtaposed choices. The government has assumed the existence of a hydraulic relationship between freedom and security, a zero-sum game in which we have a genuine choice to pay a price in terms of our personal freedom, in order to yield a security dividend that provides greater public protection against violent crime and terrorism. But is the real world that straightforward, and does this paradigm provide more than a simplistic gloss, a political crouch that obscures a more complex picture? Draconian measures will always undermine liberty. But there is scant evidence that they have made us safer.

An alternative assessment, supported by a growing body of evidence over the last eleven years, is that the government’s attack on our core freedoms has not yielded any clear, significant or demonstrable security dividend; indeed, it has often had the reverse effect, jeopardizing rather than strengthening our security.

In the field of counter-terrorism, the government’s approach has fixated on a number of high-profile gestures, including extending detention without charge for terrorist suspects, introducing control orders and pressing ahead with ID cards, amongst a package of other authoritarian measures. While the government has moved to raise the limit on pre-charge detention sixfold since 2003, the rate of home-grown radicalization and the numbers involved in terrorist-related activity have only grown faster, at a current rate of 25 per cent per year according to MI5 – hardly the symptoms of successful policy.

When it comes to fighting crime, the government has created more than three thousand new criminal offences and attacked fundamental pillars of British justice, including the presumption of innocence and the right to trial by jury. Yet, at the same time, violent crime has nearly doubled, the UK has the second highest crime rate in Europe and fatal stabbings and gun violence have surged.

Nor has the exponential increase in surveillance powers by the state improved public safety. Eighty per cent of CCTV footage is not fit for purpose. The government loses personal data on a regular basis, exposing those it is charged to protect to unnecessary risk. And, far from helping police to crack down on fraud, one Chief Constable predicts the government’s flawed proposals for ID cards will set the ‘gold standard’ target for criminal hackers.

As one commentator, Jenny McCartney, characterized the approach:

A pattern is emerging in the way that Britain deals with any kind of threat…It acts like a terrified but sieve-brained householder who tries to foil prospective burglars by putting expensive, complicated locks on the top windows while frequently leaving the back door swinging open…

The Faustian bargain that New Labour has traditionally offered the public is that we should submit to ever more intrusion in exchange for greater security. What we are getting now is intrusion and insecurity – and even Faust managed a more attractive deal than that.

Time and time again since it came to power in 1997 the government has presented tough measures that infringe fundamental liberties as a price worth paying to make the public safer. The serious charge to be laid against this government is that its confused approach has been driven as much by considerations of PR as national security. The government has deployed increasingly dramatic rhetoric with each new announcement, heralding serious inroads on our fundamental freedoms, with precious little improvement in public protection to show for it. Far from offering a finely balanced trade-off, or even a Faustian bargain, the government’s approach has turned out to be a straight con – leaving us both less free and less secure.

We have become accustomed to national security being regularly cited as one of the main grounds for sacrificing individual liberty, particularly in the aftermath of 9/11 and subsequently the 7/7 attacks in London. Yet Britain has faced serious threats to its national security before, without knee-jerk resort to such far-reaching, unfocused and permanent measures that seek to redefine the fundamental balance in the relationship between the citizen and the state.

During the Second World War identity cards and internment were introduced in the face of global war and direct military attack. In 1940, faced with the Blitz and the real prospect of a Nazi invasion, the government interned a range of ‘enemy aliens’, principally Italian and German civilians living in Britain. Around eight thousand were detained although most had been released by 1942 and the legal basis was revoked at the end of the war. Yet, as A. C. Grayling notes, from 1940, faced with an imminent invasion by Nazi Germany, temporary measures were taken that undermined individual liberty. In contrast today, ‘in face of a far lesser threat’, Britain is ‘enacting permanent legislation of even more draconian kinds’.

Churchill only reluctantly introduced temporary wartime measures that infringed individual liberty, removing them once the immediate exigencies allowed. When Oswald Mosley, the notorious Nazi sympathizer, was released from internment in 1943, Churchill sent a telegram to the Home Secretary justifying the decision in the following terms:

[T]he great privilege of habeas corpus, and of trial by jury, which are the supreme protection invented by the English people for ordinary individuals against the State…The power of the Executive to cast a man into prison without formulating any charge known to the law and particularly to deny him the judgement of his peers – is, in the highest degree, odious and is the foundation of all totali tarian governments…Extraordinary powers assumed by the Executive with the consent of Parliament in emergencies should be yielded up, when and as, the emergency declines…This is really the test of civilisation.

Faced with a very real threat to national life, in one of the darkest moments in British history, the government of national unity took finite and temporary measures to meet the specific, overwhelming and undeniable threat.

Since then, our fundamental freedoms have come under periodic strain, most regularly in the context of the struggle against terrorism. The conflict in Northern Ireland lasted for around thirty years and cost 3500 lives, including more than 1800 civilians. Britain undoubtedly faced a real and sustained terrorist threat, and the government took measures against IRA terrorism that incurred human rights challenges and political controversy – including, most notably, the use of internment and Diplock courts (the latter allowing criminal trial of those accused of terrorist suspects without juries). Nevertheless, over a thirty-year period, internment lasted for only four years and withstood legal challenge at the European Court on Human Rights, which accepted that it had been required by the exigencies of an emergency situation. In practice, internment proved a disaster – fuelling the resentment and violence it was introduced to contain – and was replaced for the rest of the conflict with a maximum limit of seven days’ pre-charge detention, a fraction of the maximum period now in place in Britain.

Equally, Diplock courts were used between 1973 and 2007 because of the clear and serious threat of witness intimidation amidst the sectarian conflict, which successive governments – of both main parties – accepted was undermining efforts to bring criminal prosecutions against those accused of paramilitary violence. While a judge replaced the jury as the trier of the facts in these cases, the measure applied to paramilitary groups on both sides of the conflict, trials remained public and were subject to appeal.

The conflict threw up a range of other human rights controversies – including miscarriages of justice arising from police misconduct (such as the Birmingham Six and Guildford Four) and criticism of the shooting by British special forces of three IRA members in the course of trying to set off a bomb in Gibraltar.

Beyond the conflict in Northern Ireland, the Spycatcher episode arose out of the government’s attempts to ban the publication of a book written by Peter Wright, a former MI5 officer, between 1987 and 1988. The book was published in the US and Australia and the government was eventually defeated in its attempt to prevent publication and bring related claims against the Sunday Times and Guardian.

No previous government can claim a perfect record on civil liberties, yet it is difficult to avoid the impression that the deliberate and concerted assault on liberty throughout the last decade has been without precedent – of a different order of magnitude to the ad hoc incursions that preceded it.

While the new government introduced a range of repressive new measures from 1997, the most serious attack on fundamental liberties in the name of national security took place after 9/11, when the government sought to introduce indefinite detention without charge for foreign terrorist suspects, and gathered momentum with its hastily put together response to the London bombings in July 2005. At a press conference less than a month after the dust had settled on the attacks in central London that left fifty-two people dead and many more seriously injured, Tony Blair reacted with a list of twelve new security measures, announcing a radical change of approach: ‘Let no one be in any doubt, the rules of the game are changing.’

With this dramatic gesture before an audience of journalists, the then Prime Minister ostentatiously signalled that the struggle against terrorism would no longer be shackled by the traditional safeguards that protect those suspected – but not yet convicted – of involvement in any crime. In the years that followed, the government would introduce a range of measures that would undermine British liberty in the name of fighting terror. Proposals for ninety-day detention without charge, control orders amounting to house arrest, compulsory ID cards and a slew of measures that stifle free speech were proposed as the necessary means of countering the rising threat of al-Qaeda-related terrorism in Britain.

New laws were rapidly formulated and presented by a government desperate to find a legislative way to demonstrate its security credentials in the wake of two terrorist attacks on the capital. Reactive legislation was broadly – and poorly – drafted, often rushed through Parliament under pressure of time that prevented proper scrutiny. Almost inevitably, the new powers were widely construed, without clear focus, which both blunted their operational effectiveness in countering terrorism and left them susceptible to abuse by law enforcement officers acting under operational pressures.

Looking back at Tony Blair’s press conference in August 2005, it is instructive to note the fate of the twelve-point plan he announced, each measure of which was hailed as ‘either being taken now, immediately, or under urgent examination’. Many of the eye-catching measures rushed out were quietly abandoned or rendered unworkable – Hizb ut-Tahrir has not been banned, grounds for deportation have been restricted not expanded, the idea of a maximum time limit on extradition dropped and border controls remain porous.

Equally, while the most repressive measures proposed – control orders, the offence of glorification of terrorism and extending pre-charge detention – have generated political controversy and threatened or undermined individual liberty, they have subsequently proved to be of minimal security value, if not outright counter-productive.

Of the string of measures announced, none posed a greater danger to British liberty than the new proposals to extend detention without charge, a serious threat to the ancient right of habeas corpus. In 2003, the previous seven-day limit on detention without charge – which had proved adequate for dealing with Irish terrorism for the past twenty years – was doubled to fourteen days, in response to the terrorist attacks on 9/11. While all other serious criminal cases remained subject to a four-day limit (including drug trafficking, organized crime and complex fraud cases), in 2005 Tony Blair sought to extend the time limit in terrorism cases to ninety days, offering no credible evidence as to why yet another massive increase was necessary to protect the public. In November 2005 the ninety-day proposal was rejected, Blair’s first ever parliamentary defeat, but the limit on pre-charge detention was increased to twenty-eight days – as an extraordinary emergency power to be used only in the most exceptional of circumstances.

While the proposals were rushed through without an opportunity for thorough scrutiny, evidence made available since suggests that some increase in the powers of police detention beyond fourteen days was necessary to deal with the increased terrorist threat and the growing number, and increasing complexity, of cases under police investigation. Basic details of the number of suspects and volume of evidence in police counter-terrorism investigations demonstrate some of the operational pressures on police and prosecutors. This was backed up by public briefings from the Security Service, MI5. In 2006, the Director General of MI5 spoke publicly of thirty terror plots threatening Britain and 1600 individuals under surveillance. By 2007, her successor had revised that risk assessment – the Security Service was now monitoring at least two thousand individuals thought to be involved in terrorism – and estimated that there might be a further two thousand they were unable to track.

Nevertheless, the government also increasingly relied on the shroud of secrecy that covers the work of our counter-terrorism authorities to avoid explaining the reasons for extending the powers of the police to hold suspects without charge. And while it has demonstrated an insatiable political appetite for extending the maximum period still further – beyond twenty-eight days – it has not offered any convincing evidence to demonstrate that such a step is necessary.

Between 2005 and 2008 the government put forward numerous proposals to extend the detention without charge beyond twenty-eight days. Seemingly plucked out of the air, proposals for fifty-six, fifty-eight, ninety days and even indefinite detention without charge were all mooted – with the government settling on forty-two days in the face of widespread scepticism from Parliament and the wider public. Despite some indications that Gordon Brown might prove less cavalier as Prime Minister than his predecessor, he made clear his intention to press ahead soon after taking office in June 2007. The government forced the legislation through the House of Commons on 11 June 2008 by nine votes, despite a major revolt by Labour backbenchers and amidst widespread reports of reticent MPs being bullied or offered financial inducements to silence their dissent. One estimate put the price tag on securing the vote as high as £1.2 billion. In October, the forty-two days proposal was subsequently mauled from all sides in the House of Lords. The Home Secretary reacted by accusing all those opposed to forty-two days of ignoring the terrorist threat and withdrawing the proposal from the Counter-Terrorism Bill. Yet at the same time, she published a separate new proposal, with even wider powers to extend pre-charge detention to forty-two days, and threatened to force it through Parliament in the event of another terrorist attack – an irresponsible display of sublime political brinkmanship.

While the government cites police support for forty-two days, the equivalent of a short prison sentence, it has failed to articulate any persuasive justification or present any evidence to back up its case. Nor has it explained why other less repressive measures would provide inadequate alternatives. Instead of presenting a compelling case on the merits, the government has relied on popular nervousness after the 7/7 bombings and the – increasingly abused – public trust that the government would not seek additional security powers unless it was absolutely necessary.

So what is the strength of the case for extending detention without charge in Britain beyond twenty-eight days? A cursory comparison with international practice is revealing. At twenty-eight days the UK already has by far the longest period of pre-charge detention amongst comparable democracies. In Europe, France permits only six days’ pre-charge detention and Germany only two. While the continental justice systems operate differently, these represent the limits on the period of detention without formally laying charges before an accused. In common law countries with a justice system more closely comparable to our own, Australia allows twelve days’ pre-charge detention, New Zealand two and Canada just one day. In the US, after the horrors of 9/11 – and two terms of President George W. Bush’s war on terror – two days’ pre-charge detention has proved more than adequate in dealing with ten recent complex terrorism investigations. Outside the democratic world, Russian law only allows the police to hold suspects for five days, Zimbabwe only allows twenty-one days’ detention and even China only allows police detention of suspects for thirty-seven days. Britain, once a beacon of liberty, now has the longest period of detention without charge in the free world.

If international comparisons suggest that forty-two days is excessive, experience at home points to the same conclusion. While the security environment in Britain has changed in recent years, none of the counter-terrorism investigations in the UK to date have demonstrated the need for a longer period. Twenty-eight days was enough to comfortably deal with the most complex terrorism case we have ever faced, the plot to blow ten transatlantic airliners out of the sky at Heathrow in August 2006. If successful, it would have been the worst terrorist attack in British history, almost certainly causing a greater number of casualties than the attacks in the US on 9/11. Operation Overt, the police investigation that followed, was certainly complex – involving close cooperation with international partners, sifting large amounts of evidence (including computer hard drives and forensic analysis) and reviewing a wide range of suspects. It was held up, on both sides of the debate, as the litmus test case for scrutinizing whether the police can cope with a twenty-eight-day limit.

During Operation Overt, twenty-four suspects were arrested and seventeen were charged with terrorism offences. Of the twenty-four arrested all of those charged with the more serious offences of conspiracy to murder and conspiracy to blow up aeroplanes were charged within twenty-one days of arrest. Five were detained on lesser charges of ‘acts preparatory to terrorism’ (and other related offences) to the maximum limit of twenty-eight days.

The five held for twenty-eight days formed the crux of the government’s case for an extension of the time limit. Ministers claimed the police were coming perilously close to having to release terrorists, because they were running out of time to gather the necessary evidence to charge them. But do the facts back this up? Of the five held for twenty-eight days, three were released without any further conditions. They were not placed under any restrictions on release. They were not subject to a control order, or any other related measure, limiting their movements or activities – the clearest indication that, by that point, they were now believed to be entirely unconnected with any terrorist activity relating to Operation Overt. So, the three innocent suspects released after twenty-eight days do not provide evidence that the government needs a longer period of detention to prevent real terrorists from walking free.

However, two of the five suspects were charged at the end of the twenty-eight-day period. But, in both cases, the Metropolitan Police and Crown Prosecution Service subsequently confirmed that the evidence relied upon to charge them was obtained within four and twelve days of arrest respectively. Furthermore, both suspects were subsequently bailed, which no court would conceivably have allowed if they posed a threat to public safety. The Home Secretary, Jacqui Smith, and the Minister for Security, Tony McNulty, both persistently denied these facts when they were presented to them in the House of Commons. At best, they failed to test the evidence presented to them by the police with the rigour to be expected of ministers. At worst, they disregarded – and then denied – key facts that they found inconvenient as they struggled to make the case for forty-two days. Either amounts to a serious dereliction of ministerial duty. The fact remains that, in the most challenging terrorism investigation the UK has ever had to deal with, police obtained all the evidence necessary to charge all the suspects within twenty-one days – not twenty-eight let alone forty-two days. There was never any risk that the police would have to release a serious terrorist suspect – posing a threat to the public – as a result of the twenty-eight-day limit.

On the contrary, as the Director of Public Prosecutions (DPP) made clear for all counter-terrorism investigations carried out under the twenty-eight-day limit, the law enforcement authorities coped comfortably. Far from being ‘up against the buffers’ operating within the twenty-eight-day limit, as one senior police officer would later irresponsibly claim, the twenty-eight-day maximum limit gave the police ample time to gather the evidence required to make the decision to charge or release, even in the most exceptional of cases. There has been no other evidence or cases – suggested or adduced – that support the case for extending detention without charge beyond twenty-eight days.

This explains why senior law enforcement officials have refused to back yet another extension of the maximum limit – including the DPP, the senior prosecutor at the Crown Prosecution Service, Lord Goldsmith, the former Attorney General, and a range of senior police officers. While the Commissioner of the Metropolitan Police sought to justify the move, his support was based on a ‘pragmatic inference’ that cases are getting more complicated, rather than any particular evidence drawn from police operations.

Further insights into the operational challenges faced during Operation Overt would emerge later at the end of the first trial of eight of the central suspects, which concluded on 9 September 2008. None of the suspects were convicted of conspiracy to blow up aeroplanes, although three were convicted on the more general charge of conspiracy to murder. In the aftermath of the trial, recriminations began to emerge from police, prosecutors and Whitehall, dismayed about the failure to convict anyone of the specific plot to blow the transatlantic airliners at Heathrow out of the sky. Reports trickling through the media suggested that police had been forced to arrest the suspects pre-emptively, by nervous US officials scarred by the experience of 9/11. The arrests were carried out earlier than planned, before the plotters had purchased airline tickets and obtained new passports, which would have provided valuable additional evidence of the specific plot. If this is accurate, and pre-emptive arrests prevented the police and MI5 from catching the plotters red-handed, then no amount of pre-charge detention would be able to rectify that evidential opportunity lost.

In the wake of the verdicts, Andy Hayman, the former officer who ran Operation Overt, went public with a withering critique of the organization of counter-terrorism policing in Britain. He criticized the lack of effective cooperation between local police forces and the Metropolitan Police’s national counter-terrorism command, and went on to highlight a list of operational police failings that were impeding the counter-terrorism effort:

…the present arrangements are frequently clumsy: IT and communication systems are not always joined up; surveillance teams, armed response units and scenes-of-crime officers vary in expertise and capability; the lines of command and control become stretched…These factors are serious enough but they pale into insignificance compared to funding arrangements.

Hayman called for an overhaul of counter-terrorism policing. He was a supporter of ninety days’ pre-charge detention in 2005, yet in his post-mortem of Operation Overt he did not once mention the twenty-eight-day limit amongst the problems he had encountered during that investigation, or more widely.

Lacking any compelling evidence from Operation Overt or any other previous terrorism investigations that could justify an extension beyond the twenty-eight-day limit, the government shifted tack and speculated that Britain could conceivably face multiple attacks, each on the same scale as the Heathrow plot in 2006. This nightmare scenario envisaged five simultaneous attacks in Britain, each equivalent to 9/11. The scenario presented was entirely hypothetical. There was no evidence that it reflected a genuine risk analysis. Nor was there any explanation of how such elaborate, compound and complex plots could be hatched on British soil without alerting the police or security services well in advance.

Curiously, in its zeal, the government had overlooked its own legislation which already provides sweeping powers to deal with genuine national emergencies on that scale. The Civil Contingencies Act 2004 was explicitly designed to deal with terrorist threats, amongst other national emergencies. It allows the government to extend pre-charge detention beyond the twenty-eight-day limit by additional, and renewable, thirty-day periods. The extensions are subject to judicial review and parliamentary approval. If the government really needs this power, it must publicly state that there exists an emergency which makes it necessary to use it. If there existed a plot to blow fifty planes out of the sky – the hypothetical scenario posed by the government – there could be little doubt that there would exist a genuine emergency. It would also be both impossible and irresponsible to try to conceal the real situation for more than a few days. In practice, any public statement on the emergency would not need to be made in the immediate midst of a crisis. The government would just be required to make its statement before the expiry of the existing twenty-eight-day pre-charge detention limit. So, even on this hypothetical scenario, there was no need to extend the current twenty-eight-day limit – a reserve power was already in place, subject to robust safeguards.

Even human rights groups like Liberty and barristers, including David Pannick QC, confirmed that such broad emergency powers could be used, removing any conceivable justification for a further extension of the twenty-eight-day limit, even under the worst nightmare scenarios conjured up by ministers. However, the government rejected this analysis on two grounds. It suggested that there were technical difficulties in using the 2004 Act in this way. It also claimed that declaring an emergency would create panic. It is difficult to take either argument seriously. If there are technical difficulties in applying the 2004 Act, they could presumably be addressed through a minor legislative amendment providing the clarity required. Equally, the British public are not known for their disposition to panic, whether during the Blitz of 1940, the campaign of IRA violence, the London bombings in July 2005, in the aftermath of the terrorist plot at Heathrow in August 2006 or during the attacks in Glasgow and London in 2007. On the contrary, British public reaction has been consistently characterized by composure and resolve. Furthermore, the government itself has hardly been shy about publicly briefing blood-curdling assessments of the terrorist threat. MI5 now regularly briefs on the thousands of terror suspects operating in the UK and the Metropolitan Police Commissioner referred to the future terrorist threat as the coming ‘epidemic’. The government’s refusal to consider its existing powers under the 2004 Act, and insistence on draconian new powers, demonstrates its preference for placing Britain under a permanent undeclared state of emergency – rather than a temporary and transparent one, if and when the strict necessity should arise.

Finally, faced with mounting opposition in 2008, the Home Secretary based her proposals for a forty-two-day maximum limit on what she referred to as a ‘precautionary principle’. The precautionary principle is derived from environmental law, which presents a rather different set of challenges to counter-terrorism. There has been no explanation of why this environmental principle is relevant or what it might mean in the context of terrorism. It appears little more than a thin veneer to allow the government to keep returning to Parliament for additional police powers on the basis of an unspecified threat that may or may not materialize at some indeterminate point in the future.

While there is not a shred of hard evidence to support the case for extending detention without charge beyond twenty-eight days, the government has encouraged a common, but wholly misleading, assumption that extending pre-charge detention would help deal with the classic ‘ticking bomb’ scenario – that we need longer than twenty-eight days to hold terrorist masterminds or suicide bombers who might otherwise abscond to launch a terrorist attack. In fact, experience suggests the opposite. The key players in a terrorist plot are, in practice, the least likely to be held for the maximum period of detention without charge, because they are the suspects that tend to be questioned and investigated first. During Operation Overt, all the alleged ringleaders were arrested and charged within twenty-one days. It was only those either subsequently released (without further suspicion) or charged with lesser offences that were held for twenty-eight days.

This case illustrates an emerging trend: it is precisely those most likely to be innocent or least involved in a terrorist conspiracy who are most likely to be held for the longest period of detention. Far from being necessary to deal with imminent threats to public safety or terrorist masterminds, extensions of pre-charge detention are generally used to follow up secondary leads and suspects. Each extension of the maximum period of detention risks exacerbating this trend – delaying the point at which the police need either to charge or release those on the fringe of their investigation. It is often said that those with nothing to hide have nothing to fear, but the reality of police investigations suggests that those with nothing to hide may be most at risk from extensions of pre-charge detention.

If an innocent person is detained for weeks or months, the consequences can be personally disastrous, even if he is eventually released. The case of Lotfi Raissi demonstrates the devastating impact that prolonged detention without charge can have on a wholly innocent individual. Raissi was an Algerian-born pilot living in London. He was arrested in Britain after 9/11, because he had attended the same flying school as the bombers. US authorities accused him of having taught the 9/11 bombers to fly the planes that crashed into the Twin Towers in New York. The FBI quickly realized that this was unlikely to be true. However, the British police held Raissi in pre-charge detention awaiting extradition to the US on the flimsiest basis. He was not held on suspicion of terrorism offences but on trivial grounds, including that he had lied on his pilot’s licence by failing to reveal previous knee surgery – an allegation that was subsequently proved false as well.

It appears that the US authorities were still interested in questioning Raissi, but no longer thought it likely that he was involved in 9/11. The Court of Appeal in Britain later criticized both the US and UK authorities for deploying this ‘device’ to keep Raissi in detention without charge for over four months. The court went on to criticize the British police and the Crown Prosecution Service for ‘serious defaults’ in allowing this abuse of process. The court exonerated Raissi of all allegations, delivering a judgment that paved the way for him to seek compensation. The case shows how, in the wake of a terrorist attack, the police can come under considerable pressure to bend the law at the expense of a suspect who may prove to be entirely innocent.

In this instance an innocent man’s life was left in ruins. Raissi was twice stabbed by prisoners during his period of detention, because of allegations that he had links to the 9/11 terrorists. He suffered two nervous breakdowns under the strain and did not sleep properly for seven years. He lost his job and found himself blacklisted from finding a new one. He became entirely dependent on his family, although in the wake of his arrest both his wife and his brother’s wife also lost their jobs.

If extending pre-charge detention would undermine a fundamental freedom, with severe consequences for the innocent that are imprisoned – as half of all those held for twenty-eight days have been – there is an increasing number of warnings that, far from making us safer, an extension to forty-two days may actually jeopardize our security. In addition to criticisms by human rights lawyers and NGOs, a growing chorus of security experts have publicly declared their opposition to forty-two days – on the basis that it is either irrelevant as a security measure or actually risks making the terrorist threat worse.

While the government has consistently cited evidence from MI5 on the growing numbers involved in terrorism to bolster its case for forty-two days, it is striking that the current and previous two heads of MI5 have either criticized or refused to back an extension beyond twenty-eight days. In an interview in July 2007, the former head of MI5, Stella Rimington, made clear her opposition to an extension: ‘It behoves us all to question when governments want to bring in increasingly draconian measures.’

This was followed by further, more recent, criticism from her successor at MI5, Baroness Manningham-Buller, who declared she could not support the extension to forty-two days ‘on a practical basis or on a principled one’, arguing that the measure was both disproportionate and unworkable. The current Director General of MI5, Jonathan Evans, also refused to publicly back forty-two days. The subsequent riposte from ministers – that MI5 is not responsible for pre-charge detention – flies directly in the face of its regular reliance on MI5’s assessments, not to mention Tony Blair’s public claim in August 2005 that MI5 had then asked for an extension. The reality appears to be that MI5 positively backed an extension beyond fourteen days – but refused to back an extension beyond twenty-eight days.

There is further disquiet within the ranks of the police. Chief Constables and other senior officers have expressed their opposition or reservations in private, with senior officers at the Metropolitan Police letting it be known that the forty-two-day proposal is unworkable, and therefore either irrelevant or counter-productive as a security measure.

Other experts warn against two specific risks generated by prolonged detention without charge. First, the disproportionate effect on innocent young Muslim males risks creating widespread resentment and serving the twisted narrative that extremists and terrorists thrive on – Britain targeting Muslims at home as well as abroad in Iraq and Afghanistan. Such draconian measures alienate whole communities, nurturing the friendly sea within which terrorism thrives. In short, a further extension beyond twenty-eight days risks serving as a recruiting sergeant for terrorism.

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.

In a further round of government proposals aimed at prohibiting offensive language being used against minorities, ministers brushed aside objections on the grounds of free speech to produce proposals to outlaw inciting religious hatred. Accused of excessive political correctness, the government was originally defeated when it sought to ban incitement to religious hatred with a definition so broad that it risked having a chilling effect on legitimate topics of religious debate. A diluted version of the law was eventually adopted in 2006. It avoids criminalizing language which is merely abusive or offensive, and requires an intention to threaten another person on religious grounds – which would already render the language unlawful under existing law. However, the dilution of the new criminal offence has not stopped the police from trying to prosecute those engaging in legitimate public debate about religious and political opinions. In one ludicrous case, police issued a summons to a fifteen-year-old boy, threatening prosecution under the Public Order Act, for attending a peaceful demonstration holding a placard describing the Church of Scientology as a ‘cult’.

What makes the government’s position so alarming is that, while taking repressive action against those airing legitimate opinions, it has at the same time cosseted those preaching vitriol and violence. In 2007, the Dispatches documentary ‘Undercover Mosque’ revealed the homophobic, sexist and intolerant preaching of extremist Muslim clerics at the Green Lane mosque in Birmingham. The documentary showed preachers referring to homosexuals as ‘filthy dogs’, justifying the 7/7 bombings and explicitly calling for the death of those who convert from Islam. West Midlands Police recommended to the Crown Prosecution Service that it consider a prosecution – not against the preachers, but, rather, the filmmakers for allegedly misrepresenting the views of the clerics and undermining community relations. Even when it became clear that there was no evidence to back up this unfounded allegation, police and prosecutors still referred allegations against the programme to Ofcom, the media watchdog. Ofcom threw out the complaint, finding that Channel 4 and Dispatches had produced the documentary accurately and responsibly. Channel 4 and Dispatches responded by suing the police and the CPS for libellously suggesting that the documentary had been selectively edited in order to distort the views of the preachers. The police and CPS were forced to issue a public apology and pay a six-figure sum by way of compensation. The case demonstrates how broad public order powers, coupled with a culture of excessive political correctness, can lead to flagrant lack of respect for legitimate free speech, while simultaneously tolerating fanatical extremism – a naïve approach with dangerous consequences both for our security and our freedom.

In another case, a whistle-blower, Derek Pasquill, disclosed sensitive Foreign and Commonwealth Office (FCO) documents which appeared in newspapers, exposing FCO engagement with extremist Islamic groups, such as the Muslim Brotherhood in Egypt, some of whose members have connections with terrorism. Far from forcing an embarrassed FCO to reconsider its policy on engagement with radical Islamic groups, the government’s reaction to this controversial exposé was to press for a prosecution against Mr Pasquill for breaching the Official Secrets Act. The prosecution’s case collapsed when senior FCO officials admitted that a prosecution could not succeed, because Pasquill’s actions were actually beneficial – encouraging a constructive debate on a serious matter of public interest.

It is remarkable, too, how, having stifled peaceful protest and closed down legitimate debate in the most harmless of circumstances, government policy has been so tolerant of those who stir up extremism and violence. In February 2006, demonstrations were held in London against the publication of Danish cartoons depicting the Prophet Mohammed in a manner that many Muslims found offensive and insensitive. Around five hundred protesters were involved in the protests that followed, and a small number of people carried placards calling on Muslims to ‘bomb’ the US and Denmark, ‘massacre those who insult Islam’ and urging ‘whoever insults a prophet, kill him’. Four protesters were prosecuted and convicted of soliciting murder in July 2007. As David Perry QC, the prosecuting barrister argued, the words used were plainly criminal: ‘If you shout out, “Bomb, bomb Denmark; bomb, bomb USA”, there is no doubt about what you intend your audience to understand…The prosecution case is that the defendant was clearly encouraging people to commit murder – terrorist killing. This was not simply a demonstration about cartoons. It was a recruitment for terror.’

The court agreed and convicted the accused. Notwithstanding the criminal prosecutions, it is difficult to understand the police decision to allow protesters to proceed with their demonstration in the first place, carrying banners that openly incited violence. The Metropolitan Police said they had allowed the protest to continue for fear of public disorder – itself an astonishing sop to extremism, at the expense of law enforcement. But they then waited a further six weeks before making any arrests. In contrast, the government was quick to condemn the Danish cartoons, which, though offensive to many Muslims, did not incite violence.

Конец ознакомительного фрагмента.

Текст предоставлен ООО «ЛитРес».

Прочитайте эту книгу целиком, купив полную легальную версию на ЛитРес.

Безопасно оплатить книгу можно банковской картой Visa, MasterCard, Maestro, со счета мобильного телефона, с платежного терминала, в салоне МТС или Связной, через PayPal, WebMoney, Яндекс.Деньги, QIWI Кошелек, бонусными картами или другим удобным Вам способом.