UK Liberty

Office of Government Commerce to appeal disclosure ruling

Posted in freedom of information, ID Cards by ukliberty on May 31, 2007

Financial Times:

The Office of Government Commerce is to appeal to the High Court over a ruling that requires it to disclose a review of the controversial ID cards project.

The so-called “gateway reviews” are conducted at critical stages of all big government IT projects to determine whether they are on track. But while the OGC maintains that it examines any Freedom of Information Act request for the reviewscase-by-case, it has never released them. It argues that to do so would hamper the frank discussion on which they depend.

Imagine if science worked like politics

Posted in freedom of information by ukliberty on May 31, 2007

writes Heather Brooke, on Alistair Darling’s leaked letter:

Imagine if science worked in this way. Someone could determine (in secret) that his snake-oil was the best solution to a problem (treating polio, for example) based on findings that only he and his minions could access. No data would be no published so no one could challenge the legitimacy of the policy. The reasons behind the decision would be kept secret, too. It is easy enough to see how detrimental such a process would be to science. Yet this is exactly the way our ‘modern’ Parliament makes policy and it is in every way as detrimental to the health of our society.

Having your Article 5 and eating it

Posted in control orders, politicians on liberty by ukliberty on May 30, 2007

I’m puzzled by the latest comments from “UK terror laws watchdog”, Lord Carlile.

The BBC:

Courts should allow tougher measures to be imposed under control orders, the UK terror laws watchdog Lord Carlile says.

Judges should accept police have “far more understanding” of what is needed to control a terror suspect, he said.

His comments come after three terror suspects who were under control orders absconded last week.

He also warned that ministers would lose a “scarring clash” with courts if they attempted to opt out of the European Convention on Human Rights.

Lord Carlile said, in a speech to a counter-terrorism conference, that the three people who absconded last week showed the need “for more demanding controls”.

“In my view, the courts, should and will now be driven by recent events to re-examine their approach to the conditions and restrictions forming part of control orders,” he said.

Lord Carlile, who was appointed by the government to review terrorism legislation, said: “Once the accuracy of the designation of a controlee as a terrorist suspect has been verified by the court, as a general rule judges should recognise that officials and the police have far more understanding of the restrictions required to effect a control order.”

He said they should then “intervene only where the boundaries of proportionality manifestly have been crossed”.

“I expect the judges to accept this view.”

He said that Britain should not consider opting out of the European Convention on Human Rights – as Home Secretary John Reid said he might consider if it was necessary to deal with terrorist suspects.

“My comment to ministers, is that derogation would lead to extremely difficult parliamentary problems,” Lord Carlile told the conference.

“It would lead to lengthy and testy litigation, and an unwelcome and scarring clash with the senior judiciary which, on balance, the judiciary would be likely to win.

“Most important, derogation is actually entirely unnecessary.”

Instead he called for “statutory clarity” on what are appropriate and effective controls.

Should statute say, for example, that being confined to a residence for 18 hours a day is an “appropriate and effective control”?

How would that work?

I must confess I don’t understand him.

(It would help if the BBC linked to his speech. The Jurist coverage is a little better – at least it tells you where he spoke!)

Control orders consist of a set of obligations. You can see the obligations imposed so far on pages 4-5 of Lord Carlile’s Second Report (216Kb PDF) on the Prevention of Terrorism Act 2005. There are “22 measures used or in contemplation up to now [22 February 2007]”.

A control order is intended to be tailored toward its controlee, so various combinations of obligations are in use, and these combinations are represented in a table on page 5.

Of course I only have the judgements at BAILII to go on, but judges don’t seem particularly cynical about the authorities’ motivation to impose certain obligations.

The problems come when they find that the obligations individually or together amount to a deprivation of liberty contrary to Article 5 of the European Convention on Human Rights (the Convention):

  1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
    1. the lawful detention of a person after conviction by a competent court;
    2. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
    3. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
    4. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
    5. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
    6. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
  2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
  3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
  4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
  5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

(Perhaps it’s worth noting that no. 4 is equivalent to habeas corpus, and in England the first recorded usage of this was the year 1305, and dating back to the Magna Carta, originally issued in 1215. I mention this because some people bang on about the Convention but it actually has equivalents to the rights we have enjoyed under our own constitution for some time. Don’t dismiss it just because it has the word ‘European’ in the title).

The famous case JJ, Mr Justice Sullivan’s decision to quash six control orders, which was subsequently upheld by the Court of Appeal (the Government is appealing to the House of Lords), is perhaps the best one to look at as an example, but let’s look first at the law itself: the Prevention of Terrorism Act 2005.

There are two types of obligation: ‘derogating’ and ‘non-derogating’. A derogating obligation is one that is incompatible with the individuals right to liberty under Article 5 of the Convention. A derogating control order consists of one or more derogating obligations.

There doesn’t seem to be much point in discussing derogating orders per se, as only a court may impose one, and only after the Home Secretary derogates from Article 5 of the Convention.

He is given the power to do this by s14 of the Human Rights Act 1998, and Article 15 of the Convention, and there isn’t a derogation order in force at present.

(Incidentally the Law Lords quashed an order in respect of Part 4 of the Anti-Terrorism Crime and Security Act in A & Others v Secretary of State for the Home Department, which is part of the reason for why we have control orders today – but not because it found there was no threat to “the life of the nation”.)

Have a look at paras 60-70, or Annex 1 of the judgement, to see the obligations that in this case were found to amount to a deprivation of liberty.

Now, as Mr Justice Sullivan said at paragraph 43 in JJ:

The importance of protecting members of the public from the risk of terrorism is not in doubt, but the importance of that objective is not a reason for the court to be less inclined to classify the obligations in these control orders as a deprivation of, rather than a restriction upon, liberty.

And that in particular is why I don’t understand what Lord Carlile means when he talks about “proportionality”: there doesn’t seem to be any provision for it.

I don’t mean that Article 5 is absolute, in the same sense as Article 3, the prohibition of torture:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

I mean that there is jurisprudence that says some restrictions haven’t amounted to a deprivation of liberty, some have amounted to a deprivation of liberty, but whatever someone has done (or the state thinks he might do) you may not (without derogating) indefinitely deprive someone of liberty unless you give him a trial.

Mr Justice Sullivan neatly expressed this in the next bit of para 43:

The Convention makes express provision in Article 15 for there to be a derogation from (inter alia) Article 5 “In time of war or other public emergency threatening the life of the nation”.

That facility is carried forward into the Act, which applies the mechanism of a “designated derogation” under section 14 of the 1998 Act: see section 1(10) of the Act and the procedures for making derogating control orders (above).

In the absence of a derogation under Article 15 of the Convention the respondents are entitled to the full protection of Article 5, and there is no justification for any attempt to water down that protection in response to the threat of terrorism.

And the Government’s lawyer made clear that it was “no part of the Secretary of State’s case that the protection afforded by Article 5 should be watered down.”

It seems to me there is definitely a case here of John and Tony wanting their cake and eating it.

For on the one hand they don’t want to water down Article 5 or derogate from it, but on the other hand they don’t want to be bound by it.

One final thing: the three who recently absconded weren’t ‘let off’ by the courts. There was no legal challenge – as far as I know – to their control orders.

Nothing to hide nothing to fear?

Posted in database state, law and order, nothing to hide nothing to fear by ukliberty on May 29, 2007

As I’ve argued, “nothing to hide nothing to fear” assumes there will be no wrongdoing and no incompetence. My page on data abuse aims to provide real-life (as opposed to hypothetical) examples of what can happen.

Not Saussure has an article on what happened to his friend when a mistake was made with her CRB check, the outcome of which meant she couldn’t do voluntary work for a church playgroup.  It took five months – and what seems to be a lot of effort by her – to be resolved.

Yes these databases are useful. But let’s not assume they – or their users – are perfect.

Police not consulted

Posted in law and order, politicians on liberty by ukliberty on May 29, 2007

We read on Sunday that Tony and John want to push through new powers in their last four weeks in office. Among these is the power to stop and question – or “stop and quiz”, as the BBC puts it, which seems to put a friendly spin on it.

Today’s Guardian:

Government plans for new police powers to stop and question people were greeted with a barrage of criticism yesterday, after it emerged that senior police officers had neither requested the change nor been consulted.

Quelle surprise.

The Home Office confirmed that the power would be included in a counterterrorism bill to be announced in early June. But the vehemence and breadth of criticism led Home Office ministers to signal a willingness to compromise after the idea was also attacked by MPs, civil liberties and Muslim groups as unnecessary and harmful.

Aha, looks like they were testing the waters.

The new powers, contained in a leaked letter

As SpyBlog asks, will this ‘leak’ will be investigated?

from the counter-terrorism minister, Tony McNulty, to Tony Blair, would make it an offence punishable with a £5,000 fine for a person to withhold their identity or refuse to answer questions. He wrote: “Arguably one of the weaknesses of [stop and search] is that although it enables a search of an individual, it does not enable a police officer to ask that individual who they are or where they are going.”

Presumably though, if the individual was found to be carrying a bomb or doing anything illegal it wouldn’t matter where they were going: they would either be arrested or shot. I suspect a terrorist is unlikely to volunteer that he’s carrying a bomb, so questioning wouldn’t help, but searching would.

On the other hand, if the individual wasn’t carrying a bomb or doing anything illegal, it wouldn’t matter where they were going, would it?

Police sources told the Guardian that neither Scotland Yard or the Association of Chief Police Officers had officially asked the government for an extension of stop and search powers. Acpo also said it had not been consulted. One senior officer called the proposal “bizarre”.

I applaud the Yard and ACPO for telling us they haven’t been consulted.

Most startling to ministerial colleagues were remarks by the Northern Ireland secretary, Peter Hain, on BBC1’s Sunday AM that a revival of the old “sus” laws, which allowed the police to stop and search people purely on suspicion that they might commit a crime, risked creating “the domestic equivalent of Guantánamo Bay”.

Mr Hain experienced South Africa in his early years, which might colour his perceptions somewhat in favour of civil liberties, having perhaps some experience of the regime’s human rights infringements, which included detention without trial and the arbitrary suppression of political parties.

Officials protested that the Home Office had been urged to adopt Northern Ireland’s version of “stop and question” – a legacy of the Troubles – in a letter to Mr Reid from Mr Hain. The province’s police were said to feel that it is less intrusive for those stopped – who do not have to be searched, merely questioned – and wasted less time for police officers who do not have to file a report every time.

The context for such exchanges was said to be Belfast’s current work to “normalise” its post-Troubles policing at a time when London is seeking both to cut police paperwork and to further refine its counter-terrorism tools. Belfast suggested that, rather than repeal its own procedure, the mainland might adopt it too, Whitehall sources said.

Labour chair Hazel Blears told Sky News: “What I understand is that the request has come from the Northern Ireland Office because they have the powers, they want to be able to carry on using them, they find them useful.”

Yesterday two of the country’s most senior police officers told the Guardian that the latest proposals left them baffled and could prove counterproductive. One said: “It does not seem that it’s something the service has been clamouring for. The benefit is not immediately obvious. It’s quite strange where this has come from.”

Another of the country’s most senior police officers told the Guardian: “It seems bizarre. I’m struggling to find any use for this, I don’t see the purpose of it.

“We’ve got adequate powers … if you are stopped and say ‘sod off’ to a police officer, you’re going to get nicked.

Not entirely sure what that’s got to do with the price of fish…

But I wonder who these senior officers are and why they aren’t named.

It could worsen community relations.”

In a speech last month, Scotland Yard’s head of counter-terrorism said current laws were generally robust enough. Peter Clarke said: “My personal view is that we now have a strong body of counter-terrorist legislation that by and large meets our needs in investigating these crimes and bringing prosecutions.”

The police do indeed seem to have adequate powers (718Kb PDF manual).

The Metropolitan Police district in particular is designated as an area under which s44 of the Terrorism Act can be used. This allows stops and searches of vehicles and their occupants, and pedestrians, and authorisation has been renewed every 28 days since the Act came into force in February 2001. Reasonable suspicion is not required for searches under s44.

This is intended, apparently, to have a deterrent effect.

There are other powers to stop and search mostly covered by PACE Code A – see page 64 of the manual – or the end of the Guardian article (which doesn’t include all of them, by the way, just the main ones).

Also there is a power called “stop and account”, or more simply a “stop”. This seems to be similar to the proposal: the officer may ask what you are doing, why you are behaving in a certain way, why you are in that particular place, and why you have a particular item in your possession.

However, I have yet to find any more information on it than that, and today is the first I heard of it. I’m not sure what law provides this power, and I’m not sure why the Home Office Stop and Search website doesn’t provide more detail.

The difference I suppose is that at present you aren’t obliged to give your name or address, and the officer can’t arrest you just because you refuse to provide that information.

Shami Chakrabarti, director of human rights group Liberty, said the proposed new power was unnecessary and would lead to people being stopped randomly.

Well, aside from complaints about the disproportionate number of searches of ethnic minorities, such things are fairly random but that’s kind of the point – it’s supposed to be random in order to have a deterrent effect.

(In 2005, 23 stop & searches recorded per 1,000 white population; 99 per 1,000 black population; and 31 per 1,000 Asian population – source).

In fairness it would be silly to restrict searches solely to people with, say, rucksacks, because terrorists would then use something other than rucksacks to transport their bombs, wouldn’t they?

“I have no doubt that, like the old sus laws, it will be completely counter-productive. I can’t help but think this is more political gesturing from [the home secretary] at the fag end of his career.”

Me too.

All criminal offences, however minor, are now arrestable and if someone is suspected of withholding information about terrorism that can also lead to an arrest, she said. “This new power doesn’t fill a gap because there is no gap.”

Under terrorism laws, police have powers to carry out searches without reasonable suspicion, under section 44 of the Terrorism Act 2000.

Since September 11 2001, all of London has been declared by the home secretary as an area where such stops can be carried out, as are all railways and airports, and other sensitive urban areas which could be targeted.

Until yesterday the debate within police and government had been about scrapping section 44 stops or better targeting their use.

For example, Andy Hayman, assistant commissioner at the Met, responsible for counter-terrorism, has questioned their value. There was even a concern that some police might stop and search in order to improve their performance rating (see page 49 of the manual).

Critics say their widespread use has alienated British Muslims – as the old sus laws once did young black men who were excessively targeted.

The shadow home secretary, David Davis, said: “The driving imperative of these draconian announcements appears to be more of a wish to project the reputation of [John] Reid and [Tony] Blair in their last weeks in office, than a need to protect the British public.”

I think that’s what it comes down to, doesn’t it? Sending out the “right signals” about John and Tony’s law and order record, not our nation’s intolerance of terrorism. And then they can join Charles in moaning about their successors.

How often is section 44 used?

A total of 32,062 searches were made under section 44 in 2004-05 compared with 29,383 in 2003-04, an overall increase of 9%. Over the same period there were 21,121 searches of vehicle occupants compared with 21,287 in 2003-04

It’s a pity the Guardian didn’t see fit to tell us how many arrests occurred as a result of all those searches, because it seems to me the journalist copied and pasted the figures from a Home Office publication.

For 2004/5,

thirty five [0.17% of those searched – ukliberty] arrests of vehicle occupants in connection with terrorism resulted from section 44(1) searches, compared to 14 [0.07% of those searched] in the previous year. Arrests under non-terrorism legislation following the use of this provision fell from 358 in 2003/4 to 240 in 2004/5.

In 2004/5, 24 arrests in connection with terrorism resulted from section 44(2) searches compared to 5 in the previous year. Arrests under nonterrorist legislation rose from 112 in 2003/4 to 153 in 2004/5.

(source: Statistics on Race and the Criminal Justice System 2005 667Kb PDF)

In comparison, “In 2004/5, 11% of stop and searches [under PACE, which requires reasonable suspicion – ukliberty] resulted in an arrest, compared to 13% in 2003/4. This proportion varied between police force areas, from 7% in Gwent to 20% in the City of London.”

And it’s a pity that Home Office document doesn’t tell us how many of those arrested were charged and subsequently brought to trial (or not) and convicted (or not). I haven’t yet made time to hunt these figures down, but by the looks of things it won’t be a particularly high proportion.

By the way, for those people who wonder what the fuss is about, that people should be willing to be stopped and searched, David Mery’s account of being stopped and searched (and then arrested) is perhaps well worth reading.

Update

David Mery has information on the positions of the MPA and MPS.

Update 2

Harriet Harman calls for end to the “culture of spin”, reports the BBC, and says Labour “must turn over a new leaf”. Home Office Minister Tony McNulty said there would be plenty of time for consultation.