Gordon Brown on 42 day detention without charge
From the interview with the Observer:
Q: Why are you pushing so hard with your plans to extend to 42 days the period in which a terror suspect can be held without charge? Many members of your own party, the Lib Dems, the Tories, the DPP, the former attorney general are all expressing doubts if not outright opposition.
With two committees, the JCHR and HAC, both concluding that there is no case for extending the period of pre-charge detention. Have a read through their documents and see what they had to say after looking at the evidence.
A: A few months ago Liberty, the former National Council for Civil Liberties published its proposals [see their overview – ukliberty] and said that there were circumstances in which they themselves understood you might have to go beyond twenty eight days. Now they proposed using the Civil Contingencies Act to do so [see the legislation]. They recognised therefore that there are circumstances in which, whether it’s a multiple terrorist plot or whether it’s a complex set of sophisticated investigations that cross continents you may have as a result of the complexity and sophistication to detain people beyond twenty eight days.
Yes, a substantial emergency for which drastic measures have to be taken – something along the lines of multiple jet airliners being hijacked, which to me seems fair enough…
Now what I said to that was look, if in principle people right across the political spectrum agree that it’s necessary, in certain instances – unique sometimes perhaps or special at least and understood to be rare then we ought to try and find a way and a consensus for doing that.
See Liberty’s “the real consensus” (376Kb PDF).
And that’s why I’ve been determined to build in what I think are the key elements of something that is acceptable to all sides. And that is if you have someone detained then you have got to have proper judicial oversight. You’ve got to have continuous accountability. You’ve got to have parliamentary scrutiny.
What we must have is fair proceedings. The prerequisites for fair proceedings include some form of independent decision-maker (eg a judge) and the opportunity and ability to challenge one’s detention.
Of course there may be limitations in sensitive cases – for instance, a ‘special advocate’ might act on the suspect’s behalf in order to challenge some sensitive information that cannot be divulged to the suspect or his ‘normal’ lawyers, as they do in immigration and control order hearings.
(Note however that this system has itself been criticised, with at least three people involved with it resigning because of their concerns: Brian Barder, a lay member of the Special Immigration and Appeals Commission panel; and Rick Scannell and Ian MacDonald, both Special Advocates. Worth reading their concerns.)
But returning to the topic at hand, I’m not sure why there has to be parliamentary scrutiny of detention, indeed I’m inclined to oppose politicians having a say in detentions whether or not a person is charged: first, because they cannot be said to be independent decision-makers; second, because they of course will not be given access to sensitive information. They will therefore be uninformed, biassed decision-makers, so how anyone thinks that is a good idea is being rather silly.
That is a different matter from them voting on whether or not there is an emergency sufficient to require 42 day detention. I’m not sure whether or not that is a good idea. The courts have said that the Home Secretary is best placed to determine whether or not there is a national emergency, and I’m inclined to agree. Where the courts come in is the Home Secretary’s use of his powers, or in the extreme circumstance, whether he is so obviously wrong that he must be held to account. I’m not sure where Parliament (well, the legislative bit of it) has a part to play in this process.
The Government is accountable to Parliament, of course(!), but note the JCHR’s comments that “It has been a constant theme of our reports on counter-terrorism and human rights that there are far too few opportunities for independent democratic scrutiny of the Government’s assessment of the level of the threat from terrorism. We have pointed out several times that unless both Parliament and the public are better informed about the nature and the level of that threat, it is impossible for them to make meaningful judgments about whether particular measures proposed by the Government to counter that threat are proportionate.”
And I believe that if we could show people that there is proper judicial oversight, in other words nobody stays in prison arbitrarily but there is judicial oversight and therefore it’s got to be regularly reviewed, that there is a means by which there is proper parliamentary scrutiny and we proposed a mechanism for that to happen, and if at the same time there’s proper public accountability, because the facts become known, because an independent reviewer who’s an independent figure looks at what has happened to guarantee that nobody will be detained arbitrarily and there has always to be a good reason if that were the case.
I like the talk of “independent figures” and “reviewers”: first, because the Government wouldn’t take notice of an independent figure if it was expedient to ignore him; second, because independent reviewers don’t always get things right (assuming judges’ decisions are ‘right’, which legally speaking they are until overruled I suppose).
Also see this earlier article about the broken promise regarding ‘judicial safeguards’ – ie there are no proposals for judicial safeguards, despite lots of talk about “there will be judicial safeguards”.
And it’s worth noting that the JCHR said “the existing judicial safeguards for extending even up to 28 days are inadequate because they do not provide a full adversarial hearing or an opportunity to challenge the basis on which someone is being detained”.
Then if you can satisfy all these things then it seems to me that there was a consensus that there were circumstances in which it may be necessary what you’ve then got to do is to satisfy people that all the mechanisms by which civil liberties are put in place. Now that’s where the debate is at the moment. And I think it’s a more rich debate than is simply summed up by a number of days.
I think it’s important to note that we already have the longest period of pre-charge detention (Liberty, 171 Kb PDF) in comparable legal systems. In that sense, the number of days is pertinent – why do other legal systems not have 28 days, let alone 42 days?
It’s about what matters to me because I gave a speech on liberty a few weeks ago [see this blog].
And I believe very strongly that what marks Britain out from the countries historically is that we were the pioneer of liberty. And liberty means amongst other things the freedom of speech and the freedom from arbitrary treatment. But if we can show people that A, there are circumstances in which it may be necessary and that I believe that there is a common view that people do understand that. And secondly that there are proper protections in place for the safeguarding of the civil liberties of the individual then I think people would look at this.
Well that’s what the argument is about, Gordon, whether or not we need so many days and whether or not civil liberties are in fact protected, furthermore are there other things we could introduce instead that you don’t seem to be so keen on? Such as the use of intercept evidence in court?
Q: Does it frustrate you that you’ve obviously changed the politics of this issue, by saying it’s not about an arbitrary number of days, and yet there still seems to be very strong opposition?
A: Well I don’t think, you see I don’t think there is as much difference of opinion as the headlines suggest. You know I’ve talked to, at length to Liberty as an organisation. I know that other political parties in the House of Commons are much influenced by what Liberty has said. I’ve got a great deal of respect for the arguments that have been put forward and I actually think we’re not as far away as people have mentioned from reaching an understanding about what the best way forward for Britain is.
If you accept that there may be circumstances in which you have to go beyond twenty eight days
Well, there’s the sticking point right there because pretty much everyone is saying you haven’t made the case for that.
and if you accept then as a precautionary principle you should have the power in legislation to do so, then what you’ve got to do in my view is convince people that you’ve got in place all the protections for any arbitrary treatment or protections against the possibility that there could be arbitrary treatment of the individual.
Now an independent reviewer, parliamentary accountability, parliamentary scrutiny, judicial oversight, in fact the application coming not just from the police but from the DPP and from the Home Secretary, gives you a sense that none of these things would be done lightly. They would only be done in the rarest of circumstances when there was a real problem that had to be dealt with. [here is an outline of the process]
But I don’t think people can rule out the possibility that investigations in this modern world – but look, I was at the Treasury for ten years. I had to deal with terrorist finance. And we had to if you like ensure that the accounts of people who were guilty of terrorist finance or using their accounts for terrorist finance were closed down. So we had to do asset freezing. And the complexity of these investigations. Sometimes you don’t know who initially is the person that you’re dealing with. Because they operate under a dozen names. Sometimes you don’t know where they stay because they’ve got a dozen addresses. Sometimes they have many, multiple passport numbers. Certainly they’ve got many email facilities. They’ve got mobile phones of a large number of people. And sometimes it’s taking you ages to find out who you’re actually dealing with before you can actually get to the position of investigating whether they should be charged for anything.
Update
A Liberty poll reveals widespread opposition to the plans in the Commons.
Gordon Brown on ID Cards – clueless, or dishonest?
ID cards are seen as a tool for dealing with terrorism but there is a debate about whether they are an encroachment on civil liberties. Are you still committed to pressing ahead with them?
I think this debate has to be one where people can see where there’s agreement as well as where there’s been a debate that’s led to disagreement.
There’s no debate here, there’s a brick wall with “We are going to have identity cards and a ridiculous database” and the rest of us pounding our heads against it.
If someone said to you that I’m going to give you a better
Already framing the debate, isn’t he? Who wouldn’t refuse something ‘better’? Bit dishonest, that. Like selling snake-oil.
form of passport with biometrics
The snake-oil.
and I’m going to include the current passport information in that;
if someone said to you … that if someone comes to this country as a foreign national,
Those scary foreigners – yes! Let’s tap into the fear of foreigners stealing our jobs and women.
given the worries about illegal immigration,
Like my particular ‘worry’ that existing rules aren’t enforced? The worry that Gordon’s Government has contributed to, by doing eff all?
they should carry some form of identity, I think most people would agree.
Why should they carry some form of identity? I mean, for what purpose? I’m not sure what I’m supposed to be agreeing with here.
And I think we’ve got to get the debate about, if you like the management, the identity management to a reasonable level.
But people seem confused as to what they are for. Is it specifically to guard against foreign nationals working and living illegally here? Or is it aimed at domestic security?
There are two things.
Only two, Gordon? [That wasn’t fair on Gordon, he actually said something different – see the edited transcript].
One is, when it comes to foreign nationals coming in and the danger of illegal immigration. I think most people would support there being some form of identification that people are asked to produce.
On the other hand, Gordon says that they won’t be compulsory for existing British citizens (but see below). Let’s imagine a scenario:
Security/Employer/Police officer: Hello, I suspect you of being foreign without a licence. Please produce some form of identity.
Suspect: Nein, ich bin ein Englander, je n’ai pas de carte d’identité.
Security: Ah, ok. Have a nice day.
Suspect: Gracias.
I can see a flaw in that system – can you?
If identity cards aren’t compulsory for everyone it follows that the people who want to circumvent the law can simply claim that they belong in that group of people (British citizens, for example) who aren’t required to have an identity card.
Is that the principal reason for ID cards?
As far as the individual is concerned, the danger for me and you in the modern world is that our identity is easily stolen. And people feel worried when information that is personal to them is lost, and rightly so. And I think if we were giving a better means by which people could protect their identity, then in the private as well as the public sector people are looking at biometrics. I mean maybe in a few years’ time on your computer you will need biometrics rather than a password.
Look, biometrics are unique identifiers (assuming the system can verify the biometric came from the person at the time of measurement, and that it matches the biometric in the database) but they are not secrets. A secret is a PIN or password, something you can update or destroy. You can change your secret, your PIN, revoke it, but you can’t revoke your fingerprint.
So they are good for some purposes, awful for others. Gordon doesn’t particularly care about any of that – to him ‘biometrics’ is a magic word, abracadabra, which will make lots of people believe him when he says he can solve the problems of nasty foreigners and identity fraudsters. Really, read what he’s saying: “biometric identity cards will solve illegal immigration”. Quite laughable, really, when you think about it. Won’t somebody think of the children?
Also, these comparisons he draws are absurd. Your computer is not at all comparable to the proposed Identity Card and National Register system, handling Gord-doesn’t-know how many transactions a day.
Furthermore, the biggest growing area of fraud is card- or person- not present transactions, eg online. Biometrics aren’t a practical solution for that problem.
Maybe when you go to a supermarket, as happens in some parts of the States and Europe, you are going to be safer, instead of carrying a credit card which can easily be stolen, to use your biometrics to shop. Maybe in relation to banking to use biometrics or fingerprint biometrics, you might find that you are safer in your banking transaction than if you carried a card and a number.
Well, you may or may not be safer. But so what? You might be more safe if you used biometrics and a PIN. Where is he going with this?
But the very fact that you’ve got biometrics now in a way that you didn’t have two centuries ago gives you opportunities to protect people’s identity and I don’t think we should rule out the use of that. In fact, I don’t actually think most of the general public think that the use of biometrics is in itself wrong, either for private transactions or for passports or whatever.
The use of biometrics isn’t in itself wrong. I don’t believe anyone – not NO2ID, not Privacy International, no-one – is saying the use of biometrics is wrong. This is a red herring, a straw man. If opponents ever talk about biometrics, we talk about their appropriateness or otherwise for a particular system, not that they are Evil, because they’re not Evil, they are just a tool.
So are you committed to ID cards?
We’re committed to the proposals we put forward which are essentially that the information you now use to get your passport,
linked to the biometrics now available, give you a better form of protection. But I’m happy that this debate continues, because I believe that over the course of it some preconceptions will be dealt with.
So would it be that British citizens and non-British citizens would need them?
Yes, but under our proposals there is no compulsion for existing British citizens.
I refer Gordon to the Identity & Passport Service website:
Will it be compulsory to have an ID card?
Yes, it will eventually be compulsory to have an ID card once further legislation is approved by Parliament, but it will take some time before the scheme reaches this point. Until then the ID card will not be the only way of proving your identity or accessing public services.
Emergency medical treatment or other services needed to deal with a genuine emergency would never depend on your showing an ID card.
It will not be compulsory to carry a card with you.
When will the scheme become compulsory?
No date has yet been set for a decision on a move to compulsion.There are a number of factors which the Government will need to consider before introducing new legislation to make the scheme compulsory. These are explained in the document ‘Identity Cards: The Next Steps’ (2003, Cm 6020). You can use the link below to download this document in a new browser window.
Aside from that, enrollment on the National Register (the database behind the cards) is compulsory when you apply for a new passport or renew one you already have.
It has always been the intention of the Government to make ID cards and enrolment compulsory. You will not be able to live a normal life without enrolling – if you think about it, how would they work otherwise?
So that’s just a plain old lie.
See also Yorkshire Ranter, SpyBlog, Ideal Government, and the NO2ID forum.
Update
Someone on the NO2ID forum posted a link to the edited transcript of the interview. There is a bit more detail in there, but one thing that strikes me is this continual push that the information to be stored is no more than that required by the old passport database. This is a LIE.
Update 2
A dissection, (hat-tip Ideal Gov).
Update 3
I thought I’d look again at Gordon’s claim that “under our proposals there is no compulsion for existing British citizens”, starting with Hansard. I found the following within seconds (my emphasis in bold*):
Mr. Heald: To ask the Secretary of State for the Home Department what the most recent timetable is for introducing compulsory identity cards.
Joan Ryan [Home Office Minister]: We will start issuing biometric immigration documents from 2008 and identity cards to British citizens from 2009. It is the Government’s policy that ID cards should eventually be compulsory for everyone resident in the United Kingdom who is aged 16 or over.
Under the Identity Cards Act 2006 registration on the National Identity Register and the issue of ID cards will be linked to applications for British passports and biometric immigration documents for foreign nationals, subject to approval by Parliament of a designation order under section 4 of the Identity Cards Act. As a result, ID cards will be issued to a large proportion of the resident population as they apply for or renew one of these documents. Passport applicants may opt out of obtaining an ID card before 1 January 2010.
The UK Borders Bill currently before Parliament provides powers to require specified categories of foreign nationals to apply for a biometric immigration document. At some time in the future, further primary legislation will be introduced to provide the powers to require the remainder of the population to obtain an ID card and so to make ID cards compulsory. [Hansard source]
* Maybe I should change the name of this blog to “my emphasis in bold”.
UK Liberty 
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