Where are we going with this, and where do we want to end up? (Part 3)

(Part 3 of an ongoing, indefinite series of ‘observations’.)

I’ve so far touched on erosions to the right to trial by jury, inquests, diversions away from the courts, unnecessary law, lowering and unreasonably reversing the burden of proof, and all sorts of civil orders that in fact may amount to criminal sanctions, and whether or not we are living in a surveillance state.

But how do such objectionable proposals get to the statute book in the first place?

Ideally you could do with an army of loyal and unthinking drones.

It also helps to have MPs who can vote on the bill but who won’t be affected by it because their constituencies are in a different nation – hello Scotland. 

But sometimes they aren’t quite enough, so here are a few other methods for the aspiring Government Minister.

You could create a really objectionable proposal that makes you look extremely ‘tough’ on something people are fearful of, say, terrorism – e.g. proposing to detain people suspected of terrorism for 90 days. You know that it is unlikely to get through Parliament and that there will be loads of opponents who will make a big fuss about it.  

This is brilliant, because:

1.  You will look ‘tough on terror’ and all the fuss will get you tons of favourable publicity in popular national newspapers, such as the Sun and the Daily Mail;

2.  Your opponents will look like airy-fairy, sandal-wearing, yoghurt-knitting,  intellectual pygmy, commie-pinko beardy liberals who clearly support terrorists;

3. You can offer lots of ‘concessions’ and ‘safeguards’, which will make you look fair and magnanimous (it’s like being a market trader, starting at a high price but being content to sell for less);

4.  In other words, you don’t particularly mind being haggled down to 28 days, say, because you still look tough, and you can always propose another extension in the future, where you will put Parliament and the country through a similar process.

And hardly anyone will notice if such a power will even be commenced (i.e. actually come into effect) despite you banging on about the urgency of it before we all get blown up on our way to work.

Another way of getting an objectionable proposal is the “red rag and smuggle”. Beardless but liberal David Howarth MP explains:

A red rag is a provision in a Bill that is designed to attract the attention of hot-headed Members of this House, and about which the Government do not, in reality, care very much either way, while they smuggle in, largely unnoticed and unchallenged, a lot of significant stuff that otherwise might attract severe criticism.

It helps if the Bill is a relatively long, supermarket trolley of provisions and if you haven’t allowed Parliament enough time to scrutinise them all.  The Coroners and Justice Bill is a case in point: the ‘red rag’ is the inquest without jury and specially appointed coroner bit; while the ‘smuggle’ is the data sharing bit, toward the end of a 232 page bill consisting of 161 clauses and 21 schedules.

And of course there are machinations and broken promises, such as the allegations of dishonesty in relation to the Fraud Trials (without jury) Bill.  Hansard possibly only records the tip of the iceberg.

Why bother troubling Parliament at all?

Of course the above may seem like a lot of bother.  Sometimes you just want to be able to do things without troubling Parliament with the specifics. So here are a couple of ways to do that.

There’s a handy type of legislation for this: so-called ‘enabling’ legislation.  What you need to get through Parliament is legislation with broadly drawn provisions (in the form of principles rather than clauses relating to specifics) that allow you, the Government Minister, to draft secondary legislation that will de facto get on to the statute book by default. An infamous example of this was the first draft of the Legislative and Regulatory Reform Bill – it was quite ridiculous in scope and power. But there are lots more like this, including the Coroners and Justice Bill data sharing provisions.

So here you need your army of drones and provisions that don’t sound scary, indeed quite boring.

Alternatively you could launder policy through a client (i.e. you fund it) organisation, such as ACPO. ACPO is a private company (and therefore exempt from the Freedom of Information Act) and funded by Home Office grant (and therefore somewhat beholden to it), unaccountable to the public. But of course we can blame that organisation if anything bad happens.

What sort of policies might we launder, you may ask.  DNA, fingerprint, and cell sample retention is a good example.  All the law says is that samples may be retained.  There is no detail about what they may be retained in, for how long, and under what circumstances, and who will have access, and so on.  In other words, there is no statutory basis in law for the DNA database. There has been no bill followed by scrutiny in Parliament – it exists apparently because of the policy of our unaccountable client organisation. The situation is similar with the protestor database held by the National Extremism Unit (Netcu), a branch of ACPO – again no statutory basis.  And no doubt many more.

You can also launder policy via organisations outside the country, for example the European Union.  An example of this is the European Data Directive, which has resulted in our Intercept Modernisation Programme, recording the details of our phone calls, emails and internet access.  The advantage of this method should be clear: people against such policies are likely to blame evil Europe and those Johnny Foreigners trying to run our country, rather than the people who actually pushed this through Europe via the Council of Ministers, such as our old friend Charles Clarke, then Home Secretary, when the UK was President of the Council (and again there were a number of machinations here).

Abu Qatada and human rights

Lots of complaints along the following lines.

Alisdair Palmer in the Telegraph:

One step forward, two steps back. The Law Lords ruled last week that Abu Qatada – the Islamic extremist who has called for the murder of Jews, Americans and Britons, and who has been identified as al-Qaeda’s spiritual leader in Britain – can be deported back to Jordan, where he has been convicted in absentia of conspiracy to cause explosions. But the very next day, the European Court of Human Rights in Strasbourg decided that he should be paid £2,500 compensation because the Government detained him without trial in Belmarsh prison.

Er yes, two different cases: he won one, lost the other.  What’s Palmer’s point?

And the Strasbourg court may yet decide that the Law Lords are wrong. Abu Qatada should not be deported back to Jordan: doing so would violate his human rights.

Difficult to see on what point they could decide the Law Lords are wrong.  They might find that the diplomatic assurances from Jordan are inadequate?  But that’s speculation.

Palmer later appears to suggest we simply ignore rulings we don’t like:

 Jacqui Smith, the Home Secretary, has to authorise the payment of £2,500 to Abu Qatada and to each of the eight others that the European Court of Human Rights has ruled must be compensated. She could simply refuse to proceed with it, on the grounds that we have already paid him thousands of pounds in benefits, and it is outrageous to compensate someone who wishes to destroy British society.

What I think is outrageous is that people think those whom they find objectionable are somehow not entitled to due process or compensation for being unlawfully detained, and that we should simply ignore rulings (that we signed up to obeying, by the way) that we find objectionable.

What are the tenets of British society?  I suggest one of them is that we obey the rule of law.  In not allowing due process for objectionable people and ignoring adverse judgements we are not obeying the rule of law.  Who then is damaging our society?  The one person suspected (not convicted, or even charged, in an English court) of involvement in terrorism, or the multitude of influential people, from journalists to politicians, who are seriously suggesting a British Home Secretary should violate the rule of law when it’s convenient.

By the way, in relation to the £2,500: there are roughly 25 million households in the UK, so we could say that each household paid £0.0001; the average income of each household is roughly £30,000 pa, so we could say that each household paid on average 0.0000003% of its annual income. Or let’s say the final cost, including legal and benefits, is £1 million (just guessing here) – this means each household has paid 0.0001 % of its annual income. Multiply that cost by 10, if you like, to £10m – each household will have paid 40p, or 0.001%.

The point being that, yes, £2,500 is a lot of money to the average person – on the other hand, it is insignificant in the scheme of things, and we are only paying it because our authorities unlawfully imprisoned Qatada in the first place.  Likewise the £1m, or even £10m, is insignificant in the scheme of things, and it looks like we could have got out of paying that had the authorities got their act together sooner, including in terms of allowing intercept evidence in court.  

And of course it is the taxpayer who has to pay Qatada compensation for the mistakes made by the authorities.

(There is a reasonable piece on £2,500 from Alan Travis in the Guardian.)

Also, Palmer’s complaint that Qatada will be here for ages because the European Court has a backlog of cases isn’t particularly fair on Qatada (or any other applicant) – it suggests the Court could do with better funding and processes.  Of course people will exhaust due process if they are able.  But are those people at fault for it taking a long time?

Later, Palmer suggests formally withdrawing from the jurisdiction of the European court altogether:

The most incisively intelligent of the Law Lords, Lord Hoffman, has suggested opting out of the jurisdiction of the European Court now that the European Convention on Human Rights has been incorporated into our law. Can anyone seriously maintain that the judges in Strasbourg are more likely to reach wise decisions on how to apply human rights law in Britain than our own judges? Can it even be claimed that we would lose anything at all by reverting to the age-old system of having our own judges interpret our law, rather than having, as the ultimate authority, foreign judges who know nothing of it? To pose those questions is to answer them. The sooner we extricate ourselves from Strasbourg, the better for the rule of law in Britain.

I’m not sure if I’m being fair in suggesting there is an element of xenophobia here.  The claim that foreign judges “know nothing” of our law is bizarre, particularly given that they refer to it throughout their judgements (and of course some of them are British). Palmer also seems to sneer at the judges who come from such countries as “Albania, Serbia, Azerbaijan, Bulgaria, Russia, Romania and Latvia”, because those countries (not the particular judges) have had problems with obeying the rule of law in the past.  And there is some irony here, in that Palmer on the one hand suggests we violate the rule of law, but on the other he suggests those countries are bad because they violated it.

I’m not sure how withdrawing would work – I think that being a member state of the Council of Europe and the European Union (two different organisations) obliges us to be signed up to the Convention, and the jurisdiction of the court, so this would require renegotiation.  But this seems a moot point in relation to Qatada’s case.

ID’s a bad idea

Henry Porter in The Guardian:

Last Saturday marked the day in 1952 when the wartime ID card was abandoned by the British State after Harry Willcock, a dry cleaner from North London, was stopped for a traffic offence and asked by a policeman for his card. He refused on the grounds that it was an affront to his personal liberty.

The case went to appeal where Lord Chief Justice Goddard said: “From what we have been told it is obvious that the police now, as a matter of routine, demand the production of a national registration card whenever they stop or interrogate a motorist for whatever cause. This act was passed for security purposes: it was never intended for the purposes for which it is now being used.”

That is very much the point that has been made all along by NO2ID, one of the most brilliantly organised campaigns to emerge in Britain in the past 50 years. Owing to its grasp of the issues and unstinting scrutiny, opposition to the card is mounting. …

Data mining and profiling

In fact you are better off reading SpyBlog’s or Henry Porter’s article than the following.

Alan Travis in the Guardian (also this and what is being recorded):

Privacy rights of innocent people will have to be sacrificed to give the security services access to a sweeping range of personal data, one of the architects of the government’s national security strategy has warned.

Sir David Omand, the former Whitehall security and intelligence co-ordinator, sets out a blueprint for the way the state will mine data – including travel information, phone records and emails – held by public and private bodies and admits: “Finding out other people’s secrets is going to involve breaking everyday moral rules.”

His paper [you can find it here] provides the most candid assessment yet of the scale of Whitehall’s ambitions for a state database to track terrrorist groups. It argues that while the measures are essential, public trust will be maintained only if such intrusive surveillance is carried out within a strong framework of morality and human rights.

Although Omand left the senior civil service in 2005, his views continue to reflect thinking at the highest levels of Whitehall. In the paper – National Security Strategy, Implications for the UK Intelligence Community – he says that a growing amount of intelligence to remove extremists and disrupt potential terrorist attacks is now derived from “protected information” – known in intelligence circles as “Protint”.

“This is personal information about individuals that resides in databases such as advanced passenger information, airline bookings, and other travel data, passport and biometric data, immigration, identity and border records, criminal records and other governmental and private sector data, including financial and telephone and other communications records.

“Such information may be held in national records, covered by data protection legislation, but it might also be held offshore by other nations, or by global companies, and may or may not be subject to international agreements. Access to such information, and in some cases to the ability to apply data mining and pattern recognition software to databases, might well be the key to effective pre-emption in future terrorist cases.”

Omand says such sources have always been accessible to the police and security services against a named suspect, but the use of modern data mining and processing methods involves the examination of the innocent as well as the suspect to identify patterns of interest for further investigation. …

Does it work, though?

How to lose friends and alienate people

Peter Tatchell in the Guardian:

After living an exemplary life in the UK for 14 years, Nottingham University staff member Hicham Yezza was arrested on unfounded terrorism charges and now faces the prospect of being forcibly removed to his homeland of Algeria – terminating his successful, commendable life in the UK and tearing him from his dearest friends and loved ones. …

What has happened to Yezza is just the latest of many perversions of justice. In the name of fighting terrorism, the government is playing fast and loose with civil liberties. Innocent people, like Yezza, are being arrested on the flimsiest circumstantial evidence. This risks bringing the legal system into disrepute and damaging public confidence in British justice. …

Yezza’s ordeal is not exceptional. Since 2000, more than 1,200 people have been arrested on suspicion of terrorist involvement. Of those arrested, less than 5% have been found guilty. In the same period, nearly 180,000 individuals were stopped and questioned by the police under the Terrorism Act 2000. I am one of them. Of those stopped, only 255 were subsequently detained for terrorist-related offences. The use of this law is clearly far too random and pretty useless when it comes to apprehending actual terror plotters. It is also alienating a lot of innocent people, and their friends and family. …

A few older articles on stop and search on this blog that may be of interest.