Not Saussure

May 27, 2007

Blair, civil liberties and the rights of suspects

Filed under: Blair, civil liberties, nemesis — notsaussure @ 3:17 pm

Mr Blair seems determined to leave office, perhaps as an ironic tribute to the Viking who will succeed him, with a positively Wagnerian bonfire of civil liberties.

Where to start? His article in today’s Sunday Times is perhaps a good place, since it’s pretty breath-taking in what it reveals about the way our PM’s mind works. He wants, he says, to ‘clear away some of the absurd criticism of the police and security service over the three individuals who absconded.’ That’s a bit of a half-truth, I think, because the criticism hasn’t, as far as I know, been particularly aimed at them; it’s been directed at his Home Secretary. ‘Why,’ people have wanted to know, ‘is the Home Secretary forever blustering on, whenever anything goes wrong, about how he needs more and more power?’ (I think there’s a Star Trek joke there, somewhere). Could it not be, one wonders, that the man’s not particularly competent at using the ones he’s already got? Or could it even be that there’s a deeper problem?

In any event, Mr Blair’s answer is the usual one: it’s everyone’s fault but ours. In this case, the culprits are, of course, those infernal civil libertarians in general and the judiciary in particular. Mr Blair explains,

After September 11, 2001, in common with many other nations, we passed new anti-terror laws. In the aftermath of such an outrage it was relatively easy to do

Indeed it was, and, with hindsight, that’s maybe part of the problem. It was relatively easy to pass these laws in the aftermath of such an outrage and, when you pass laws in haste and outrage, without proper scrutiny, you tend to end up with a sort of Dangerous Terrorists Act, on the lines of the Dangerous Dogs Act. Matters are made even worse when, as has so often been the case with this government, you legislate not to meet the exigencies of the situation but, in Mr Blair’s word, to send out ‘a strong signal of intent,’ and most particularly when that signal is directed, at least in part, at the editors of the tabloid newspapers.

A problem, of course, with laws, is that sooner or later the courts get involved, and the courts aren’t used to laws being used as signals of intent. They like them to make sense. In particular, they like them to make sense in the context of both the common law and other laws and treaties. In this particular case, they like them to make sense in the context of both the European Convention on Human Rights and The Human Rights Act 1998.

Of the HRA — which, it should be remembered, didn’t actually give anyone any rights they didn’t already enjoy under the ECHR; it just made them easier to enforce — Mr Blair said, at the time,

The Bill marks a major step forward in the achievement of our programme of reform. It will give people in the United Kingdom opportunities to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case to the European Human Rights Commission and Court in Strasbourg. It will enhance the awareness of human rights in our society. And it stands alongside our decision to put the promotion of human rights at the forefront of our foreign policy.I warmly commend these proposals to Parliament and to the people of this country

Unfortunately for Mr Blair, the courts do insist on trying to enforce the law, rather than to cooperate in whatever signaling exercise the PM happens at the time to be engaged in, and so, as Mr Blair ruefully notes,

In December 2004 these laws were struck down by the courts. In his famous judgment Lord Hoffmann said there was a greater risk to Britain through the abrogation of the foreign suspect’s civil liberties than through terrorism.

Well, what he actually said, among other things, was

The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community. […]I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

Quite right, too, at least in my view, but what Mr Blair neglects to remind us is that Lord Hoffman’s view was not accepted by the rest of their Lordships.

Lord Hoffman, in a minority opinion, was there arguing that there did not exist a ‘public emergency threatening the life of the nation’ sufficient to justify suspending protections against arbitrary arrest and imprisonment without trial, as guaranteed not only the relevant sections of the ECHR but centuries of British legal tradition. The rest of the law lords, though, were prepared — if not actually to agree with the government that such a public emergency existed — not to over-rule the government and Parliament on the matter.

No, where HMG came unstuck was on the second question that their lordships had to answer, whether the measures went only so far as ‘strictly required by the exigencies of the situation,’ and concluded they didn’t. Indeed, many of them concluded that the measures made very little sense at all; why, they wondered, if (as Mr Blair puts it in his article) these

foreign nationals who we believed were plotting terrorism but against whom there was insufficient evidence to prosecute

were so dangerous as to need locking up in Belmarsh, were they, as Mr Blair puts it in his article

Of course, free to leave Britain

This seems, by the way, a particularly apposite question in the light of the three chaps who’ve just done a runner; Dr Reid tells us that, they’re ‘not a “direct threat” to people in the UK,’ which is nice to know, but apparently the reason they needed detaining was precisely that they might, err, leave Britain:

security watchdog Lord Carlile said there was “solid evidence” the three men had wanted to join insurgents in countries such as Iraq and Afghanistan “to kill British and other allied troops”.

Nor could many of their lordships quite understand why it was only foreigners who were so dangerous; were there no British citizens who posed a similar threat?

Mr Blair:

The ability to detain foreign nationals gave our services the ability to focus even more resources on the surveillance of British nationals who were a threat

which sounds a bit feeble, and even more so when we learn, a paragraph or so later on in his article, that

It is true that the police and security services can engage in surveillance in any event. But this is incredibly time-consuming and expensive, and even with the huge investment we have made since 2001, they simply cannot do it for all suspects

The logic of Mr Blair’s position, as the law lords saw, makes no sense unless — and this is what Lord Hoffman was warning about, as a far greater threat to ‘the life of the nation’ than anything al-Qaida could muster — you give the government power to subject everyone, Brits and foreigners alike, to indefinite detention without trial if that’s what the Home Secretary thinks advisable.

I’m not suggesting this some deliberate policy of the government; what I am suggesting is that it’s what we’re inevitably going to stumble into if we continue with this pernicious mentality of using laws as ‘signals’ and dismissing centuries-old safeguards against the arbitrary — or honestly mistaken (for even the most well-meaning people can make ‘honest mistakes’, about WMD in Iraq, for example, can they not?) — power of the state.

Blair writes, of ‘British nationals who pose a threat to us’ — for which read, who someone thinks, or possibly honestly believes — might pose a threat to us (but not necessarily, as Dr Reid has told us of the three chaps who’ve just vanished, ‘a direct threat’) —

we have decided as a country that except in the most limited of ways, the threat to our public safety does not justify changing radically the legal basis on which we confront this extremism.Their right to traditional civil liberties comes first

Well, good for us, because it’s not their right to traditional civil liberties; it’s our right. Anyone can make mistakes, even, the police, the security services and the Home Secretary. And they can make mistakes about anyone. And when they do, that’s when you really appreciate your civil liberties. However, Mr Blair doesn’t agree with us; he warns

I believe this is a dangerous misjudgment.

and starts blathering on about ‘signals’ again.

At which point, just to remind us about ‘beliefs’ and dangerous misjudgments, he turns to Iraq. With no apparent sense of irony, he recounts how someone apparently stopped him the other day (while he was on his way to the post office, I suppose) and had a go at him about Iraq and Afghanistan.

When he had finished, I said to him: tell me exactly what they feel angry about. We remove two utterly brutal and dictatorial regimes; we replace them with a United Nations-supervised democratic process and the Muslims in both countries get the chance to vote, which incidentally they take in very large numbers….Why should anyone feel angry about us?

Mr Blair continues,

The odd thing about the conversation is that I could tell it was the first time he had even heard the alternative argument.

Well, yes, I can quite see why Mr Blair’s interlocutor was left gobsmacked.

Anyway, let us turn to the specifics with which we’re threatened:

The government is considering giving police officers across the UK “stop and question” powers under new anti-terror laws, says the Home Office.The proposal, allowing police to ask people about their identity and movement, is among measures being considered by Home Secretary John Reid.

The measure is so far used only in Northern Ireland.

Police elsewhere have to have “reasonable suspicion” a crime has been committed before they can stop people.

This, however, has lead to such chorus of dismay, not only from the usual — err — suspects like civil rights campaigners and British Muslim groups but also Peter Hain — who, it should be remembered, as Northern Ireland Minister has first-hand experience of how these powers go down with the natives — and who

told BBC1’s Sunday AM programme: “We’ve got to be very careful that we don’t create the domestic equivalent of Guantanamo Bay, which was an international abuse of human rights, acted as a recruiting sergeant for dissidents and alienated Muslims and many other people across the world.”He would wait to see the details of the proposals but insisted they should be clear in balancing civil liberties with protecting people’s security.

I suspect this one is going to die the death once Mr Reid goes, along with giving the police

the power to place details such as DNA and fingerprints of anyone who has committed a minor, or ‘non-recordable’, offence such as dropping litter or speeding on to the relevant database

which sounds to me like a potentially rather unpopular idea with many motorists.

Indeed, I rather suspect that, in a month or so, even Mr Blair may come to reconsider his honest beliefs about civil liberties, the protection of suspects from mistakes and so forth. For I read in The Sindy that

In a sign that the Crown Prosecution Service is taking the [cash-for-honours] case extremely seriously, police have been told to find key pieces of evidence to strengthen the case. The move will unnerve Downing Street staff, who have been privately expressing confidence that nobody will be charged in the affair.Mr Blair, who has spoken to the police already, may face a further interview with detectives, but this time under caution, when he leaves office next month. Lord Levy and Ruth Turner, a key Downing Street aide, are among those who may also be questioned again.

That might concentrate his mind a bit.

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10 Comments »

  1. Excellent post; and I know this is not the point you’re making here but I might as well say it now – I do have something to hide (ie my life, which I don’t really want subject to arbitrary examination)and what are you ***stds going to do about it?

    Of course, when it happens I’ll hand over the ID like everyone else and feel pathetically grateful for all the rights I’ve been granted, should I want them.

    Comment by Tin Drummer — May 27, 2007 @ 4:12 pm

  2. I did paraphrase what he meant to say and what he should have said, and actually quoted what he did say, only turning it so that it was his extremism which needed dealing with not anybody elses.

    Comment by jailhouselawyer — May 27, 2007 @ 9:01 pm

  3. […] bloggage on this from Not Saussure and […]

    Pingback by Ihre Papieren, Bitte! « The Nether-World — May 29, 2007 @ 1:41 am

  4. […] Blair’s final stab at civil liberties A nice overview of the various bits of madness of the last few days (tags: Britain) […]

    Pingback by Nosemonkey / Europhobia » links for 2007-05-29 — May 29, 2007 @ 7:22 am

  5. I’m not suggesting this is some deliberate policy of the government

    Is this a joke? I can only presume that you’re analysing this episode in total isolation from everything else this government has done to our legal system over the past ten years. Of course it’s a deliberate policy. In fact, I’d go as far as to call it a ploy.

    Comment by Antipholus Papps — May 30, 2007 @ 2:10 pm

  6. No, it’s not a joke. I don’t think they’ve deliberately set out to undermine civil liberties and ancient legal safeguards. It’s the inevitable result, though, of their not understanding the importance of such safeguards. That makes it worse, to my mind.

    Comment by notsaussure — May 30, 2007 @ 4:42 pm

  7. I’m not sure it’s a lack of understanding. I don’t believe Tony is stupid. I don’t believe he is evil. It seems to me that leaves one thing: he lends little to no weight to “civil liberties and ancient legal safeguards”, especially when it comes to suspected criminals and terrorists – the very people most likely to need them.

    He can put on his CV that his Government was responsible for, say, the Human Rights Act, but that’s just something he’s put on his CV. It means little else to him.

    Is it a vote-winner? He’ll claim responsibility for it. Is it a problem? Then it’s the wooly liberals and judiciary who are at fault.

    In short, Tony wants what is expedient.

    One of the things that influenced my opinion can be found in Youssef. Long story but the relevant bit to this discussion is where our government attempted to obtain certain assurances from the Egyptians (see para 13) in respect of four men we were trying to deport, who were simultaneously challenging their detention with a writ of habeas corpus.

    The Egyptians objected by letter, Tony obtained a copy, and with reference to the assurances wrote on it, “This is a bit much. Why do we need all these things?”

    I’m not entire sure what in particular he objected to or whether it was the whole lot. But I believe the requested assurances reasonable for a government that wants to avoid a successful challenge under Article 3 of Convention, specifically:

    1. They shall receive no ill treatment whilst in detention; and
    8. That, during any term of imprisonment, arrangements would be agreed for regular (at least monthly) access by British Government officials and independent medical personnel.

    There were several communications between the Home Office, the FCO, and Tony’s Secretary – with Tony writing on various letters. The Egyptians wouldn’t budge.

    Eventually Tony’s secretary wrote to the FCO:

    … the Prime Minister is not content simply to accept that we have no option but to release the four individuals. He believes that we should use whatever assurances the Egyptians are willing to offer, to build a case to initiate the deportation procedure and to take our chance in the courts. If the courts rule that the assurances we have are inadequate, then at least it would be the courts, not the government, who would be responsible for releasing the four from detention. The Prime Minister’s view is that we should now revert to the Egyptians to seek just one assurance, namely that the four individuals, if deported to Egypt, would not be subjected to torture. Given that torture is banned under Egyptian law, it should not be difficult for the Egyptians to give such an undertaking. He understands that additional material will need to be provided to have a chance of persuading our courts that the assurance is valid. One possibility would be for HMG to say that we believed that, if the Egyptian government gave such an assurance, they would be sufficiently motivated to comply with it. We would need some independent expert witness to back that up. …

    In other words, no point of principle there, “we mustn’t break Article 3”, it’s all about what is expedient, “we’ll take our chances in the courts”.

    Comment by ukliberty — May 30, 2007 @ 8:12 pm

  8. I detest what Blair and his cronies have done to my country,but most of all I despise the apathetic populace who could’nt care less what these people are doing to this country and are quite content in their new material world to watch our civil,hard won liberties sink in the morass of their greed.The only reason this man and his trogalytes have managed to do what they have is because no one wants to get involved,content to leave it to the few.I only hope that our grandchildren understand just who gave the country away.

    Comment by home grown. — June 4, 2007 @ 3:35 pm

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