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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? (#ulink_bb881b3b-2a8d-52dc-a113-80767070604c)
2 Security versus Liberty (#ulink_aeecdef6-1e7d-5402-bf99-f7fab31da6e1)
‘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.
