Legislative and Regulatory Reform Act

My take on this is now up at the Magna Carta Plus weblog.

Why the Legislative and Regulatory Reform Bill is worse than the Civil Contingencies Act

I've posted this article on Magna Carta Plus as well as here. It follows up on my earlier article on the government's new enabling bill.

In my earlier coverage of the Abolition of Parliament Legislative and Regulatory Reform(LRR) Bill, I think I have underestimated how much power it gives to government ministers. I now think this bill actually gives more power to government ministers, in practical terms, than the Civil Contingencies Act (CCA).

The CCA explicitly gives Ministers both the powers of legislating via an Act of Parliament and the powers of the Royal Prerogative. However those powers are supposed to be invoked only in an emergency, are time limited to 7 days, albeit renewable, and have various other constraints such as not modifying the CCA itself or the Human Rights Act. There are protections for the courts and criminal offences created under CCA regulations can carry only 3 months imprisonment.

The possibility that the LRR is worse than the CCA was pointed out to me when discussing the bill in this thread on the usenet group, uk.politics.misc. One poster makes the following points:

• The LRR is designed ostensibly to be used in the normal course of governing, where the Civil Contingencies Act (CCA) is supposed to be used only in emergencies.
• The LRR can amend any legislation, where the CCA cannot be used to alter the CCA itself or the Human Rights Act.
• The LRR can be used to delegate legislative power, without apparent limit, to anybody the specified in an appropriate order.
• The LRR can be used to alter or abolish any rule of law.

The key matter I hadn’t considered fully before is this. The orders under the LRR can be used to confer legislative power on Ministers, such that they would then be able to legislate without any reference to Parliament at all. Given the government’s ability to control Parliamentary procedure (e.g. to ensure the negative resolution procedure is used), it would be possible for such a transfer of power in the favour of Ministers to occur without any vote in Parliament occurring!

This transfer could be achieved by sneaking the measure into a suitably large and convoluted order that implements a policy strongly backed by the governing party, and hoping it will either not be noticed due to the lack of time for scrutinising the order (this lack of time being arranged by the government) or if it is noticed it will be allowed through because the governing party’s MPs and Peers do not wish to abandon a key policy.

Remember there is no possibility for making amendments that would allow MPs or Peers to selectively modify problematic areas of the parliamentary orders. At best a request to revise the order can be made to the government which the government can consider and reject, or for that matter implement in any way it pleases. The Ministers will be in control at every step unless MPs or Peers vote the order down in its entirety.

I thus fear that if this bill passes we will not only see increasing amounts of legislation passed via parliamentary order with little or no scrutiny, but we will see Ministers being given increasing powers to legislate directly without reference to Parliament. The bill really should be entitled the Abolition of Parliament bill. The Abolition of Parliamentary Scrutiny Bill moniker I’ve been using in some posts is thus too mild a description of the threat this bill makes to Parliament’s role.

Another enabling bill...

Back in 2004, I got rather concerned about the Civil Contingencies Bill (now the Civil Contingencies Act[CCA] 2004) which allows government ministers to obtain absolute power by claiming there's an emergency, albeit on a temporary but renewable basis. There is very little a Minister could not do under the regulations the CCA allows, though the Human Rights Act and the CCA itself are protected from alteration.

Whilst I maintain that the legal situation regarding the CCA is as I describe above, and that the CCA is a dangerous law that in the hands of a ruthless government could be used to institute a dictatorship, it does seem to me that it is somewhat unlikely to be used this way in practice. It would be a blatantly dictatorial act and would be seen as such by both the British population and the world at large, and thus it would require a government that does not care about the image it gives to the world.

More likely abuses of the powers in the CCA might occur in the event of a genuine emergency -- for example using the CCA to enhance the power of the state with laws that then get backing from a manipulated Parliament, using the emergency as cover. Instituting permanent outright rule by decree using the CCA however is unlikely unless we really do get a would be Hitler residing in Downing Street.

Now, however, the government has a bill going through Parliament which would give Ministers the power to amend, modify or repeal any legislation whatsoever via parliamentary order. This bill is the anodyne sounding Legislative and Regulatory Reform Bill, and I've covered it in detail over at the Magna Carta Plus blog.

The crux of the matter here is that the bill provides a fast track procedure, lasting a maximum of 2 months, with which the government can push through legislation, at best subject to a single vote in each of the Houses of Parliament. The orders cannot be amended and there is very little opportunity for MPs or Peers to scrutinise the orders concerned. And if the negative resolution procedure is used to pass these orders, a vote would be required to stop the legislation, instead of being required to approve it. Note that, typically, MPs and Peers will get just 90 minutes to debate parliamentary orders before voting them and then will be asked to vote "yes" or "no" -- no chance of amendment is offered though the government can revise the orders under the so-called "super affirmative" procedure.

Various Acts already give Ministers powers to issue such orders in variously limited circumstances, e.g. to make regulations or relatively small legislative changes, as secondary legislation. This bill would enable them to make primary legislation via these orders. Not one Act of Parliament is protected from being rewritten this way, where the Civil Contingencies Act is protected from itself and cannot be used to alter the Human Rights Act 1998. The orders could thus be used to remove what flimsy safeguards there are in the Bill as it currently stands and could be used to change any legislation from the "anti-terror" laws to the Scotland Act (which set up the devolved parliament).

The likely result if this legislation is passed seems clear to me. A government seeking to ensure it gets its policies implemented will tie MPs and Peers up dealing with relatively unimportant Acts of Parliament and push their favoured policies through via parliamentary order, using their control of the committees to ensure minimal scrutiny and that their favoured procedure is used (e.g. the negative resolution procedure which requires a vote to stop an order being passed rather than to approve it).

See Spy.org.uk for an example of a Parliamentary order being passed without a vote (it renewed the Control Orders legislation) after a short debate. This bill would allow all legislation to be passed under the same procedures!

Whilst the Bill's powers are not technically as severe as the powers granted under the CCA, they are an affront to parliamentary democracy and would be a major step towards rule by decree. And because there would still be a Parliamentary facade to the legislative process used, the exercise of the bill's powers would not look so blatantly dictatorial as the CCA, even though the effect might well be the same.

Given the bill's powers would be permanent powers, not emergency powers, it could be used to gradually and subtly relegate Parliament to little more than a talking shop. For this reason, it may actually be more dangerous than the CCA in practice.

It is also worth noting that the government has further plans for diminishing the ability of MPs to scrutinise the governments actions and hold the government to account.

Other sites covering this bill include:

• The Campaign Against the Legislative and Regulatory Reform Bill.
• Right Links.
• Save Parliament.
• Liberty Central.
• Spy.org.uk.

The Terrorism Bill 2005: A threat to blogs/websites?

Update: I got it wrong on the committee stage of the bill. The committee stage of this bill takes place over 2 days, the 2nd and 3rd of November. See this link. Sorry for the mistake.

I confess to having taken my off the ball on this one. I didn't realise the Terrorism Bill 2005 (yes another one!) was in parliament until I heard about the 2nd reading and then was slow off the mark to write about it...

Spy.org.uk have berated the British blogosphere for failing to cover/analyse the Terrorism Bill 2005, which, in addition to enabling 90 days detention of terrorist suspects without charge, they argue threatens websites, bloggers and libraries due to the:

• vaguely defined offences of "inciting or glorifying" terrorism and distributing a terrorist publication, combined with
  
• the power of a police constable, acting on his own opinion that the publication is "terrorism-related", to issue a notice to a publisher to remove or modify an article within 2 days or be deemed to have endorsed the article, thus rendering you unable to raise the defence that it was provided only in the course of providing an electronic service, you didn't know it was terrorism related AND you did not endorse it.

More detail can be found here and at the Magna Carta Plus weblog. Note that the committee stage of this bill will be over on Wednesday 2nd November. Time to make use of WriteToThem...

Government bans spontaneous protests within 1 km of Parliament

As reported in the Evening Standard and on the BBC and in the "Mayor of London" weblog, spontaneous protests, even if they only involve a single person, are now banned in an area that extends up to 1 km from Parliament Square in London.

This ban has been imposed under the Serious Organised Crime and Police Act 2005, a law which was passed just before the general election in the "wash up" period after it was called. Sections 132 to 138 set out both the nature of the ban and the requirements for organising protests and how the designated area is set out. Key features are:

• it is an offence to organise, take part in or carry out a demonstration without authorisation in any public place within the designated area (section 132),
• the offence of organising a demonstration in the designated area without authorisation is punishable by upto 51 weeks in prison and a fine (section 136),
• the offence of taking part in or carrying out a demonstration in the designated area without authorisation is punishable by a fine (section 136),
• to get authorisation for a demonstration in the designated area one must apply to the Metropolitan Police 6 days beforehand if reasonably practical or 24 hours beforehand otherwise, and must do so in person or in writing using registered post (section 133),
• the police must authorise the demonstration but can impose any of the following conditions; restrictions on the length and times of the protest, restrictions on the numbers who can protest, restrictions on the number and size of the banners or placards used, restrictions on where the protest can take place; maximum permissable noise levels. (Section 134) The use of loud hailers is banned. (section 137)
• violating the conditions of a demonstration is an offence punishable by upto 51 weeks imprisonment and or a fine in the case of the organisers or a fine for other protestors (Section 134),
• it is an offence to incite someone to commit any of the offences described above (Section 134) punishable by upto 51 weeks in prison and/or a fine

The designated area can be any area the is upto 1 km from Parliament Square. Section 138 gives the Secretary of State the power to issue an order describing the designated area.

This statutory instrument was produced under this section and thus gives effect to this part of the Act and describes the designated area that will come into effect from the 1st August 2005.

Note that under the terms of the Act unauthorised protests are not allowed in any public place, that is any place the public have access to, within the designated area. Thus it covers the public areas of any pubs, hotels, conference centres or other buildings the public have access to.

Also the idea of a "demonstration" is not defined in the Act, leaving unanswered questions such as "Does wearing a T-shirt with a political slogan count as a demonstration?" and "Does organising a meeting of a political group inside a bar in the designated area count as an unauthorised demonstration?".

The Prevention of Terrorism Act 2005: Summary

The Prevention of Terrorism Act 2005, i.e. the control orders legislation, is available online here.
This is the version of the legislation that has become law. This article summarises the key features of the Act.

Sections 1 to 4 set out the powers to create control orders. The main points are:

• Control orders have two forms: derogating control orders are those incompatible with the right to liberty set out in article 5 of the ECHR and thus require a derogation from that article, non-derogating control orders are those which do not derogate from article 5.
• Control orders can be imposed on a person by a court on application by the Home Secretary, except for non-derogating control orders where the Home Secretary can impose an order without first going through the courts if, in his opion, it is urgent.
• Control orders can impose any obligation that the Home Secretary (or court where appropriate) believes is necessary for "purposes connected with" preventing or restricting the involvement of the person in "terrorism-related activity".
• Possible obligations include prohibitions or restrictions on a person's possession of specified articles and substances; their use of specified facilities; who they can communicate or associate with; their work, occupation, business or other specified activities; their movements and their place of residence.
• Other possible obligations include requirements on the person to surrender specified possessions for the duration of the order; to allow access to and searches of their place of residence or any other premisses they have access to; to allow items to be removed from their residence/premisses for testing and to remain in a particular place for specified times or periods or generally.
  
• Terrorism-related activity is defined as activity one or more of the following: the commission, preparation or instigation of acts of terrorism; conduct which facilitates the commission, preparation or instigation of acts of terrorism; conduct which encourages the commission, preparation or instigation of acts of terrorism; or conduct which gives support or assistance to individuals known or believed to be involved in terrorism-related activity.
• Terrorism is defined as it is under Section 1 of the Terrorism Act 2000.
• The Home Secretary can impose a non-derogating control order on a person if he has "reasonable grounds for suspecting" someone is or has been involved in terrorism related activity, and if he considers it necessary to do so for to protect members of the public from "a risk of terrorism".
• Non-derogating control orders last for 12 months but can be renewed by the Home Secretary.
• Courts must give permission for the Home Secretary's application for a non-derogating control order unless they find that the decision to make such a control order is "obviously flawed". They can also quash specific obligations if they believe the decision to impose them is "obviously flawed".
• For a derogating control order to be imposed, there must be a public emergency resulting in derogation from article 5 of the ECHR in force.
• A court can impose a derogating control order if it is satisfied, on balance of probabilities, that the person concerned is involved in terrorism-related activity and if it considers the control order necessary for purposes connected to protecting the public from a risk of terrorism. Note that my earlier article on control orders was thus mistaken about the burden of proof for derogating control orders -- house arrest would use the balance of probabilities, but non-derogating orders would not.
  
• Derogating control orders expire after 6 months unless renewed.

Section 5 enables a person to be arrested and detained by the police as soon as the Home Secretary makes an application for a derogating control order. This detention can last for upto 48 hours, or with court approval, a further 48 hours.

Section 6 stipulates that derogating control orders can only have effect if a derogation from article 5 of the ECHR is in force. Such a derogation is made by the Home Secretary making an order and putting it before both Houses of Parliament. The order to derogate ceases to have effect 40 days after it has been made, unless both Houses approve of the order. If approved an order lasts for 12 months, but can be renewed by Parliament.

Section 7 sets out various matters on modifying and proving control orders including giving the police the power to enter any premisses, by force if necessary, to search for someone who is to be subjected to a control order, where they suspect the person to be on those premisses.

Section 9 creates various offences. It is an offence to contravene an obligation imposed by a control order, punishable by upto 5 yrs in prison. Obstructing officials who try to enter premisses to search for someone subject to a control order is an offence carrying upto 1 yr (6 months in Scotland) in prison.

Section 13 stipulates that Sections 1 to 9 expire after 12 months, but allows them to be renewed for a year at a time by Parliament.

Section 14 requires the Home Secretary to make 3 monthly reports on the use of control orders, to appoint someone to review the legislation, for that person to review the legislation after 9 months and then every 12 months thereafter (if the legislation is renewed).

Telegraph columnist: "House Arrest scarred me for life, Mr Clarke"

Eric Abraham, writing in the Telegraph, describes his house arrest in apartheid era South Africa:

``One crucial difference, however, remains. Within one week Charles Clarke must refer such an order to a court which has the power to quash it. How long such a judicial review will take seems unclear. But what of the psychological damage done to the individual who may well be innocent of any terrorist act, or even the intention to act, during the period prior to the outcome of a judicial review? The effect of the sudden brutal assault on my civil liberty almost 30 years ago remains with me to this day. The Cape Times editorial went on, "Mr Abraham is being sentenced to a living death and, unless he is an individual of extraordinary inner resources, is being subjected to a species of mental torture which could cause grave psychological damage".

Since the imposition of house arrest, as opposed to banning (similar to the "lighter" version of Mr Clarke's "control order"), was relatively rare in apartheid South Africa – certainly for whites – the white public presumption was one of my guilt of a crime of heinous proportions. South Africa was a fear-ridden society convinced that it was under terminal threat from "die swaart en rooi gevaar", the black and red (Communist) danger. Fears stoked daily by the apartheid government. It is hard not to draw parallels with the Islamic fundamentalist terror threats which we are bombarded with daily – threats which Mr Clarke and Mr Blair use to justify the proposed Bill.

Not unlike an Islamic fundamentalist I was therefore Public Enemy No 1, held up to public gaze in a small ground-floor apartment. Not a good place to be at 22. The death threats started almost immediately. My telephone was left connected and tapped and they usually called at night. I would hear how I had betrayed my country and white skin and how they, Right-wing extremists, were going to kill me the next day. Because my case was taken up by Amnesty International and even prompted a motion in the Commons, I had armed police outside my house ostensibly to protect me from the extremist threats. Given the sympathies of the police I did not feel safe and slept in the bath on a number of occasions. My car brake cable was cut, a hearse arrived to collect my body, wreaths were delivered, known violent Right-wingers belonging to a group called Scorpio walked up and down the street outside.

I was scared for my life. No law should enable a government minister to impose restrictions that would subject anyone to this kind of experience for any period of time. Isolation and fear. These are the abiding emotions, the residue of which still lurk deep in my sub-conscious. How odd. I write this with the window wide open and the cold wind gusting around me and yet I find that I am sweating.

But, unlike Rick Turner, the first husband of the Labour backbencher Barbara Follet, who was murdered under house arrest in South Africa in 1978, I was lucky. In 1977 I escaped after a few weeks into 15 years of exile. I left a repressive police state for a liberal democracy where the rule of law was sacrosanct, where house arrest and torture were as inconceivable as slavery. It was a country which generously gave me a safe haven and political asylum – another great tradition. It was Britain.''

I fear that the Britain Mr Abraham writes of is dying.

And although the judge may review the detention within 7 days, because the detainee and his lawyer may be barred from seeing the evidence used to justify the detention, a proper defence cannot be mounted.

Barbara Follet MP on house arrest

A report from the Scotsman quotes the novelist Ken Follet's wife:

Mrs Follett (Stevenage), now married to novelist Ken Follett, said the system of control orders proposed by Home Secretary Charles Clarke bore “an extraordinary resemblance” to those used under apartheid.

She told the Commons during second reading debate on the Prevention of Terrorism Bill that Richard Turner was placed under house arrest in 1973 because he campaigned to give black people the right to vote and join trade unions.

He lived under the order for five years, unable to work or leave home, until he was assassinated in front of their two daughters Jann, 13, and Kim, aged nine.

“House arrest hampered but didn’t stop him,” she said.

“That is probably why, just before his five year order was due to expire, he was shot dead in front of our two young daughters in their bedroom.

“In the days that followed I tried to comfort them by telling them we were going to go to Britain where people were not detained without trial or put under house arrest.
She said she would not support the Bill and called on Mr Clarke to change the orders so they can only be implemented by a judge, to consider using intercept evidence in court and to write a sunset clause into the Bill.

“The end does not justify these means,” she said.

“The example we set will stay with us for many years.

“These principles are the very basis of our democracy and the Labour Party – destroy them and you destroy us.”''

We have:

• a government that has passed an enabling act giving them absolute power should a cabinet minister declare an emergency,
• a government that has given everyone from the Food Standards Agency to your local council the power to snoop on who you communicate with on their own authority,
• a government that gave the Dept for Work and Pensions and local councils the power, on their own authority, to demand a person's financial details from banks, utility companies and anyone providing financial services,
• a government that has enabled people's assets to be seized by the state, using civil procedures, without proving the person has committed a crime,
• a government that has allowed travel bans to be placed on people without proving they committed any offence (see Football (Disorder) Act 2000, schedule 1, section 14B of amendments to Football Spectators Act 1989),
• a government that has enacted the European Arrest Warrant whereby you can be extracted to another EU country without British courts seeing any evidence against you, and where upon arrival the charges can be changed.
• a government that has systematically and progressively removed, weakened and/or undermined the protections of the individual, the rule of law and the restraints on state power that have built up over centuries.

[This list is not comprehensive.]

Should we be surprised when they put forward measures like house arrest without trial, on the say so of the Home Secretary, with evidence kept secret from the detainee and his legal representatives and try to rush them through the House of Commons in the space of 1 week with only 2 or 3 days of debate?

If they get away with this, what will they try next?

Opposition growing to house arrest proposals

It seems that opposition to Charles Clarke's proposals to impose house arrests on suspected terrorists without trial is growing. Firstly, there was George Churchill-Coleman's comments to the Guardian claiming that the proposals were impractical and he feared that Britain was "sinking into a police state".

Then, both the Tories and Liberal Democrats are reported to be opposed to the measures:

``Controversial government plans to keep terror suspects under house arrest rather than in jail could falter in parliament and fail to become law.

The Conservatives declared on Wednesday they would oppose the new scheme, hastily drawn up after the highest court ruled that imprisoning foreign suspects without trial broke human rights law.

With the Liberal Democrats also against, and many in the Labour party uneasy, the legislative battle could be bloody.''

However Michael Howard, the Tory leader has agreed to meet with Blair to discuss the proposals:

``Mr Howard argued that it was wrong in principle for anyone to be deprived of their liberty "on the say-so of a politician'' and argued that those accused of terrorist offences should be brought to trial and detained in prison in the meantime.

Mr Howard went on to ask Mr Blair to meet him "to see if we can agree on a way forward which will command a wide degree of public confidence on these vitally important issues''.

Acknowledging the civil liberties implications of the Government's plans, Mr Blair said he would be "perfectly happy'' to meet Mr Howard to see whether it was possible to find a common way forward on dealing with terror suspects who cannot be brought to trial.''

I suspect a stitch up job here, which will result in measures only slightly less fascist than these proposals being agreed to.

But then yet more opposition has appeared, with the head of the Metropolitican Police, Sir Ian Blair coming out in favour of using intercept evidence in court as an alternative:

Perhaps more importantly Sir Ian also disagrees with the Government about the best way of dealing with suspected terrorists. Although Charles Clarke is proposing to detain suspects in their own homes without trial, the Commissioner believes that it would be better to allow intercept evidence to be used in court so that they can be tried.

"I have long been in favour of intercept evidence being used in court," he says. "In policing terms, it would make my job much easier. The simple reason why it would be better is that if we've got this, we can put it in front of a court and the court can weigh it up. At the moment, nobody can test it."

His concern with the proposals for house arrest is that Muslims will feel alienated from the police if they see officers searching everybody who goes into a suspected terrorist's house.

"The community will say to us, 'What are you doing with these people, why have you got these people under all of this, why don't you just tell us what it is you've got?' That's my position but, of course, there's a legitimate argument on the other side."

He is using diplomatic language, and I'm not sure there really is a legitimate argument on other side (save in the most extreme circumstances, but we're not facing those), but it is clear he's at odds with the government on this. It is worth noting that the civil liberties group "Liberty" has also come out in favour of accepting intercept evidence in court:

Backing Sir Ian's stance, Shami Chakrabarti, director of human rights group Liberty, said: "Judges rather than politicians should decide when to authorise phone tapping.

"However, if it is legitimate to eavesdrop on someone's private phone calls, it is nonsensical not to use relevant material in a criminal trial."

It really is strange that Britain and Ireland alone in Europe do not allow intercept evidence in court. The US does it, France does it, Israel does it, Canada does it. Their security agencies seem to be able to cope why not ours?

And isn't worth trying measures that will help bring people to trial rather than dispensing with a trial altogether, at a serious risk to individual liberty?

Recent commentary on the House Arrest proposals

The Adam Smith Institute Blog says:

Sure, a liberal order must protect itself from those who would destroy liberalism itself. And maybe, at times, you have to act illiberally to do that. But you should still act according to the rule of law. If there is evidence, it should be produced in court. If the evidence is too sensitive to be made public, then it should be heard in private before qualified judges. At the moment we are jailing people, and soon we will be imprisoning them in their homes, on the say-so of a politician. That is scary.

I quite agree.

Tim Worstall, whose blog I recently added to my side bar, writes in an article entitled "Stalinism Returns":

The cornerstone of whatever freedoms we have managed to accumulate over the past millenium or so is the right to a trial by jury, with the associated presumption of innocence and Habeus Corpus. Everything else, and I do mean everything, that we enjoy, prosperity, freedoms of speech, association, property, are all reliant on this one base, and now they want to take that away from us.

This is an important point. The right to defend oneself against an accusation does form the basis upon which individual freedom lies. Without it, your freedom can be snuffed out at the whim of a politician.

Over at the Samizdata blog, they had this to say:

The Daily Telegraph appears to blame the Human Rights Act, noting that this decision is ostensibly being taken because the Law Lords said that it was illegal to empower the Home Secretary only to detain foreigners arbitrarily. This view is advanced notwithstanding Lord Hoffman's ditcta that applying such a equally rule to British citizens is no more defensible. But it is an absurd idea that such unlimited arbitrary power of arrest and detention is something the government reluctantly finds has been thrust upon it.

I agree that the claim the Human Rights Act is to blame is flawed -- the new measures are just as much a breach of human rights as the old -- and that the image of a government reluctantly forced to consider these measures is absurd. The government has been attacking civil liberties, in all sorts of legislation -- not just anti-terrorism legislation -- for years, and started this well before 9/11. They haven't tried obvious measures that might allow more prosecutions of suspected terrorists such as using intercept evidence in court (as almost every other developed country, including Israel with its long experience of terrorism does). It seems to me that, far too often, an attack on civil liberties is this government's first resort when faced with a problem. This is a government addicted to executive power.

The excellent spy.org.uk blog comments:

The plan seems to be to allow a "whole range" of measures under a regime of Control Orders which could include house arrest, electronic tagging, denial of telephony or internet access, denial of association with some as yet unspecified people etc., all without actully having to present any evidence to a court. The whole point of having to go through a legal court procedure is precisely so that politicians and faceless petty officials cannot impose ever changing Kafakaesque rules and regulations which cannot be challenged by the defendant.

The 60th Anniversary of the liberation of the Auschwitz extermination camp brings to mind the quotation from Pastor Martin Niemoller, who was locked up in the Dachau and Sachsenhausen concentration camps:

"First they came for the Jews
and I did not speak out, because I was not a Jew.
Then they came for the communists
and I did not speak out, because I was not a communist.
Then they came for the trade unionists
and I did not speak out, because I was not a trade unionist.
Then they came for me
and there was no one left to speak out for me."

How can this Labour Government introduce such a fundamental attack on the the principle of Habeas Corpus ? The end does not justify the means.

Finally some further comments of my own. There has been a steady, systematic attack on civil liberties going on in Britain now for many years, which started well before 9/11 and which has involved attacks across many areas of policy, not just crime or anti-terrorist policy. These proposals are the latest and most extreme yet.

It seems to me that each time a proposal to weaken civil liberties makes it into law without the government facing punishment from the electorate and without there being any other effective opposition or backlash, it provides encouragement for further attacks. Each new attack that passes by without an outcry/backlash from the population proves that the government can probably go yet further still and get away with it.

There is also another aspect of this that worries me. Each time civil liberties are successfully weakened and each time the executive acquires an arbitrary/draconian power over individuals, those who might abuse such powers are encouraged to press for more and given more opportunities to take power themselves.

It does not matter that the intent of the politicians may be benign, the above points will hold. This process is making Britain vulnerable to tyranny.

And here is my final point: If the government gets away with enacting these proposals without a serious backlash, it will demonstrate that even more draconian measures could be enacted before a backlash occurs.

Given how draconian these proposals are, that scares the hell out of me.

And remember there's already an enabling act ticking away on Britain's statute books!

House arrest without trial proposed.

Charles Clarke announced today his response to the recent Law Lords ruling that indefinite detention of foreign nationals who are suspected terrorists without trial contravened the ECHR.

Instead of detaining them in jail, Clarke has decided to allow indefinite detention of British resident, regardless of nationality and without trial, in their own homes:

Under the new powers, the government would no longer be able to jail suspects without charge, but could forbid them from meeting certain people, impose curfews or electronic tagging on them or confine them to house arrest.

Unlike the previous measures, which were based on immigration law and applied only to foreigners, the new measures could be used against British nationals. The government would not have to prove suspects had committed a crime.

"It's still total loss of liberty, and total loss of liberty without due process is exactly what the Law Lords ruled is wrong," Natalie Garcia, lawyer for two detainees, told Reuters.

"It used to be foreigners. It can be absolutely anyone now. You can be one day, normal citizen minding your own business, next day banged up in your home unable to go out in the garden."(Emphasis added)

And who would decide which people get subjected to this treatment? Charles Clark (or any future Home Secretary):

The proposed changes would mean the home secretary could order British citizens to be held under house arrest without putting them on trial.

Thus the fascist control freaks British government are proposing to give themselves the power to jail anyone in Britain, on the say so of the Home Secretary (not the courts!), and prevent them from communicating with others -- possible restrictions include restrictions on accessing telecommunications/the internet as well as who you can meet.

If this comes to pass, how long will it be before the govt proposes to extend these powers to those suspect of any serious crime rather than terrorism? The excuse being we can't afford to allow (suspected) paedophiles, murderers, rapists, organised criminals, fox hunters, or ID card dodgers to roam freely...

Reminder: the lack of safeguards in the Civil Contingencies Act (updated)

Further to the Civil Contingencies Act getting Royal Assent, and in response to a reader's request, I figured a reminder of the lack of safeguards in this legislation is needed.

Note that since I posted the original article, it has come to my attention that the Bill was amended so that the Human Rights Act 1998 is protected from emergency regulations. I've updated this article to reflect this.

The Act enables any cabinet minister or govt whip to declare an emergency orally. Under emergency regulations, the minister/whip concerned can make "provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative" [Section 22(3)].

Without any limitations, this is absolute power. The main limitations provided in the Bill are that:

• regulations have to be approved by Parliament within 7 days (but this does not stop new regulations being issued...),
• that the state of emergency can only last 30 days without
  parliamentary approval (but this does not stop a new emergency being declared...),
• conscription to the military is prohibited (but the govt can confer any function on anyone and require them to carry it out)
• any new offences created by regulations can carry a maximum of 3 months imprisonment (but the govt can make regulations requiring movement to and prohibiting movement from a specified place),
• strikes and other industrial action may not be prohibited (but the govt can make regulations requiring movement to and/or from a specified place and can confer any function on people and require them to carry it out),
  
• regulations cannot alter criminal procedure (but the govt has the power to confer jurisdiction on unspecified courts and tribunals and the power to alter any legislation whatsoever aside from the Civil Contingencies Act(CCA) itself and the Human Rights Act(HRA) 1998).

So what of the HRA 1998, doesn't it prevent the government exercising absolute power under the CCA 2004? The answer is no for 2 reasons:

• Firstly, section 14 of the HRA enables derogations from the European Convention on Human Rights, and indeed we already derogate from the right to a fair trial under legislation passed after 9/11, to enable foreign nationals to be detained indefinitely without trial. This was done by declaring an ongoing public emergency. As the Edge of England's Sword blog notes, it is likely that the grounds used to invoke the CCA could be used to invoke a derogation from any awkward rights.
• Secondly, many of the rights are either nullified or weakened in the event of an emergency, thus invoking an emergency reduces the rights available. Amongst those affected are the rights against slavery and forced labour (exempt is service/work exacted in an emergency) and the rights to privacy, freedom of expression, freedom of association and freedom of protest all of which are heavily qualified with respect to such things as national security, public safety and public morals.

Thus the provisions of the CCA and the HRA can combine to nullify the protections the ECHR would normally provide and the govt can still thus exercise absolute power under this legislation.

As I stated in an earlier blog article:

``It is a common pattern of this Bill that any safeguard that is
proposed in one section can be subverted or undone in another,...''

``...the Bill enables the government to rule by decree and cut
Parliament out of the process, with no practical limits on its power.

And as an earlier article demonstrated, a Minister need merely claim that in his opinion an emergency is about to occur and existing legislation might not be sufficient to deal with it. And there are no penalties for misuing the powers in the bill.''

Isn't it comforting to know that at a moment's notice our govt, or any cabinet minister or govt whip, can acquire absolute legal power in the event of an "emergency"?

Isn't it odd that the mainstream media have failed to cover the passing of this legislation by Parliament and instead give more airtime/column inches to Band Aid 20 and the Fox Hunting Bill?

Spy Blog: Civil Contingencies Act 2004 gets Royal Assent

Blair's enabling Act is now law. In fact it was so as of yesterday. spy.org.uk's Blog reports that the Civil Contingencies Act 2004 (formerly the Civil Contingencies Bill) has received royal assent after passing through Parliament. Yet the mainstream media have given scant coverage to this, instead focussing on such things as Band Aid 20 and the anti-fox hunting legislation.

Anyway, we are now in a position where, legally speaking, all a cabinet minister or govt whip has to do to acquire pretty much absolute power, is to state that an emergency is about to occur, that existing legislation might not be sufficient to tackle it and they need to enact emergency regulations to deal with it. At this point they can then cut Parliament completely out of the loop.

Comforting thought eh?

How the Civil Contingencies Bill might be used

Discussion of this Bill continues in the blogosphere. Over at Airstrip One, Philip Chaston has offered us this scenario for its usage:

An 'emergency' is declared by the government. Who knows what the catalyst may be? It could vary from an outbreak of foot and mouth to a mega-terrorist attack on the United States of America or another European country. The definition of emergency within the Civil Contingencies Bill is so vague that it could be stretched to cover a terrorist attack in a foreign country, and the consequences of any perceived threat on our own shores. My own assumption is that it would have to be an NBC attack. Nothing less could do for the government's subsequent actions.

Following this, a nationwide emergency is declared and all democratic assemblies are prorogued. The Government pushes through a number of authoritarian measures by regulation including a national ID scheme and, possibly, the reintroduction of a limited draft. In oredr to show solidarity with fellow European Union Member States, the government also signs up to the Euro and the Constitution, promising a democratic vote once the national state of emergency has ended.

Regulatory changes include the creation of a list system for parties, the use of postal, mobile and electronic voting, and the prohibition of 'extremists' such as the British National Party and UKIP. Certain opinions and arguments deemed offensive are banned from the media or the public airwaves. After these regulatory changes, introduced as modernisation or democratisation, are embedded, the government calls another election, which Labour wins handsomely, having introduced a 'managed democracy'. This election is cited as a referendum on Europe and the ruling party declares that no further votes are required on membership within Europe.

Tying this in with the EU constitution is not something just plucked out of the air either. The EU constitution lists "civil protection" as one of the "coordinating" powers for the European authorities. Note that the bill enables the creation of arbitrary imprisonable offences and can delegate powers to anyone or confer jurisdiction on any court or tribunal.

The scenario above sounds plausible to me. Certainly, a nuclear, biological or chemical attack (NBC attack) in the US or the EU would engender enough fear, anxiety and panic for the government to declare an emergency with some credibility in the eyes of the public. Taking Britain into the Euro and the EU Constitution would fit with the aims of Tony Blair and many pro-EU politicians in all the major political parties. And the actions taken, whilst falling short of turning Britain into Nazi Germany or even East Germany, would turn it into a state where political views deemed offensive are repressed and elections are easily manipulated. And the possibility of invoking another emergency remains if too much opposition is generated by such actions and needs to be repressed.

A key question here is what if the scenario was modified in one crucial respect. Suppose the emergency is declared, ostensibly in anticipation of a NBC attack? Remember the Bill merely requires that a Minister thinks an emergency has occurred, is ocurring or is about to occur? Would the government get away with it?

If this Bill reaches the statute books in its present form, such questions will have real significance. Since the emergency powers can be invoked so easily and without any real scope for legal challenge, it follows that the main restraint on using this bill is down to what the government (believes it) can get away with.

One thus has to make tricky judgements about whether there'd be a large enough, powerful enough body of resistance, either within or without the UK, to stop the government, and to do so by force if necessary and whether the government is willing to tolerate certain consequences such as being regarded as a pariah state internationally or economic disruption caused by people and companies fleeing the country.

The need to make such judgements, and the gamble living in Britain thereby represents, are the consequences of giving the state a means of suspending democratic politics and assuming absolute power, however temporary the basis is meant to be. This bill provides such means.

The Civil Contingencies Bill: Safeguards and the scope of emergency regulations

In this article, I shall concentrate on the powers given to Ministers via emergency regulations and on the effect of the safeguards that are in the bill. Already in my first article on this bill I described the powers in some detail.

The key point regarding the powers is that the emergency regulations permit any provision that can be made by an Act of Parliament or by Royal Prerogative.Without any constraint being put on this formulation, this would amount to absolute power. There are, however, some apparent safeguards in the Bill. I contend that these are ineffective and that Ministers will have absolute power under the Bill, despite these safeguards.

Section 23 details the main limitations of emergency regulations. The limitations specified are that (to summarise):

1. The person making the regulations thinks the regulations are for preventing, controlling or mitigating an aspect or effect of the emergency for which the regulastions are being made and that the effect of the provision is in due proportion to that aspect or effect of the emergency.
2. The regulations must specify the parts of the UK or regions in which they're to have effect.
3. The regulations may not require or enable a person to be required to provide military service and may not prohibit or enable the prohibition of strikes or other industrial action.
4. The regulations may not create an offence other than one of failing to comply with emergency regulations, disobeying an order made under emergency regulations or obstructing a person in the performance of a function under emergency regulations.
5. The regulations may not create an offence other than one only triable before a magistrate's court (or in Scotland before a sheriff under summary procedure).
6. The regulations may not create an offence punishable by more than 3 months in prison or a fine exceeding level 5 of the standard scale.
7. The regulations may not alter procedure in relation to criminal proceedings.

Points 1 & 2 do not limit the power of the regulations in any way.

Point 3 seems significant in apparently preventing conscription or the banning of strikes. However given that Section 22 explicitly allows a regulation to require the performance of an unspecified function on someone, this would merely mean that the person could not be drafted into the Army. Carrying out a function involving pointing guns at people who disobey you need not involve being conscripted. Similarly the banning of strikes might be a limitation, but it is a deeply uncertain one given that emergency regulations can prohibit or require movement to or from a particular place, and can ban assemblies. I submit that any limitation of power due to point 3 is insignificant or nonexistent in practical terms.

Point 4, does not affect the power of the regulations at all and merely affirms the ability to make an offence of disobeying regulations.

Point 5 simply limits the offences to those that can be tried in a magistrate's court. Yet Section 22 explicitly allows jurisdiction to be placed on a court or other tribunal, thus ensuring that the normal system of courts can be by-passed for special courts set up for the purpose of administering emergency regulations.

Point 6 limits the scale of punishment for disobeying regulations. However since regulations can confiscate property without compensation or mandate indefinite detention in one place, I submit it is no real practical limitation on the power of the regulations.

Point 7 preserves criminal procedure but this only matters if a trial takes place. Given that regulations can require indefinite detention in a particular place, with disobedience carrying a 3 month sentence of imprisonment or fine, after which you could be put in indefinite detention again (on pain of 3 months imprisonment), again we have no real limitation.

There are some further safeguards in the bill.

• Emergency regulations lapse after 30 days (Section 26). However this does not prevent new regulations being issued, and thus enabling permanent renewal of the regulations.
• Where emergency regulations are issued by a senior Minister of the Crown, the regulations have to be accepted by both Houses of Parliament within 7 days or they lapse. Again this does not prevent new regulations being issued.The government can thus cut Parliament out of the loop by simply reissuing regulations every 7 days. They can thus bully or bribe Parliament via these regulations until Parliament agrees to e.g. make some set of the regulations permanent or make the state of emergency permanent.
• Section 22(3)(j) prevents regulations amending Part 2 of the Bill (the part that is the subject of these articles). This does at least prevent regulations being used to e.g. extend the lifetimes of regulations, or remove such limitations on regulations as are in the bill. However given that ALL OTHER LEGISLATION could be repealed or modified that's not much of a limitation at all.

It is a common pattern of this Bill that any safeguard that is proposed in one section can be subverted or undone in another, as can be seen with the first two bullet points immediately above. An additional example: Under section 25(1), if the government wish to set up a tribunal under emergency regulations they're supposed to consult the "Council on Tribunals". However section 25(2) enables the tribunal to be set up without such consultation if the government thinks setting the tribunal up is urgent, and also stipulates that failure to consult does not affect the validity of the regulations setting up the tribunal!

Anyway as we can see above, the Bill enables the government to rule by decree and cut Parliament out of the process, with no practical limits on its power. And as an earlier article demonstrated, a Minister need merely claim that in his opinion an emergency is about to occur and existing legislation might not be sufficient to deal with it. And there are no penalties for misuing the powers in the bill.

Can we trust this and all future governments not to abuse such legislation?

I regard it as a Sword of Damocles hanging over British democracy, should it get on the statute books. If the government gets its way, it'll be in force by the end of the year.

"Emergencies" in the Civil Contingencies Bill

After my previous article on the Civil Contingencies Bill, I've decided to cover some aspects of the Bill in more detail to help explain my concerns over it. Those concerns do not just relate to the draconian powers the government acquires upon declaring an emergency, but also relate to the lack of effective safeguards to prevent abuse of the process.

To appreciate the lack of safeguards and the potential for abuse, one needs to consider the following features of the bill:

• The threshold for lawfully declaring an emergency in the first place.
• The nature of the powers the government acquires.
• The intended safeguards against abuse contained in the bill.

This article will consider the first of these, and subsequent articles the remainder. The threshold for lawfully declaring an emergency in the first place is determined by:

• The definition of an emergency.
• The conditions that must be met for someone to declare an emergency.
• How that person can go about declaring an emergency.

Taking the definition an emergency first, Section 19 of the bill provides it. To summarise section 19(1), an emergency is an event or situation that threatens serious damage to human welfare in, the environment of, or the security of the UK or a part or region of the UK.

Sections 19(2) to (4) elaborate on this (to paraphrase and summarise):

An event or situation threatens human welfare if it involves, causes, or may cause loss of human life; human illness or injury; homelessness; damage to property; disruption of supply of money, food, water, energy or fuel; disruption of transport facilities; disruption of a system of communication; disruption of health services.

An event or situation threatens the environment if it involves, causes, or may cause contamination of land, water or air with harmful biological, chemical or radioactive matter or oil; flooding; or disruption or destruction of plant or animal life.

War, armed conflict and terrorism (as defined in the Terrorism Act 2000, section 1) are all deemed to threaten the security of the UK.

Several points are worth noting at this juncture:

• The situation or event concerned need not be occurring in the UK, e.g. events in the middle east could lead to a reduction in oil production leading to disruption of the supply of this fuel to the UK.
• The situation or event need not actually have caused damage, it merely needs to threaten "serious" damage.
• There is no indication how serious "serious" is, in the phrase "serious damage".
• Many situations that have been handled perfectly well without such draconian powers in the past would fall under this definition of emergency: hurricanes, deep recessions (e.g. that may make some people homeless), oil spills, the fuel protests of 2001, terrorist bombings, accidental explosions and the oil crises of the 1970s.
• Many forms of civil disobedience and protest could fall under this definition, e.g. strikes by medical staff in the NHS (note however that the bill protects the right to strike), anti-GM crops campaigners tearing up GM crops (damage/disruption to plant life).
• The above definition is very broad and quite vague.
  

The conditions that must be met for someone to declare an emergency are set out in Section 20 and Section 21. These conditions are that:

• The person is the Queen (by an Order in Council), or (without an Order in Council) a senior Minister of the Crown (a cabinet minister or commissioners of the Treasury, this latter including government Whips).
• A "senior Minister of the Crown" can make emergency regulations without an "Order in Council" if they are satisfied that conditions in section 21 are met and that arranging for an "Order in Council" would cause a delay that might cause serious damage or seriously obstruct the prevention control of mitigation of serious damage.
• The conditions in section 21 that need to be met include that the emergency is occurring, has occurred or is about to occur; it is necessary to make provision for the purpose of preventing controlling or mitigating the emergency or an aspect or an effect of it; and the need for the provision is urgent. It is necessary to make provision if existing legislation cannot be relied on without risk of serious delay; it isn't possible without risk of serious delay to ascertain of existing legislation can be relied upon; or the existing legislation might be insufficiently effective.
• The person making the regulations must preface the regulations with a statement specifiying the nature of the emergency and declaring that they are satisfied the conditions in section 21 are met, they are satisfied the regulations only contain provision for the purpose of mitigating, controlling or preventing the emergency or an aspect/effect of it, they are satisfied the effect of the regulation is in due proportion to the emergency or the aspect/effect of it, that they are satisified the regulations are compatible with the Human Rights Act and they are satisfied that arranging for an Order in Council would risk serious delay.
  

Note that the final requirement is simply to produce a declaration of the opinion of the person making regulations that the required conditions are met.

Putting this all together, we can summarise the weakest set of conditions that suffice: A senior Minister of the Crown may make emergency regulations if in their opinion an emergency (which could just be a flood) is about to occur and existing legislation might be insufficiently effective at tackling the emergency.

Thus all that's required is for a cabinet minister or government whip to state that they personally believe an emergency is about to happen and that the existing legislation might not be effective enough, and the power to make emergency regulations is thereby acquired.

There is no requirement in the Bill that their belief be reasonable, thus making the possibility of legal challenge remote.

And note that it is ANY cabinet minister or government whip who could do this on their own authority, where previously the agreement of Parliament was required.

Is Britain headed for dictatorship?

In 1933, Adolf Hitler managed to get his Enabling Act through the German parliament, which gave him absolute power over Germany in the event of an emergency. Once this Act was in place, Hitler declared an emergency and the rest is, as they say, history.

Over on Samizdata, David Carr is worried that the British government is pushing through its very own Enabling Act in the form of the Civil Contingencies Bill.

Having read the Bill myself in detail now, it seems to me Carr's concerns are entirely justified. I find myself wishing I'd paid more attention to this earlier. So what is the cause for concern?

Under this Bill, Cabinet Ministers (and government Whips!) can declare a state of emergency in the UK, or any part of it, orally.

An emergency is defined in a very loose manner that would cover, e.g. the fuel protests of 2001. The conditions for making such a declaration are that an emergency has occurred, is occurring or is about to occur, that it is necessary to make provision to mitigate, control or prevent the emergency or an aspect of it and that the need for the provision is urgent[see Sections 19 to 21].

Note that a Minister merely needs to be "satisfied" (i.e. believes/thinks that) the conditions apply. There is no test of "reasonableness" that might enable, e.g. a court challenge.

Furthermore, as Spy.org.uk notes, there is no provision for authentication of Ministers' orders or for punishing the false declaration of an emergency and there is no punishment for abusing emergency powers.

On declaring such an emergency, Ministers acquire the power to make regulations for any of the following purposes [Section 22(2)]:

• protecting human life, health or safety,
  
• treating human illness or injury,
  
• protecting or restoring property,
  
• protecting or restoring a supply of money, food, water, energy or fuel,
  
• protecting or restoring an electronic or other system of communication,
  
• protecting or restoring facilities for transport,
  
• protecting or restoring the provision of services relating to health,
  
• protecting or restoring the activities of banks or other financial institutions,
  
• preventing, containing or reducing the contamination of land, water or
  air,
  
• preventing, or mitigating the effects of, flooding,
  
• preventing, reducing or mitigating the effects of disruption or
  destruction of plant life or animal life,
  
• protecting or restoring activities of Parliament, of the Scottish
  Parliament, of the Northern Ireland Assembly or of the National
  Assembly for Wales, or
  
• protecting or restoring the performance of public functions.

I.e. just about any purpose imaginable.

Furthermore, the Act explicitly states that regulations may make provision of any kind that could be made by Act of Parliament or by Royal Prerogative[Section 22(3)]. Under the British system of government, this is absolute power.

The Act reinforces this by explicitly listing the making of provisions[Section22(3)] to:

• (a) confer a function on a Minister of the Crown, on the Scottish Ministers,
  on the National Assembly for Wales, on a Northern Ireland
  department, on a coordinator appointed under section 24 or on any
  other specified person (and a function conferred may, in particular,
  be—
  
  • (i) a power, or duty, to exercise a discretion;
  • (ii) a power to give directions or orders, whether written or oral);
• (b) provide for or enable the requisition or confiscation of property (with
  or without compensation);[i.e. everything you or your business owns could be confiscated without compensation]
  
• (c) provide for or enable the destruction of property, animal life or plant
  life (with or without compensation);[i.e. everything you or your business owns could be destroyed without compensation]
  
• (d) prohibit, or enable the prohibition of, movement to or from a specified
  place;[i.e. you could be indefinitely imprisonened]
  
• (e) require, or enable the requirement of, movement to or from a specified
  place;
  
• (f) prohibit, or enable the prohibition of, assemblies of specified kinds, at
  specified places or at specified times;[i.e. banning all forms of protest, but also note that Parliament, the Scottish Parliament and the Welsh Assembly are all assemblies!]
  
• (g) prohibit, or enable the prohibition of, travel at specified times;
  
• (h) prohibit, or enable the prohibition of, other specified activities;[i.e. banning anything at all!]
  
• (i) create an offence of—
  
  • (i) failing to comply with a provision of the regulations;
  • (ii) failing to comply with a direction or order given or made under
  • the regulations;
  • (iii) obstructing a person in the performance of a function under or
  • by virtue of the regulations;
• (j) disapply or modify an enactment (other than a provision of this Part) or
  a provision made under or by virtue of an enactment;
  
• (k) require a person or body to act in performance of a function (whether
  the function is conferred by the regulations or otherwise and whether
  or not the regulations also make provision for remuneration or
  compensation);
  
• (l) enable the Defence Council to authorise the deployment of Her
  Majesty’s armed forces;
  
• (m) make provision (which may include conferring powers in relation to
  property) for facilitating any deployment of Her Majesty’s armed
  forces;
  
• (n) confer jurisdiction on a court or tribunal (which may include a tribunal
  established by the regulations);[i.e. set up courts/tribunals that bypass the normal legal system!]
  
• (o) make provision which has effect in relation to, or to anything done in—
  
  • (i) an area of the territorial sea,
  • (ii) an area within British fishery limits, or
  • (iii) an area of the continental shelf;
• (p) make provision which applies generally or only in specified
  circumstances or for a specified purpose;
  
• (q) make different provision for different circumstances or purposes.
  

I.e. just about any provision imaginable.

Note that under existing laws, as I understand it, Parliament has to agree a state of emergency, whereas under this Bill it is the senior members of the executive, along with the Queen, who hold the power to declare an emergency without Parliament getting a look in. Once this is done, they have absolute power over us.

This Bill is currently in the Lords and was rushed through Parliament with the third reading "guillotined" so that opposition amendments were not debated and the Bill was passed "on the nod". The government want it on the statute books before the next Queen's Speech in November.

"The Times" and identity cards

Yesterday's issue of The Times contained a couple of interesting articles in favour of identity cards, a commentary by Michael Gove and a leader column. The quotations below come from the paper copy, which I bought, as I didn't have the URLs at the time I wrote the original version of this article.

Gove article

Gove's article is ludicrously entitled "Why David Blunkett is the real civil libertarian", but maybe that merely shows Gove has a sense of humour. Gove starts off talking about prejudices, with his main point being that many people, understandably after the experiences of the 20th century, have a prejudice against the state exercising arbitrary authority.

He then argues that given the changed circumstances of the 21st century we may need to reexamine this prejudice where, in the west at least, the main threat to individuals comes not from state power as it did in the 20th century, but from terrorists who have the will and may get the means to carry out slaughter on a horrendous scale. He writes:

Well, the world has changed dramatically in the past three years, and my mind has changed too. I'm no longer convinced that the liberal prejudice against ID cards, or against incarceration without trial, is a wise presumption. And I'm no longer convinced that the progressive consensus which denounces David Blunkett as an illiberal populist for rethinking our civil liberties is actually all that progressive.

To take the last part of that first, I'd respond that Blunkett has not merely "rethought" civil liberites, he (and Straw before him and Howard before him) has set out to dismantle them plain and simple. A "rethinking" would not have attacked every single protection across the board. The right to a jury trial, the presumption of innocence, the right to security of property, freedom of expression, freedom of association, doctor-patient confidentiality, lawyer-client confidentiality, freedom from arbitrary surveillance, the right to protest, all of these have been sytematically eroded. Every year since 1999 (before 9/11!), the government has produced bills with swingeing attacks on civil liberties. Only a small proportion of them could possibly be justified on the grounds they may help protect us from terrorism. Even where such measures can protect us from terrorism they've often been applied broadly weakening protections when the authorities are investigating crime in general rather than just terrorism.

Also, at no point in his article does Gove justify his contention that civil libertarians who've opposed Blunkett are not "progressive".

But Gove has a point about incarceration without trial -- it can, if carefully used, help in the fight against terrorism by enabling the detention of terrorist suspects where a trial that revealed the evidence against them would compromise national security and seriously undermine the intelligence efforts needed to deal with such groups as al qaeda. And as Gove points out it is applied only to foreign residents, who cannot be deported and who are free to leave if they can find a country willing to take them. Thus the policy is inherently limited in scope, as well as having some legal oversight. However where its value in fighting terrorism is clear, I contend it is not at all clear that ID cards will have any such value. Also extending detention without trial to British citizens would remove this limit and leave everyone prey to being locked up by the state without being proven to have done anytthing wrong, at which point the terrorists will have ensured that our government has removed much of our freedom. As it is the existing law is not one we would want to have on the books permanently, only for so long as the threat from al qaeda is real.

A better solution might have been to reacquire the legal ability to deport foreign nationals to their country of origin, regardless of issues such as whether they might face the death penalty, and given that those individuals threaten national security. This was given up when we incorporated the ECHR into our laws, but we need not have incorporated it in the form which prevents this -- other countries have managed to incorporate it without compromising that ability.

The State and the Individual

Regarding the point about the state no longer being the main threat individuals face in the 21st century, I'll make several points. Firstly, to the extent this is so, it is largely due to the protections that people insisted on placing in the constitutions of western democracies after the experiences of despotism of earlier times -- and the 20th century is far from the only period of history to warn us about excessive statr power and due to the cultural commitment to freedom in the west. The removal of those protections will expose people again to such dangers and may also both reflect and magnify a decline in the cultural commitment to freedom in western countries.

Secondly, even in western countries since WWII there have been times when governments have abused their powers over their citizens, or where citizens have fallen foul of the state. Think of all the miscarriages of justice, the West Midlands Serious Crime squad, the Watergate scandal, police beatings of suspects or protestors, etc. Whilst more the exception than the rule thankfully, such things do occur and demonstrate that democracy and a constitution that protects individual rights only reduce rather than eliminate the threat the state can pose to its citizens.

Thirdly, terrorists have yet to kill on a scale that states routinely manage when they go to war or decide to murder their own citizens en mass, though I suspect they would if they could and felt it would further their aims.

One might also ask what is the point of resisting being enslaved by terrorists only to be enslaved by our governments when they tear down civil liberties in the name of fighting terrorism? A government that succeeds in doing that may pose a more serious and long term threat than the terrorists.

Gove further writes:

"But I am increasingly exasperated with those civil libertarians who jeer at his proposals, while refusing to recognise the problem and conspicuously failing to offer any alternative."

The problem Gove is forgetting here is that Blunkett has been attacking civil liberties so outrageously and relentlessly that no one trusts him, and the civil libertarians are continuously on the defensive against this that and the other attack Blunkett proposes. There is barely time to catch breath and take stock of one policy that attacks if not removes a civil liberty, before Blunkett throws up another, if not 10 more.

But Gove has a point with this comment: civil libertarians do need to say how they would deal with the terrorist threat if they're to oppose Blunketts proposals more effectively than they've managed hitherto. It is time to go on the offensive, to point out the shortcomings of Blunkett's proposals when considered purely as means of dealing with terrorism, to put forward alternatives that preserve civil liberties and, yes where necessary, acknowledge that some proposals from Blunkett may actually help in fighting terrorism at the expense of erosions of civil liberties and there may need to be concessions. Unfortunately Blunkett's all-out assault on civil liberties has led to a situation where civil libertarians have been reacting to him, and grown to mistrust him (for good reasons), giving an appearance of knee-jerk opposition rather than trying to set an agenda where civil liberties can be discussed more calmly and are more likely to be preserved whilst dealing with the threat from terrorism. IMHO Blunkett has exploited the situation to destroy civil liberties, not to "rethink" or try to preserve them.

Gove and ID cards

And so to Gove on ID cards:

An ID card system will make it easier to identify those at liberty in this country who are here illegally. It would make it easier to deport those who have broken the law, easier to police access to services funded by the taxpayer and by showing that we could defend our borders, easier to defend the principle of managed migration.

Checking abuse of the asylum system could also help to choke off a route for terrorist activity. Past supporters of terrorism have chosen to claim asylum here, then disappeared from scrutiny the better to further their goals. Allowing the police to request ID papers would not , of course, stop terrorist activity but it could play a significant part in frustrating it.

If I believed ID cards could achieve all this, I might support ID cards myself or at least grant they could help and thus concede a need to balance the dangers of ID cards against such tangible benefits. But it is all mere assertion by Gove. He offers neither evidence nor argument to back up these claims. And I've yet to see any such evidence or argument offered by any other proponent of ID cards whether it's the government, or columnists in any of our media, or even posters to uk.politics.misc.

Moreover, there is considerable evidence to suggest they will not make the differences made above. Most of the EU have national ID cards, yet they all suffer from the same problems with illegal immigration, crime and even terrorism (Spain's problems with terrorism occur despite the presence of a compulsory ID card) as we do, as this report from Privacy International makes clear.

Surely any civil libertarian must demand that a weakening of civil liberties has demonstratable tangible benefits before conceding ground and allowing the protections of the citizen from arbitrary state power to be eroded?

Sadly, Blunkett has steam-rollered many of his proposals through in the face of objections and without explaining what the benefits are and how the proposals will ahcieve the benefits claimed. That is why it is ludicrous to try and paint Blunkett as "the real civil libertarian".

Leader column

Finally the leader column in the same issue, cautiously supports the experiments with ID cards and attacks some of the arguments raised against them. E.g.

Britain unusually has not issued any [ID cards] since wartime documentation --- a point of pride for some citizens who believe that they have the freedom to choose the information they share with the state.

To worry about losing this is understandable. Yet the belief is quaintly anachronistic It fails to recognise the ways in which the world has already changed as computerisation diminishes privacy. Any individual who pays for hhis shopping with a credit card or makes phone calls from a mobile leaves detailed records of his life. The introduction of an ID card would make it easier for officials to join the dots of this digital information -- it should also mean that opening a bank account or any other official transaction becomes simpler.

Firstly, there is a difference between leaving information with private organisations, in voluntary transactions that give us clear benefit and the state demanding and recording as much information it can about us. In the former situation, the information is held in a fragmentary manner across multiple institutions and we have the choice not to use the services and therefore not to divulge the information if we wish. These factors limit the dangers from having such information recorded -- though the dangers are yet such that we need data protection laws and they should probably be strengthened. One might add too that using an unregistered pay as you go phone only leaves anonymous records of your activities.

Secondly, this passage reveals one of the dangers of the ID cards, the centralisation of the information and the ability to connect all the information together at one point. A national ID card will facilitate such centralisation by the state and thus give the sate considerable power over individuals because it will know their detailed activities. "Joining the dots" is precisely what is difficult at the moment and what an ID card with an associated central database would enable -- though admittedly other trends are making joining the dots easier independently of ID cards. Still an ID card would magnify the dangers we already face from lax attitudes towards the data we leave around. It would also become a licence to live, in that without an ID card it would become impossible to lead one's every day life. This licence will be revocable by state officials at any time for any reason they deem fit.

Regarding the claims that ID cards may be ineffective for fighting crime and terrorism made by civil libertarians, the leader states:

The temptation of them is to propose absurdly contradictory arguments namely: a) "they" will know all about you all of the time; and b) "they" will inevitably get the technology wrong

Certainly, people doubt the cards on the basis of government incompetence with computer schemes, but the contradiction above is more apparent than real.

It can be the case that the cards enable the governemnt to exert more social control over generally law abiding citizens, including enabling surveillance of everyday acitvities and be the case that the cards can be easily circumvented, due to govt incompetence or any other factors you might name, by terrorists, criminals illegal immigrants and anyone else who wishes to avoid the inconvenineces the cards might cause.

The point is that the law abiding majority will tend to cooperate with the system for fear of punishment and expose themselves to such surveillance and other potential abuses of the system whilst those who have no qualms about breaking the law will subvert the system to their own ends.

Thus the state incompetence or inability to actually control would be terrorists and criminals and the odd clever civil libertarian via the system does not transfer to the state's ability to control the law abiding majority with the system. The cynical might suggest that controlling the majority is the whole point, whilst crime fighting and dealing with terrorism are just the sales packaging.

Courts approve use of Terrorism Act against peaceful protestors

Back when the Terrorism Act 2000 was merely a bill, Jack Straw, the Home Secretary at the time, reassured us that "There is nothing in the bill that will interfere in the right of people to protest peacefully, " and "The legislation is not intended to deal with alleged offences properly dealt with under the existing criminal law. Neither will it in any way curb individuals' democratic rights to protest peacefully."

So of course it came as a complete surprise (NOT) when the Terrorism Act 2000 was used against peaceful protestors in London. Still given Straw's reassurances and the fact the current Home Secretary David Blunkett does not control the police directly, it might seem only fair to wait for the outcome of the legal challenge. Well the courts have upheld the use of the Terrorism Act in these circumstances. So much for the reassurances given by Straw when it was a bill. It is worth remembering why he gave the reassurances. It's all down to the definition of terrorism, which states:

1. - (1) In this Act "terrorism" means the use or threat of action where-
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate
the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political,
religious or ideological cause.

(2) Action falls within this subsection if it-
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section-
(a) "action" includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) "the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

Clearly, this definition covers acts of mere civil disobedience, or even threats thereof. It seems clear to me the police could argue that any demonstration involves a threat of "terrorism" so defined, since some of the protestors might try to damage property or threaten to do so through civil disobedience. Once the police get approval to stop and search on this basis, they have the power to search anyone for articles that might be used for "terrorism", e.g. anything that could be used to damage property, or for disrupting an electronic system -- a faxable document for example, mass faxing being a way of disrupting a fax machine which is an electronic system.

The irony is that the trading of arms is far more likely to have involved real terrorists or the risk of such arms falling into their hands than the protests against the trading of arms going on outside the fair.

The moral of the story is that govt assurances that legislation is not intended to be used in certain situations are worthless when the legislation explicitly allows such usage. Bear in mind the above definition of terrorism, and look over the offences in the Terrorism Act 2000 and ask yourself how easy it would be to arrest perfectly innocent people as "suspected terrorists". A more detailed article on the Terrrorism Act can be found here.