On Blair's "rebalancing" of the justice system

From "Just Law", by Baroness Helena Kennedy QC, Chapter 1, page 26
(hardback edition, ISBN: 0-701-17506-0):

"In the criminal courts the victim is a witness, a crucial and central witness for the state. So, when the government talks about rebalancing the system, it is really about rebalancing in favour of the state.That is the fraud in the government's rhetoric, the sleight of hand."

Kennedy puts this point quite well, but I have a problem with the language.

It is the accuser who is the witness for the state.

Who the victim(s) is(are) depends on whether the defendant is innocent of the crime he's charged with and on whether the accuser has had a crime committed against them. These are questions for the court to decide.

It may well be that the defendant is the victim, e.g. of a false accusation.

It may even be that both the accuser and the defendant are victims, with the accuser misled as to who the perpetrator is and the defendant the unfortunate scapegoat or victim of mistaken identity.

Or it may be that the accuser is indeed a victim of a crime committed by the defendant.

But the language of the government's rhetoric, and much of the debate over these issues, implicitly assumes that the accuser is the victim.

Yet surely part of the purpose of the trial is to determine whether or not the accuser has in fact had a crime committed against them? And thus whether or not the accuser really is a victim?

And when Tony Blair says, e.g. "It is perhaps the biggest miscarriage of justice in today's system when the guilty walk away unpunished"(1), it is simply wrong.

Logically speaking you have 4 possible miscarriages of justice:

1. The accused is punished for a crime someone else commited.
2. The accused is punished for a crime he didn't commit and no one else committed.
3. The accused is punished for something he did do, but which wasn't a crime.
4. The accused walks free from a crime they committed.

It is arguable that cases 2 and 3 are as serious as 1 -- assuming like crimes -- because in each of these three cases, 1 party is punished or not incorrectly.

However (1) is clearly more serious than (4) because 2 parties are punished (or not) incorrectly -- the accused and the actual perpetrator(s). To make matters worse, the actual perpetrators also remain free to commit further crime.

Moreover since it is the state that brings a prosecution, there is an inequality of arms which safeguards like the presumption of innocence, the right to a jury trial and the right to silence seek to redress.

Weakening or jettisoning those safeguards thus makes it easier for the state to lock anyone they choose up and thus increases the risks to us all from the state.

This is where those who criticise civil libertarians for preferring the rights of criminals over victims get it so wrong with regards to those who try to uphold the accused's rights.

When the rights of the accused are weakened, this is an attack on the rights of all, because anyone could be accused of a crime and these rights are there to try and ensure that only a sound accusation will result in loss of liberty.

Defending the rights of the accused is not the same as defending the rights of criminals.

Convicting the accused is not the same as convicting the guilty.

Making it easier to convict the accused by lowering the burden of proof, or standards of evidence, will simply make the system less reliable, thus increasing both the incidence of innocent people being punished and the incidence of the guilty walking free.

It will also lead to less trust in the system (though I grant trust in the system has already been compromised in Britain).

The only sound way to ensure the guilty are convicted and the innocent are either not put on trial, or are acquitted if they are, is to ensure a sound and thorough investigation of crime, and to ensure that each case is thoroughly tested in court.

Principles such as presuming innocence, having to prove guilt beyond reasonable doubt and allowing a trial of someone by a jury of their peers should not have been jettisoned as they are there precisely to ensure such thorough investigation and testing of cases.

Of course the criminal justice system was not perfect when these principles applied. There may well have been a need to provide better protection for witnesses for example, but this was not an excuse for abandoning sound principles that had been tried and tested for hundreds of years.

Footnote

(1) Kennedy attributes this quote to Tony Blair for the 18th June 2002, but does not give a proper source. Indeed, one problem I have with the book is the poor citation of sources. A bit of googling got me this article however:

http://www.number-10.gov.uk/output/Page1717.asp

Near the bottom it says:

"And it's perhaps the biggest miscarriage of justice in today's system when the guilty walk away unpunished."

UK Govt can put control orders on those who are, on balance of probability, innocent...

Update (April 9th, 12:12 am BST):

I was mistaken about this matter. House arrest will actually require the balance of probabilities, but non-derogating control orders can be imposed on the "reasonable suspicion" test. Thus I have changed the title from "UK Govt to house arrest those who are, on balance of probabilities, innocent..." to the new title above.

Anyway sorry for the error. With all the fuss it was hard to keep up with the changes and it's only with my reading the actual Act of Parliament that I realised the mistake.

The extraodinary battles in the Houses of Parliament over the Abandonment of the Rule of LawPrevention of Terrorism Bill have done little to protect civil liberties. The main changes the Lords insisted on include:

• judges issuing all control orders
• the Director of Public Prosecutions declaring there's no possibility of prosecuting
• a sunset clause so that the legislation expires at end of November
• use of evidence gained from torture abroad prohibited
• the standard of proof being "balance of probabilities" instead of "reasonable suspicion"

Given that it will still be the case that suspects will not know the evidence or the charges against them, they won't be able to defend themselves and these changes are fairly minor (despite the fuss the government is making).

The most significant change is raising the standard of proof. Although this barely touches the problems with this bill, it gives judges greater room to decide that a control order is not justified.

With the "reasonable suspicion" standard, it is hard to see how one could seriously dispute the reasonable suspicion except by claiming it is unreasonable which begs the question of whether, in law, the Home Secretary, acting on advice and secret evidence from the security agencies, can ever seriously be regarded as acting on unreasonable suspicion.

ISTM thus that this standard of "proof" is a joke, and will ensure that the Home Secretary can still apply control orders to anyone he/the security agencies choose, with the judge acting as a mere rubber stamp.

With balance of probabilities, if a suspect has a sympathetic and independent minded judge, there is room for the judge to say he's not convinced it is more likely than not that the suspect is involved in terrorism.

Of course it is still a very subjective and arbitrary standard (unless they actually compute the probabilities, but how would one do that?) but it does give room for maneouvre.

Anyway, the government is tonight opposing this change. This has the logical implication that they want control orders imposed on people who would be judged more likely to be innocent than not...

And the govt claims it is doing this for our own good.

Control Orders: Just exactly what can they impose?

The media coverage/discussion of the proposed control orders has focussed on several possible things that can be imposed with them: house arrest, tagging, curfews, internet/phone bans and restrictions on who you can communicate with. However upon reading the legislation itself it appears that potentially any obligation could be imposed. Section 1(2) of the bill states:

A control order may impose any obligation on the individual against whom it is made that the Secretary of State considers necessary for purposes connected with preventing or restricting further involvement by that individual in terrorism-related activity (whether or not activity by reference to which the Secretary of State was satisfied for the purposes of subsection (1)(a)).

Section 1(3) of the bill lists numerous examples of such obligations, but does not restrict the control orders to the imposition of such obligations. The possible obligations listed are (to summarise section 1(3)):

• prohibitions/restrictions on the possession of articles or substances,
• prohibitions/restrictions on the use of specified services or facilities or on specified activities,
• restrictions on a person's work, occupation or on their business,
• restrictions on who one associates/communicates with,
• restrictions on one's place of residence or who is allowed to access one's residence,
• prohibitions on being in specified places/areas at specified times or on specified days,
• prohibitions/restrictions on one's movements to, from or within the UK or specified places/areas in the UK,
• requirements to comply with other prohibitions/restrictions on movement for a period not exceeding 24hrs, by directions given to him in a specified manner by a specified person for the purpose of securing compiance with other obligations imposed by the order,
• requirements to surrender one's passport or anything other possessions to which a prohibition/restriction relates to a specified person for the period of the control order,
• requirements to grant access to one's place of residence or other premises one has access to,
• requirements to allow searches of one's place of residence or other premises one has access to,
• requirements to allow items found in one's place of residence to be removed and retained by specifed persons for the period of the control order,
• requirements to cooperate with arrangements for enabling one's movements, communications and other activities to be monitored,
• requirements to provide information to a specified person in accordance with a specified demand,
• requirements to report to a specified person at specified times and places.

Thus it seems to me that a control order, in addition to possible house arrest or internet/phone bans, could require you to leave (or stay) in the country, move to another part of the country, allow your house and workplace to be searched, allow items to be seized from your house or workplace, and much else.

A further possibility arises: because "any obligation" can be imposed if the Secretary of State deems it necessary, perhaps one might even be required to keep the imposition of the control order on you secret from anyone you're allowed to contact, the excuse being it might alert other "suspected terrorists" that you've been surveiled.

Note that even if I'm wrong about an obligation to keep the control order secret, the restriction on association/communication could be used to ensure you cannot communicate with anyone except the authorities anyway!

The powers being given to the Home Secretary, even where falling short of house arrest, are thus extremely wide ranging and could make it impossible for people to defend themselves against the control orders.

Quite simply, this measure is worthy of a tyrannical dictatorship, and would put us in the same league as apartheid era South Africa or Communist East Germany.

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!

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.

On dealing with terrorism

March 11's horrific events in Madrid have underlined the seriousness of the threat posed by terrorism in the modern world. Clearly the perpetrators of such acts have no regard for human life and do not care about the suffering they cause. Naturally, we wish to see something done to stop this sort fo thing from ever happening again.

Since Sept 11th 2001, governments across the world have been under considerable pressure to "do something" about terrorism, and to be seen to be doing it. Each new atrocity, whether in Bali, Turkey, or, as now, in Spain, puts further pressure on governments and lends credence to the often repeated assertion that the terrorists can strike anywhere they choose, that no country is safe from such attacks. Indeed, it has been my opinion for some time now that it will only be a matter of time before a terrorist group tries a similar attack on Britain. A rare point of agreement between myself, Tony Blair and a certain Mr Blunkett!

Many governments have responded to the terrorist threat by enacting draconian laws that attack civil liberties. Already, in the aftermath of 11/03/2004, there is talk of yet more draconian measures and finding a new balance between protecting civil liberties and preventing terrorism. Indeed according to the BBC, David Blunkett has stated that the greatest challenge was to protect democratic rights in the face of the threat posed by suicide bombers who had changed all the rule books. Further he said:

With new forms of terrorism, with the suicide bombers, with those who are prepared not only to take the lives of others but their own, there is no prosecution, there is not punishment, there isn't the usual norms of human and social behaviour.

A leader from today's edition of the Scotland on Sunday newpaper (you'll need to register to see the leader itself, I'm quoting from the print edition) states:

The only way to prevent the carnage bombers can wreak is to anticipate their actions and arrest them before they act. It is difficult to see how this can be done without lowering the burden of proof currently required of the police and security forces and this is a debate we must have. It will pitch those on the right who would dilute human rights to save human lives against those on the left who, it seems, would sacrifice lives to preserve liberty.

In this debate it is continually assumed by the government, and many others, that civil liberties stand in opposition to effective action against terrorists, that they prevent the government, police and security forces from doing their job in trying to protect us from terrorists. Whilst there may be specific situations where this might happen, in general I reject this whole way of framing the problem.

Recall the very first sentence in the quotation from Scotland and Sunday; "The only way to prevent the carnage bombers can wreak is to anticipate their acts and arrest them before they act". I agree! But lowering the burden of proof faced in court will make damn all difference to the ability of the police and security services to arrest those they think may be planning or carrying out an act of terrorism. Under the Terrorism Act 2000, a person can be arrested without a warrant in the police merely suspect them of being a terrorist. They can then be held for up to 2 weeks without charge. The offences available to the police/security services to subsequently charge someone with include:

• being or claiming to be a member of a proscribed organisation
,


• possessing information or articles in circumstances which lead to suspicion that their possession is for a purpose related
  to the commission, instigation or preparation of acts of terrorism
and,


• directing the activities of a terrorist organisation at any level
,

These are in addition to offences related to illegal possession of firearms, explosives and other materials, and offences related to murder, assault, kidnapping, etc. My point is that the police and security services already have the legal powers necessary to arrest someone they think might be involved in terrorism. And if those people are genuinely planning a bombing, suicide or otherwise, they most likely have commited some or all of the above offences and can be charged and convicted as a result.

The crucial issue is thus not the powers of arrest and the burden to be satisfied in court, but the intelligence gathering powers the police and security forces have and the resources they have at their disposal to exercise those powers. The govt recently announced a huge increase in manpower for MI5 -- this I have no problem with and I consider justified for fighting terrorism. The security services already have considerable legal powers for conducting surveillance too, under RIPA and the Terrrorism Act. IMHO the main thing that needs to be done is for the security services and police to get on with their jobs, and get the resources they need. Further tinkering with the anti-terror laws, especially to weaken civil liberties is simply not justified.

But surely lowering the burden of proof will make it easier to jail terrorists? It is not that simple at all. By lowering the burden of proof you make it easier to jail the accused but the flipside is you make it easier to jail the wrong person. If you jail the wrong people, then not only do innocent people end up in jail but the terrorists are free to continue their mayhem.

If you lower the burden of proof, you will inevitably ensure that poorer quality cases are taken to court. Hard pressed investigators will make the decision to prosecute earlier than they otherwise might have done. THIS MEANS POORER INVESTIGATION which will undermine the effectiveness of the anti-terrorism efforts at the most crucial point, the point of investigation of and intelligence gathering on terrorist suspects.

The burden of proof and other protections in our system of law are not just there to protect the liberty of individuals (important as that is) but also to ensure that when we jail people we jail the right people. Weakening such protections leads all of us exposed to wrongful imprisonment by the government and can be counterproductive to effective crime fighting and the fight against terrorism.

The automatic assumption by many that civil liberties must be weakened in the fight against terrorism is a trap. The crucial issue in the fight against terrorism is, and always has been, the effective gathering of intelligence. If we don't know who the terrorists are, where they are and what they're doing, we cannot stop them even if we give the government absolute power to do what it wants in the fight against terrorism. Giving the government such power will make it an even more serious threat to our freedom than the terrorists, as history has shown time and time again with examples such as Nazi Germany and Stalinist Russia as testimony. As Benjamin Franklin famous said:

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety

On the Proceeds of Crime Act 2002 (Part 1)

You're wrongly accused of an offence. The case goes to trial. You're acquitted. Can you now breathe a sigh of relief that the issue is dead? Not really. Aside from the recent abolishment of the prohibition on double jeopardy for some serious crimes (see the Criminal Justice Act 2003), the govt can have another go at you. Instead of trying to imprison you, they can use civil asset forfeiture to seize assets they allege are the proceeds of crime.

You don't need to have been charged or convicted of any offence. You may have been acquitted of an offence. It does not matter.

If the govt persuades a judge, on balance of probabilities (i.e. without solid proof, with a case with holes in it, so long as it casts enough suspicion on you), that you received the proceeds of crime they can seize your assets. Indeed a Scottish man has already had £24K seized despite being acquitted of a drugs offence. Note Lord Advocate Colin Boyd's comment:

"What is significant about the seizure is it demonstrates the new legislation is working and those suspected of profiting through crime are being penalised.

Note that it is those *suspected* of profiting crime who are penalised. Not those who are profiting from crime or those convicted of a criminal offence.

Admittedly in this case the man concerned did not account for £46K worth of deposits into his bank account whilst on benefits and with no other known source of income. ISTM he should have been done for benefit fraud. However he'd been acquitted of the drugs offences and was thus legally innocent, yet they seized his money by claiming it was the proceeds of crime he'd been cleared of.

"So what?" some might respond. "I can easily account for my money and would thus it would be easy to prove where I got it all from if I were unlucky enough to fall victim to this". However, effectively this means that refusal or failure to account for where your money comes from becomes grounds for losing it to the state. Moreover, whether or not your account for your money and any documentation you produce persuades the judge will depend on the hurdles presented by the state's case against you, and the state can spend far more time and money, whilst exercising legal powers that others don't have, on constructing a plausible case than just about any individual could manage.

Some might suggest that it's no different to any other civil case so why worry? The problem is that it is different. Civil law concerns the resolution of disputes between private parties with the state as the adjudicator. A private party has to bring a case, thus has to be determined and well enough resourced to do it. The balance of probabilities test in civil cases may be appropriate for determing whether a contract has been broken or whether someone should pay compensation for an injury caused in accident they were party to, and where the two parties have relatively equal standing. Furthermore the money is going to the aggrieved party if he wins the case, not to the state.

In criminal law, the state makes the laws, the state performs the investigation, the state makes the arrest, the state constructs the case and the state runs the courts. This is one reason why in criminal law various protections for individuals were made, e.g. the presumption of innocence, the requirement of proof beyond reasonable doubt of guilt, the right to silence and the use of jury trials. The counters the imbalance of power whereby the state has both more resources and more legal powers to make a case than any individual.

With civil asset forfeiture however we have the state bringing a civil case against an individual on the basis of criminal matters (of which they might have been cleared) and acting also as the adjudicator. The odds are set against anyone who has this procedure used against them and they will not have the protections of criminal law. They are unlikely to be able to spend the time and money the state does to defend themselves. I thus contend this is an abuse of civil procedures and a dangerous law.
Innocent people could find their legally held after tax assets being stripped from them, on the basis they are probably the proceeds of crime, without any offence ever being proved against them.

And it gets worse. Suppose the police are investigating someone for crime but don't believe they have a strong case to present to court. Instead of doing further investigation, they may decide it's not worth their time and effort to prove the case beyond reasonable doubt but that civil asset forfeiture might work and pass the case to the civil assets recovery agency (CARA). This would lead to criminal cases being less thoroughly investigated, thus lessening the chances of real criminals actually being caught. A thorough investigation is a crucial element of crime fighting and may prove that an initial suspect was innocent. This legislation creates an incentive to cut investigation short by seizing assets on a low burden of proof. Thus looking purely at it from a crime fighting point of view the ability of the state to use this procedure instead of proving someone committed a crime will have counter productive effects.

There is also scope for corruption. Someone could be setup in collusion with the CARA and due to the low burden of proof, and even the possibility of a pliant judge, it would be relatively easy to get their assets. Further more the state is likely to find the income stream from this very useful and thus may end up in collusion with the criminal world to keep the income stream online without taking enough to stop crime, whilst people in the criminal world might direct the state to useful targets for the money in order to keep the state of their own backs.

In short I contend that civil asset forfeiture is bad law, an abuse of civil procedures, a threat to the innocently wealthy, will be counter productive in fighting crime and introduces opportunities for laziness in crime fighting and for corruption of the state. It should be repealed.

Regarding the "Part 1" in the title, I'm afraid that civil asset forfeiture is not the only nasty item in this legislation...

Samizdata have also commented on this legislation. The comments on their article refer to experiences in America where a similar law has been around for some time.