The Assault on Liberty: What Went Wrong with Rights. Dominic Raab
Third, one of the arguments used to support the case for extending pre-charge detention is that evidence on computer hard drives may be encrypted and take time to decipher. In response, Parliament created a criminal offence for withholding encryption keys and computer passwords, allowing prosecutors to charge and imprison suspects for obstructing an investigation in this way. By the time of the vote on forty-two days in 2008, there were still no convictions under this new power, despite repeated reliance by the government on the volume and encryption of computer data in terrorism investigations as part of its case for extending pre-charge detention.
The lack of commitment to these kinds of practical measures reveals serious shortcomings in the government’s security strategy. Equally, while the government has been all too willing to deploy senior police officers to try to make its case for forty-two days, it has failed to listen to – let alone act upon – the operational concerns now being expressed publicly by senior officers like Andy Hayman. In its obsession to force through controversial extensions of pre-charge detention, the government has neglected or overlooked valuable law enforcement measures capable of attracting political – and a wider national – consensus.
The presentation of a crude trade-off between security and liberty is at odds with the basic facts. The government’s sustained assault on the right of habeas corpus has exacerbated the terrorist threat rather than reduce it, and distracted it from other practical counter-terrorism priorities. Fifty-four per cent of those asked in 2008 said that the government’s main motivation for pressing its proposals on forty-two days was ‘to look tough on terror’ rather than national security. That is not a balance or a trade-off – but rather a hijacking of security policy for political ends. If the government is eventually successful in its stubborn attempt to extend pre-charge detention to forty-two days, it would set a dangerous precedent – with nothing to stop it from returning to seek yet further extensions in the future.
This pattern is mirrored more widely in the recent approach to counter-terrorism in the UK. The government has passed broad powers with inadequate safeguards and checks, which are prone to overuse or abuse in practice. Stop and search, under new terrorism powers, is running at 41,900 cases per year. Between 2001 and 2007 there were 1228 arrests on suspicion of terrorism. The rate of convictions over the same period remains, at forty-one, comparatively low in terms of overall numbers, although the proportion of terrorism prosecutions resulting in a conviction is now over 90 per cent.
A broad brush approach is open to abuse. It was disclosed that during one month in 2007 police at Gatwick airport conducted hundreds of random searches outside the (already wide) rules, without the required ministerial authorization. And the wider the powers, the greater the risk that innocent people will be caught in a security net so widely cast. In one case, in 2005, Sally Cameron, a thirty-four-year-old property developer from Dundee, was arrested and detained for four hours as a terrorist suspect. Ms Cameron, who used to walk to work to keep fit, was arrested under the Terrorism Act. Two police cars were called to apprehend her merely for walking along a cycle path restricted to cyclists under security regulations – even though there was no visible signpost indicating any restrictions on access to the pathway.
In another episode, a disabled twelve-year-old boy and his parents were detained under the Terrorism Act, police accusing his mother of people-trafficking her mixed-race son. The family were surrounded by ten police officers and detained for two hours, until officers resolved the misunderstanding.
Other security measures have undermined liberty, with minimal countervailing security gains. The government has been forced to continuously fend off legal challenge to its control order regime, rushed through Parliament in 2005 after the House of Lords struck down its attempt to detain foreign terrorist suspects indefinitely without charge. The control order legislation created wide powers that allow severe restrictions to be placed on those merely suspected of involvement with terrorism. While an order made by the Home Secretary must be confirmed by a judge, it can be imposed on people who have not been proved guilty of any criminal offence. The orders may include controls on who a person can meet with or speak to, bar access to the internet or telephone and impose restrictions on when a person can leave his home and where he can go – amounting to virtual house arrest for up to sixteen hours per day.
Control orders impose what amounts to a criminal punishment, but circumvent the basic rights of an accused to a proper trial. This deliberate evasion of one of the most basic foundations of British justice not only undermines liberty, but also generates acute resentment amongst the local community affected, with little extra security guaranteed in return. Only thirty individuals have been placed on control orders – while MI5 estimates that four thousand people pose a terrorist threat in Britain. Paradoxically, as the terrorist threat rose, the government’s reliance on control orders declined. There were eighteen control orders in force in 2006, fourteen in 2007 and just eleven by the first quarter of 2008. This trend suggests that, for all the ministerial hype, control orders have proved to be a relatively ineffectual tool in practice – otherwise the government would have made greater use of them as the terrorist threat level rose.
This inference is supported by wider experience. A fifth of those placed on control orders have escaped. A recent government review found that control orders were only suitable for a ‘small number of cases, in the absence of a viable alternative for those few instances’. Lord Carlile, the government-nominated reviewer of the control order regime, has acknowledged the difficulties in monitoring and enforcing control orders, even suggesting that anti-social behaviour orders (ASBOs), used by the police to tackle yob culture, might work just as well in practice. Other measures, to strengthen border controls and intelligence are likely to achieve far more in terms of public protection, at far less cost to individual liberty. The government should focus more on bolstering law enforcement through the courts – by using intercept evidence and post-charge questioning – not weakening safeguards designed to protect the innocent.
The government introduced legislation providing for a national identity register coupled with compulsory identity cards with similar enthusiasm. The proposals epitomize its clumsy, authoritarian approach to security.
In 2003, the government announced its plans for ID cards amidst great fanfare, another eye-catching initiative designed to portray a Labour administration taking tough measures to improve security, at the cutting edge of modern technology. The proposals involve taking nearly fifty categories of personal information on each and every citizen, to be stored on a Home Office database and shared with other government departments, agencies and even foreign governments. Privacy campaign groups like Liberty and NO2ID warn that the ID cards will intrude into our privacy, enabling government departments and companies liberally to share masses of our personal data – including name, date of birth, addresses, identity records, photographs, signature and fingerprints – allowing the state and businesses continuously to track the movements and transactions of every citizen. While the government has sought to give assurances about privacy protection, safeguards and limits, the ID cards legislation gives the Home Secretary wide powers to extend the scope and remit of the ID cards regime by order, adding a further risk of mission creep once the system is fully operational.
Privacy concerns have been further exacerbated by growing doubts about the government’s ability to implement the ID cards project. Fear of wide state powers to collect data on the citizen have only been made worse by the reality that careless and unaccountable civil servants will be charged to run the system. Government-managed databases have an appalling track record when it comes to protecting personal data (see Chapter 4), which means ID cards threaten to make us less – not more – safe.
At a more fundamental level, compulsory ID cards reverse the traditional relationship between the citizen and the state in this country. While historically in Britain the state has been accountable to the citizen, ID cards mark a significant shift, making it the presumption – rather than the exception – that the state has the right to peer into an individual’s private life and keep tabs on every citizen. Information Commissioner Richard Thomas, a privacy watchdog, has expressed ‘increasing alarm’ that ID cards are: ‘ …beginning to represent a very significant sea change in the relationship between the state and every