The Assault on Liberty: What Went Wrong with Rights. Dominic Raab

       2 Security versus Liberty

       ‘We must plan for freedom, and not only for security, if for no other reason than that only freedom can make security secure.’

      KARL POPPER

      Since New Labour came to power Britain has suffered a sustained attack on its tradition of liberty, with the government regularly claiming that stronger measures are justified to strengthen our security and make us safer. This unprecedented assault on our fundamental freedoms has been waged on diverse fronts, with justifications clustered around three principal rationales.

      First, the government has argued that decisive action is needed in response to a unique danger, namely the terrorist threat posed by al-Qaeda and related fanatical groups. Second, it has justified its actions in the sphere of law enforcement and criminal justice on the basis of the overriding imperative to cut crime and tackle anti-social behaviour. Third, it has massed a range of powers to watch, intercept and gather private details on its citizens on the basis that such inroads on our privacy will make the individual, and our society as a whole, safer. The common denominator is the assumption that, when push comes to shove, security can be traded for – and should be prized above – liberty, a tough but necessary choice that many, at least at first sight, may intuitively be inclined to accept.

      The difficulty with this analysis is that liberty and security are rarely stark alternatives or juxtaposed choices. The government has assumed the existence of a hydraulic relationship between freedom and security, a zero-sum game in which we have a genuine choice to pay a price in terms of our personal freedom, in order to yield a security dividend that provides greater public protection against violent crime and terrorism. But is the real world that straightforward, and does this paradigm provide more than a simplistic gloss, a political crouch that obscures a more complex picture? Draconian measures will always undermine liberty. But there is scant evidence that they have made us safer.

      An alternative assessment, supported by a growing body of evidence over the last eleven years, is that the government’s attack on our core freedoms has not yielded any clear, significant or demonstrable security dividend; indeed, it has often had the reverse effect, jeopardizing rather than strengthening our security.

      In the field of counter-terrorism, the government’s approach has fixated on a number of high-profile gestures, including extending detention without charge for terrorist suspects, introducing control orders and pressing ahead with ID cards, amongst a package of other authoritarian measures. While the government has moved to raise the limit on pre-charge detention sixfold since 2003, the rate of home-grown radicalization and the numbers involved in terrorist-related activity have only grown faster, at a current rate of 25 per cent per year according to MI5 – hardly the symptoms of successful policy.

      When it comes to fighting crime, the government has created more than three thousand new criminal offences and attacked fundamental pillars of British justice, including the presumption of innocence and the right to trial by jury. Yet, at the same time, violent crime has nearly doubled, the UK has the second highest crime rate in Europe and fatal stabbings and gun violence have surged.

      Nor has the exponential increase in surveillance powers by the state improved public safety. Eighty per cent of CCTV footage is not fit for purpose. The government loses personal data on a regular basis, exposing those it is charged to protect to unnecessary risk. And, far from helping police to crack down on fraud, one Chief Constable predicts the government’s flawed proposals for ID cards will set the ‘gold standard’ target for criminal hackers.

      As one commentator, Jenny McCartney, characterized the approach:

      A pattern is emerging in the way that Britain deals with any kind of threat…It acts like a terrified but sieve-brained householder who tries to foil prospective burglars by putting expensive, complicated locks on the top windows while frequently leaving the back door swinging open…

      The Faustian bargain that New Labour has traditionally offered the public is that we should submit to ever more intrusion in exchange for greater security. What we are getting now is intrusion and insecurity – and even Faust managed a more attractive deal than that.

      Time and time again since it came to power in 1997 the government has presented tough measures that infringe fundamental liberties as a price worth paying to make the public safer. The serious charge to be laid against this government is that its confused approach has been driven as much by considerations of PR as national security. The government has deployed increasingly dramatic rhetoric with each new announcement, heralding serious inroads on our fundamental freedoms, with precious little improvement in public protection to show for it. Far from offering a finely balanced trade-off, or even a Faustian bargain, the government’s approach has turned out to be a straight con – leaving us both less free and less secure.

      We have become accustomed to national security being regularly cited as one of the main grounds for sacrificing individual liberty, particularly in the aftermath of 9/11 and subsequently the 7/7 attacks in London. Yet Britain has faced serious threats to its national security before, without knee-jerk resort to such far-reaching, unfocused and permanent measures that seek to redefine the fundamental balance in the relationship between the citizen and the state.

      During the Second World War identity cards and internment were introduced in the face of global war and direct military attack. In 1940, faced with the Blitz and the real prospect of a Nazi invasion, the government interned a range of ‘enemy aliens’, principally Italian and German civilians living in Britain. Around eight thousand were detained although most had been released by 1942 and the legal basis was revoked at the end of the war. Yet, as A. C. Grayling notes, from 1940, faced with an imminent invasion by Nazi Germany, temporary measures were taken that undermined individual liberty. In contrast today, ‘in face of a far lesser threat’, Britain is ‘enacting permanent legislation of even more draconian kinds’.

      Churchill only reluctantly introduced temporary wartime measures that infringed individual liberty, removing them once the immediate exigencies allowed. When Oswald Mosley, the notorious Nazi sympathizer, was released from internment in 1943, Churchill sent a telegram to the Home Secretary justifying the decision in the following terms:

      [T]he great privilege of habeas corpus, and of trial by jury, which are the supreme protection invented by the English people for ordinary individuals against the State…The power of the Executive to cast a man into prison without formulating any charge known to the law and particularly to deny him the judgement of his peers – is, in the highest degree, odious and is the foundation of all totali tarian governments…Extraordinary powers assumed by the Executive with the consent of Parliament in emergencies should be yielded up, when and as, the emergency declines…This is really the test of civilisation.

      Faced with a very real threat to national life, in one of the darkest moments in British history, the government of national unity took finite and temporary measures to meet the specific, overwhelming and undeniable threat.

      Since then, our fundamental freedoms have come under periodic strain, most regularly in the context of the struggle against terrorism. The conflict in Northern Ireland lasted for around thirty years and cost 3500 lives, including more than 1800 civilians. Britain undoubtedly faced a real and sustained terrorist threat, and the government took measures