The Assault on Liberty: What Went Wrong with Rights. Dominic Raab
and political controversy – including, most notably, the use of internment and Diplock courts (the latter allowing criminal trial of those accused of terrorist suspects without juries). Nevertheless, over a thirty-year period, internment lasted for only four years and withstood legal challenge at the European Court on Human Rights, which accepted that it had been required by the exigencies of an emergency situation. In practice, internment proved a disaster – fuelling the resentment and violence it was introduced to contain – and was replaced for the rest of the conflict with a maximum limit of seven days’ pre-charge detention, a fraction of the maximum period now in place in Britain.
Equally, Diplock courts were used between 1973 and 2007 because of the clear and serious threat of witness intimidation amidst the sectarian conflict, which successive governments – of both main parties – accepted was undermining efforts to bring criminal prosecutions against those accused of paramilitary violence. While a judge replaced the jury as the trier of the facts in these cases, the measure applied to paramilitary groups on both sides of the conflict, trials remained public and were subject to appeal.
The conflict threw up a range of other human rights controversies – including miscarriages of justice arising from police misconduct (such as the Birmingham Six and Guildford Four) and criticism of the shooting by British special forces of three IRA members in the course of trying to set off a bomb in Gibraltar.
Beyond the conflict in Northern Ireland, the Spycatcher episode arose out of the government’s attempts to ban the publication of a book written by Peter Wright, a former MI5 officer, between 1987 and 1988. The book was published in the US and Australia and the government was eventually defeated in its attempt to prevent publication and bring related claims against the Sunday Times and Guardian.
No previous government can claim a perfect record on civil liberties, yet it is difficult to avoid the impression that the deliberate and concerted assault on liberty throughout the last decade has been without precedent – of a different order of magnitude to the ad hoc incursions that preceded it.
While the new government introduced a range of repressive new measures from 1997, the most serious attack on fundamental liberties in the name of national security took place after 9/11, when the government sought to introduce indefinite detention without charge for foreign terrorist suspects, and gathered momentum with its hastily put together response to the London bombings in July 2005. At a press conference less than a month after the dust had settled on the attacks in central London that left fifty-two people dead and many more seriously injured, Tony Blair reacted with a list of twelve new security measures, announcing a radical change of approach: ‘Let no one be in any doubt, the rules of the game are changing.’
With this dramatic gesture before an audience of journalists, the then Prime Minister ostentatiously signalled that the struggle against terrorism would no longer be shackled by the traditional safeguards that protect those suspected – but not yet convicted – of involvement in any crime. In the years that followed, the government would introduce a range of measures that would undermine British liberty in the name of fighting terror. Proposals for ninety-day detention without charge, control orders amounting to house arrest, compulsory ID cards and a slew of measures that stifle free speech were proposed as the necessary means of countering the rising threat of al-Qaeda-related terrorism in Britain.
New laws were rapidly formulated and presented by a government desperate to find a legislative way to demonstrate its security credentials in the wake of two terrorist attacks on the capital. Reactive legislation was broadly – and poorly – drafted, often rushed through Parliament under pressure of time that prevented proper scrutiny. Almost inevitably, the new powers were widely construed, without clear focus, which both blunted their operational effectiveness in countering terrorism and left them susceptible to abuse by law enforcement officers acting under operational pressures.
Looking back at Tony Blair’s press conference in August 2005, it is instructive to note the fate of the twelve-point plan he announced, each measure of which was hailed as ‘either being taken now, immediately, or under urgent examination’. Many of the eye-catching measures rushed out were quietly abandoned or rendered unworkable – Hizb ut-Tahrir has not been banned, grounds for deportation have been restricted not expanded, the idea of a maximum time limit on extradition dropped and border controls remain porous.
Equally, while the most repressive measures proposed – control orders, the offence of glorification of terrorism and extending pre-charge detention – have generated political controversy and threatened or undermined individual liberty, they have subsequently proved to be of minimal security value, if not outright counter-productive.
Of the string of measures announced, none posed a greater danger to British liberty than the new proposals to extend detention without charge, a serious threat to the ancient right of habeas corpus. In 2003, the previous seven-day limit on detention without charge – which had proved adequate for dealing with Irish terrorism for the past twenty years – was doubled to fourteen days, in response to the terrorist attacks on 9/11. While all other serious criminal cases remained subject to a four-day limit (including drug trafficking, organized crime and complex fraud cases), in 2005 Tony Blair sought to extend the time limit in terrorism cases to ninety days, offering no credible evidence as to why yet another massive increase was necessary to protect the public. In November 2005 the ninety-day proposal was rejected, Blair’s first ever parliamentary defeat, but the limit on pre-charge detention was increased to twenty-eight days – as an extraordinary emergency power to be used only in the most exceptional of circumstances.
While the proposals were rushed through without an opportunity for thorough scrutiny, evidence made available since suggests that some increase in the powers of police detention beyond fourteen days was necessary to deal with the increased terrorist threat and the growing number, and increasing complexity, of cases under police investigation. Basic details of the number of suspects and volume of evidence in police counter-terrorism investigations demonstrate some of the operational pressures on police and prosecutors. This was backed up by public briefings from the Security Service, MI5. In 2006, the Director General of MI5 spoke publicly of thirty terror plots threatening Britain and 1600 individuals under surveillance. By 2007, her successor had revised that risk assessment – the Security Service was now monitoring at least two thousand individuals thought to be involved in terrorism – and estimated that there might be a further two thousand they were unable to track.
Nevertheless, the government also increasingly relied on the shroud of secrecy that covers the work of our counter-terrorism authorities to avoid explaining the reasons for extending the powers of the police to hold suspects without charge. And while it has demonstrated an insatiable political appetite for extending the maximum period still further – beyond twenty-eight days – it has not offered any convincing evidence to demonstrate that such a step is necessary.
Between 2005 and 2008 the government put forward numerous proposals to extend the detention without charge beyond twenty-eight days. Seemingly plucked out of the air, proposals for fifty-six, fifty-eight, ninety days and even indefinite detention without charge were all mooted – with the government settling on forty-two days in the face of widespread scepticism from Parliament and the wider public. Despite some indications that Gordon Brown might prove less cavalier as Prime Minister than his predecessor, he made clear his intention to press ahead soon after taking office in June 2007. The government forced the legislation through the House of Commons on 11 June 2008 by nine votes, despite a major revolt by Labour backbenchers and amidst widespread reports of reticent MPs being bullied or offered financial inducements to silence their dissent. One estimate put the price tag on securing the vote as high as £1.2 billion. In October, the forty-two days proposal was subsequently mauled from all sides in the House of Lords. The Home Secretary reacted by accusing all those opposed to forty-two days of ignoring the terrorist threat and withdrawing the proposal from the Counter-Terrorism Bill. Yet at the same time, she published a separate new proposal, with even wider powers to extend pre-charge detention to forty-two days, and threatened to force it through Parliament in the event of another terrorist attack – an irresponsible display of sublime political brinkmanship.
While the government cites police support for forty-two days, the equivalent of a short prison sentence, it has