Copyright © The Author 2007. Published by Oxford University Press.
Generating More Heat than Light? Debates on Civil Liberties in the UK
* Principal Lecturer, School of Legal Studies, University of Wolverhampton. E-mail: jonm{at}wlv.ac.uk
This article deals with the debate over civil liberties in the United Kingdom, particularly the argument that civil liberties have been unreasonably restricted in the UK as part of the state's counter-terrorist policy. Arguments that the UK is facing an unprecedented threat to its civil liberties are examined, as are counter-arguments, including the idea that defenders of civil liberties display an excessive pessimism. The article argues that civil liberties have been constrained, but a focus on counter-terrorism shows the situation is not as bad as critics think. The main threat to civil liberties may come from outside the field of counter-terrorist operations and lies in some developments in normal criminal investigation and public order but more importantly, the processes and practices of the public and private sector (particularly surveillance) as part of what is termed the ‘risk society.’
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What are civil liberties? |
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As Gearty argues, the term civil liberties has continued to expand; like human rights it has spread into areas which were previously thought not to be relevant. Briefly, the core idea of civil liberty is connected with the idea of civil society: an area of social and political life not controlled by the state at central or local level. Centrally, this involves rights of association, assembly and expression, individuals and groups having the freedom to come together, organize, debate and protest.1 Civil liberties are separate from democracy. For example, in Britain, freedom to assembly and debate existed before democracy and could still place pressure on the government of the day; indeed it is the development of civil liberties in Britain that eventually secured democratization. However, as Ewing and Gearty argue, the two do reinforce each other: ‘the main purpose of civil liberties is to promote political participation and that as such it is a discipline which encourages an active political culture.’2 In the end, what is the point of having the right to associate in pressure groups, assemble for demonstrations or express comment or debate in newspapers if it does not lead to a system in which government takes notice of the citizenry?3
If civil liberties are centuries old, human rights are really a product of the 20th century, where the genocides of the Second World War convinced the international community that individuals should possess rights simply by virtue of their being human.4 Thus, the United Nations set out the Universal Declaration of Human Rights (1948), which influenced the European Convention on Human Rights (1950). These human rights charters also connect with civil liberties however, because these most basic human rights concerned ‘freedoms from’ that enable political participation, e.g. the right to liberty, the right to privacy. For example, it would be difficult to have freedom of expression if the state had unlimited powers of arrest and permanent surveillance over every person in their home and in public.5 Since then human rights have grown markedly and cover an ever increasing range of life. The UN International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both 1966) introduced things such as, right to a family life, right to social security, right to an adequate standard of living, etc. These latter forms of human rights have been subject to criticism for expanding the notion of rights.
This paper thus defines civil liberties as approximating those in the European Convention on Human Rights (ECHR): the right to life (Art. 2), the prohibition of torture (Art. 3), the right to liberty and security (Art. 5), the right to a fair trial (Art. 6), the right to respect for private and family life (Art. 8), freedom of thought, conscience and religion (Art. 9), freedom of expression (Art. 10), and freedom of assembly and association (Art. 11) because they cover not only fundamental civil liberties (e.g. Arts. 10 and 11) but also the legal framework which if abused would render these and other rights meaningless (e.g. Art. 5). It is also evident that civil liberties involve two sorts of freedoms: negative (freedom from interference, e.g. from arbitrary arrest and detention, surveillance, etc.) and positive (freedom to do things, e.g. vote, protest, etc.).
Despite the Constitution of 1688, British liberties were not enshrined in a specific document[s]. Citizens’ freedom from state actions was ensured by a combination of parliament and the courts. The rule-of-thumb in Britain was citizens were free except where the law prescribed otherwise.6 Where written documents did play a role was in the area of human rights. The increasing influence of international law after 1945 saw the UK sign up to the ECHR in 1950 and also a series of other instruments such as the ICCPR and the 1984 UN Convention Against Torture. During the 1970s and 1980s the UK government was subject to a series of adverse decisions by the European Court of Human Rights in the areas of prisoners rights, interrogation, right to life, and so on. Pieces of domestic legislation such as the Police Act 1997 and the Regulation of Investigatory Powers Act 2000 reflected the increasing importance of UK compliance with the ECHR. The Human Rights Act 1998 incorporated the ECHR into British law.
Finally, civil liberties and human rights must have exceptions: the need for national security, public order and the pursuit of serious crime are exceptions to everyone's right to personal liberty. Further, each nation has a ‘margin of appreciation’ in interpreting the ECHR. Finally, in addition, the much criticized Human Rights Act contains a get-out clause: there is the ability to derogate (suspend adherence) from some rights in time of emergency (Art. 15).
Restricting one's liberty is supposed to ensure the protection and expansion of others: in clearest terms, the restriction of an offender's liberty is done to protect others (the public). Similarly, with terrorism. As John Reid stated: ‘It cannot be right that the rights of an individual suspected terrorist be placed above the rights, life and limb of the British people.’7 In this respect, Ministers are correct when they argue that the government is not curtailing civil liberties; it is actually constraining some liberties to protect others. Indeed the ECHR calls on the state to ensure the right to life (Art. 2). Thus when the government changes limits on pre-charge detention or introduces house arrest for suspected terrorists, it implies it is protecting Art. 2 by restricting Arts. 5 and 6. These judgements are not confined to political conservatives. Liberal campaigners argue that the civil liberty of free speech (Art. 10) should be restricted to prevent hate speech against homosexuals, ethnic minority groups and religious groups.8
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Civil liberties and the war on terror |
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The main areas affected by the war on terror lie in public order, stop-and-search, pre-charge detention, preventive detention and surveillance and information exchange. The Terrorism Act 2000, which was a major overhaul of the legislation was followed after 9/11 by the Anti-Terrorism Crime and Security Act (ATCSA) 2001, the Prevention of Terrorism Act 2005 and the Terrorism Act 2006. These have been accompanied by other relevant legislation such as the Proceeds of Crime Act 2002, which allows the criminal and civil recovery of property deemed to have been gained by unlawful activity and the Serious Organized Crime and Police Act 2005.
In terms of public order/stop-and-search, the provisions of the Terrorism Act 2000 allow police officers to have wider grounds for stop-and-search under ss43 and 44.9 In terms of pre-charge detention this has been extended to 28 days longer than was the case in Northern Ireland.10 The argument is that it is justified by the need to examine large numbers of documents and electronic data in the possession of suspected terrorists and thus enable their proper questioning.
Perhaps the main controversy has been in the area of preventative detention, enabled under Part 4 of the ATCSA 2001. Foreign citizens who were certified as terrorists by the Home Secretary but who could not be deported could be detained in prison without trial. The government had to derogate from the ECHR with regard to this preventative detention. In 2005 the House of Lords argued that certification and detention themselves did not contravene the ECHR but that this was discriminatory because it did not apply to British citizens. The Lords also argued that the government was within its rights to declare a public emergency, but that the UK's response was disproportionate since it again only affected foreign nationals. The government responded with the Prevention of Terrorism Act 2005, which replaced preventative detention with house arrest under Control Orders. However, this was later subject to an adverse ruling in the High Court in 2006 when it quashed six Control Orders on the grounds they contravened the ECHR, which was then overturned by the Court of Appeal. The case is on its way to the Lords.11
In terms of surveillance, there has been increased access to and sharing of public and private sector data through gateway agreements and other areas via the Regulation of Investigatory Powers Act 2000 and other measures. In addition, ID Cards are to be introduced. This measure is connected to the war on terror but also stems from other arguments such as countering fraud.
As mentioned, the government has had to derogate from the ECHR (i.e. formally suspend its adherence to it) with regard to preventative detention and one type of Control Order. The other measures are normally allowed under the ECHR's general exceptions (fighting crime and preserving national security) but have been challenged in the media by campaigners and in the courts as excessive. It seems that the government, police and civil liberties campaigners agree that civil liberties have been restricted as part of the war on terror. The debate then opens up as to whether this is appropriate, to which the next section turns.
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The civil libertarian case |
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The critics argue that restricting civil liberties is disproportionate and part of a process of diminishing safeguards on state power. For example, Haubrich argues that indeed the threat faced by the UK is unprecedented, but that this has led to an unprecedented erosion of civil liberties.12 For critics such as Flyghed we are in a process whereby ‘the advocates of effectiveness’ are in the ascendant. ‘Their line is that crime control becomes ineffective when too much concern is shown for the preservation of individual integrity.’13 Certainly government representatives quickly began to place pressure on other actors to accept the argument for national security. According to David Blunkett, ‘Our judiciary is, and will remain, independent. It is their job to interpret laws and to protect freedoms. But they are surely there to protect the majority from the minority as well as the minority from the majority.’ Judicial review had apparently become a lawyer's charter by which jurisprudence was preventing ‘the justice that comes from ensuring protection for all.’14 This was only one of a stream of comments from Blunkett and current Home Secretary John Reid placing pressure on the judiciary, leading Geoffrey Bindman to argue: ‘It is a melancholy fact that that such ministers, whatever their history and previous commitments, tend to become routinely impatient of legal processes and hostile to civil liberties they come to see as obstructive.’15
Flyghed also argues that in this context the terminology of war has infected crime control and that ‘in the context of this war, personal integrity is often assigned an extremely peripheral role. The extreme counter measures that have been taken against ‘terrorism’—in both the USA and EU—since 11th September 2001 provide one more tragic example of this.’16 Western societies are experiencing a ‘normalization of the exceptional’: an increasing number of crimes are regarded as needing exceptional measures to combat them and surveillance is increasing as the general population is seen as risky—inherently criminal depending on circumstances. This is not a new argument. Paddy Hillyard and others argued nearly two decades ago that Northern Ireland effectively functioned as a testing ground for special powers which then spread to the mainland,17 although as Walker points out the case has yet to be made.18 The argument is not restricted to the left. Influential commentator Peter Hitchens argues,
we may be detained for long periods if we are accused of ‘terrorism.’ This is a crime the government pretends to treat with special horror but with which it is in truth happy to negotiate when it suits it. So, if the horror is false, we have the right to suspect that ‘terrorism’ is no more than an excuse for the taking of powers that the state wants anyway.19
We have to be careful here: Flyghed actually argues that societies generally have become more tolerant and liberties have increased, citing ‘the abolition of the death penalty, maiming, vagrancy laws, enforced treatment regimes and the decriminalization of homosexuality’20 However the argument is that in policing and criminal law the trend is in the other direction, particularly with regard to surveillance and ‘net widening,’ the idea that increasing areas of social life become to be seen as relevant to crime and crime control.21 Conor Gearty follows a similar line of argument. He argues that with policies such as preventative detention:
The terrorism model blows a hole in this [criminal justice] system, rooted as it is in fair procedures, settled rules and carefully calibrated international cooperation ... UK law has certainly drifted in this direction, with administrative powers rooted in executive judgements about involvement in terrorism (very broadly defined) being used against individuals and groups without the safeguards that would be regarded as normal if the criminal justice system model were followed. Human rights law in the United Kingdom has largely accommodated these security oriented changes, and the effect of this has been to render them seemingly compliant with, rather than inherently hostile to human rights principles.22
Thus Gearty regards safeguards as ‘confetti at a funeral’ but does argue that the ‘entanglement’ of terrorism law with the criminal law as providing the possibility for challenge and control in future.23
Then there are the critiques of inappropriate use of powers. As mentioned in terms of public order/stop and search the provisions of the Terrorism Act 2000 allow police officers to have wider grounds for stop-and-search under s44 which may take place for upto 28 days in specified zones after authorization by a senior police officer. These provisions are acceptable where the disruption of terrorism is concerned but controversy has arisen when they have been used inappropriately. These powers were used on mainstream anti-war and anti-arms trade protestors at RAF Fairford and Docklands. On appeal, the High Court argued the use of such powers was lawful but the decision had been a ‘close call.’24 Vocal protestors (including Walter Wolfgang) at the Labour Party conference were arrested under the Terrorism Act as have been others highlighted by critics, including, remarkably, a trainspotter.25 The Serious Organized Crime and Police Act 2005 introduced restrictions on demonstrations within 1 km of Westminster. They have to be authorized by a police officer. Less well known is the fact that s128 of the Act authorizes the Home Secretary to designate certain facilities as sites of national security and at which individuals (in this case) without an excuse, will be committing criminal trespass.
The most serious charge of inappropriate use of powers was in the shooting dead of Jean Charles de Menezes, who was mistaken for a suspected terrorist living in the same flats, followed by officers into the London Underground and shot eight times. The police were operating under a lethal force policy (Operation Kratos) which had apparently been made more stringent than that used by the Israelis.26 The Independent Police Complaints Commission recommended charges be brought on the Metropolitan Police under the Health and Safety at Work Act 1974.
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Critiques of the civil liberties case |
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Waddington has responded with a trenchant critique of much critical writing on civil liberties. He argues that it often constitutes ‘civil libertarian pessimism’ in which critics see history as one long slippery slope in which civil liberties are restricted by the state, with a progression to an insidious authoritarianism the result. Waddington argues this type of writing is polemical, framing an argument of negativity whilst deliberately ignoring the successes gained by civil libertarians. In fact, Waddington argues, civil liberties are a contested terrain in which different groups (the state, the police, media, politicians, civil liberties groups) struggle over the issue of civil liberties and record successes and failures. Waddington points to areas where civil liberties have increased and police powers fallen into disuse or been regularly challenged and effectively restricted. One implication of Waddington's work is that the rich context of the history and operation of civil liberties is often ignored by many academic critics.27
Moran argues that in addition to focusing on the debates about what powers the state has, and whether they are unprecedented, we should also look at their exercise. For all the furore about preventative detention it has affected less than 20 people. For all the furore about the alleged racist stop-and-search of Muslims, less than 4,000 of the UK's 1.8 million Muslims are stopped and searched annually under the Terrorism Act 2000.28 This does not mean these powers are not important. For example, if the state in Britain was to reinstate the death penalty but ‘only’ executed four people a year this would of course be crucial not just to the individuals affected but because it would represent an important potential reservoir of state power. Certainly, preventative detention is an important and remarkable power for the state to take, at least in its present form.29 Nevertheless, it remains important to look at the exercise of state powers in practice since some of the civil liberties advocates seem to imply that hundreds of thousands of people are being stopped, searched and detained by the police with little accountability. But the power of the state seems shaky if two people on Control Orders can pop out and disappear, as occurred in 2006, the Carlisle (2007). Indeed many articles on civil liberties which argue they are being eroded in fact contain little or no information on the powers in practice or even fundamental misunderstandings of law and policing.30 This is particularly interesting since one of the main charges of the civil liberties advocates—and one which this author would agree with—is that the language of terror is characterized by panic from both government representatives and senior police officers, notably Sir Ian Blair.31 However, civil liberties advocates and groups sometimes replace this discourse with an equally panicky and apocalyptic one themselves.
Further, the safeguards that are in place require examination. Here, some would argue that civil liberties safeguards have been more effective in the UK than the USA in a number of areas.32 These new powers operate in a changed context from the 1970s. Barristers, particularly those from liberal and left leaning legal firms and practitioners are more aggressive in ‘taking the police on’ as well as other law enforcement agencies. Courts and juries are more skeptical of police evidence. Lower level courts have been critical of terrorist prosecutions. Jury trial remains. In the ‘ricin plot’ trial all the defendants except Kamel Bourgass, (who had previously murdered police officer Stephen Oake) were acquitted. The higher courts have undertaken close scrutiny of terrorism legislation and have declared parts of counter-terror law in contravention of the ECHR.33
Outside the court system, the operation of the police is subject to external bodies such as the IPCC, a body which, over the de Menezes investigation and the Forest Gate arrests has been accused of being both a whitewash organization and anti-police, which probably shows it is on the right lines, similar to the vigorous police accountability body in Northern Ireland, the Police Ombudsman for Northern Ireland.34 The police are covered by a detailed series of regulations (e.g. PACE Codes of Practice, RIPA proofing of covert policing) which may be scrutinized in court.
The security services are covered by an Intelligence Services Commissioner and an Interception of Communications Commissioner, plus the Parliamentary Intelligence and Security Committee. The argument might be made that these mechanisms are bureaucratic, and certainly, if oversight of criminal justice in the UK is more robust, oversight of intelligence is less so when compared with the USA.35 However they can at least provide ground for debate and complaint.
Overall, as Walker argues: ‘The 21st century concept of normality in criminal justice embodies the contingency and reality of "special" powers dealing with "special" situations or risks, whether terrorism, serious frauds, sex offenders or the anti-social. This trend towards fragmentation and specialization may be warranted, provided sensible safeguards and scrutiny are built upon.’36
Away from institutional and legal safeguards, public debate is intense and varied and keeps the government under the spotlight. Major newspapers have detailed examinations of anti-terror police actions; groups such as Amnesty and Liberty play a role (although less effective than claimed and less effective than the courts) and artists have mounted critiques, including artists ‘Banksy’ and Mark Wallinger, who has replicated Brian Haw's Westminster protest placards and displays in the Tate Modern. The gallery is still within the Westminster exclusion zone under the Serious and Organized Crime and Police Act 2005, and thus Wallinger is effectively daring the police to take him on.37
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Other constraints on civil liberties |
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‘Normal’ policing
Outside the hothouse of anti-terrorist policing, the police do have more powers in the area of public order and mainstream criminal investigation. DNA can be taken and stored on arrest alone; public order controls under the Anti-Social Behaviour Act 2003 have extended the Public Order Act 1986. Over 1,000 new offences have been created under New Labour since 1997.38 Some of these offences, it is argued from the right, are part of the rise of ‘political policing,’ a movement by the state to constrain political debate and expression.39 Others on the left argue, in distinction to their position on counter terrorism law, that they are justifiable restrictions in the cause of social cohesion and anti-discrimination. Thus the debate rolls on but the restrictions are there. Under other legislation, sanctions may be instituted without conviction. These may come, for example, via an Anti-Social Behaviour Order, or under the Proceeds of Crime Act 2002 where asset recovery/forfeiture can deprive individuals of their assets on the basis they have been unlawfully gained, a process only requiring a civilian burden of proof.
The ‘Nationalization’ of private life
Over the last two decades, areas of social life which were previously thought to lie in the hands of the individual and voluntary sector have come under the direct authority of the state. This process began under the Conservatives. Critics noted the irony that the Thatcher governments stated that they wished to free the citizen but as part of their reforms the public sector actually widened and the state became more powerful.40 Space precludes a detailed examination of this, but examples include the Conservatives' development of the Child Support Agency which turned what was, in effect, a private matter regulated by civil law (maintenance) into a state regulated sector buttressed by systems of surveillance and punishment. Whilst the effectiveness of this system was limited to say the least it represented a trend towards the nationalization of social life, which has continued and accelerated under New Labour governments (1997), fuelled by the powerful idea that society was a ‘risk society’ and that its members could not be trusted. Thus, as Furedi points out in response to the justified publicity given to child abuse scandals, the prevalence of domestic violence and the problem of sexual assault, everyone is now viewed as a potential abuser of some sort or other.41 The result is law such as the Children Act 2004, which involves:
the development of a electronic infrastructure for multiagency working, an electronic system of information collecting and sharing which proposes the monitoring and surveillance of all children. Section 12 of the Act facilitates the creation of individual electronic files on around eleven million children. The mechanism for this is an information referral and tracking (IRT) scheme which will be shared between agencies. ‘Tracking’ refers to a child's contact with any education, health, welfare and law enforcement agency. 42
For Penna, it is not just this, it is the ever expanding definition of what constitutes child welfare and thus requires monitoring. Again, this has been developed for a good reason: to prevent the lack of information exchange, which has put children at risk of serious harm in the past. However, ‘whilst IT is proposed as a strategy aimed at liberating children from abuse, deprivation and insecurity, it may also function as a mechanism of extensive, intrusive and potentially politically repressive social control.’43 The latter idea of ‘political control’ may be excessive but the point is that such extensions may infringe Art. 8 of the HRA as a disproportionate invasion of privacy. Further these mechanisms are not just to protect children from danger but to monitor and intervene if they are seen as posing a danger as future prolific offenders or anti-social citizens. If so, monitoring and intervention may extend to their parents, who might be brought within the criminal justice system via Parenting Orders, and other ‘interventions.’ The police may be involved in these sorts of areas. They have always had a ‘social work’ function. This was, at one time, decried by modernizers such as the Audit Commission which in the 1990s called for the police to concentrate on ‘core policing.’ However, the wide definitions of anti-social behaviour coupled with the introduction of new offences and multi-agency working increasingly require the police to actually expand their ‘social work’ functions but this time not as part of the officers discretion on the beat but as part of a formal system of intervention.
Surveillance like this, connected as it is to the ‘risk society’, is an area which, perhaps, excites the most comment from observers who are otherwise measured about threats to civil liberties. However, surveillance is taking place normally as part of government modernization. In terms of data access alone, the government is computerizing NHS records which will be able to be accessed by 300,000 workers many, such as receptionists, with little or no training or professional status in the handling of data.44 Computerization is the basis for the latest government proposal for data matching to facilitate single files for individuals, incorporating tax, social security, health and so forth. Critics such as Simon Davies predicted this some time ago but then this was labelled as a conspiracy theory.45 Once the ID card is added to the mix, clearly there is an information architecture developing beyond the control of any individual. Finally, information gathering is not restricted to the state. The private sector has, over the last two decades begun to amass data on consumers for marketing and for insurance purposes.46
We need to be careful of overstatement. As has been pointed out elsewhere, the surveillance society is a long way off, and the surveillance and data exchange which does take place is affected by the usual processes of inefficiency, incompetence and mistakes. To return to terrorism for a moment, much talk after 9/11 was about getting the right data, which would have prevented the terrorist attack. We now know from this (and to an extent 7/7) that the information was already there; it was just not processed, recognized and acted on.47 Nevertheless, the practical expansion of surveillance and the legal powers behind it are growing. Increasing amounts of information is gathered on individuals by both public and private sectors as routine and this itself is important. This has implications for privacy and due process if state agencies (including the police) access this data and use it as the basis for investigations. And after all, the gathering and processing of information on individuals affects police officers just as much as other citizens.48
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Conclusion |
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Debates on the state of civil liberties in the UK are often characterized by sniping from already entrenched positions.49 On the one hand, civil liberties campaigners argue that the anti-terror regime is creating some sort of unprecedented permanent emergency powers dictatorship. On the other, the government and some commentators argue the current threat is unprecedented and that worries about liberties are overstated. The arguments of both sides are often short on detailed analysis. In concrete terms, the war on terror has seen the state take powers to counter terrorism. However, there is a clear terrorist threat. Some of these are remarkable, including preventative detention and the introduction of ID cards. Others are problematic if they are misused, such as public order powers. There have been serious mistakes, such as the de Menezes shooting. However, the new powers have been used sparingly and are subject to intense media, interest group, judicial, academic and other scrutiny.
It is away from the intense area of countering terrorism that civil liberties concerns may arise. In terms of conventional police powers, these have expanded over, for example, the last ten years. For example, public spaces can now be more easily cordoned off, DNA can be taken on arrest and stored permanently. There are 300 new criminal offences on the books, since 1997 and the state has impressive powers of asset recovery. One area of concern which unites left and right is in terms of surveillance. As mentioned, the state is implementing ID cards and the techniques for the collection and retention of data have grown across the public sector. Police agencies have in fact more robust systems of accountability than many other state agencies such as the benefits and health organizations who have powers of information gathering and sanction but are not covered as comprehensively. The same is true of the private sector, which is gathering impressive amounts of information on the spending and lifestyle habits of consumers, and for the purposes of insurance. The ineffectiveness of these systems is apparent, but they should not be ignored.
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Notes |
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1 Thus in pre-modern times the expansion of civil liberties was almost defined by a reduction in the power of the state. The famous Magna Carta declaration set limits on the powers of the monarch over the nobles who supported him. This had little relevance to the citizenry but parts of it did; the idea of habeas corpus dates from this time, the first control on arbitrary arrest. Under the Stuarts the emerging business class of landowners sought to secure rights against the Absolutist monarchy; again, this was not directly relevant to the labouring poor but was a further stage in setting the limits on what the state could do. A major breakthrough came following the English Civil War, with further controls on what the state could do and a permanent check on the state in the form of a more representative parliament. For the debates about excessive state power leading up to the civil war see Hunt (2002), The English Civil War. London: Weidenfeld and Nicholson. Rights of expression and assembly were evident. It should be noted that this development was relative: individuals could still be executed for criticizing the King or producing seditious materials (with the definition of sedition very wide). However by the 19th century, rights of assembly and association widened with the right to form trade unions. By the end of the 19th century, civil liberties became inextricably connected to democracy. Most men were progressively given the vote after the first major reform in 1832, then progressively, all women, following the First World War.
2 Ewing and Gearty (2001), The Struggle for Civil Liberties. Political Freedom and the Rule of Law in Britain 1914–1945. Oxford: Oxford University Press, p. 33].
3 ‘Democracy is about ensuring that the representatives of any given community get to decide what is in the best interests of that community, with each elector having an equal say in the outcome of the elections that determine who is to sit in the representative assembly. Civil liberties are about guaranteeing that equal say.’ Gearty, C. (n.d.), ‘Reflections on civil liberties in an age of counter terrorism’ http://www.lse.ac.uk/Depts/human-rights/Documents/Reflections_on_civil_liberties_in_an_age_of%20counter-terrorism.pdf
4 For the argument that animals have rights, Singer (1995) Animal Liberation. London: Pimlico.
5 Indeed it is a central concern of American civil liberties campaigners to protect both expression and privacy, since they argue that state surveillance (via the NSA and FBI) ‘chills’ the activity of political protesters.
6 For a discussion of the history of public disorder, local and national political protest and violence in Britain see Emsley (2005), Hard Men. Violence in England Since 1750. London: Hambledon and London. See Waddington (1994), Liberty and Order. Policing Public Order in a Capital City. London: UCL for a contemporary view.
7 Reid (2006b), Speech to the 2006 Labour Party conference, available at http://bbc.co.uk/1/hi/uk-politics/5389542.stm
8 Waddington (2005) ‘Slippery Slopes and Civil Libertarian Pessimism’, Policing and Society, 15/3: 369.
9 Under s43[1] a constable may stop and search a person whom he reasonably believes to be a terrorist to discover whether he has in his possession anything which may constitute evidence that he is a terrorist. Under ss44/45 a constable may stop and search any person or vehicle in specified zones after authorization by a senior police officer. Under s46 the zone may last up to 28 days.
10 Hogan and Walker (1989), Political Violence and the Law in Ireland. Manchester: Manchester University Press.
11 Second Report of the Independent Reviewer Pursuant to Section 14(3) of The Prevention of Terrorism Act 2005 available at http://security.homeoffice.gov.uk/news-publications/publication-search/independent-reviews/lord-carlile-ann-report.pdf?view=Binary
12 Haubrich (2006),‘Anti-Terrorism Laws and Slippery Slopes: A Reply to Waddington’, Policing and Society 16/4: 405–414.
13 Flyghed (2002), ‘Normalizing the Exceptional: the Case of Political Violence’, Policing and Society, 13/1: 24.
14 Sparrow (2001), ‘Blunkett attacks judiciary in fight over terrorism’, Daily Telegraph (4th October). This is a long debate, not only evident in legal and academic debate but in popular culture where, particularly in the USA, gritty cops are prevented from bringing serious criminals to justice because of ‘the suits’ or members of the ‘liberal establishment’ who are more concerned with the civil liberties of suspects than with victims of crime. Pettigrew (1986) Raising Hell. The Rebel in the Movies. Kent: Columbus. pp.155–163.
15 Bindman (2004) ‘Civil liberties and the "war on terror" Open Democracy, 6.5, available at http://www.opendemocracy.net/conflict-iraqi_war/article_1888.jsp. Gill argues that there is in fact no contrast between efficiency and civil liberties:‘It is a mistake to view efficacy and propriety as being in a zero sum relationship such that gains in one are outweighed by losses in the other. Rather, they should be viewed as being in a non-zero sum relationship such that both can be improved. This is not to say that there is no tension between the two: it is quite easy to see how, in the short run, the ability to conduct surveillance of an individual or group may be reduced by the requirement to follow procedures that seek to protect privacy but, in the longer term, such procedures are required if a state is to be entitled to call itself democratic. Such procedures should be designed in order that, even in the short term, the invasion of privacy is proportionate to the alleged threat but also to prevent it being directed at the wrong person or conducted in such a way as to amount to intimidation’ Gill (2003) ‘Democratic and parliamentary accountability of intelligence services after September 11th’ Centre for the Democratic Control of Armed Forces Working Paper 103: 2. Here the argument is that quality control will lead to effectiveness; a similar argument has been made with regard to homicide investigation which has been modernized in the 1990s and police interviewing under the PEACE regime.
16 Flyghed, Normalizing the Exceptional, p. 25.
17 Hillyard (1987), ‘The Normalization of Special Powers: from Northern Ireland to Britain’, in P. Scraton, ed., Law, Order and the Authoritarian State. Milton Keynes: Open University Press.
18 Walker (2004) ‘Terrorism and Criminal Justice: Past Present and Future’, Criminal Law Review, May: 325–26.
19 Hitchens (2004), The Abolition of Liberty. The Decline of Order and Justice in England. London: Atlantic. pp. 43–44.
20 Flyghed, Normalizing the Exceptional, p. 28; see also Waddington Slippery Slopes.
21 Feeley and Simon (1994), ‘Actuarial Justice: the Emerging New Criminal Law’, in D. Nelken, ed., The Futures of Criminology. London: Sage; Cohen (1985), Visions of Social Control. London: Polity.
22 Gearty (2006) ‘Human rights in an age of counter terrorism’, Oxford Amnesty Lecture, available at http://www.lse.ac.uk/Depts/human-rights/Documents/Oxford_Amnesty_Lecture.pdf
23 ‘Again we are back with the single greatest disastrous legacy of the war on terror from a human rights point of view, the supercession of the criminal model based on justice and due process by a security model based on fear and suspicion.’ Gearty, Human Rights.
24 Moran (2005), ‘State power and the war on terror: a comparative analysis of the UK and USA’, Crime, Law and Social Change, 44/4—5: 343.
25 Hitchens (2006) ‘Stealing Freedom’ Channel 4 Television, 27.2.
26 Taylor (2006) ‘Countdown to a Killing’ BBC TV, 8.3.
27 Waddington, Slippery Slopes; Waddington (2006) ‘Terrorism and Civil Libertarian Pessimism Continuing the Debate’, Policing and Society, 16/4: 415–421.
28 Moran, State power: 343, 350–351.
29 Walker argues that Control Orders could be converted via the institution of a time limit after which prosecution or release should follow. ‘In this way, a control order under the Prevention of Terrorism Act 2005 would be transformed into a form of provisional judicial investigation rather than an executive order per se.’ Walker (2005), ‘Intelligence and Anti-terrorism Legislation’, Crime, Law and Social Change, 44/4–5: 413.
30 This is something Sproat criticizes in his analysis of terrorist finance powers. Sproat argues that a number of academic and non-governmental organizations argued that terrorist finance powers were being used disproportionately against Muslim charities and restricted their ability to attract donations. These arguments were based on assertion rather than fact, as demonstrated by an empirical analysis. See Sproat (2005), ‘The Social Impact of Counter Terrorist Finance in the UK’, Crime, Law and Social Change, 44/4–5: 441–464.
31 Certainly, the language of the government does little to advance the debate on civil liberties. The threat from Al Qaeda is presented as historically unprecedented and is increasingly compared to WW2. ‘You and I know that we are facing the biggest sustained terrorist threat to life and limb in this country ever and the biggest threat to life and limb for half a century.’ J. Reid, from his speech, ‘Making delegation work’, speech to the Police Superintendents Association (19 September 2006). A cursory examination of the conflict in Northern Ireland shows us that the Provisional Irish Republican Army, the Irish National Liberation Army and other republican terrorist groups killed a member of the Royal family (Lord Mountbatten), two MPs, judges, politicians, diplomats, prison officers, over 300 RUC officers and over 500 British Army soldiers, including attacks abroad, and last but not least, came close to wiping out the British cabinet in Brighton in 1984. Al Qaeda, or its sympathizers in Britain, have come nowhere near this kind of threat to public security and government officials, a fact one could not discern from those comments of Tony Blair and John Reid which portray Britain as permanently on the verge of an apocalyptic attack.
32 Gearty, Human rights, a point also made by Moran, State Power.
33 Moran, State power: 344 and n.59; Waddington, Terrorism and Civil Libertarian Pessimism Continuing the Debate: 417–419.
34 Moran (forthcoming), Policing the Peace. Politics, Crime and Security in Northern Ireland after the Belfast Agreement. Manchester: Manchester University Press.
35 Moran, State Power: 340–341.
36 Walker (2004) ‘Terrorism and Criminal Justice: Past Present and Future’ Criminal Law Review, May: 311–327. p. 325.
37 Channel 4 News 15 January 2007.
38 See Porter (2006), ‘The way the police treat us verges on the criminal’, The Observer (29 October) available at http://politics.guardian.co.uk/homeaffairs/comment/0,,1934387,00.html
39 Hitchens (2004), The Abolition of Liberty. The Decline of Order and Justice in England. London: Atlantic, pp. 245–252; P. Hitchens, ‘Stealing Freedom’ Channel 4 Television, 27 February 2006.
40 Jenkins (1996), Accountable to None. The Tory Nationalization of Britain. London: Penguin.
41 Furedi (2005), Culture of Fear. Risk Taking and the Morality of Low Expectations. London: Continuum.
42 Penna (2005), ‘The Children Act 2004: Child Protection and Social Surveillance’, Journal of Social Welfare and Family Law 27/2: 146.
43 Penna, The Children Act: 148.
44 B. Marsh (2006), ‘Patients will be ignored over privacy of records’, Daily Telegraph (4 December) http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/12/03/nhs03.xml
45 Davies (1996), Big Brother. Britain's Web of Surveillance. Pan: London; BBC (2006a), ‘Wider use of private data planned’, BBC News (13 September) http://news.bbc.co.uk/1/hi/uk_politics/5342718.stm
46 See, for example, BBC (2006b), ‘How we are being watched’, BBC News (3 November) http://news.bbc.co.uk/1/hi/uk/6110866.stm; BBC (2006c), ‘Is business the real Big brother?’ BBC News (25 May) http://news.bbc.co.uk/1/hi/business/5015826.stm
47 Phythian (2005), ‘Intelligence, Policy Making and the 7 July 2005 London bombings’, Crime, Law and Social Change 44/4–5): 361–385.
48 Surveillance has also been connected to the growth of the regulatory state. Of the 1,000 new offences created since 1997, 700 of these offences are regulatory offences. These may be bolstered by local government regulations. Recent innovations concern the monitoring of household waste disposal with possible financial penalties for those misusing their wheelie bins by putting the wrong waste in, the evidence provided by microchips within the bins. Daily Mail (2005), ‘More than 1,000 new crimes under Labour’, Daily Mail (8 February).
49 For a classic example, see the exchange between Henry Porter, author of a number of articles on civil liberties in the UK and Prime Minister Tony Blair in ‘Britain's Liberties: The Great Debate’, The Observer (April 23 2006) at http://observer.guardian.co.uk/focus/story/0,,1759344,00.html
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