This is England: erosion of civil liberties under Cameron

Illustration for Pink Floyd’s The Wall, 1979

When Margaret Thatcher died this spring, England was faced with two options: deal with its extremely conservative, socially deprived and individualistic past, or build and consolidate on the fresh ashes of social division to create a more cohesive society based on solidarity and strong civil rights values. Efforts were made to turn the Thatcherite past into a monument to what shall never be repeated, but England remains under conservative leadership. Torn between a strong insularism and a timid willingness to sit at the european table, the United Kingdom is progressively seeing its worldwide influence fade, as Commonwealth countries find their independent voice and refuse to be led by an ageing Queen. British identity is struggling, between a Northern Ireland province that never simmers down to the broken promises of an intervention in Afghanistan. But the small island’s problems don’t lie abroad; they are domestic, and they are violent, bleeding red, alarm-ringing signs that the society is in crisis. As nationalism takes over Western Europe again and the ghosts of imperialistic dominance are drowning the once serene voices of international organisations, England is slowly but surely destroying the signs of good will it had granted its citizens in the past.

England is part of the Old Continent. And just like the rest of its French, German, Spanish and Italian counterparts, it has known the terrifying and long-lasting consequences of terrorism. There is nothing new, groundbreaking or policy-altering change in bombs exploding in London. It’s the nature of the threat itself that changes – from ethnopolitical to global – but what is more worrisome is the response stays the same: disproportionate, liberticide, and under new european policies and legislation, unlawful. If the goal of terrorism itself is to alter the fabric of society to a point that it no longer remains the same and spins around an axis of confusion, then terrorism has achieved its goal. The Prevention of Terrorism Act(s) of 1974 onwards were implemented, failed, criticized, then obliterated in favor of a more egalitarian and respectful law enforcement regime. But the seed of extrajudicial action was planted. Once you taste blood, you want more. The erosion of civil liberties in the United Kingdom as a response to an alleged permanent threat that justifies domestic security by any possible means started in 2000, and shows no sign of stopping. In fact, it had greatly accelerated under Cameron, under whom the external threat became internal, and suspects were subjects of Her Majesty. Here’s a round-up of all the decisions made by the executive to make England the dystopia Andrew Lloyd imagined.

Anti-Terrorism, Crime and Security Act (ATCSA) 2001

A government’s duty is to provide security for its citizens: safety from harm – war, invasion, colonisation – and security from domestic threat – crime and terrorism. Anti-terrorism laws don’t have to necessarily violate fundamental liberties to be effective. It is a false equivalency to assume that safety and security need to overcome successful protection  of civil liberties and human rights. The political discourse surrounding the implementation of dangerously liberticide anti terrorism laws has succeeded in forcing the belief that populations need to give in what they earned in order to be protected. Losing in order of winning has never been a compelling argument. In the wake of 9/11, everything was up for grabs: right to attorney, duration  of detention, seizure of property, pre-emptive capture, and even the use of torture. It was all said to be for the greater good, which simply has never been properly and effectively demonstrated. Terrorism has become one of those words so painfully overused they lose all meaning and can be inserted in any speech in order to hammer a point home – usually, an ominous one for those of us guarding the rule of law.

In the case of England, the challenge was to provide comprehensive security apparatus, from law enforcement to intelligence, while maintaining a degree of security matching the risk involved in being involved in foreign wars, hereby becoming a target of terrorist groups formed and trained where UK military forces were intervening. The second challenge was to reassure the European Union that the mayhem provoked by the PTAs were not to be repeated. If the PTA of 1989 created the most wide, vague and ill-defined meaning for terrorism (“use of violence for political ends”), thankfully a 2000 Terrorism Act came to define it a little more, followed by the European Union’s 2002 Council Framework, which both referred to terrorism as crimes committed to influence a governmental or non-governmental institution in performing – or abstaining – from their duties. Those crimes can be committed with a political, religious or ideological cause. But as with everything regarding and encompassing political duties, the definition of what constitutes ideological cause can often be spun on its axis to mean dissent; and dissent can also manifest itself in violence and be referred to the crimes against persons and property mentioned above, when dissent in its peaceful form – freedom of expression, opinion, religion and press – are repressed to the point of leaving few alternatives.

the ‘Birmingham Six’, one of the most famous cases of miscarriages of justice under powers granted by a Prevention of Terrorism Act.

Detention powers and European law

It is within this context of criminalisation of dissent that powers given under the ATCSA take on their ominous and gloomy frame. Violations of the European Convention on Human Rights (ECHR) were made on three points: 1. indefinite detention (article 5), 2. deportation  and 3. extradition where the defendant is at risk of death, torture or other mistreatment (article 3.) Most of the control orders issued in the ATCSA are left at the discretion of the Secretary of State, meaning extrajudicial law enforcement powers lie in the hands of one unsupervised individual; and Secretary of State must issue a justification based on issues pertaining to national security. As we have explained before, what is considered an issue of national security is, once again, often arbitrary and discretionary. As thus, Section 21(1) indicates that the mechanism for indefinite detention power must satisfy those two criteria. An Appeals Commission is created for the person to have their situation reviewed, but it is important to note that in order to pass a bill containing violations of the ECHR, the UK government issued a derogation to the covenant, made possible… by the Convention itself, through Article 15. However the wording is where the core of the problem can be easily identified. Article 15 (ECHR): derogation is allowed “… in times of war or other public emergency… to the extent strictly required by the exigencies of this situation.”

When the ATCSA fell under the scrutiny of the House of Lords, it almost failed the litmus test. In the case of A v Secretary of State for the Home Department (2004), the appeal was heard by a nine-member panel, eight of which found that the powers granted by the ATCSA were in violation of the Convention. The response was a specific PTA issued in 2005 with non-derogating control orders, to be subjected to court review and do not impose as long a measure of indefinite detention than the ATCSA. However, the arguments placed in favor of a respect of the Convention in times where a derogation could be made according to Article 15 are coming back in full force, even after a debate in the House of Lords followed the 2005 London bomb attack by Al-Qaeda. The question as to whether extreme powers granted by anti-terrorism acts should supersede human rights is as relevant as ever, in an era where recent detention of Glenn Greenwald’s partner David Miranda was made under anti-terrorism provisions, while not even being on British territory and offences carried against him were not guaranteed under the EU Council Framework’s definition of terrorism (we explained that those were “preparatory offences”, as in “support of terrorism” – hereby implying that journalism is terrorism.) Recourses to the ATCSA should be made few, far-between and always under the supervision of a Court: a judicial review is mandatory to ensure the lawfulness of law enforcement intervention when powers are left to the discretion of the executive. However, recent measures enforced by Theresa May regarding the deprivation of citizenship for persons suspected of terrorism are equally as worrisome.

Deprivation of citizenship and international law

A declaration was made on November 12th that individuals owning British citizenship and proven international terrorists as per the ATCSA definition could be deprived of said citizenship, even if it was found that it would effectively make them stateless. This is an absolutely unlawful decision as per the provisions of the Universal Declaration of Human Rights, Article 15, unequivocally claims that “everyone has the right to a nationality”. Citizenship is not a flag, a badge to wear or simply a name printed on a passport; with citizenship is issues the rights granted by the state in question, its judicial and enforcement protection, at home and abroad. Depriving a person of citizenship and even right of abode anywhere will make it virtually impossible for anyone to settle down and be granted the fundamental rights of any citizen of a law-abiding country. Revoking one’s citizenship is usually one of the highest forms of punishment ever enacted by a state, usually reserved to citizens found guilty of the high crime of treason. Since the fall of the empires and the end of the Cold War, where national interests receded from under the coat of heavy nationalism and bipartisanship, the idea of treason has become more or less obsolete in civilian criminal law, and became an outpost of military tribunals for countries who have declared a state of war. This is not the case for the United Kingdom, despite the seemingly apparent need for derogation orders, but Theresa May includes deprivation of citizenship anyway: if it sounds like war, smells like war, and is legally enacted as war, is it effectively war?

According to the British Nationality Act 1981, Part V, Section 40, subsection 5: “The Secretary of State shall not deprive a person of British citizenship (…) unless (…) it is not conducive to the public good that the person continue to be a British citizen.” We encounter the vague notion of “public good”, which I would tend to assimilate to the notion of “public interest” made in order to justify declassifying and/or publishing national security documents in our article on press freedom. Once again, a security decision is made for what appears to be the general welfare of the Kingdom, as opposed to protection of political interest. Depriving of their rights to citizenship, the person would then be demoted, probably deported, and unlikely to claim judicial and civil rights granted by the Kingdom. Deprivation of citizenship clearly includes that the United Kingdom also wishes to separate themselves from an individual in cases of possible extradition and/or rendition, in the diplomatic back-and-forth that occurs when a citizen of one country commits criminal offences in another, while both countries are not in a declared state of war. Once again, the notion of combat looms angrily over the legislation. Under subsection 3, (b) explains a person may be deprived of their citizenship if they have “during any war in which Her Majesty was engaged, unlawfully traded or communicated with an enemy or been engaged in any manner (…) as to assist an enemy in that war.” It is coming full circle to the idea of preparatory offences under which an individual, whilst not committing a criminal action in itself, is aiding, abating, or communicating information that may lead to this action. Deprivation of citizenship under a definition of terrorism may then occur to anyone in possession of documents that are considered a threat to the nation. A nation that is, once again, not necessarily in a state of declared war.

Home Secretary Theresa May

The Nationality Act however had in mind to respect the rule of law and never render anyone stateless. Still in Section 40, subsection 5 (c) “the Secretary of State shall not deprive a person of citizenship if (…) that person would thereupon become stateless.” Where does the State’s responsibility lies in a citizen committing criminal actions abroad? The United Kingdom abounds in possibilities of trying the criminal domestically, in courts fully endowed with anti-terrorism provisions, with domestic and foreign intelligence at their service and – hopefully – the full cooperation of the country under attack. This is an idealist perspective in which we assume that a State will not be punishing a citizen for their actions but therefore enact the full force of the law they have themselves violated. Domestic provisions for international crimes have proliferated in European countries, due to the easiness of travel in the Schengen Zone; in the United States, despite violations of the Fifth Amendment; and extradition treaties have been modified in the wake of this global jihad that has western powers grabbing for all the possible power they can get in order to create a fortress of national security, civil liberties of their citizens be damned. The history of statelessness, dating back to the executive cowardice of european governments under Nazi rule in the early 1940s, is so marred by the horrors inflicted upon individuals rendered wanderers and unprotected persons that it was made a fundamental, unalienable right to be protected by a State. Is the United Kingdom so faithless in its own law enforcement and judicial system that it would rather deprive an individual of the most basic of their freedom rather than see them through the system? Or is it a way to appear unconventionally tough on potential terrorists that it would deter British citizens from ever associating with or committing terrorism-related offences?

Bulging, bursting at the seams, overwhelming counter-terrorism laws are just like capital punishment – they never prove to be effective. They are no deterrent. The ideological, political, religious or otherwise cause that it animating the individual committing those offences will find a discourse that will challenge the nation-state in a manner that leaves no possibility but to either detain this person indefinitely – which is illegal – or creating criminal processes that can contain not only the individual but also the material they can diffuse. Sadly, in recent manners, the terrorism in question has solely been associated with dissent. The external threat that has motivated the ATCSA has now moved internally, hence the increasing provisions against domestic threats. And this is how a new bill is making its way to Parliament to further silence dissent.

Anti-Social Behaviour, Crime and Policing Bill – 2013

Under this new proposed law, currently at Parliament, powers would be granted to councils – local executive – to ban protests they consider “disruptive”. The Public Space Protection Orders (PSPOs), generally restricting mundane and trivial activities such as dog walking or public drinking – could be extended as to ban any activity “detrimental effect on the quality of life of those in the locality”. This is loosely worded enough to ban protests, demonstrations, and even recent occupations of public spaces if the local council is deciding that such activities, rounded up under freedom of expression, are detrimental to the public good. On one hand, it is admissible to claim that protests can often take a turn to violence. Expression of minority rights can be met with harsh reactions from the general public. A protest celebrating controversial events can quickly lead to battle. A portion of the population that feels under-represented politically and/or in the media could feel that only through action can it be heard and understood. There is no effective way to ensure that any given protest would not give way to property damage, clashes with law enforcement or even attacks on persons. To ensure nothing bad would happen, it would imply banning the risk itself – banning protests. But freedom of assembly is protected by law.

When protests become riots. Tottenham, London, August 2011

This ASBCP bill uses the word “detrimental”, which includes that it would damage the quality of life and harm local residents. A council ban on protests would be pre-emptive; would-be protesters applying for a permit would be effectively denied before their message was given a chance to be heard. Article 10 and 11 of the ECHR provides protection for freedom of assembly and everyone holding a placard or chanting a slogan. Once again, the ECHR also, on the other hands and in the interest of national safety / security, provides a non-blanket authorization and clarifies in Article 11 (2) that no restrictions can be enforced, unless “those prescribed by law and are necessary in a democratic society in the interest of national security and public safety, for the prevention of disorder or crime (…)”. Should the new ASBCP bill be submitted to the test of regulation under European law, it is a sure fact that Article 10 (2) will be raised on allowing councils to ban protests. However, it is absolutely fundamental to understand that what is considered “disruptive” or “detrimental” buy any standard does not necessarily mean “disorder” or “crime”. Disorder, legally, creates an issue of public safety. Disorder is not litter on the street or chanting disrupting nearby classes. Disorder is an attempt at creating chaos among the democratic and free order. A protest in itself does not constitute disorder, and is in no way shape or form to be considered pre-emptively criminal. However, it has become a tendency to consider rights – any civil rights – as a privilege never to be abused. In Hubbard v Pitt (1976), Lord Denning understands the freedom of assembly as follows:

Such is the right of assembly. So also is the right to meet together, to go in procession, to demonstrate, and to protest on matters of public concern. As long as all is done peaceably and in good order, without threats or incitement to violence or obstruction to traffic it is not prohibited.

This slightly condescending way of defining “good order” is restrictive as it is impossible to prevent the way a protest will turn out. The student protests of 2011 clearly turned into riots and called for an emergency situation in the city of London in response to the incredible damage to property and the prolonged state of disorder when protesters were met by the London Police. British law has, traditionally, not held the right to protest in high order. It has never granted, through extensive court rulings – Nagy v Weston, a 1965 deciding a protest needed to be ‘reasonable’ to be lawful – a right that was superior to that of the decision to maintain public order. In short, up to rights granted by the ECHR, the right to protest and the freedom to assembly were a privilege, tolerated simply by the executive and lawfully manned by police, for people feeling disregarded and disadvantaged to take to the streets and manifest their opinion.

A small addition has also been made regarding the powers granted to law enforcement. The Independent reports that “People falling foul of the new restrictions would then be punished with on-the-spot fines, which could be issued by private security guards working on commission for councils.” The outsourcing of law enforcement is another red flag regarding accountability on civil and human rights grounds, as they are not held to the same standards as warranted officers and channels through which citizens can report unlawful or disproportionate use of force from an officer. Outsourcing law enforcement means creating a new array of rules and regulations under which those contractors or “guards” are allowed to arrest, fine, and use force against a British citizen, while not being accountable under the rule of law. The possibilities of abuse are endless, and if private security guards are needed in addition to civil servants to preserve the peace and public order, this effectively implies that the ASBCP bill will assume every protest inherently has the potential to become violent and disruptive, that every procession or demonstration can be deemed detrimental to the local residents or visitors. It is, in fact, a criminalisation of what constitutes freedom of expression under Article 10 of the ECHR.

insert subtle reference to declaring war and battle coming down

So what is the future of derogation under European law? Should European Courts be held referees as to whether the United Kingdom is abusing their rights and reservations as planned by the Convention in matters of national security? How much of national security is worth preserving in matters of civil rights? If anti-terrorism laws are to be frequently enacted, if intelligence has to be constantly extended, and if derogations are to be often granted, the rule of law will become secondary to civil rights interests, and will take a step down in legislature. The United Kingdom – and therefore other nations free to follow in its path – will become a police state. But for those of us shivering at the idea of public disorder and buying into the fearmongering of the Cameron administration, rest assured that the more territory the law loses, the more lawlessness gains.

In A v Secretary of State for the Home Department, Lord Hoffmann explained:

the real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. This is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

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About K
bastard banshee. devious lawyer. Lucille Bluth. probably jetlagged.

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