It’s been a really trying year

I saw the date approach in my calendar with a nostalgic reminder of the sense of loss I felt then. A year ago, I had landed back at Heathrow in a rush in the hours before the polls opened all across the then-united Kingdom, queuing with other European citizens in the European passports line, a little uncomfortable with the referendum being held in the first place, but otherwise confident. I walked passed several magazine and newspaper stands on my way out, glanced at issues celebrating an upcoming victory for the far-right: an “independence day”, according to Nigel Farage, “freedom” from an institution few understood as anything else but a regulatory body, and most of all, “control”.

Back in New York, expats and Americans alike kept asking for predictions. Of course, 2016 was the year I was constantly proven wrong: I was firmly convinced Donald Trump, for instance, would never win the Republican nomination. I knew Europe always journeyed through cyclical bursts of far-right approval. I wanted to be receptive to criticism of EU institutions – a pet peeve of mine are references to “the EU”, just like “the UN”, neither being homogenous entities – that I often emitted myself. I had been tested, like many Europhiles, by the Commission’s reaction to the refugee crisis. I had been in opposition to a secretive and adversarial EU Council, that Ian Dunt qualified as “shady”. But it was so painfully obvious to me, from the continent, that the Leave camp as lying, over and over again, that I felt confident the British public knew better. We had spent enough time correcting statements that a Brexit vote would mean a withdrawal from the ECHR for it to be understood.
Of all the things I hate (people calling Bushwick “East Williamsburg”, forgetting the h at the end of my first name, anything written by Alan Dershowitz): being wrong. Needless to say, June 23rd was not a good day.

I work in Strasbourg. It’s not Brussels, but close enough thanks to being another seat of the EU Parliament, that the shockwaves radiated all the way to the Rhine. My colleagues and I were at the office early that day, snacking, nervously drinking coffee and checking our phones. It’s not necessarily a strange scene for people working in counter-terrorism. But this vote was about something else. It was about dismantling something we all believed in, although with different degrees of devotion. We were, are, all Cold War kids, children of Mitterrand and Kohl, great-grandchildren of Verdun, Eurostar frequent passengers, some of us coming of age with the Good Friday Agreement, Erasmus-educated, border-hopping staffers. My reaction to Brexit continues to be bipolar. On one hand, I react to it as a lawyer, interpreting article 50, issuing concerns about the Northern Irish border, attacking the arrogance of a bespoke agreement with Europol. On the other hand, it feels deeply personal. It’s a betrayal of my identity, of one growing up thanks and through the European Project – an idea separate from the European Union, with the end goal being that the two should reconcile through democratic, progressive values, pro-immigration, pro-human rights, pro-workers’ rights, an evolution a political finger to De Gaulle and Thatcher and a legal assertion away from US exceptionalism.

I was given the opportunity to let my heart on my sleeve for the legal commentary blog Opinio Juris about Europe, the European Union, the European project, and the fears the referendum brought to light as a Northern Irish citizen. I still haven’t corrected the typos.

When the result was officially announced, my office fell quiet. Sure, the referendum was not legally binding. Sure, the margin was not significant enough to call it a political mandate. Sure, the question itself was vague enough not to give a time frame for withdrawal or how exactly the UK will divorce from the rest of us. There was barely time to grieve, really. Jean-Claude Juncker became aggressive, Donald Tusk chose the bleeding heart route, and all around me, lawyers were suddenly dragged in the spotlight, a place where we feel either really comfortable or really uncomfortable, having to respond to questions for which there was never supposed to be an answer at all. If anything, to me, the UK had entered a historic phase: as a long-time partner in the creation and construction of what would later become the European Union, a major player in its most destructive wars, and an unparalleled ally in security, seeing the island decide to float away on its own in the choppy, freezing waters in the North Sea and taking Northern Ireland with it was impossible to fathom. It wasn’t “control”. It was the sort of “freedom” that one can only achieve when they jump off a bridge, for a split second suspended outside of the laws of gravity, but inevitably about to hit the ground in free fall.

As lawyers, we then had to find a way out, a legal answer to a political question. Immediately, what came to mind was a simple truth, a statement of fact: it was not legally binding, so why do anything? But David Cameron had resigned, and “mandate” and “will of the people” became such imposing terms we outlined Article 50 for everyone else. Article 50 says nothing. It provides a time frame. I started writing a few paragraphs everyday, a mock-diary of post-referendum news coverage, that I titled “Weimar Britain”. Every morning, I would call the hour in GMT, list a few highlights of the absurd positions taken by Theresa May or Michael Gove the day before, mention if Juncker or Barnier had gone for a round of golf, and finish with the weather forecast, the last sentence being, “the UK is still in the European Union”. I did that for a few months, the ritual becoming quite popular in my circles, so convinced I was that Article 50 would never be triggered. It just was inconceivable to me. Repealing every EU provision in British common law? Alienating the country from security agreements at a time of heightened security threats? What was that constant logorrhea about a sovereignty that was never questioned nor eroded in the first place? Everything was baffling, incorrect at best, surreal most of the time. And then I was told, in December if I remember correctly, by a certain British journalist, that I was delusional if I believed Article 50 would never be triggered. A few months later, he was proven right, and I was once again proven wrong.

The otherwise excellent Remainiacs podcast, started a few weeks ago, used the term “trauma” to refer to the feeling many experienced in the aftermath of the referendum. I won’t use the term, because my field of work reserves it for a different type of experience. I will continue to say what I feel is loss: a sense of unity, that was never there in terms of EU-wide political consensus; a sense of togetherness, certainly not correct considering how many opt-outs the UK placed on many EU treaties; a sense of belonging, that never extended to many immigrants much like my parents. The European project remains an idea, but it is an idea I firmly believe can translate if we empower the Parliament to oppose the Commission more and if, really, the Council conducts its work in a less shady manner. The role of EU Courts, so often maligned by UK politicians, is paramount. Brexit will not affect the UK’s membership of the Council of Europe, and the country remains part of the ECHR, at least for now. But the days are numbered: leaving the EU was never about renegotiating trade agreements or “taking control” of agricultural regulations. It was about shutting down immigration, about refusing to implement ECJ rulings on civil liberties, about the immaturity and irresponsibility of removing one state from transnational regulations that provide for medical progress and housing safety, among other things. It was a vote not based on concern for the lack of reform in the EU: it was about misplaced and misunderstood British identity, that was placed as superior to other states, and perfectly capable of raising the flag of the Empire after centuries of outward progress.

It’s been a year. It’s been a year of we, in Belfast, Derry, Newry, Enniskillen, having to remind everyone that our region has always been fragile and precarious, that our peace process was ongoing and needed attention. It’s been a year of sharing and re-issuing reports compiled by EU officials on the dire effects of a EU withdrawal on devolved administrations. It’s been a year of my colleagues publishing paper after opinion on the impact of Brexit on the 1998 Good Friday Agreement. Mostly, it’s been a year of reading about the fear, anxiety, and panic at the prospect of the border being raised. Typing this, I found myself capitalizing the word – Border – out of habit. It’s not just any border; it’s a border that symbolized a civil war. It’s a fault line I had known my entire life and that I still shudder, even if it is now disembodied, whenever I ride what is now a commuter train between Dublin and Belfast. It’s a border we were told we were never going to see again, one that Theresa May apparently just found out about, one that Secretary of State James Brokenshire discusses to provide assurances of our safety but without the necessary presence or authority required by the position of neutrality the UK is supposed to hold. There is nothing neutral about Brexit and its complete lack of interest in Northern Ireland. And so, we are entering our sixth month without a government or a Speaker of the Assembly; Dublin finds itself having to be a buffer between London and Brussels while being the key player on the chessboard, without its consent, without it having a say in the referendum being carried out in the first place. Northern Ireland voted to stay, because, as I wrote at the time, it is survival for most of us. It is for many others across the Union.

It’s been a year and I’m swimming against the tide of colleagues and friends leaving the UK to head to the continent, where their legal status is ensured, where they will not be asked for a visa and where their children can stay with their parents: I am moving to London. As I flew back to Europe a few days ago, once again from New York, but this time into Switzerland, I realized my biggest privilege wasn’t the most obvious necessarily. It wasn’t my education that the EU subsidized. It wasn’t my safety from war that the EU launched and protected. It wasn’t my health coverage that the EU ensured and funded. It is my freedom of movement. It’s the two passports – I am a citizen of nowhere – I hold, two EU citizenships, two possibilities of fast-tracking at airports, two possibilities of visa waivers. One is a Schengen nationality, the other is a Common Travel Area one. European citizens are trading this freedom at quite a cost: first the Schengen Information System (SIS II) database, and the Passenger Name Record (PNR) agreement with the US. Those will need work, reform, scrutiny, checks. We have a Parliament, we have Courts. UK citizens may lose their freedom of movement. They may be restricted, suspended, will have to re-negotiate. Education, family life, work, internships, travel, tourism, experience, all of this is dangling off the edge of a cliff.

It’s been one year. Imagine. One year, and no answer.

Something about England: terror trials and press freedom

Court artist’s sketch of Erol Incedal

Of all the things I hold to be true and self-evident:
That all men and women and everyone across the spectrum are born equal under the law,
That fundamental political, civil and human rights in a healthy democratic society are subordinate to the oversight of an informed population,
That the guardians of said information are entitled to freedom from governmental interference, harassment, and intimidation.

Of all the things that have infuriated me over the past two years and committed by the conservative administration of the United Kingdom of Great Britain and Northern Ireland:
The arrest and detention of David Miranda, Glenn Greenwald’s husband, at Heathrow Airport under counter-terrorism legislation;
The passing of the Justice and Security Act of 2013, setting up secret trials for terrorism suspects;
The confiscation of Ian Cobain’s notebooks containing notes from the Incedal trial by Her Majesty’s Intelligence Services.
The latter point has seldom been reported on. Cobain himself has published several pieces about it, framing the event in a broader, sharper light, casting away the politics of national security obfuscation that has become Home Secretary Theresa May’s trademark. Open justice and access to information are violated in the name of protecting national security interests. Why this trial had to be held away from the eyes of the press will never be known: the notebooks were confiscated, grabbed by MI-5 agents outside of the courtroom and are currently held in a vault inside Thames House. What those notebooks contained is even restricted in itself: “On each occasion, the evidence was carefully presented in one of three sessions. Parts of the case were in open court, with the press and the public free to come and go; other parts were held behind locked doors, before a jury whose members were warned that they could go to jail if they ever divulged what they had heard; and parts were held in intermediate sessions, in the presence of the jury and a small group of journalists who are prohibited – at least for the time being – from reporting what they learnedwrites Cobain in March, recalling the events leading to that illusion of open justice. What we know of Erol Incedal, the 27 year old London resident and law student, was that he was found in possession of a bomb making manual in the trunk of his car. We also know that his surveillance started after a routine traffic stop in London. The blackout only resulted in one public curt decision: the court failed to reach a verdict in the charge of committing acts preparatory to terrorism. He was acquitted on the charges of committing preparatory acts of terrorism; he was however guilty of being in possession of the bomb-making manual.

Assuming there is a valid purpose to secrecy in the course of justice, methods are already in place through the submission of PII certificates – confidentiality – by the government to the judge. The evidence itself can thus be concealed from public access, should this pertain to ongoing intelligence activities, military strategies and deployments, or sealed diplomatic documents. PII certificates have similar applications in other countries and other systems of laws, and have worked just fine until then – sometimes even to the point of working too well, when certificates are requested then issues for a troubling majority of the content discussed during the trial. Every case surrounding alleged criminal activity committed by the government’s intelligence agencies have been shrouded in secrecy; the Investigatory Powers Tribunal (IPT) itself extends non-committal statements through its determination / non determination system, which is suggestive, not declarative. In itself, those cover an impressive array of restrictions to the principle of open justice. What the JSA 2013 does, and what happened to Ian Cobain and his peers covering the Incedal trial, has crossed an untenable and inexcusable limit.

Lady Justice at Old Bailey

2013, 2014 and 2015 were not good years to be a journalist in the UK. Those were not good years to work at the Guardian. For wanton acts of publishing to commission of acts of journalism, the King’s Way newspaper has seen its headquarters invaded by GCHQ agents in a humiliating, destabilizing, and thoroughly disturbing destruction of their hard drives allegedly containing the NSA files handed by Edward Snowden – despite GCHQ fully knowing that copies of the files were stored at other newspapers’, as well as disseminated worldwide to precisely avoid their utter destruction. The goal was to belittle and cripple The Guardian. The goal was to show journalists their place in the war on terrorism and the surveillance apparatus. The avowed goal was to make journalists understand it is not their place to reveal anything that would not be preemptively approved by the government. The goal was to make the press hear, as clearly as a clarion on a naval base, that truth was not convenient; that an informed public is a threat to institutional status quo; that any alleged violations of fundamental human rights were proportionally weighed against the protection and the security of the realm; that it is not the job of a journalist to place a question mark at the end of this sentence.

Except it is. A journalist is not a spokesperson. A journalist is not a press secretary. A journalist is not the political amplifier of those in power. A journalist should always have a question mark.

In a situation that we learn of drip by drip, leak by leak, whistle by whistle, reporting by reporting, the question of access to courts, access to representation, and access to justice becomes more and more obfuscated. It is not just that the trial is heard in secret; it’s that evidence held against the defendant is rarely communicated to their legal representation. In one Kafkaesque twist after the other, the very claim put to the court becomes obscured by the fog of the war on terror. Where justice is expected to shed a light on abusive proceedings, it is itself impended by mechanisms violating its independence and its separation from powers of governance. We do not know how much Erol Incedal knows about what the security services know about him. We do not know if he was fully informed of the charges made against him. We do not know on which grounds his acquittal was decided. All we know is that he was present; journalists, however, kept being held back, pushed away, or let inside for a maximum of three minutes. Ian Cobain’s notes could not have been anything more than what had been graciously and magnanimously exhibited to him in those extremely rare peaks inside the courtroom. His notes could not say, detail, or reveal more than the trial itself had let open on those occasions. And yet, his notes, taken down on a reporter’s notebook, are inside a vault at the MI-5 headquarters.

Thames House, the MI-5 headquarters

In 2014, the High Court decision in Miranda v UK exposed several gaping holes in the safeguards for press freedom in the Empire. Judge Laws, in rare form, referred to a legal precedent – Attorney General v Guardian Newspapers (1990), quoting Lord Goff: “I can see no inconsistency between English law on this subject and Article 10 (…) The only difference is that, whereas Article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.” It is now the established law that terror trials can be lawfully held in secret if such is the decision of the Government and is endorsed by the hearing Judge. It is disturbing enough that the fundamental right to freedom of information and press freedom is directed through methods of concealment and confidentiality that are at no point weighed against informed consent or democratic principle, but instead the safety of the organizations that are targeted by the alleged criminal conduct. That the same organizations are now entitled to grab a reporter’s notebook – protected by press freedom principles – and hold it hostage inside a vault like a hazardous substance – goes way, way further than what Lord Goff intended to protect in 1990.

Richard Norton-Taylor tried to explain the situation in a July 14 piece for the Guardian that raises more questions than it provides answers. Officials leave little to account for, and the confiscation targeted eight journalists specifically, on a measure that is unprecedented. It is presented almost like a last resort: “During the trial, the reporters had to leave their notebooks in court. At the end of the trial, eight reporters’ notebooks were taken (…) officials have not been able to explain it. While they say there was nothing sinister in it – the court provided for the crown to store them securely – they also say there was nowhere safe in court for this to be done, so the MI-5 has effectively impounded them.” Cobain provided a quote that is in complete defiance of the “nothing sinister” qualifier: “Only once before, in more than 30 years of journalism, has a state security officer impounded one of my notebooks”, said Cobain to Norton-Taylor. “And that was in Saddam Hussein’s Iraq.

Something should jump to any legal pair of eyes. Why did the Court provide for the Crown to “securely store” reporters’ notebooks in the first place?

Some would argue – Lord Laws, probably – that journalism protection is a privilege, not a right. Lord Goff argued that this right is self-evident, until the law sweeps in to take parts of it away in the name of national security. Both are wrong. Press freedom is a human right, and so is freedom of information. The national security exemption, as defined and strictly limited in the Johannesburg Principles – normative, not positive, the only concession to be made – does not extend to barring access to an ongoing trial entirely, and certainly not to confiscate, indefinitely, notes taken by reporters. Cobain made several unsuccessful appeals to have his notes returned. Lord Thomas heard the appeal made by collective news organizations, to which the aforementioned eight reporters belonged, and concluded that the decision raised “really difficult constitutional issues”. Lord Thomas, never one to fight on behalf of confidentiality – he did, after all, request the partial release of UKUSA in the Binyam Mohamed case – mentioned this disturbing intervention of the executive resulting in the breach of judicial independence. This should never be a norm. This should never be an acceptable or normalized state of affairs. The appeal, adjourned until October, may shed a light on the justifications made by the executive to go to that unbearable extent to silence the press, hinder journalistic work, and shield counter terrorism and terrorism suspects from public scrutiny and knowledge – and in the hands, entirely, of intelligence services.

Until then, indeed, and until Lord Thomas makes a not so difficult, but politically adverse decision regarding the independence status of the British judiciary in matters of terrorism and those who report on the security state -until then, there is little one can do to ensure that those notebooks won’t be tampered with. Until then, we can’t expect the freedom of the press to be fully exercised from inside the borders of England and Wales.

“We need the powers and the resources to expose the truth”

David Anderson QC (left), independent terrorism legislation reviewer. Ben Emmerson QC (right), UN Special Rapporteur on human rights while countering terrorism

On Wednesday, March 26, the Joint Committee on Human Rights (JCHR) convened on Westminster with the heaviest agenda of the parliamentary year so far – scrutiny of human rights compliance with counter-terrorism laws, protocols and their application. Following just  a week after another committee (Home Affairs) took great paints to summon Sir Mark Waller over GCHQ activities – and concluded that the little if any scrutiny granted to intelligence activity and data collection was far below a democratic threshold – the JCHR intended to make an inventory of the most pressing issues facing the human rights community in regards to counter-terrorism laws in the UK, enforced domestically and abroad. Present where David Anderson QC, an amicable, straight-forward and honest reviewer aware of his possibilities and difficulties as independent reviewer of terrorism legislation; and the both ubiquitous and far too rare Ben Emmerson QC, Special Rapporteur on Human Rights while Countering Terrorism.

As the UK slowly emerges from the deep slumber induced by the shock of the Snowden revelations, and intends to bring forward a semblance of a healthy democratic debate surrounding the overwhelming powers granted under its anti-terrorism legislation – from Parliament-embraced measures to unchecked use of executive power – this hearing was more formal that the Home Affairs’ submission to Sir Mark sought to be. Anderson and Emmerson, both tasked with a position that requires more than annual reports and evidence submission, highlighted not only the domestic inconsistencies of counter-terrorism legislation both in regards to constitutional safeguards but European legal compliance, but the international implications of the UK armed forces abroad – and even more to the point, the UK collusion with the US drone war.

Both Anderson and Emmerson were asked, as a preamble, to identify three key issues arising from abuses of counter-terrorism legislation – and both agreed on all three, their pressing need to be addressed, and the importance of a legislative scrutiny. Not respecting their own order, this write-up of the hearing seeks to re-affirm the basic principles of human rights compliance in counter-terrorism activities. Despite the current climate and the domestic policies seemingly asserting that the two are mutually exclusive, that conditions of necessity and proportionality involve derogations, and that national security imperatives supersede all – Anderson and Emmerson were both unequivocal in the belief that unless regular scrutiny, legislative and judicial review, and transparency prevail in a democratic country seeking to combat the extremely real of terrorism, abuses would be just as well shared by the nation-state violating the principles it had originally vowed to uphold.

Definition of terrorism

The question arose in the context of the Miranda v Home Secretary ruling in February, in which it had been effectively denounced and illustrated that section 40 (1) (b) of the ATCSA was too broad, too vague and unchecked to be efficient and free of possible discretionary, discriminatory abuses. As Emmerson remarked, the UK’s situation in defining terrorism – or failing to appropriately do so – is hardly unique. Many states, most of them being western democracies grappling with more or less open conflict in MENA or South East Asia, have definitions of what constitutes terrorism that are adaptable, subjected to interpretation, often not legislative. Anderson noted that he intended to revisit the definition incorporated into the ATCSA, if only in the light of the Miranda verdict – although the High Court ruling only emphasized that this became necessary, as opposed to shedding a light on an issue no one addressed. Continuing, “in the old days, terrorism was simple”, referring to the usual and perhaps now obsolete decision that terrorism was an act of violence perpetrated in order to achieve a certain political aim. The definition of ethnopolitical terrorism, a type of conflict Northern Ireland declared for decades, may no longer fit such a clear-cut bill: what has become a political means to achieve? Is the goal of the political action the strict act of self-determination, or can wanton destruction (of both property and persons) be considered terrorism? Should it be foreign or domestic? Should be carried by an organisation or an isolated individual? In the attempt to cover all bases, 40 (1) (b) covered, in fact, all bases, even those that perhaps should never be criminalized to the full extent of the overreaching powers of couter-terrorism legislation.

Ben Emmerson

Maybe more to the point – and this was said as an aside, despite its importance – a broad definition of terrorism could apply to state actors as well as it could to organisations and individuals. Emmerson:

This definition (…) criminalises conduct too broadly. The purported safeguards against abuses can’t be used against executive orders, that remain unchallenged. If you apply this definition, it could apply to British armed forces overseas.

Although it remains quite unsure as to how many eyebrows were effectively raised following this statement, Emmerson continued on the difficulties of applying a terrorism charge ex post facto. “This is not consistent with our constitutional principles”, he concluded, which will later be raised once more in the evolution of the legal context of counter-terrorism.

What was at the core of the Miranda case, indeed, was the extension of counter terrorism legislation to journalism – and the fact that carrying material that could be deemed harmful to national security; knowing, carrying, transporting, or transferring information deemed harmful; and publishing said information is now subjected to a terrorism charge. If journalists have now become a preferred target for outlandish counter terrorism laws that are only a front for clearly criminalizing dissent, the goal of extending these powers – which include prolonged detention, seizure of property, prolonged interrogation often as a result of long standing surveillance – to journalists, protected by the ECHR, the ICCPR and domestic mechanisms of press freedom, has a dangerous aspect that has forced one member of the JCHR to ask both barristers if journalism, and being a journalist, should be defined in order to create a framework that would escape the claws of counter-terrorism legislation. But being a journalist is not simply a profession on a card, not simply a career; it is the act of researching information and publishing it. In the digital era, an individual that may not necessarily be a career journalist, would not necessarily identify as such, or would not be hired full time and under contract by a newspaper organisation, can indeed act as a journalist and publish as such. Those individuals also deserve the protection of Article 10, and hold the right to a public interest defense.

Emmerson did not mention the Johannesburg Principles; instead, he referred to a more recent convention – principles laid out that goes through both domestic and comparative law in order to provide the best media protection possible, as well as enriching the legal mechanisms and recourses for whistleblowers… including those engaging in unauthorized disclosures. It is of Emmerson’s “robust view”, as he puts it – which may be robust in a vacuum, but necessary in the context – to foster and favour an environment in which the media plays a role of governing accountability and providing a healthy debate in the name of public interest. If the question of transparency has popped in a few times during the short hearing, it has however made a lasting impact – Westminster has now effectively held two parliamentary hearings during which observers, national, domestic workers in different fields, have assessed the Snowden disclosures not only as being in the public interest of the United Kingdom, but also having a much broader, international scope – which forces the national government in this situation, not only to address its own population in regards to the domestic spying apparatus in place, but to answer to the duties and responsibilities each nation has toward the others with which it engages.

Glenn Greenwald after finding out about Scotland Yard’s “Ports Circulation Sheet” related to the arrest and detention of his partner, David Miranda.

(If the Snowden revelations damaged more than two governments’ abilities to be trusted by their own population, we may not know in the immediate; US journalist Jason Leopold, who has filed a Freedom of Information Act (FOIA) request for a DIA document supposedly reporting on the “grave damage” the Guardian publication would have caused has been met with an “exceptional circumstances” excuse, seeking additional time to process his request. Considering the discourse on the so-called lethal effects of the NSA disclosures at home and abroad, one would be under the belief that the DIA would want this report out there, for everyone to stop considering Snowden a hero. Alas, this is not the case; and the notion of public interest in the face of grave human rights violations remain.)

Anderson, who has had first hand experience in observing press freedom and its restrictions elsewhere while on a mission for the Council of Europe (CoE), has reported that instances of restrictive definitions of what constitutes journalism and who can be considered a journalist, with the legal protections attributed to the title, more than often led to press freedom violations. He referred to the Levison case, another ominous jurisprudence for the United Kingdom. Although Anderson’s point was brief, if his intent was to suggest press freedom ought not to be restricted on matters of principle to avoid civil liberties violations (as opposed to restricting them for opaque national security matters), it was very well conveyed. The concerns raised by the JCHR was not in the strict and immediate future of the Miranda ruling, which is still under ongoing litigation, but just as dangerous and pervasive chilling effect it has on freedom of expression, opinion, and access to information. Emmerson, who never sought to wax poetic and engage in rhetorical battles of sorts on political linguistics, stated that national security was in fact used as an excuse to intimidate and silence the press. This goes hand in hand with recent declarations by UN Rapporteur Frank La Rue on the chilling effects of prosecution of whistleblowers. Anderson, who explained that national security was “notoriously undefined”, took issue with unquestionable, unchallenged and unscrutinized executive orders – as well as the Royal Prerogative – which, as a terrorism reviewer, leaves those unilateral decisions outside of his purview. It became clear at this point of the hearing that a legislative review of counter-terrorism, powers granted by Parliament and possibility to curtail, democratically, exceptional powers granted to the executive, could be what the UK – and by extension, the US – need.

CIA rendition program

A long-lasting thorn in Ben Emmerson’s side, the release of the Gibson Inquiry echoes the current theater drama on the other side of the Atlantic, as Sen. Feinstein struggles with the CIA, her own demons, and getting the votes to hypothetically release the CIA torture report. The Gibson Inquiry, named after Sir Peter Gibson, tasked to investigate the role of British intelligence forces into the CIA torture program, has notoriously been stalling for years. Then transferred to the Intelligence Services Committee (ISC), David Cameron, as a campaign promise, sought to take it away from Lord Gibson and handing it out to the ISC. He famously said, in 2010:

I do not think for a moment that we should believe that the ISC should be doing this piece of work. For public confidence, and for independence from parliament, party and government, it is right to have a judge-led inquiry. That is what we need to get to the bottom of the case. The fact that it is led by a judge will help ensure that we get it done properly.

A statement made on December 19, 2013 and released to David Cameron said the report concluded that matters needed “further investigation”. However, the ISC has been heavily criticized for failing to conduct proper oversight into the activities of intelligence services; in this case, the only released information concerned the MI-6 collusion with Gaddafi, which resulted in the rendition and torture of two Libyan opposition leaders in 2004. Handing the Gibson inquiry to a committee that lacks powers and resources to conduct a truly independent and thorough inquiry has been perceived by members of human rights groups as a willingness to whitewash the activities of the MI-5 and MI-6. As the ISC reviewer himself, Sir Mark, proved at his own hearing last week, the reviewer has little to no power over GCHQ; is massively understaffed; does not possess the power to compel evidence or summon witnesses; any evidence provided will be heavily redacted if ever possibly released at all. Emmerson, who expressed his frustration over the procedural limitations of the inquiry over and over again, re-affirmed the need to absolutely lift any roadblocks standing before the ISC “so the Committee can do its job”:

Individuals concerned by the inquiry boycotted it – but those who committed crimes need to be exposed. The Committee needs to have the powers and resources to expose the truth.

When asked if the ISC would ever face a conflict of interest in the conduct of a review that is neither legislative nor judicial, Emmerson expressed a commitment to oversight that is refreshing in an era of hyper-classification and constant executive-led belittling of calls for transparency. The Rapporteur then made a statement that sounds like stating the obvious, a truth that many democratic regimes may have held as self-evident, that is, until someone blows the whistle on works behind the scenes: that oversight is a traditional mechanism in advanced democracies. It is the one tool of accountability that can be relied upon especially when exercised by the very representatives of the people (legislative) and/or by an absolute separate branch of government (judicial). Only a lack of oversight, or a demonstration of powerless or virtually pointless oversight can reveal that separation of powers or excessive executive control has undermined the constitutional principles of society. As to whether any inquiry, inquiry report or conclusions should lead to prosecution, Emmerson believes that a strong judicial component to an inquiry could be an asset to conducting an investigation into intelligence services – as the judicial hand might be seen as stronger and less subjected to influence.

In light of Sir Mark’s testimony – which, again, he performed extremely reluctantly – the issue of transparency not only in intelligence itself, but in the conduct of oversight was raised. Although both Emmerson and Anderson mentioned the concept of “responsible journalism” earlier in the hearing, the necessity for information and the right to truth was once again made in front of a legislative body (emphasis mine):

It is always difficult to decide [ on release ] when dealing with sensitive information, to decide if privacy is justified. But what the committee is tasked with, parts are capable of being held in public. All that can be safely in the public domain should be in the public domain.

Unmanned aircrafts, targeted killings and undeclared battlefields

It was surprising to hear members of the JCHR being surprised that the use of drones made Anderson and Emmerson’s top three counter-terrorism issues list. Following an extremely brutal yet absolutely necessary report three weeks ago, which seemingly went half unnoticed even in the list of proposals it laid out in its conclusion, Emmerson provided the committee with what Anderson later referred to as a “masterclass on drones”. No stranger to their use in undeclared battlefields and the massive human rights violations they committed – pre emptive killings, unsanctioned use of military force, civilian killings and the absolute classification over their intelligence collection methods, their trajectory, and little known about their operating bases, it was no wonder that Emmerson’s tenure at the UN would prominently feature his lengthy field research in Pakistan and Yemen in order to amass the information that no one else would release to him, despite his position, that one would assume significant enough to warrant cooperation.

Alas.

Know Your Drone

Emmerson identified four key concerns, which he outlined in concise but harsh terms:

1) this is a 21st century weapon designed for asymmetrical armed conflict. As a counter-insurgency tool, which is what it is branded to be, it is of very little use and effect.

2) the Committee was right in saying that with the technology at our disposal, and the capacity to place suspects under 24/7 surveillance, it is in fact possible to protect the right to life closer to a zero-collateral damage than ever before – tools of precise targets, even more surgical strikes, and threat removal. Instead, the use of drones have illustrated reckless endangerment, and have destroyed said right to life.

3) Most of the difficulty that arises from the counter-terrorism and human rights study of the use of drones is that they often operate outside of the theaters of traditional armed conflict. Their constant hovering over Yemen, Pakistan and Somalia, nations with no declared war against the US or the UK, force precedence in areas of international law where there is nothing even remotely close to a political or legal consensus.

4) Drones are operated by the CIA.

Presenting this quote without further comment:

I don’t know who originally thought it was a smart idea to hand drones in a campaign of waging war through the air to an organisation bound by the rules of neither-confirm-nor-deny. (…) I’d rather give MI-6 a fleet of aircrafts and let them go off and do whatever they needed to do.

The complete lack of transparency even in answering simple questions from journalists and lawyers is what makes the CIA such an unpractical and dangerous organisation to direct and lead unmanned aircrafts – remotely based pilots distanced and detached from the battlefield, the realities of the insurgency and the bloodshed of the bombs they let off. The historical culture of classification and secrecy held by the CIA, the topic of which is often source of heavy-handed satire and conspiracy theories is an issue in and of itself. Abuses do arise, but in the hands of the CIA, they are effectively removed from any tool of accountability for the civilians affected by their practices; the wounded as well as the killed. The effort to transfer the direction of drones from the CIA to the Department of Justice (DoJ) was a step in the right direction, but hindered. Emmerson however noticed that since John Brennan took over as head of the CIA, Pakistan enjoyed a period of relief from the death machines. (Sadly, this has not proven true for Yemen).

Picking apart Emmerson’s new report draws the eye on his rhetorical questioning on a proposed change of international law (!) and accountability systems of counter-terrorism (!!) to fit the current and evolving framework of the counter-terrorism and counter-insurgency methods the US and UK are practising in the name of their endless War on Terror. Reducing it to the simplest possible question due to the nature of the hearing and its limited duration, Emmerson was asked to answer whether war should be redefined. This, however, was not rhetorical. Stating that this is a complex issue – and I would argue, the most complex international criminal issue of our time, one I have been working on for ages – there is no consensus among states, or even among lawyers. The Geneva Conventions are and should remain the guiding principles of the law of warfare; but the nature of conflicts themselves have evolved far away from our traditional and historical definition of what constitutes an international armed conflict. Most of the battle zones, these days, are asymmetrical battlefields – meaning, in broad and simple terms, a nation-state against a more or less borderless organisation. Henceforth, the targeted laws of international humanitarian concepts are harder and harder to apply. Jurisdiction is an ongoing concern in matters of judicial accountability. Classification is the biggest fear in matters of political accountability. If counter-insurgency and counter-terrorism are often confused in media coverage, it is because the definition of what constitutes a legitimate military target not only varies according to the country in which the fight is taking place, but also the rules of engagement (for armed forces); the duty handbook (for private military contractors), and legislation once one policy expires or there is a change in administration. The questions Ben Emmerson asked at the end of the report, which asked states involved in the War on Terror to not only answer his calls for transparency and release of information, will be subjected to a vote at the United Nations shortly, recommending the establishment of a committee that would hear states and their own national, domestic and political vision of counter-terrorism, human rights compliance, and the legal systems of accountability they would recognize.

As I said, Emmerson’s report was a brutal read; and if some states decided to play the game and submit themselves to Emmerson’s questioning – the future will tell the degree of truthfulness involved – the Rapporteur was quick to point out that the UK was “not terribly keen” to submit themselves to the Human Rights Council. In itself, it is immensely telling.

Home Secretary Theresa May

Citizenship deprivation, executive powers

When mentioning the awfully limited and comically useless powers of Sir Mark Waller, it was unbelievable to conceive that David Anderson would face oversight issues. Indeed, his body of work as a reviewer is comprehensive, transparent, available and accessible. However, in the recent decisions made by the Secretary of State and Home Secretary, regarding immigration, deportation and revoking powers, Anderson admitted he had no review powers – those fell under immigration ministry oversight. However, one concern was a power that had been long lost and was somehow revived in the last twelve months: revoking a passport. Since April 2013, 14 passports have been revoked under powers granted by the Royal Prerogative, another unilateral executive power not subjected to review. (We remember activist Moazzam Begg’s passport being confiscated upon return from a humanitarian trip to Syria, not long before being arrested and detained by the anti-terrorism unit of Birmingham Police).

But again, the bigger picture remains the same: it is an issue of transparency and accountability. Theresa May’s citizenship deprivation scheme, detailed here at length by journalist Aviva Stahl, have obscured motives yet terrifyingly clear results. Left vulnerable, without diplomatic assurance and the protection of the right of abode, statelessness effectively makes individuals vulnerable to gross human rights violations – historical instances in the previous centuries having led to the 1954 Convention on the status of stateless persons. Although the power of revoking citizenship is a prerogative of any member state, the necessity to ensure that the individual is not only entitled to powers of appeal of the decision but also has another citizenship or state willing to grant asylum once the decision made should be a duty incumbent to any state party to that treaty. Emmerson, falling into the footsteps of a House of Lords hearing last week during which the scheme was debated, in the light of two individuals murdered by a drone strike directly following the revoking of their citizenship, reaffirmed that international law had to prevail in a climate of perpetual and ubiquitous conflict during which individuals are not to be left without possibility of refuge. However, the follow-up question was met with concerns for the security of the United Kingdom, not an appreciation of the human rights of individuals, regardless of their alleged or confirmed criminal status. Emmerson, again:

Those singled out for a crime that is wholly public – on notice from the government and the services that watch them – are those posing the least threat. This is a radical power, and it makes one wonder what someone did to deserve such a measure.

Anderson, who has consistently and abundantly worked on TPIMs, was happy to report there were none enforced currently; there should be an emphasis on prosecution in matters of criminal wrongdoing, as opposed to executive orders in matters of security. Are the TPIMs really that efficient in terms of counter-terrorism prevention? Are executive powers a deterrent to criminal activity? What can be a deterrent? Wouldn’t the appropriate behavior to work on the roots of terrorism – explained and detailed in the UN 2006 global counter-terrorism strategy – as opposed to immediately and profusely rely on executive powers, unchallenged and unchecked, to provide national security?

Crux of the matter remained that scrutiny of executive powers and executive services – intelligence and use of military force in matters of counter-terrorism – require that the other branches of government obtain at least equal power to the executive as opposed to being subjected to disclosure exemptions, classification refusals, and clearance denials when accessing material, evidence, and individual that would facilitate the conduct of their work. Anderson suggested that members of Parliament engaged in legislative review should be granted security clearance to access GCHQ / MI-6 material – or at least, be treated as if they did. “It is the only way we can debate information in a meaningful way”, he said, in yet another significant effort by a terrorism specialist to emphasize the necessity for clarity and transparency in the healthy course of democracy. Emmerson concluded that oversight was not working as it well as it should be, but thankfully, we could rely on a momentum, at international level, to create direct obligations upon member-states to abide by human rights provisions in the course of intelligence gatherings and counter-terrorism.

And we hope it doesn’t stop.

 

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.