On Liberty (2 page)

This seems to me to be a typical British constitutional compromise. It asserts human rights in the courtroom and parliamentary chamber, while recognizing that the sovereignty of Parliament remains the overarching principle of our system in the UK. The HRA also requires our courts to ‘take account of’ the decisions of the Strasbourg Human Rights Court rather than be bound by them. Contrary to the ignorant ranting of many a human rights sceptic, it expressly preserves our national as well as parliamentary sovereignty. I have been alarmed that this has not prevented successive Home Secretaries complaining about interfering ‘unelected judges’ impeding some of their decisions, especially in relation to deportation. However
parliamentary
sovereignty is not the same as the supremacy of the
executive
. Nor do we want it to be in any democratic system where the law binds and protects everyone alike and operates as a vital check on abuses of power.

In my experience, whatever our instinctive groans and grumbles from time to time, we all believe in human rights when we are considering our own rights, and those of people we love or ‘people like us’. It is when these rights apply to ‘others’ that there are problems. You might say that my speech is free and yours just that little bit more expensive. The principle of equal
treatment under the law provides the solution. As Rabinder Singh QC (now Singh J) wrote, equal treatment imposes a legal discipline on democratic majorities who might otherwise make compromises and trade-offs in relation to the freedoms of disenfranchised minorities that the more powerful group would never tolerate for itself. Think of how asylum seekers and schoolchildren have been subjected to routine fingerprinting and how foreign nationals are always politically the easiest to detain without charge or trial. In these cases, the principle of equal treatment forces courtrooms and ballot boxes to work together to protect the rights and freedoms of everyone. Legal language calls it ‘non-discrimination’; we all know it as empathy.

The idea of walking in another’s shoes and doing to others as we would have done to us is universal in all cultures of the world. It does not require a blind disregard for the greater good, but it does mean that no one should be completely excluded or thrown away. It also demands from us a modicum of respect for other people, even for those who have lost respect for others and themselves. It cannot be limited or rationed according to nationality. Replacing the Human Rights Act and Convention with a British bill of rights is an attempt to redefine our fundamental rights as citizens’ privileges. This is nothing short of the road to Guantanamo Bay, where it has been regarded acceptable for US administrations to intern and mistreat foreign nationals offshore.

The world is shrinking and ever more interconnected. We have to decide whether to seek protection as human beings everywhere or live with the vulnerability of being foreigners in every country other than our own. I know which state of being I choose and in which direction I want my country to lead.

If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him
.

– Cardinal Richelieu
*

I am sure that everyone over the age of thirty remembers where they were on Tuesday 11 September 2001. I had left the Home Office not long after the 2001 general election for a newly created job as in-house counsel at Liberty. My last brief as a lawyer in the department included anti-terror work and some, but by no means all, my senior colleagues had thought the intended move disloyal. So I was referred to the Cabinet Office. Government rightly has rules to ensure that those responsible for dishing out large-scale defence contracts do not move too easily to the private companies they have rewarded. As a public lawyer, I had no such responsibility or incentive, but given Liberty’s obvious interest in the type of work I had been doing, I didn’t just give notice but asked for permission to take up the new post. After a few difficult months my departure was cleared by a committee chaired by the well-respected former Conservative Attorney General, the late Lord Mayhew. I was released on
the understanding that I remain a barrister and bound in confidentiality to any former client, including the government.

I went from the plush offices of a well-kept government building to the tatty converted shop that was then Liberty’s base. I spent my first day absorbing the culture shock of my move from a Goliath department of state to a David-size NGO. There was warmth and good intention but little focus or natural light. It was days before anyone would fix my computer, but in contrast with the rather bizarre practice in much of the public sector, the employer provided milk for tea and coffee. I remember looking in the fridge and asking about the ownership of a particular carton. A bemused new colleague gave the wonderful reply: ‘That’s Liberty milk.’ I was told that I had been employed to inject strategic thinking into Liberty litigation and went home musing on the likely challenges and priorities for the next few years.

My second day at work was 11 September. After lunch with one of my new colleagues I returned to the news of a plane crashing into the first tower of the World Trade Center. Young trainees and interns followed events on their computers rather than TV – a new phenomenon. Was it a hideous accident? But that sick feeling in the stomach was quickly answered by the images of the second plane.

What a moment to have left the security business in pursuit of civil liberties. I sat at my new desk facing the wall. I couldn’t reach my old schoolfriend in Manhattan on the phone. Where and how were other loved ones? I worried for my friends and colleagues back in the Dark Tower, as I affectionately thought of the Home Office, which I imagined to be another target.

So I can hardly underestimate the shock to the American psyche caused by the images and reality of civil aeroplanes converted into deadly missiles attacking downtown Manhattan in a hideous ‘spectacular’ so obviously designed to create a feeling of vulnerability and panic in what at the time was probably accurately describable as the world’s only superpower. Perhaps
only the surprise bombing of the US Hawaiian naval base at Pearl Harbor sixty years earlier could even vaguely compare. Elsewhere in the world, including in my own home city of London, people had from time to time become all too used to, even stoic about, terrorist attacks, whose impact then diminished somewhat.

Yet, as hours, days and weeks passed and the initial shock and reflection gave way to hawkish opportunism in Washington and London, my own momentary pessimism grew into a more positive resolve. Perhaps I was in the right place after all. Now more than ever, I found value in values that cherish both safety and liberty. And it would prove useful to have some understanding and experience of a political system that we respect but still must hold to account. I certainly began to see the importance of Liberty and human rights when fear stalks the land.

Things were going to change – that much was obvious. I watched three trends very quickly emerging from the political and legislative response to the horror of 9/11. The death of privacy, the denigration of due process (access to fair legal trials) and the deliberate and determined discrimination against ‘others’, Muslims and foreign nationals in particular, with especially harsh treatment that won’t do for the majority population – at least at first. All three represent a kind of attack on ‘the presumption of innocence’, if as I do, you see it as a way of looking at people and the world and not merely a rule for the courtroom.

Tony Blair famously and perhaps commendably dashed to the United States in solidarity with its people and President at the first news of the Twin Towers atrocity. Sadly this friendship did not translate into passing on the wisdom of past failed British anti-terror internment policies but instead into emulating the younger nation’s new error. Two years later Richard Curtis’s romantic comedy
Love Actually
would depict a youngish charismatic British prime minister (played by Hugh Grant) standing up to the bullying behaviour and policies of the American president (played by Billy Bob Thornton):

We may be a small country, but we are a great one. A country of Shakespeare, Churchill, the Beatles, Sean Connery, Harry Potter, David Beckham’s right foot, David Beckham’s left foot come to that …

Whether you find the speech stirring or schmalzy, it could well have done with Magna Carta added to its list. Sadly, the success of this particular popular movie moment was obviously aspirational rather than historical. Unlike the romantic hero of the film, Mr Blair appeared to adopt the thinking of his counterpart, even down to the targeting of foreign nationals in an attempt to circumvent the normal and ancient rigours of fair trial rights under the criminal law.

The death of privacy has affected everyone, if only subtly and incrementally. Stories about giant government databases and the creeping prevalence of CCTV have led to a casualness, a presumption that of course you are being watched, of course ‘they’ are listening in. Do you know the fable of ‘the frog-broiler experiment’? It was told to me some time later by the then government chief scientist Professor Sir David King, but you can read a thousand versions on the internet. The theory is that a frog placed in a pan of boiling water will instantly (instinctively, intelligently or both) jump out and save his skin. On the other hand, if the frog is sitting happily in a pan of room-temperature or tepid water and heat is gently and gradually applied, our amphibious friend will splash around oblivious as he slowly boils to death. This metaphor works well for complacency towards our civil liberties in general, but best encapsulates the easy death of privacy.

After 9/11 senior politicians quickly rushed to the microphones with the unexamined blanket edict that everyone would have to get used to less personal privacy. The new Foreign Secretary and previous occupant of the Dark Tower told the BBC Radio 4
Today
programme on 28 September 2001:

It wasn’t Big Brother government. It was government trying to put in place increased powers so we could preserve our democracy against this new type of threat. Now people are saying: ‘Why are these terrorists here?’

A simple exchange was asserted and offered: less general liberty, especially privacy, in return for greater security. And even if you could – who would refuse? After all, it’s not like subjecting millions of people to more acute human rights violations such as incarceration or torture.

In frightening times especially, protecting your privacy can feel a bit of a bourgeois luxury, like net curtains or a garden hedge. Time and again the trade-off seems at first so attractive. A little identity card that links your personal information to a big computer. A painless saliva swab and retained DNA of everyone arrested whether ever charged with, let alone convicted of, a crime. Cameras everywhere and later, as people came to live more and more of their lives online, ‘the Snoopers’ Charter’ to license the blanket retention and monitoring of everyone’s complete web-life: every email, skype session, visit to a website. What’s the problem, you paranoid libertarian loon? The innocent surely have nothing to fear?

But we all have something to hide or at least to protect. We all have a wealth of past, permanent or potential information about us that could in the right or wrong hands lead to abuse by accident or design. And the appetite for data collection is rarely easily sated. When identity cards were introduced in Britain during the Second World War they carried just a few pieces of identifying information about the holder. By the time the scheme was eventually abandoned years later after complaints from disgruntled citizens tired of having to produce the document for no good reason, the amount of personal information held on the card had multiplied several times. And this even without the aid of computer databases.

The way in which we enjoy and understand privacy can be highly culturally sensitive. European cousins who express horror at London as the CCTV capital of the world shrug their shoulders at our resistance to carrying identity cards. Conversely, even President Bush, even after 9/11, found identity cards too authoritarian a step for the American people. So what was the problem with ID cards? My concerns were always threefold.

Firstly, we live in a country without a written constitution, entrenched bill of rights or even strong law of privacy. What has somehow compensated for centuries, is a libertarian instinct that demands that the police officer should identify himself to us and we need do likewise only with reasonable cause.

Secondly, as proposed in the Queen’s Speech in November 2003, the National Identity Register – the gargantuan centralized database to which ID cards would be linked – was going to provide a system like none before. It would have a huge capacity to hold reams of private information centrally, providing a honeypot for fraudsters and terrorists alike. It was intended to hold at least fifty pieces of information on every adult who had been in the UK for more than three months. This vast amount of data would have been an enormous vulnerability – all that information about you, held in one place, ripe for identity theft. Crucially, unlike traditional identity cards, where both the subject and the authorities can look at the same information in plain view and contest its veracity, the proposed system would leave the holder in the dark as to just how much information and of what accuracy was being collected, held and interpreted by those with power over him. This creates a huge distinction with identity documents for specific purposes, such as passports, bank or national insurance cards and even the databases which sit behind them. In these cases, the database should, by definition, hold only such information as is relevant to the obvious and stated aim of the enterprise (proof of nationality, banking facility or right to work).

In the years of the British political battles over ID cards, they were at times, it seemed, offered up as a panacea for everything except global warming. Ministers told us that terrorism would be prevented. And yet we know suicide bombers are more than happy to be identified. Benefit fraud would be foiled – even though most of it relates to alleged health or circumstances rather than identity. And of course the flow of illegal immigration would be stemmed once and for all.

And in this third point lies the rub. For if identity cards are to be used to deal with illegal immigration, a country is moving from immigration control purely or predominantly at the border to ‘in-country’ control on the streets. Ask a French-Algerian or a German-Turk whether they feel as comfortable with the obligation to show papers on demand as their white neighbours and friends. Inevitably, if such control is a stated purpose and the authorities have the power to check the status of anyone on any street in their country, who do you think is going to be stopped umpteen times a day, week and year? The experience of police powers to stop and search without suspicion should persuade you of the dangers of granting indiscriminate power of this kind.

So as many to the centre-right of British politics reviled the Blair–Blunkett ID card ambitions from a libertarian ‘rights of free-born Englishman’ instinct, some to the left knew what a tool for racial oppression identity cards would be. Labour MP Diane Abbott once described them as ‘a new pass law in our inner cities’. The Rt Hon. David Davis MP, long the champion for civil liberties on the right, dismissed them as ‘a massive reversal of the relationship between the citizen and the state’. Davis and Abbott are both right and it has been a privilege to sometimes see such cross-spectrum coalescing around democratic values that are not always the most popular.

Our DNA isn’t just an identifier like a fingerprint or signature. It can reveal extremely private things about our familial past and predicted future; things we don’t know ourselves and
might not want to know. Your true parentage for example, or a genetic condition which makes you uninsurable. In the criminal justice context DNA can obviously provide vital evidence of identity and location, capable of incriminating or exculpating a suspect. But think of the dangers of discrimination, blunder and abuse if the most intimate information of millions of innocents is stockpiled for ever, as though we’re all suspects now. Later, at the height of the mass-retention policy in 2006, the compulsory garnering of everyone’s DNA was mooted by then Prime Minister Tony Blair, but no draft legislation was ever brought before Parliament. Perhaps the image of millions of grandmothers, toddlers and everyone in between queuing up at the police station or GP’s surgery to give a strand of hair or saliva swab under pain of prosecution for non-compliance was, in the end, thought too distasteful and unattractive to be achieved overnight.

Instead the database grew by stealth until Britain’s was the largest in the world. The police were using their power to take the DNA of arrested people and then never destroyed it, even if they were let go moments later, were never charged or even were acquitted by the courts. Don’t get me wrong, DNA must be an investigative as well as an evidential tool. I have no problem with taking the DNA of someone arrested on suspicion of a serious offence to which it might be relevant (such as a sex or violent crime or burglary). It could be highly indicative as to who littered the street with cigarette butts, but I consider that offence too trivial. Insider dealing can be very serious but it is hard to see how DNA might help solve or prove the crime. However, as we have a criminal justice system built on the presumption of innocence, we arrest on suspicion, charge with evidence and convict on proof. Of course the authorities should have a reasonable period to retain identifying information in case something else turns up, but this cannot last for ever.