On Liberty (4 page)

The New Labour Attorney General Lord Goldsmith would come to refer to the Belmarsh policy enshrined in Part 4 of the Anti-Terrorism, Crime and Security Act 2001 – emergency legislation rushed on to the statute book in the few weeks leading up to Christmas of that year – as constituting a ‘three-walled prison’. The inmates could not be deported by the government due to the rule against torture (as applied in Chahal), but they were free to leave voluntarily at any time as long as they were prepared to take their chances with the torturers back home. What a choice – between your own revolver and the firing squad.

The ultimate fiction and grand abuse of language was the ‘War on Terror’ itself. President Bush’s speechwriters had gone to war with an abstract noun that was ever part of the human experience to create a ‘long war’, ‘new normal’ or permanent emergency. Obviously, to those in the middle of an actual war, that war self-evidently feels indefinite, as it is impossible to know precisely when it will end. At the height of the Blitz, Londoners had no idea when exactly the war would be over and normal life (including temporarily suspended rights and freedoms) could resume. And yet they knew that when that time came, they would be able to verify it with their own senses (the end of hostilities, the signing of a peace treaty). This could never be the case with a ‘War on Terror’ – the term first used by
President Bush in an address to a joint session of Congress on 20 September 2001, in the aftermath of the attacks on New York and Washington. This war might go on for centuries until a President Bush or Clinton the twenty-third or twenty-fourth promises that it might be over and victory secured with just one more push. And of course a permanent emergency is the most dangerous contradiction in terms, with its permanence making it no longer temporary or exceptional. It is instead a new way of living – much closer, ironically, to the terrorists’ fantasy – without the rights, freedoms and values on which our society is supposed to be built and which in the darkest of times more than ever we need to guide us.

One does not simply walk into Mordor. Its black gates are guarded by more than just Orcs. There is evil there that does not sleep. The great Eye is ever watchful. It is a barren wasteland riddled with fire, ash and dust. The very air you breathe is a poisonous fume
.

– Boromir at the Council of Elrond

It was 2003 and the best-selling movie was
The Lord of the Rings: The Return of the King
. I was applying for promotion. I had been working as a lawyer at Liberty for two years and felt that I’d made my contribution within the limits of the organization as it was. When my predecessor announced his resignation, I was already in the running for a number of other jobs, but the opportunity to reshape Liberty and expand our reach and influence from the courtroom into the newsroom, living room and parliamentary chamber was irresistible. In truth, I was completely unqualified to lead a human rights organization in need of regeneration. A lawyer and civil servant by background, what on earth did I really know about management, fundraising and how to reach different audiences to resist bad policies and practices or make positive change?

But the birth of my son, almost exactly a year before, had changed the way I looked at the world. There was something
about being the mother of a one-year-old that had a strange and profound effect on me. New mothers often say that they can no longer bear to watch news footage or charity adverts featuring sick or starving children. Parenthood didn’t have this impact on me; it did, however, deepen and intensify my passion for human rights’ work.

With a small boy to nurture, the need to protect the vulnerable now felt more real, less abstract and philosophical. And just as parents and grandparents ought, no doubt, to find a greater interest in the future of the physical environment, ‘constitutional climate change’ and the erosion of our rights and freedoms became graver concerns for me with a new stake in the world beyond my lifetime. I also experienced an unexpected feeling of empowerment. Perhaps because I had been so anxious about motherhood, as I began to feel that I could manage that – the most important job in the world – other challenges seemed lesser by comparison. Minor infant health scares and mad dashes from the office to the nursery and GP were after all as stressful and crucial as anything work could throw up.

I applied for the job of director and the then board of Liberty was ‘brave’ enough to give it to me. I remember the mixed feeling of excitement, responsibility and anxiety on being promoted. I knew that the task would be significant and the support less so. I’d already been working at Liberty as a lawyer for two years but this made field research even more important – your first impression of anything is priceless and quickly disintegrates with loyalty, self-congratulation and introspection. So I spent a fair while talking to people inside and beyond the human rights movement about what we needed to be. In fact ‘movement’ is perhaps an exaggerated description of the rag bag of dissenters that we were at the time. The message was surprisingly consistent. ‘You do lots of worthy legal work but where is the campaigning?’

For me, newly installed as Liberty’s head, this came as something of a surprise. As a former law student and government
lawyer, I had come to know the National Council for Civil Liberties and Liberty for its famous test-case litigation in both domestic and European Human Rights courts – and all my work for Liberty to date had been in this context. It was difficult to imagine what this romantic ‘campaigning’ ideal looked like.

Some of those I spoke with might have enjoyed the nostalgia and kinship of sitting in a room above a pub wherever they happened to live, talking to local like-minded people about the demise of age-old values. Others thought that marches and protests would do the trick almost by themselves; a view that brought many to disillusionment after the mass demonstrations that did not prevent the Iraq War. Others still understood that if violations of civil liberties and human rights could be expressed only if and when arguably illegal, there would be no language, let alone tools left in the locker, for laws, policies, decisions and actions that were just plain wrong.

After much soul-searching I came to the untested but, with hindsight, perhaps completely obvious view that what was needed was not to abandon the law and the courts as the back-stop of human rights protection, but instead to combine legal casework with advocacy in Parliament, the news media and wider civil discourse. How could we influence and convince if all we did was converse with the law?

We needed to reconnect with our historical roots in protest but also to reach beyond obvious allies and ‘usual suspects’ – to build new coalitions with democrats across the political spectrum in a world changed by technology and globalization but nonetheless plagued by challenges and abuses of power that would have been all too familiar to our founders in 1934.

This was all very well in theory – but it required a big change of approach on our part. When there’s so much injustice around every corner, priorities become even more important for a small group of mostly young idealistic souls. A first-rate reactive law centre and press office were no longer enough. We
had somehow to grow into a truly multi-disciplinary team of campaigning professionals, pooling our energies and pointing in the same direction. The first test and opportunity came very quickly indeed.

It was September 2003 and my first week officially in post as Liberty’s director. London’s Docklands area was hosting a now famous (or notorious) annual arms fair. Since 2001, the cavernous Excel Centre has biannually held the Defence Security and Equipment International exhibition. Unsurprisingly, anti-armaments campaigners had made it a focus for protest and were out in force. That September, the protests felt all the more significant given that the British government had embarked upon a controversial war in Iraq just six months earlier. Suddenly what seemed like every telephone in our grotty South London office began to ring. All the callers were saying the same thing: demonstrators were being barred from getting anywhere near the Excel Centre. Metropolitan Police officers were using anti-terror powers to stop and search and even arrest activists. To the brand new director of Liberty–NCCL, it seemed like 1934 all over again.

I asked colleagues to try to verify the information about the police’s behaviour. The statute book is littered with public order and ordinary police powers with which officers can disrupt or prevent criminal or rowdy behaviour by protesters. Surely anti-terror powers were not being abused in a country with our proud tradition of dissent? We called the Metropolitan Police press office which flatly denied that these powers were being used – yet claims to the contrary kept on flooding in. So my colleague Alex Gask (then an aspiring lawyer, now a distinguished barrister in his own right) got quite literally on his bike to investigate. He returned a few hours later with a pile of notices issued by officers under Section 44 of the Terrorism Act 2000. Section 44 allows any area in the country to be defined as one where the police can stop and search any vehicle or person and seize ‘articles of a kind which could be used in
connection with terrorism’. Unlike with other stop and search powers, officers did not need to have ‘reasonable suspicion’ that an offence had been committed. Here was evidence that directly contradicted the initial denials by the police.

Our story was covered by the media and we threatened legal action. Twenty-four hours later, Members of Parliament began to express consternation. However, as is so often the case, their focus was in the main limited to the apparently outrageous
use
of a power by the police rather than in searching their own souls about why they crafted and passed such a bad and dangerous law in the first place.

This piece of legislation was not a response to 9/11 – in fact the Terrorism Act 2000 came into force a full six months before 9/11 and had been scrutinized and passed by both Houses of Parliament before that. It replaced ‘temporary’ Prevention of Terrorism legislation that had been passed and annually renewed since 1989 in the context of the troubles in Northern Ireland. This in itself should serve as an object lesson in how the state gains and rarely gives up power over the people and the ease with which temporary measures become permanent fixtures over time. The first thing to point out is the breathtakingly broad definition of ‘terrorism’ that is provided in its first section and that remains on the statute book to this day. At its broadest, it can catch threats as well as actions against property as well as people for the purpose of advancing a political or ideological cause.

It is practically a cliché – but no less true for that – to suggest that one man’s terrorist is another’s freedom fighter or even mere activist, and so it’s obviously dangerous to peg anti-terror laws to ideological motivation rather than violent action. I am not as great a purist as those who say there should be no concept of terrorism at all. But surely it should be characterized not by the pursuit of someone’s cause, but by his or her willingness to adopt ‘any means necessary’ and give up all respect for human life in the process (e.g. by inflicting death, torture or serious
violence on innocents who get in the way). Instead our legislators had settled on a definition broad enough to catch a political graffiti artist or anti-GM crop protester who sprinkles non-GM seeds into a GM field. The fact that they are attempting to achieve political change now turns minor criminal damage or, some would say, mere nuisance or irritation into a terrorist offence.

When you combine this with the kind of speech crime laws that are considered appropriate to prosecute those who incite or ‘glorify’ terrorism, you have the prospect of catching someone who gives a speech in London to the effect that a brutal dictatorship on the other side of the world may, in the end, only be brought down by force. But it was the stop and search power in section 44 that came to prove one of the first and most graphic examples of the unintended consequences that flow from sloppy gung-ho legislation.

I accept that a police power to stop and search (in the US ‘stop and frisk’) is a necessary evil in any democratic society. The paradigm for such a power would be one triggered by ‘reasonable suspicion’ that the person to be stopped has just done or is about to do something wicked or is carrying a dangerous and illegal item on his or her person. Even this threshold of reasonable suspicion can prove an inadequate safeguard against abuse and discrimination. Police officers are human and therefore have human frailties such as gender, racial and age-based stereotyping in particular. Hence the tendency to single out young black men, even when a power is circumscribed in this way.

Equally, there are moments and places where waiting for reasonable suspicion of a particular person is an inadequate safety measure. So when I go through security at an airport or into the Houses of Parliament I have no problem with the automatic bag and body check. Why not? Because I understand that this place is likely to be a terrorist target and so the routine search is proportionate to the threat and, crucially, I don’t feel
singled out or discriminated against because of my race or politics. This is the kind of approach that can in principle justify a special anti-terror stop and search power. One can understand, for example, that, especially in the light of intelligence, it might be perfectly proportionate to cordon off the whole of Parliament Square on the day of the Opening of Parliament and require anyone who wants to enter to go through polite security screening. The same might apply to a high-profile sporting or other ceremonial occasion, especially where there is intelligence of a possible specific threat.

However, the drafting of the now-infamous section 44 was far too sloppy. It allowed a chief constable to designate an ‘area’ – which was not defined or limited by the statute – for stop and search without suspicion if it was ‘expedient’ (not even ‘necessary’) for fighting terrorism. No parliamentary or judicial authorization was required. The designations lasted up to twenty-eight days at a time and the only so-called safeguard was the Home Secretary’s retrospective endorsement. It was only during the test case that Liberty subsequently brought against the Docklands operation, on behalf of journalist Penny Quinton and protester Kevin Gillan, that we learned that the entire Metropolitan Police area (the whole of Greater London) had been designated on a rolling twenty-eight-day basis for eighteen months before the incident and ever since the legislation had come into force. Like some hideous dystopian sci-fi story, our great capital city had been turned into a stop and search zone.

While we made some progress in the domestic courts, and not for the first time, it took the European Court of Human Rights in Strasbourg (including judges from younger and rockier democracies less complacent than we sometimes are about the risk of abuse of state power) over six years to find in January 2010 that section 44 was so broad as to violate the right to respect for private life enshrined in Article 8 of the Human Rights Convention. The court said that:

… the powers of authorization and confirmation as well as those of stop and search … are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse … They are not therefore ‘in accordance with the law’.

This historic Liberty victory was an indictment indeed of our politicians. The anti-terror stop and search power that they had waved through before even the maelstrom of 9/11 was so lax and devoid of safeguards for the citizen that it did not constitute proper law. When is a door not a door? When it’s ajar. When is a law not a law? When it’s a political speech or press release masquerading as properly thought-through legislation.

It was to take six years to get our challenge all the way to final judgment in the Court of Human Rights and not before the law had been abused at the expense of many more young black men and peaceful dissenters alike. In 2005, section 44 was invoked at the Labour Party conference in Brighton to haul the octogenarian Holocaust survivor Walter Wolfgang out of the auditorium, forcing Tony Blair to apologize on national television. Walter’s crime was a gentle heckle of the then Foreign Secretary – and my old Home Office boss – Jack Straw as he gave his platform speech. In a vibrant democracy, should senior national politicians really be protected from a little heckling any more than stand-up comedians are? Shouldn’t they welcome a small challenge as a vital occupational hazard to be proud of?