In the Media

A well-ordered society? It's time to cry freedom

PUBLISHED May 16, 2006

There is little evidence to suggest that the erosion of our civil liberties has left Britain any better protected  

BRIAN HAW, the protester whose antiwar placards have been a familiar sight in Parliament Square for the past five years, has been ordered by the Court of Appeal to dismantle most of his demonstration.

The ruling follows new laws that prohibit such demonstrations without permission ? even though Haw was in place before the law, in the Serious Organised Crime and Police Act, came into force last year. The case is the latest in a series of legislative measures that collectively are eroding individual liberties ? despite this Government?s claim to be the guardian of human rights. 

When Labour was elected in 1997, the year I became an MP, there was an impression that it would be pro-active in enhancing human rights and maintaining civil liberties. This was wholly misleading. It certainly moved swiftly to incorporate the European Convention on Human Rights (ECHR) in its Human Rights Act. But one of its unforeseen consequences has been to set a low standard from which the Government justifies serious erosions of civil liberties, relying on nothing more than a minister?s statement that a new law is human rights-compatible.

No one in Parliament disputes that the Government must take the threat of terrorism seriously and seek to reduce crime. What is notable, however, is how early in its tenure and well before 9/11 the Government showed itself willing to interfere with the ordinary processes of law and justice to achieve its ends.

Thus, after the Omagh bombings in 1998, legislation was enacted within 24 hours to allow for the possibility of a person being convicted of membership of a proscribed organisation and sentenced to up to ten years imprisonment on little more than the opinion of a senior police officer. This procedure was never used and was quietly repealed two years later in the Terrorism Act 2000.

The Act introduced (in Section 44) the random stop-and-search of pedestrians and vehicles in designated areas. It was to be an emergency power to last only 28 days at a time. But as Walter Wolfgang found as he tried to re-enter the Labour Party conference last year, as did participants in peaceful demonstrations at the Docklands Arms Fair, renewals have become routine and adopted for general policing.

These early examples encapsulate the new Labour approach and its consequences. Draconian legislation is passed for effect, to ?send a signal?, attract attention and show resolve. As media interest wanes after enactment, the lack of practical benefit can be glossed over while the law-abiding are left to pay the cost of the erosion of freedom.

Post-9/11 and in particular since the July bombings, we can see many examples of this. The ?glorification? component of the ?indirect encouragement of terrorism? offence in Section 1 of the Terrorism Act 2006 has no justification save as an instrument for deliberately creating uncertainty as to what can lawfully be said about terrorism. The universal jurisdiction of the Act, when taken with the definition of terrorism, encompasses rebels including those honoured in the annals of history. Yet the conviction of Abu Hamza shows that ?glorification? is not needed to curb incitement to violence, as he was effectively dealt with under the Offences Against the Person Act 1861 and the Public Order Act 1986.

Similarly, the proposal to allow for up to 90 days detention without charge in terrorism cases was never based on any detailed analysis and appears to have been an immediate acceptance by the Prime Minister of an opening bid by the police for longer powers of detention which masked that the Association of Chief Police Officers which put it forward was split over the matter. The Prime Minister?s refusal to compromise on the issue and his overruling of Charles Clarke?s efforts to do so created the conditions for the Government?s defeat.

This episode is very revealing. As with the introduction of control orders in the Prevention of Terrorism Act 2005, which placed restrictions on liberty, including curfews, tagging and house arrest on persons unconvicted of any crime, there was no sign that the Government was approaching the matter as one of regrettable necessity. Indeed, in the case of control orders, the Prime Minister deliberately chose to pick a fight with the House of Lords over its insistence on the limited safeguard of a sunset clause to ensure such orders could not become a permanent feature. It is impossible not to conclude that the resulting stand-off suited the populist agenda of the Government in the run-up to the election ? with tabloid approval for toughness to make people forget the origins of the measure when the internment provisions of the Anti-Terrorism Crime and Security Act were declared ECHR- incompatible in December 2004.

We should not ignore either the manner in which state power against the rights of the individual is being increased. Whether it is ID cards; the onerous obligations placed on professionals and companies in the money-laundering provisions of the Proceeds of Crime Act 2002 in order to facilitate the confiscation of criminal assets; antisocial behaviour orders to control the unruly without the need for criminal conviction; or the changing of the rules of evidence and evidential burden in cases involving alleged sex offenders and domestic violence, the result is all one way.

While individually some of these changes may be justifiable the cumulative impact needs to be questioned. This is especially the case when these changes are placed alongside the astonishing powers available under the Civil Contingencies Act 2004 that effectively allows for government by decree in an emergency with the possible suspension of all legislation save the Human Rights Act.

It is ironic that there is little evidence to suggest that this plethora of activity leaves us better protected. On the contrary, Charles Clarke?s failure and dismissal can be directly linked to the extent to which he was diverted from running his department by a frenzy of legislative activism. Meanwhile, violent crime continues to rise and the threat of terrorism remains.

Loss of some freedom and greater regulation is sold to us as necessary for a well-ordered society. But ours has thrived on freedom. Its curtailment undermines the capacity of individuals for self restraint, creates resentment and inhibits the development with others of shared values and goals. If we are not careful our children will find themselves deprived of a valuable heritage.