Like many privacy advocates who followed Edward Snowden's revelations about the activities of the US National Security Agency and the UK's GCHQ, matron was shocked by the news that David Miranda, the partner of Guardian journalist Glen Greenwald, who had worked with Snowden was detained for nine hours at London's Heathrow Airport on a flight back from Berlin to Brazil. Having read David Allen Green's excellent
analysis of the legality of the detention under the Terrorism Act 2000, Matron, like many of the commenters on his Jack of Kent
blog, nevertheless has to disagree with his conclusions.
He argues, probably correctly, that if it cannot be established that the police detained Miranda (under Schedule 7 of the 2000 Act) specifically for the
purpose of determining whether he appears to be a terrorist, then the detention
itself and all subsequent actions of the police (like the confiscation of his
laptop, etc.) were unlawful. Reading the Act, there is very little
to argue with that analysis, were it not for the fact that his conclusions inevitably seem to be based on the assumption that it would/should have been obvious to the
police that Miranda was NOT a terrorist. Any kind of awareness or subjective view on the part of the detaining officer that there was nothing that Miranda could possibly have done that would fall within the definition of terrorism would immediately turn his detention from a lawful exercise of police power into an unlawful "fishing expedition". But this means that it is the definition of
“terrorist” or “terrorism” and the policeman's interpretation of it wherein lies the proverbial rub.
The conjugation of power: I am, you are, he/she/it is a terrorist
As DAG explains, “terrorist” is defined in
section 40(1)(b) of the Act as “a person
who…is or has been concerned in the commission, preparation or instigation of
acts of terrorism”. So what, you may rightfully ask, constitutes “acts of
terrorism”?
To answer THAT question, we have to look at
section 1(2) of the Act, which includes a helpful little list. Some of the
actions mentioned (for example, actions involving “serious violence against a
person”, “serious damage to property” or actions “designed seriously to
interfere with or seriously to disrupt an electronic system”) are - on the
basis of the facts as we know them – indeed unlikely to apply to Miranda. The police
coulda/woulda/shoulda known that when they detained him. However, with a bit of
paranoid imagination of the kind that our security services are so good at
incubating in their staff, one could possibly argue that the actions in sub-sections
(c) (actions that "endanger a person’s life") or (d) (actions that "create a serious risk
to the health or safety of the public or a section of the public") could
be engaged. Given the projected self image of the security services and their craving for absolute secrecy, is it really so far fetched that they might genuinely believe that the publication of
details about their activities is likely to lead to both?
That being so, anyone involved in that publication or helping someone involved in that publication (for example, by carrying copies of documents that may themselves disclose information about their activities) could then arguably be considered to fall within the definition of “terrorist”. So, the real problem in the Miranda case may not be that the police has acted "unlawfully" in detaining him, but that the powers under which they detained him are now so wide that, in practice, they may very well allow the detention of just about anyone. Which, in turn, raises the question whether a country that prides itself on being a liberal, democratic state should have granted the police those powers in the first place.
That being so, anyone involved in that publication or helping someone involved in that publication (for example, by carrying copies of documents that may themselves disclose information about their activities) could then arguably be considered to fall within the definition of “terrorist”. So, the real problem in the Miranda case may not be that the police has acted "unlawfully" in detaining him, but that the powers under which they detained him are now so wide that, in practice, they may very well allow the detention of just about anyone. Which, in turn, raises the question whether a country that prides itself on being a liberal, democratic state should have granted the police those powers in the first place.
There’s lawful and there’s … lawful
What this shows, once again, is the clear stretch of water that divides our understanding of what is "lawful"
(i.e. compatible with primary laws adopted by a country’s Parliament) from what
is "constitutional" (i.e. whether those primary laws
themselves are compatible with commonly accepted fundamental rights principles).
On the basis of current laws a good many
things - some of which we may object to - can be "lawful". Indeed - abusing for a moment Matron’s Kraut
privilege of invoking Godwin's law at her discretion - much was
"lawful" in Nazi Germany. Much
is “lawful” now in the many totalitarian systems all over the world that we
Westerners love to criticise.
But many of the laws that make certain actions
"lawful" are themselves unlawful - in the sense of them being “unconstitutional” - because they violate one or more of the fundamental rights on which our entire constitutional system and our
own perception of ourselves as a civilized society are based. Which means, in essence, that - all things
being equal - those laws should never have been adopted by
the Parliaments of democratic nations that pride themselves in adhering to the
rule of law.
But as we all know, good governments do bad
things (not that Matron would want to suggest for a moment that the UK has had
a "good government" for some time now, but that’s a whole different bunch of blog
posts). We need to remember that, in the immortal words of Matron's very own hero, Albus Dumbledore, "the world isn't divided into good people and
death eaters". So while the fact that sometimes an unconstitutional law is adopted and enforced is extremely regrettable, all this shows in the first instance is that one (ONE, but not ALL)
of the safeguards (or, in US speak, “checks and balances”) that we have put in
place for our protection from the actions of an overbearing state have failed.
Fortunately, there are usually other safeguards, or at least there should be. So it is important to see what happens next.
How to change bad laws
Generally, when a law is somewhat
questionable, there are two ways to go about changing it: we can challenge it in the courts or we can get Parliament to change it through political action. Experience has shown that it is usually wise to
take a two-pronged approach on these things rather than focus on one or the
other. So with regard to the political campaign surrounding the Schedule 7 powers Matron would like nothing more than to see every
privacy group, human rights organisation, regulator and anyone else who has a stake
in this (which pretty much means everybody) to get to grips with the legal aspects of
this case (and the legal issues it raises), to raise awareness and to make it
impossible for our current shower of career politicians NOT to do something about
this.
At the same time, Matron genuinely hopes that
David Miranda will challenge his detention in the courts so that a judicial
review of the extremely wide powers contained in the Act can determine whether
or not they are indeed “necessary in a democratic society” (that element of necessity being the threshold which laws that interfere
with the right to privacy have to meet in order to be “constitutional”, see Article
8(2) of the European Convention on Human Rights). This will take time, maybe a lot of time, and although it is easy to get disillusioned by this, we shouldn’t be.
The mills of the law may grind exceedingly slowly (and too slow for many
of us), but they should not be underestimated in bringing about real change
over time, not just in terms of direct change to the law itself but also to the public's perception of what should (ethically) be allowed in a free country and what shouldn’t.
Constant vigilance
What we need to look out for, however, is
our continued ability to challenge laws in this way and that is an area where
the UK has an abysmal record. Unlike Germany, where a multitude of stakeholders
(including regional governments, political parties and individual citizens) have
the right directly to challenge the constitutionality of a primary law if they
are affected by it, in the UK, the right to judicial review is extremely
limited. The doctrine of "Parliamentary Sovereignty", which forms the cornerstone of the UK's constitutional settlement, does not allow for the
judicial review of primary legislation (although some limits to that claim were introduced by the Human Rights Act 2000). Instead, a court will usually review
the compatibility of primary laws with fundamental rights only when it
judicially reviews the compatibility of an executive measure or of secondary
legislation with an Act of Parliament. This makes it nigh on impossible to have
some laws reviewed in the UK as we have seen, for example, with regard to the
legislation implementing the EU’s Data Retention Directive. Despite the fact that implementing national
laws (and in some cases the Directive itself) were declared unconstitutional in
several EU member states, in the UK we haven’t even been able to bring a case
to court.
What is more, what little right to judicial
review we currently possess is under continuous attack from the government on several fronts.
In some areas, like planning law, the government has recently halved the period
claimants have to make an application from three months to six weeks. In other
areas, the government has restricted legal aid for judicial review cases. Taken
by themselves, those changes are small and relatively innocuous, but
cumulatively they may eventually lead to the erosion of due process and whatever limited powers UK courts have in providing a measure of oversight with regard to
Parliament’s activities. Viewed in this way, it is no surprise that the
court with the most wide-ranging oversight powers, the European Court of Human
Rights in Strasbourg, is so universally loathed by at least one half of the
current government, that the latter has engaged in a long-term campaign to discredit both the Court and the Convention it enforces ever since the previous Labour government briefly exercised the courage of its former convictions by adopting the Human Rights Act in 2000.
So what HAS Miranda’s detention taught us
about this country? Well, a good many unpleasant things many of us knew
already - namely that our laws include
powers that, if used to their full extent, would most probably enable flagrant
breaches of human rights - and some things we hoped we would never have to
learn in our lifetime - that the bodies we have entrusted with protecting our rights and liberties will indeed use those powers to their full extent even if that results in the inevitable destruction of said rights and liberties. For those of us who had still hoped that some remnants of morality would ensure that “they
wouldn’t do that”, the Miranda case - like the grounding of Morales plane in Austria in July - comes as a wake-up call.
It also proves once and for all the futility of arguing (as
many defending the NSA actions have done) that we should concentrate on what public
bodies are actually doing now rather than questioning – as lawyers and as citizens
- what existing laws could permit them to do if the political climate allows. It is the most intrusive uses of the powers granted by those laws from which our legal system must defend us, not their most benevolent interpretation.
And above all, some words written more than half a century ago, still ring true today with a terrible clarity:
"We must not confuse dissent from disloyalty. We must remember always, that accusation is not proof, and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another, we will not be driven by fear into an age of unreason. If we dig deep into our history and our doctrine, we will remember we are not descended from fearful men. Not from men who feared to write, to speak, to associate, and to defend causes that were, for the moment, unpopular. This is no time for men [...] to keep silent or for those who approve. We can deny our heritage and our history but we cannot escape responsibility for the result. There is no way for a citizen of the republic to abdicate his responsibilities. As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom wherever it still exists in the world. But we cannot defend freedom abroad by deserting it at home. [...] Cassius was right: the fault, dear Brutus, is not in our stars, but in ourselves."
Edward R. Murrow
Good night and good luck!
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