Tuesday 20 August 2013

Living in an age of confusion: David Miranda and the concept of "lawfulness"

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.

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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