25. Memorandum from Mr Henry Porter
(1) Two things are striking as you read
through the oral evidence presented to the Joint Committee on
Human Rights. The first is the measured calm of the majority of
your witnesses, and indeed of the majority of the committee, in
the face of the most serious attack on personal freedom and privacy
ever mounted during peacetime in this country British democracy
is on the brink of being changed beyond recognition, yet nothing
seems to disturb the equanimity of your proceedings. Even allowing
for the well-mannered traditions of parliamentary committees,
the lack of urgency and of a sense of crisis seems remarkable.
(2) The second point that occurs to an outsider
unfamiliar with parliamentary routines is that this campaign against
Britain's historic rights and freedoms began at almost the precise
moment the European Human Rights Convention was incorporated into
British law as the Human Rights Act in 1998. In other words, the
HRAa Bill of Rights by any other name- has allowed the
executive and civil service to roll back individual choice, liberty
and privacy and has done almost nothing to defend the British
public from the accumulation of centralised power.
(3) Let me first make it clear that the
HRA has brought many benefits to ordinary people, for instance
insuring that foreign prisoners who may be tortured in their countries
are not deported. It has been responsible for countless cases
where people have won the right to dignity, fairness and equality
in their treatment. Despite the many advantages of the HRA which
has been tirelessly championed by Liberty, the reality is that
it does not work effectively as a Bill of Rights and cannot guarantee
the headline rights necessary for a free societya point
perhaps tacitly admitted by the appearance of Gordon Brown's Green
Paper last summer.
(4) At the end of this submission there
is a brief list to remind the JCHR of the liberties and rights
which have disappeared from the inventory since Labour came to
office in 1997 and the HRA came into law in 2000. Though incomplete,
it is a shocking picture of developments in Britain that are now
being noticed with bafflement abroad by people who do not understand
this turn of events in one of the oldest democracies in the world.
On a book tour last month in France, I was repeatedly asked by
journalists, "Why in Britain? What has happened in the British
people to make them so compliant? Why are there no demonstrations?"
(5) There are complex answers to these questions
but an obvious one is that in each case where freedom is compromised
the Government has advanced the argument that a new law meets
a singular threat from crime, terror and anti-social behaviour.
The British have accepted these appeals with a rare faith in the
wisdom and benevolence of our leadersa faith, incidentally,
which I increasingly do not share. After a decade the account
shows a devastating loss of the freedoms that we once regarded
as our birthright, the self-evident and self-perpetuating virtue
of the British people and their Constitution.
(6) The shocking part of it all is that
it has occurred with almost no coherent analysis, scrutiny or
opposition in parliament, no debate about the direction of our
society, and only a little understanding and exposition in the
media. The truth is that we may have taken a false sense of security
from the presence the HRA on the statute book. Indeed, there seems
every reason to suspect that the act has served the executive
and civil service as an alibi while the balance between state
power and individual freedom has been critically altered in the
state's favour. It is for this reason that I find it very hard
to share Liberty's courageous enthusiasm for the act, even though
I concede its good points. If the maintenance of rights and liberty
is the best measure of a code of rights, then the HRA must surely
be declared a failure.
(7) It seems to me that this is not due
to any innate problem with the act but rather to the state of
parliament and the decline of British democracy. I will touch
on this later.
(8) To show how the act fails us in practice,
I want to draw the committee's attention to the key Article Eight
in the HRA, the one that guarantees "the right to respect
for private and family life, home and correspondence". By
far the most dramatic threat to ordinary people's freedom in the
last decade has been the growth of the database state. Under Labour's
plans for "transformational government" an almighty
surveillance structure is envisaged, through which, by the admission
of the man in charge, Sir David Vamey, the state will know "a
deep truth about the citizen based on their behaviour, experience,
beliefs, needs or desires". As Jill Kirby pointed out in
a recent CPS pamphlet, the intention is for government to centralise
and share all information on the citizen both horizontally and
vertically, without the citizen's knowledge. It is hard to imagine
a more sinister apparatus of control, but the project advances
untroubled by the scrutiny of parliament or the memory of George
Orwell's vision in 1984.
(9) The state's nightmarish lust for our
personal data does not stop there. Already all journeys undertaken
on motorways and through town centres are recorded by the network
of automatic number-plate recognition (ANPR) cameras, and the
information retained for two years. Surveillance is possible in
real time. Imagine that ability in the hands of a government desirous
of preventing demonstrators making their way to London for a legitimate
protest, or wishing to track political dissidents. Under the ID-card
scheme, 49 pieces of information will be required by the state
and every important transaction in a citizen's life will be recorded
by the National Identity Register during ID verification. And
there is a new proposal to collect 19 pieces of information, including
mobile-phone and credit-card numbers from people travelling abroad,
which the government plans to use to fight terrorism and international
crime, and for "general public policy purposesie,
the mass surveillance of a free people. I remind the committee
of something the American cryptographer and computer expert, Bruce
Schneier, wrote: "It is poor civic hygiene to install technologies
that could someday facilitate a police state."
(10) The story of the HRA's failure gets
worse when you reach the guarantees on the privacy of family life,
home and correspondence. The act simply doesn't perform. There
are now five databases that will in various degrees breach the
privacy of children and their families. The home is threatened
for the first time since 1604 by new regulations concerning bailiffs
who, under the Tribunals, Courts and Enforcement Act, are about
to be allowed to offer violence against the householder. As to
our correspondence, with over half a million intercepts of post,
email, and internet connections a year, with nearly 700 authorities
allowed to apply for phone records and to intercept a person's
communications on the thinnest possible pretext, it is clear that
the HRA has not, and will not guarantee the privacy of our correspondence.
(11) I hope I will not be thought melodramatic
when I say that if this trend continues, there will be many who
will not feel able to continue to live in this country. From the
emails I receive in response to my columns for The Observersometimes
as many as 500 a weekI would suggest that there is deep
bewilderment and anger about the way things began to go sour under
a prime minister who said that "civil liberties arguments
are not so much wrong as made for another age". (Tony Blair)
(12) There is a profound but unacknowledged
crisis in this country. Our liberties have been attacked, but
we have also suffered a collapse in what I would call the liberty
reflex, both in and outside parliament. Twenty years ago the measures
I have described above, which are often brought into law by Statutory
Instrumenteffectively ministerial decreewould have
been unthinkable. The media would have been inflamed; former members
of the National Council for Civil Liberties (now Liberty) such
as Harriet Harman and Patricia Hewitt would have been talking
about a police state; and there would almost certainly have been
marches and protests. But today we just let it go.
(13) This is why I believe a new Bill of
Rights is imperative. But it must be a Bill of Rights that is
clearly British in origin and that draws its potency from our
traditions and culture, and from the settlements of 1689 and Magna
Carta, insisting for example on the right to trial by jury, which
is not found in European charters and conventions. There is no
question that such a bill would overlap with some of alleged guarantees
in the HRA, but, crucially, the drafting would be part of a process
of general political renewal, in which there was a rebalancing
of powers at the very top of our democracy. To my mind it should
be restricted to what I have referred to as headline rights and
should not include economic rights, which seem to me to be aspirations
that can dilute the potency of a Bill of Rights. At any rate it,
should be a work of simplicity and eloquence in which the British
people, not parliament or a team of ministerial scribblers working
from some bogus consultation process, define their inalienable
rights as part of a new covenant between the people and parliament
and between the executive and parliament. It goes without saying
that it should be entrenched: that is placed beyond the reach
of the authoritarian tendencies that are obviously alive in the
civil service and the current administration and permitted by
an easily manipulated parliamentary majority.
(14) Conventional thinking says such laws
cannot be "entrenched" and that no parliament can bind
its successors. But in reality this is nonsense. All constitutions
however strongly codified always allow for a process of amendment.
I am not asking for an Act that would be set in stone and entrenched
forever. Besides, an important point discussed by the Chairman
of Mischon de Raya, John Jackson, in OpenDemocracy, based on the
views of Lord Bingham, suggests that Parliament has already bound
its successors in a largely noticed way by a sentence in the Constitutional
Reform Act 2005. It says: "Part 1 provides that the Act does
not adversely affect the existing constitutional principle of
the Rule of Law." This surely means that the principles of
the Rule of Law override the sovereignty of Parliament.
(15) It is not naive to suggest that things
should be arranged, perhaps by the deployment of the parliament
Act, so that the new Bill of Rights could not be altered without
very great difficulty and only in circumstances where there was
a considerable consensus. The result would be the people's prized
possession, a thing that every child would learn at school and
might perhaps quote at will later in life.
(16) As you see I do not recoil from the
idea of unelected judges deciding where parliament has overstepped
the mark, because in the slow descent that we are all witness
to it has been judges who have often supported the principles
of liberty and rights. MPs would be wise to agree with this and
stop pretending to the public that they are the sole defenders
of the public realm.
(17) The second, more compelling reason
for an entrenched British Bill of Rights revolves round the definition
of sovereignty. In the political context, the OED defines the
word thus: "Supremacy in respect of power, domination or
rank; supreme dominion, authority or rule." It must be evident
to members of both houses that parliamentary sovereignty is a
hollow phrase. Parliament is not sovereign, because the executive
runs everything. The government decides on and schedules parliamentary
business, appoints the chairs of select committees and smothers
debate by means of Standing Orders and Standing Committees. One
of your previous witnesses suggested in his oral evidence that
99% of law was made by secondary legislation. Even if only roughly
accurate, this is an astonishing statistic and it explains why
so many laws affecting our fundamental freedoms are passed without
debate and take their toll on our society without proper scrutiny.
Here are some examples. There is no statutory basis for the ever-expanding
Police National DNA database, which contains the biological essence
of hundreds of thousands of innocent people; or for the expanding
network of ANPR cameras; or for the proposals to take 19 pieces
of information from people travelling abroad; or for the Transformational
Government Project. These things just happen without debate of
the issues or any attempt to defend the people from these oppressive
and high-handed measures. For MPs to protest about parliamentary
sovereignty in such circumstances seems odd. Of course it is argued
that Parliament is the authority for all SIs but it must be clear
that it has no real control over the way Ministers use these delegated
powers. As the story of the HRA shows us, the truth of the matter
is that parliament can offer the public little effective protection
because it is itself in the control of the executive.
(18) There is a real temptation in this
debate to think in rather academic terms about concepts of law
and sovereignty, yet I am struck by the vivid examples of change
that you hear about every daythe spread of unnecessary
and intrusive CCTV; the appearance of immigration officialsplus
heavies with earpiecesrandomly stopping people outside
London Tube stations to question them about their status; the
examples of arrogance of the police in the pursuit of people who
have committed any of the 3,000 new offences introduced by Labour;
the pupils being fingerprinted at their school library; the use
of the "mosquito" to control young people; the commands
barked through speakers telling people to behave. Certainly our
society has its problems, but I feel sure that this bossy, hectoring
attitude stems from the government's fundamental disrespect for
the people and their rights. Measure by measure the government
has come to see us a subjects who must endlessly submit to checks
and verification. This attitude is at the heart of the transfer
of power from the individual to the state.
(19) Entrenching a Bill of Rights, which
as I have hinted would be part of much greater process of democratic
renewal, would go a long way to arresting this trend and reasserting
the rights of the citizen. But what we do not need is a placebo
bill drawn up by this government to act as a further alibi while
our rights and freedoms are stolen in the night. I suspect there
is a very good reason why a Bill of Rights has been put on the
political agenda by a party that is already responsible for the
HRA. It recognises the strength of the case that has been made
against it by civil libertarians, and wants to answer that case
before the next election with a bill that appears incontestably
wedded to the principles of a free society. It is a shrewd and
cynical exercise, because at the same time they will own the process
and so make sure that nothing that remotely threatens the government's
power will reach the statute book.
(20) Finally, I want to say something about
the phrase "rights and responsibilities" used by Jack
Straw and Gordon Brown in respect of a new bill. This springs
from the telling belief among ministers that rights are somehow
in the gift of the government and that they are entitled to require
people to sign up to a list of responsibilities in exchange. This
is arrogant nonsense. The citizen's responsibilities are defined
by common, civil and criminal law, and ministers display a constitutional
impertinence by suggesting otherwise.
3 March 2008
A BRIEF GUIDE TO THE LOSS OF LIBERTY AND
RIGHTS SINCE 1997
Protests are banned within one kilometre
of Parliament Square without police permission (penalty: 51 weeks
in jail and/or a £2,500 fine).
Groups may be dispersed under antisocial-behaviour
Groups may be dispersed within designated
areas under the terror laws.
The new offence under SOCPA of trespass
within a designated site (no justification for designation is
Under the Regulation of Investigative
Powers Act, government agencies may intercept email, internet
connections and standard mail without seeking a court's permission
(the latest figure is 500,000 secret interceptions a year).
Since summer 2007, the government
and some 700 agencies have had access to all landline and mobile-phone
records. There was no primary legislation and no debate in parliament.
Without primary legislation, police
introduced a national network of all ANPR cameras. The travel
data may be stored for two years.
The National Identity Register will
store details of every verification made by an ID-card holder
and give access to government agencies without the knowledge or
consent of the private citizen.
ID-card enrolment requires every
citizen to offer up 49 piece of personal information to the national
database, with heavy and repeated fines for non-compliance.
All children details are to be stored
on a central database, with access granted to a wide range of
The Children's Common Assessment
Framework database stores all details of children with problems,
The Home Office has announced that
it wishes to take 19 pieces of information, including mobile-phone
and credit-card numbers, from everyone travelling abroad.
Public-order laws have been used
to curtail free expression. A man wearing the slogan "Bollocks
to Blair" on his T-shirt was told to remove it by police.
The Race and Religious Hatred Act
(2006) bans incitement of hatred on religious grounds.
Justice Minister Jack Straw proposes
new laws which would ban the incitement of hatred towards the
disabled and on the grounds of a person's sexual orientation.
Terror laws are used to ban freedom
of expression in designated areas. Walter Wolfgang was removed
from the Labour party conference for heckling Jack Straw. People
have been searched simply for wearing slogans on their T-shirts
or for carrying banners. A man was detained while collecting signatures
against the ID card.
The Protection from Harassment Act
(1997) bans the repetition of an act. People prosecuted for repeated
protest by email.
Terror laws ban the glorification
of terrorism, which has resulted in the prosecution of a young
woman for writing poetry.
ASBO legislation introduces hearsay
evidence, which may result in a person being sent to jail.
The Criminal Justice Act (2003) allows
the prosecution to make an application to be heard without a jury
where there is a danger of jury tampering. This will include fraud
The admissibility of evidence concerning
a person's bad character, previous convictions and acquittals.
The Proceeds of Crime Act (2002)
gives the state powers to confiscate assets in circumstances where
it does not have enough evidence for prosecution.
Special Immigration Appeals Court
hearings are held in secret. Those terror suspects whose cases
come before the court are not allowed to know the evidence against
them or to be represented by a lawyer of their own choice.
The Courts and Tribunals Enforcement
Act abandons the tradition of an Englishman's home being his castle,
which since 1604 has made breaking into a home by bailiffs illegal.
Terror laws have been used to stop
and search ordinary citizens. The current rate is 50,000 per annum.
A maximum of 28 days without charge
is allowed under terror legislation. The government has announced
plans to double this in new legislation.
Control orders, effectively indefinite
house arrest, were introduced after the Belmarsh decision.