On Liberty (3 page)

While the 2001 legislation theoretically allowed officers discretion to destroy entries, ministerial exhortation and ACPO
(Association of Chief Police Officers) policy made such discretion a myth, unless challenged by the wealthy, lawyers or celebrity. Inevitably, as arrest – with the low threshold of ‘reasonable suspicion’ of criminality – was the trigger for taking a sample in the police station, a wholly disproportionate percentage of young black men in particular found themselves on the database permanently without ever having been convicted of a crime. My genetic privacy is free; theirs is a little more expensive. It eventually took a Strasbourg Court of continental judges (some no doubt with memories of less than democratic regimes) to rule against it in the case of
S & Marper v United Kingdom
. They may have imagined the potential horrors of ‘blanket and indiscriminate’ DNA retention. The obvious irony of ‘indiscriminate’ policy is that it invariably proves highly ‘discriminatory’ in practice.

The ‘nothing to hide, nothing to fear’ debate would rage well into the next decade, and well beyond the New Labour government. It has forced me to reflect a great deal on the individual and societal value of privacy. For it isn’t just the obvious authoritarians who sometimes overlook it. When you spend your life hearing testimony of the gravest human rights abuses around the world, the imposition of even omnipresent surveillance can seem pretty tame by comparison. If you ever drift into feeling this way, try to see the wonderful 2006 German film
Das Leben der Anderen
(
The Lives of Others
), set in the old East Germany under the grip of the Stasi (secret police). It presents a moving but never sentimental or hysterical account of life without privacy with which I find it hard to compete and yet, for the sake of completeness, will try.

If all our fundamental rights flow from dignity, equality and fairness, respect for private and family life (Article 8 of the European Convention on Human Rights) is obviously inherent to dignity. In the introduction I argued that the legal protection of our civil and political rights is essential to the preservation of democracy itself. However, these rights are also
a reflection and protection of what it is to be human. From a very early age we protect our modesty and privacy, closing the bathroom or bedroom door, or at least wishing to. This instinct appears universal in communities however rural or remote, the world over. Because we are social creatures who come together in families, communities and societies for all sorts of beneficial activity our privacy cannot be absolute. Yet without it altogether, how can there be any dignity, intimacy or trust? Further, it is hard to imagine how other vital freedoms can flourish in the fishbowl under the constant gaze of the state. How can you secure sound elections without a secret ballot or fair trials without confidential legal counsel? Where is the space for true freedom of conscience or association if personal reflection or meetings with others of our choosing cannot be in private? Even free speech, which is so often apparently in tension with personal privacy, is sometimes quite dependent upon it. Think of how jealously a journalist will guard her confidential sources or the greater courage that some find when writing anonymously (whether online or offline).

For our rights and freedoms are not like those pick-and-mixes that we knew in old-fashioned sweet shops and find again in the foyers of modern multiplex cinemas. You can’t take free speech while dumping personal privacy. The values are as interdependent as the people they protect. In particular, when ‘balanced’ or ‘qualified’ rights like privacy are compromised too sloppily without rational and proportionate justification or defined limits, the inevitable outcome in practice is significant discrimination in the application of the intrusive power. So-called ‘blanket’ power is rarely truly universal in practice or effect. Look at the astonishing proportion of black men on the DNA database – almost 40 per cent – or who find themselves subject to stop and search without suspicion – on average six times as likely as white people.

But discrimination is not only casual, careless or inadvertent.
It can also come by the deliberate design of policy and legislation. Just as many people were subtly or slightly more intrusively affected by the US–UK domestic responses to the 9/11 atrocity, others were singled out for a more direct, determined and acute violation of rights. Guantanamo Bay was an almost fictional place which many of us had previously associated with either the jolly summer song ‘Guantanamera’ or the 1992 Rob Reiner–Aaron Sorkin courtroom drama
A Few Good Men
. Now, it stands as an icon of injustice: a prison camp and ‘legal black hole’, where ‘enemy combatants’ have been detained without charge and mistreated for well over a decade in freedom’s name at the hands of one of the world’s most mature democracies. How was it possible? How did clever constitutionally literate people advise and then sanction such an obviously counterproductive scandal; a festering sore on the conscience of the democratic world that would give succour to anti-Western anger everywhere?

The sight of passenger aircraft ploughing into two of the central pillars of the New York skyline at the cost of nearly 3,000 lives brought home the precariousness and vulnerability of life. It was shocking, sudden, cruel – and man-made. It surely says something about the fragility of ‘constitutionalism’ and any bill of rights based more on citizenship than humanity that lawyers felt able to advise President Bush that the combination of an offshore location and foreign nationality could make Guantanamo and its eventual inmates a non-place full of non-people for the purposes of the law.

As far as I know, there are no obvious musical or cinematic references to Belmarsh Prison or to Thamesmead in South London, where the ugly and bleak container sits. Belmarsh was the location for the United Kingdom’s own experiment in twenty-first-century internment, which took place for over four years from the winter of 2001. Nothing as crude perhaps as orange jumpsuits and an exotic offshore venue for Her Majesty’s government,
but nonetheless, here too, the foreign nationality of terrorist suspects became justification for detention without charge or trial.

The creative device on this side of the Atlantic was not an offshore island but immigration law which had long and understandably allowed migrants to be detained for purposes of border control: for examination on entry and for the purposes of effecting removal or deportation of an unwelcome or overstayed visitor. Even so, this type of administrative detention by the UK Secretary of State is not incompatible with the right to personal liberty and the right against arbitrary detention under Article 5 of the Human Rights Convention, as long as it is necessary to the stated purpose, provided for in legislation and subject to scrutiny and appeals in the appropriate courts and tribunals.

Back in 1996, I had not long arrived in Mordor, yet another nickname for the Home Office. The UK government lost what was to become a seminal legal case in the Strasbourg Court of Human Rights. Mr Chahal was an Indian national who had been living in Britain since the early 1970s when he came to the attention of the authorities on suspicion of involvement with Sikh separatist-inspired terrorism. He was detained pending deportation to India where, he claimed, he would be subject to torture. By the 1990s, there was already a well-established system of tribunals to provide scrutiny of and appeals against immigration decisions, but in ‘national security cases’ (where the Home Secretary signed a certificate that a particular person was non-conducive to the public good on national security grounds) proper appeals were replaced by a paper review by retired judges (often referred to as ‘three wise men’) over lunch in the House of Lords.

Chahal ended up being detained for over six years without proper legal scrutiny. Unsurprisingly, the European Court of Human Rights was not amused and in 1996 established some important principles which have had a significant impact on
subsequent UK security policy. One principle was that to satisfy Article 5, the right to liberty, there must be some kind of proper legal scrutiny and redress, even in national security cases. Another crucial principle is that the absolute rule against torture and inhuman and degrading treatment under Article 3 does not refer only to torture by the direct hands of agents of a signatory state. That state will also be responsible if it sends someone under its control to a place of torture elsewhere. This principle in particular has caused considerable controversy ever since and is the apparent excuse for a great deal of human rights’ antagonism. Yet it is surely obviously logical. What kind of absolute protection from torture would allow governments to send people to such treatment, whether by extradition, deportation or otherwise, as long as they don’t do the dirty work themselves? Such reasoning would sanction Guantanamo itself and even ‘extraordinary rendition’ – or, as we in the real world call it, state-sponsored kidnap and torture.

As Orwell would have observed, euphemisms for the previously unthinkable, and therefore unspeakable, became extremely popular with the US and UK governments in the years after 9/11. We’ve touched on ‘enemy combatants’, a phrase designed to create a new category of prisoner subject to neither the ordinary criminal law nor those governing war, and ‘rendition’ (which refers neither to singing nor wall plastering). We were also later to learn of ‘waterboarding’, which was not a seaside sport but the dark interrogation practice of beginning to drown a suspect in order to extract information from him.

Back in 1997 and as a young Home Office lawyer, I worked on a piece of legislation which probably would have passed in similar form regardless of the outcome of the now famous general election. It was designed to implement the Strasbourg Court’s judgment in the Chahal case by creating a tribunal capable of balancing the requirements of legal scrutiny of immigration decisions with the need to protect national security. Inevitably an imperfect compromise, the Special Immigration
Appeals Commission (SIAC) was born: a secret administrative commission rather than a court, from which the migrant, his lawyers, press and public would be excluded for much of the hearing at which time a ‘Special (security-vetted) Advocate’ appointed by the Attorney General would attempt to test the government’s case against him ‘in the interests of justice’.

The obvious flaw in this fudge is that the Special Advocate is not allowed to speak to or take instructions from the subject of the hearing once he has seen the secret intelligence in the case. Thus he has little or no idea of what the migrant might say in response to it and what their alibi or innocent explanation might be. So, for example, if the case against a Chakrabarti facing deportation were that she had been seen having breakfast with a known terrorist at a particular place on a particular day, it is highly unlikely that she or her lawyers would be told this vital specific allegation. No doubt the agencies would argue that to reveal this detail would somehow risk identifying the undercover agent or informant who ran the café or also attended breakfast as a mole within the terrorist cell. The obvious problem however, is that if, say, Chakrabarti could indeed prove that this must be a case of mistaken identity, by being able to demonstrate that she was on the other side of the world, or in prison, or on the operating table at just the time of the alleged sighting, she won’t have been afforded this pretty basic fair trial opportunity.

Indeed in one now notorious immigration case some years later, it turned out that the authorities were arguing that a particular false passport had been used by two suspects in different parts of the world at exactly the same time. The mistake emerged only by a chance coincidence because the same Special Advocate had been appointed by the government in both cases and he remembered something about the false passport that was reminiscent of the earlier case and was then able to alert all concerned to the gaping hole in the Secretary of State’s story. But such coincidences rarely arise and if, as would have been
far more usual, a different vetted barrister had been appointed in the second deportation case, it would have been impossible to expose the potential injustice – the shroud of secrecy hanging over both the proceedings and past judgments of SIAC.

People argued that the SIAC model was at least a little fairer than the complete lack of any appeal system that was the case before
Chahal v
UK
and the Special Immigration Appeals Commission Act 1997
. One could also argue that in a classic immigration case, the secret matter in issue was ultimately one of Home Secretary discretion rather than the migrant’s fundamental rights. By definition, non-nationals have no ‘right of abode’ in the United Kingdom and therefore enter and stay out of the goodness of the Home Department’s heart. Where fundamental rights such as the rule against torture (Article 3) or the right to respect for your private and family life (Article 8 – perhaps because you have a British child or spouse who cannot be expected to move with you to your country of nationality) are engaged, the issues in question need not require resolution in secret.

Sadly, however, secrecy is contagious and once the authorities become used to the delights of unfair lopsided pseudo-courts, they are unlikely ever to want to subject themselves to proper legal accountability again, even in other contexts. Who wouldn’t take the permanent advantage of a secret chat with a judge rather than equal treatment with a legal opponent, if they could get away with it? So the obvious creative wheeze in the UK after 9/11 was the attempt to replace centuries-old fair criminal trial traditions – where you know the case against you and face a public trial in front of your peers – with administrative law ‘immigration-style’ as a means of locking people up indefinitely without trial, charges or even a police interview. The legal fiction was that this, being applied only to foreigners, was immigration detention pending deportation. However, according to the government’s own argument the migrants in question could not be deported on account of the
likelihood that they would be tortured in their home countries. It was the equivalent of arresting a group of teenage suspects and then holding them indefinitely in a prison temporarily designated as a boarding school. Yes, school-age children can lawfully be compulsorily educated just as migrants can lawfully be detained pending removal from the territory, but that isn’t the intention or reality of the situation and everyone knows it. This was internment plain and simple and as divisive and counterproductive to national unity, community cohesion and intelligence-gathering as it previously had been in Northern Ireland during the troubles.