On Liberty (7 page)

Their Lordships having opined, the ball was quite firmly in the government’s court. And as I pointed out earlier, the Lords’ ‘declaration of incompatibility’ under the Human Rights Act in respect of the Belmarsh legislation could only be moral and
persuasive: it had no binding force. The declaration of incompatibility was reliant on our still sovereign Parliament to do the right thing and change the law.

The new Home Secretary, Charles Clarke, was lumbered with the quandary of how to respond to the Lords’ declaration. For a while rumours, doubtless in the form of Number 10 briefings, abounded that Her Majesty’s government might offer two fingers instead of an olive branch to her judges. While still in the Home Office, I had had the pleasure of advising Clarke when he was a Home Office minister of state and before his first elevation to the cabinet as Education Secretary. He was, I knew, smarter than to dismiss the judges’ ruling out of hand – and so it proved. Instead, he despatched officials to recommend a new policy, one less offensive to the Law Lords’ concerns of discrimination and disproportionality. Sadly the resulting legislation was a triumph of form over substance, as if a response to an intellectual puzzle with little to do in any real sense with either liberty or security.

Back in 1997, in the months after the general election when ‘things could only get better’, New Labour had drafted a new Crime and Disorder Bill in which the concept of anti-social behaviour first took legal rather than colloquial shape. Anti-social behaviour orders, or ASBOs, were championed in some progressive circles as a civil order offering a last chance for petty criminals to stay out of the criminal justice system. They could equally and more accurately be sold as a gung-ho means of summary punishment with no need for charges, evidence or proof.

ASBOs involved a definition of bad behaviour far vaguer and more sweeping than that provided by the criminal law: ‘conduct which caused or is likely to cause harm, harassment, alarm or distress’. The police or local authority could apply for an ASBO and, if a magistrates’ court was satisfied that this low threshold of concern had been met, it would grant an injunction with a wide range of conditions, breach of which constituted a criminal offence punishable with imprisonment.

ASBOs could create a bespoke and arbitrary criminal code for people who had never been proved to have breached the ordinary criminal law of the land. In the words of the Prime Minister, outlining his ‘five-year plan on law and order’ in July 2004: ‘We asked the police what powers they wanted and we gave them to them.’

But in the copy and paste world of policy and legislation by numbers, the circumvention of criminal due process with civil orders was to find an even more chilling apotheosis. In 2005, the ASBO was crossed with the secret administrative procedure that was SIAC to produce the mutant creature that became the ‘control order’. Now punishment without charge or trial would not even be based on hearsay and a magistrate’s view of what might or might not constitute nuisance, but on secret intelligence and the Home Secretary’s suspicions alone.

Control orders would apply to Britons and non-nationals alike, in an attempt to meet the Law Lords’ concerns about discrimination. Further, they used not formal institutional imprisonment but house arrest, in order to seem more moderate and proportionate than, for example, internment in the notorious Belmarsh. In practical terms, however, these ‘anti-terror ASBOs’ provided neither safety nor freedom. As with the more common measures on which they were modelled, they were often and easily breached by those prepared to take the simple step of cutting off a plastic ankle tag in order to abscond. Yet they were capable of blighting the lives of the genuinely law abiding and their families, including small children, who also suffered a whole range of Home Office rather than court-ordered indignities, intrusions and restrictions on secret and unproven suspicions alone – with no need for a criminal charge or trial. Indeed, Gareth Peirce once pointed out that for some of her single male clients, including one who was quite significantly disabled and wheelchair-bound, institutional imprisonment would at least have provided some company and association rather than the solitary confinement of being kept home alone.

When the Prevention of Terrorism (Control Order) Bill was introduced in early 2005, it met with vocal opposition from both the left and right-of-centre of British politics and the press. The principal political opposition was led by the formidable Conservative team of Shadow Home Secretary David Davis and Shadow Attorney General Dominic Grieve. The Liberal Democratic leadership under Charles Kennedy appeared more distracted and less sure-footed, but nonetheless their rank-and-file membership were united in their belief in the right to a fair trial as a core liberal value. Indeed, Lib Dem leaders sometimes overlook the fact that while Labour and Conservative activists and voters often coalesce around their view of tax and spend and split almost 50/50 along the liberal–authoritarian axis, both political principle and polling suggest that liberals of both the left and right of the economic centre are likely to unite around a shared view of rights and freedoms despite disparate opinions on almost every other issue.

The most moving stand against control orders came from New Labour’s own ranks during the House of Commons' second reading of the draft legislation. This was the first opportunity for MPs to debate the main principles of the bill. In a speech that made the hairs on the back of my neck stand on end, the now former MP for Stevenage, Barbara Follett, described the orders as having an ‘extraordinary resemblance’ to similar laws employed in apartheid South Africa and under which her first husband, Richard Turner, lived for five years for campaigning for the universal franchise in that country:

House arrest hampered but didn’t stop him … That is why, just before his five-year order was due to expire, he was shot dead in front of our two young daughters in their bedroom …

In the days that followed I tried to comfort them by telling them we were going to Britain where people were not detained without trial or put under house arrest.

After a series of bruising defeats and essentially cosmetic concessions including the now entirely predictable presentational trick of co-opting the judiciary into a one-sided secret process, an exasperated Prime Minister Blair appeared on national television to warn opponents that ‘enough was enough’ and threatened to call a general election on the issue of control orders alone. Unsurprisingly, after such anti-democratic brinkmanship, the legislation then passed both houses without much further difficulty, the government appearing to cede ground in what was essentially a time-worn ruse. Typically, the government turned up to Parliament armed with pre-planned fall-back positions to which it always expected to have to resort without actually giving way on any of the planned legislation’s fundamental points. Judicial bells, whistles and sugar-coating notwithstanding, so it proved: people subject to control orders would still be subject to lengthy curfews and other serious restrictions on their liberty on the basis of suspicion and secret intelligence that neither they nor their lawyers would ever be able to test.

And this was a direct replacement for the criminal charges, evidence and proof before a jury of one’s peers that people in our country had come to expect for 790 years.

In May 2005, not long after the passing of the Control Order Bill, came New Labour’s third general election victory, declining popularity and the Iraq War notwithstanding. Despite continuing battles with him over liberty and privacy in particular, I was glad to see Mr Clarke keep the Home Office brief. A consummate democrat, he always ‘played the ball’ rather than the woman, even to the point of meeting with Liberty regularly and telephoning with prior notice of controversial announcements that he knew we would oppose. We could, had and would do worse.

And when the 7/7 London bombings followed two months later, he chose the contemplative rather than the knee-jerk approach. The same, sadly, could not be said for the Prime Minister.

On 7 July 2005, a day after London won its bid to host the 2012 Olympics with a pitch based on its open multicultural values and internationalism, four young men – men as British as I – detonated bombs across central London, three on London Underground trains and the fourth on a red double-decker bus, killing themselves and fifty-two innocents in the process. When in due course their pictures were published, I recognized one of the victims: Karolina Gluck, a friendly receptionist who had greeted me when I went to speak at a Central London college a short time before.

I’ll never forget that morning: coming into work and hearing news about some kind of ‘disruption’, ‘perhaps electrical’, on the Underground. The authorities were clearly keen not to cause widespread panic and it was a while before the real story emerged. I felt sick at the loss of life and optimism and at the even tougher times to come for Liberty. Completely irrationally, I phoned and phoned my son’s nursery, even though it was just a short walk from Liberty’s office and nowhere near the bombings. When the line was constantly engaged for a few minutes – what felt like an eternity – I told my senior colleagues that we should assemble the entire staff in an hour.

Then I ran over to the nursery and stole a glimpse of my three-year-old playing happily with his friends, before rushing back to the office to speak to my shaken colleagues – all of whom, thankfully, were safe. We spoke about how we felt and the personal and emotional attacks we might expect individually and institutionally in the times ahead, as the shock and grief of a capital and country turned to anger. (In truth, there was far less hatred directed at my Liberty colleagues than I had expected.) The rest of the day was oddly quiet and I spent it following the unfolding news of the atrocity. The next day, the reaction began.

My first duty was to appear on a breakfast television sofa next to my friend Melanie Phillips, with whom I had so often sparred on home affairs issues. She greeted me in the wings of
the studio with a warm whisper – ‘Are you and yours OK?’ – before we went on to the set for a predictable conversation about closing the borders and locking down the country. I remember imploring the presenter to wait for more facts to emerge. How did we know that the murderers weren’t British nationals?

And so it proved: the perpetrators were home-grown ‘clean skins’ who couldn’t have been prevented by Belmarsh internment or control orders. Further they deliberately, it seems, carried identifying documents among their possessions – a detail which rendered the whole debate about identity cards irrelevant in this context. This didn’t prevent some less statesmanlike politicians publicly blaming civil libertarians for the atrocity, but they were few in number and out of step with the prevailing mood of calm unity. The Home Secretary was more in tune. The day after the atrocity Charles Clarke resisted any temptation to make political capital out of the tragedy, speaking of the importance of civil liberties and conceding that identity cards would not have prevented the previous day’s horrors.

In the days that followed, London’s Mayor Ken Livingstone convened a memorial gathering in Trafalgar Square. There were many political speeches, calls for unity and liberal democracy and against knee-jerk prejudice. I read an elegiac passage from Peter Ackroyd’s
London: The Biography
.

Although a failed second attack a couple of weeks later seemed unable to shake the general air of calm resolve, things were about to change. On 5 August, Prime Minister Blair convened a press conference at which he issued a now infamous statement: ‘Let no one be in any doubt. The rules of the game are changing.’ The ‘game’ was his national security policy and the ‘rules’ our fundamental rights and freedoms; the metaphor – in poor taste – summed up a speech whose emotional extravagance masked its tactical awareness. Blair had seized the moment. Deportation to places of torture was now back on the agenda, as
was a new speech offence of ‘condoning, glorifying or justifying terrorism’. Extreme but non-violent Islamist groups (Hizb ut-Tahrir) would be banned, as they were in parts of the Middle East. Suspects might be detained for up to six months without charge. In response to a placed question from a friendly journalist, Blair responded to Lord Hoffmann’s famous flourish about the ‘real threat to the life of the nation’ with an ‘I told you so’ moment: Blair retorted that he doubted that those words would be uttered now – even though none of his mooted measures, let alone the one previously impugned by the Law Lords, would have prevented 7/7. This was nasty politics, pure and simple.

And while not six months but only three, in a fresh echo of apartheid, the ninety-day pre-charge detention policy was born and the Prime Minister’s namesake, the Met Commissioner Sir Ian Blair, was employed as a cheerleader-in-chief for Number 10 policy. Policing and the police service would become politicized as never before, to the regret of many officers of all ranks. Many of them would stop me in the street in the months and years that followed to voice their support of and solidarity with Liberty’s defence of the rule of law and the non-political, if imperfect, institution that they had chosen to serve.

But it wasn’t all one way. A 7/7 survivor called Rachel North began blogging and speaking about her experiences of horror and beyond. The human kindness and generosity in that God-forsaken Piccadilly line carriage; the Muslim woman who gave up her headscarf as a bandage and the way fellow survivors had held hands in the dark. An advertising executive, Rachel came to be one of the greatest voices for fundamental rights and freedoms during the War on Terror and it was life-enhancing to share various platforms with her in the years that followed.

When terrorists attack us, they try to divide us. They want a panicked reaction and a divisive draconian response. It plays into their propaganda machine and by deeming them our
terrible enemies against whom we must wage war, we dignify and glorify their hateful cause.

But what I learned on July 7 2005 was that we are each other’s best security. We are the guardians of each other’s liberties. I learned this when the bomb exploded and on each carriage of the train, trapped underground in the terrifying darkness and screaming women and men took each other’s hands and comforted and calmed each other, shared water and passed around tissues, while other women and men ran to rescue the injured. Further horror and injury was prevented by people’s calm and altruistic response. And in the darkness, you could not know if the person who reached to touch you was female or male or what race or religion they were. Just a stranger in the dark on whom your sanity and survival depended. I have held on to that lesson ever since.
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