Date: Sat, 23 May 2015 13:31:49 +0100
From: sean@xxxxxxxxxxxxxxxxx
To: annette-rose-smith@xxxxxxxxxxxxx
Subject: The British Police State and Electronic Surveillance
This is an old essay, first published in one of the professional law
magazines. I see, however, that the British State is reviving its
proposal for the surveillance and recording of our on-line
activities. I humbly suggest that the essay should be reposted
wherever it may be seen.
Regards,
Sean
Another
Surveillance Law:
One More Step towards the Big Brother State
By Sean Gabb
(Published in The Barrister, May 2012)
At the beginning of April 2012, the BBC and a couple of newspapers
reported that the British Government was considering a new
surveillance law. This would allow it to monitor the telephone
calls, text messages, e-mails and website visits of everyone in the
United Kingdom. There was a flurry of debate about civil rights and
the need to protect us all against terrorists. There was a side
argument between those who said the law was required by the European
Union, and those who said it would be in breach of European Union
law. Since then, the various debates have gone quiet. Possibly, the
Ministers have decided to drop the matter. More likely, the initial
leak was to soften us up for something less ambitious to be
announced in the Queen’s Speech. The Ministers will say they have
“listened” to our concerns – and will use the lesser measure they
had in mind all the time as a precedent for moving to the full
measure in later stages. This being so, whether greater or lesser,
another step will have been taken to a Big Brother police state.
In common with other civil libertarians, I have been arguing for
thirty years that Britain is heading towards a police state. There
are two main reasons why we were, until recently, ignored. The first
is the residual inability to believe that a police state could
emerge here. England is the land of the common law and habeas corpus
and trial by jury, of freedom of speech and religious toleration, of
accountable and representative government, of privacy and
individualism. We have enjoyed these things, at least in outline,
since the middle ages. We taught them to the rest of the world. The
doctrines known as classical liberalism are, however abstract their
statement can often be, a meditation on English history. That eight
hundred years of development – and perhaps longer, if we look beyond
the Conquest – could be swept aside in one or two generations is
hard to conceive.
The second reason is that a police state is commonly defined by its
extreme manifestations. We have no obvious secret police in this
country, nor any counterpart of the Soviet and national socialist
concentration camps. Children are not given medals for informing on
their parents, and we can make jokes about our rulers. Oh, nasty
things are beginning to happen. Last year, for example, Mark Duggan
was dragged by the police from a taxi in London and shot to death.
In general, the police are increasingly partial to killing members
of the public – sometimes at random. Or there has been the arrest
and prosecution of Emma West, for being rude to the other passengers
on a South London tram. But these events are still exceptional. If
you want to define a police state by South American or East European
practice, Britain is not a police state.
However, a police state is less about enforcement than control. Its
function is to make a ruling class irresistible when robbing and
oppressing, or when imposing its utopian fantasies. If people can be
made to obey without being clubbed to death in a police cell, why
bother with violence? There is no British Gestapo or KGB or Stasi,
because our own police state rests on a foundation of changes of
investigatory and criminal procedure and of omnipresent
surveillance. When people know that they are being watched in all
that they do, and when they know that stepping over some invisible
line will put them to great inconvenience and expense, they will
change their behaviour and their attitudes to authority. It is not
illegal to buy most kinds of pornography. It is not illegal to buy a
bottle of whisky every day, or two hundred cigarettes a week. It is
not illegal to join a group that works for the mass-conversion of
the white population to Islam, or to join the British National
Party. But how many people will decide not to do these things if the
details are being logged against their names in a central database?
After all, being a known consumer of pornography may bring the
police to the door when a child goes missing from down the road.
Smoking and drinking may compromise the right to NHS treatment, or
to adopt children, or even to continue looking after their own
without supervision and preaching by the authorities. Membership of
disapproved organisations may bring all manner of quiet
persecutions.
When watched in this way, people will be more inclined to conform to
whatever may be the current preferences of those in authority.
Moreover, many will be inclined to show cheerfully willing – after
all, a state able to persecute is also able to reward. Perhaps, when
it has become enough of a habit, cheerful obedience will even ripen
to love of the authorities. After all, resistance to oppression has
always been less common than loyalty to the oppressors. When Stalin
died, it was not only from prudence that millions in Russia broke
down and wept in public. Possibly much of the grief when Kim Jong Il
died the other month was also genuine. Show most people a stick, and
beat them with it, and their response will eventually be to kiss it.
And this is what makes the logging of our electronic communications
so important. It is a central component in the apparatus of
surveillance and control. Of course, the Ministers and the general
authorities will never admit that this is its purpose. They insist
on its need so we can all be kept safe from terrorists and other
criminals. They tell us that no ordinary people will be affected –
that those with nothing to hide have nothing to fear. Well, this
argument should by now be seen with the contempt it deserves. We all
have something to hide, even if it is not presently against the law.
And the argument has been used again and again. How often have we
been told that a deviation from the old constitutional norms is
needed in the face of some exceptional danger, and that the new
powers will only be used against that danger? How often have the new
powers been immediately used to spy on and control ordinary people?
Well, there was the Drug Trafficking Offences Act 1986. This made it
possible for criminal proceeds to be confiscated after conviction,
and by reversing the burden of proof, so that the defence had to
argue that any assets in question were not the proceeds of crime.
Enoch Powell denounced this in the Commons as a gross breach of our
due process rights. The Ministers in the Thatcher Government replied
that the evils of drug trafficking were so great, they justified a
specific departure from due process that would never be allowed to
form a precedent. This “specific departure” was made general in the
Criminal justice Act 1988, and was eventually widened and
consolidated into the Proceeds of Crime Act 2002 – a law that
abolishes financial privacy for everyone but the rich, and that
enables something like the American civil asset forfeiture.
Or there was the Regulation of Investigatory Powers Act 2000. This
law to enable snooping, for any purpose, by any public authority,
was brought in amid promises that it was needed for the fight
against serious crime, and that it would never be used for normal
crime investigation. The Act is mostly used by local authorities to
check whether people are recycling their waste as demanded, or to
check whether parents really are living in the catchment areas they
put on school allocation forms.
Or there was the Extradition Act 2003. This made it possible for
British citizens to be deported to face trial in the United States
for actions committed in the United Kingdom that may not have been
offences under British law. We were assured by the Home Secretary
that this was needed for the fight against terrorism and “serious
international crime.” Look at these uses of the Act:
Giles Darby, David Bermingham and Gary Mulgrew (the “NatWest
Three”) extradited on charges of fraud committed in the United
Kingdom
Babar Ahmad – awaiting extradition on charges of running web
sites supporting the Chechen and Afghan insurgencies, without having
left the United Kingdom
Ian Norris – eventually extradited on charges of price fixing
that were not currently illegal in the United Kingdom
Richard O'Dwyer – facing extradition on charges of copyright
infringement
Christopher Tappin – extradited on charges of breaching
American sanctions against Iran, though the alleged offence was
committed in the United Kingdom, and though he was entrapped by
American officials who swore that no law was being broken
Even in the case of Abu Hamza – no doubt a very wicked man –
the charge was only of conspiracy. If we add to all this a
discussion of how the European arrest warrants have been used in
practice, we see that the Extradition Act has been less about
protecting us from global terrorists and Bond villains, than about
exposing British citizens and residents to arbitrary deportation to
foreign countries, usually with lower standards of justice than our
own, and often for acts that are not criminal offences here.
This is how every law allegedly made to protect us from terrorism
and serious crime has been used in practice. This is why we should
be so suspicious of the new electronic surveillance proposals.
But, even if the authorities are acting this time in good faith, the
proposals ought still to be resisted. Our British police state is
extraordinarily careless about the data it collects. This is always
being lost or stolen. In 2007 alone, the Department of Work and
Pensions lost the personal details of 45,000 claimants; a London
education authority lost the personal details of 160,000 children;
HM Revenue and Customs lost the personal details of 25 million
families who were claiming child benefit; The Driving Standards
Agency lost the personal details of three million candidate drivers.
Even if it does not hand them over to despotic foreign governments,
or sell them to multinational corporations, can the British State be
trusted to keep our electronic communications secret? How unlikely
is it that a database of our credit card purchases will not be left
on a memory stick in a pole dancing club?
But let us join this theme of incompetence to the main subject of a
police state. I have admitted there is much that distinguishes us
from really nasty places like East Germany. But one of these points
of difference is that the East German police state at least kept
people from being robbed in their homes or beaten up in the street.
Whatever the price in human rights, the East German police state
gave people a country in which they could feel safe. Our own
situation is best described as “anarcho-tyranny.” People who urinate
in bus shelters, or dig up and steal copper wiring from the National
Grid, or make life hell for their neighbours, or may be involved in
real terrorist offences, are not prosecuted, or are defended by an
army of human rights lawyers at our expense. The police state never
touches them. Instead, the rest of us get our post opened by town
hall snoops, who think we are trying to get our children into a
better school. A man gets an ASBO for standing alone beside the
Cenotaph and reciting the names of our war dead in Iraq. A student
gets arrested for suggesting a police horse might be gay. Christian
evangelists get arrested for quoting some of the less charitable
verses from the Bible about homosexuals.
I suggest, given all the available evidence, that this county is
ruled at best by some very stupid and incompetent people. At worst
it is ruled by people who say they need a police state because they
want to fight crime and terrorism, but in fact need fears of crime
and terrorism because they want a police state. Whatever the case,
they should not be given the right to gather and store details of
our electronic communications.
--
Sean Gabb
Director
The Libertarian Alliance (Recognised by HMRC as an
educational charity for tax purposes)
sean@xxxxxxxxxxxxxxxxx
Tel: 07956 472 199 Skype: seangabb
Postal Address: Suite 35, 2 Lansdowne Row, London W1J 6HL,
England
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