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Civil Liberties in the aftermath of the atrocities
of 11th September 2001


by James Hammerton

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The steady erosion of civil liberties in Britain before 11/09/01
The Anti-Terror, Crime and Security (ATCS) Act 2001
  Allowing confidential information to be disclosed to the police
  Giving the MoD police jurisdiction over the entire UK
  Retention of communications data for use by the police/security agencies
  Extending anti-terrorist/criminal justice laws by decree
  Indefinite Detention of foreign nationals
On the time-limits in the ATCS Act
Other measures in the pipeline
Conclusion: Looking to the Future  


In the wake of the events of September the 11th, many governments are reviewing their laws and security procedures, in order to try to reduce the risk of similar things happening again, and/or to be seen to be doing something about terrorism. The hijackers demonstrated that a group of well-organised and determined people could carry out destructive terrorist attacks that result in thousands of casualties, simply by exploiting lapses in airport security, taking a bit of flight training, having some knives and a few people willing to commit suicide for their cause.

Clearly, preventing this sort of thing occurring is now a priority for the world’s intelligence and security agencies. It is natural for laws to be revised in dealing with this threat. Unfortunately, there is also a danger of the governments involved using the response to the terrorist threat to push through legislation that they want on the books to increase their power, rather than to tackle terrorism. It is my contention that in the British government has done precisely this.

Civil liberties in the UK have been considerably eroded since 1990 under both Tory and Labour administrations. Now, the current government’s response to the attacks on the World Trade Centre has been yet another serious attack on civil liberties and a significant accumulation of power by the executive. In the long run, the accumulation of arbitrary power by the state over the individual could prove at least as serious a threat to our way of life as that of the terrorist threat posed by the likes of Al-Qaida, if not a greater one. History shows us what can happen when the state acquires arbitrary power to do as it wants—Nazi Germany and Stalinist Russia provide cautionary examples where the state acquired total power to do what it wants.

Some may think that the response to September the 11th requires some civil liberties to be curbed, at least on a temporary basis, whilst we deal with the threat posed by groups such as Al-Qaida. However, whilst this view might have some merit, I shall argue that much of the Anti-Terrorism, Crime and Security Act, the government’s main legislative response to September the 11th, goes far beyond any such necessary measures and represents, not a genuine attempt to deal with terrorism, return to index on Civil Liberties in the aftermath of the atrocities of 11 September 2001 - James Hammertonbut a dangerous acceleration of a long-running trend whereby the fundamental freedoms and protections from arbitrary state power in Britain are being progressively dismantled.

The steady erosion of civil liberties in Britain before 11/09/01

Note: you can find all the legislation referred to here that was passed since 1988 online at the HMSO website. In a trend stretching back at least until the 1980s, and which has accelerated strongly since the year 2000, the basic protections for the individual against state power have been steadily eroded in Britain, with all of the following occurring prior to September 11th 2001:
    In 1987, the Serious Fraud Office (SFO) was created. In cases handled by the serious fraud office the right to silence was effectively abolished. The SFO can call people to answer questions. It is an offence not to answer the questions to the best of your ability. (Criminal Justice Act 1987).

    In 1994, the right to silence both in custody and in court was weakened by allowing courts to draw inferences from it (Criminal Justice and Public Order Act 1994, Sections 34-39). See also Prime recent and proposed attacks on civil rights in the United Kingdom.

    Part III of the Police Act 1997 (Sections 91 to 108) enables the police to break into any property and place bugs or other surveillance equipment within it if the chief constable of a jurisdiction believes it may help in fighting serious crime. The police do not need to suspect the owners of the property to be involved in crime in order to do this and the decision is internal to the police. Also see Prime recent and proposed attacks on civil rights in the United Kingdom.

    The Regulation of Investigatory Powers Act 2000 enables the authorities to perform mass surveillance of electronic communications, to surveil individuals’ electronic communications, to demand that communications service providers provide the government with access to a customer’s communications and keep the fact they gave such access secret forever, and to demand that users provide keys to encrypted files. If you ever had the key the onus is on you to prove you no longer have it.

    The Terrorism Act 2000 (Sections 3 to 13) enables the government to ban organisations without a trial, making it an offence to be a member of the group, and also making it an offence to arrange or address meetings in support of the group. Several offences in the Act involved reversals of the presumption of innocence.

    The Terrorism Act 2000 (Section 1) also defines terrorism as any (threatened) action taken for the purpose of furthering a political, religious or ideological cause that is aimed at influencing any government or intimidating any population that involves (a) serious violence against a person (b) causing serious damage to property (c) puts someone’s life in danger other than the person taking the action (d) threatens the health or safety of the public or (e) is designed to seriously interfere with or disrupt any electronic system. Thus people who hack computers, destroy GM crops or otherwise damage property, for a political purpose would count as terrorists even if they never endangered anyone’s life, harmed anyone or intended to harm anyone. Moreover potentially even organising a mass faxing or email campaign could fall foul if it causes a fax machine to breakdown or overloads an email server. And one only needs to threaten such action against any government (no matter how repressive or what the political purpose is) for it to count. The Football (Disorder) Act 2000 enables the police to have banning orders put on people, preventing them from travelling when football matches are on, without having to prove they committed any offence.

This legislation has seen all of the following rights and safeguards attacked: the right to silence, the right to a fair trial (regarding organisations), freedom of association, freedom of movement, freedom of speech, the right to peaceful protest and the presumption of innocence. This is by no means a comprehensive list, either of offending legislation return to index on Civil Liberties in the aftermath of the atrocities of 11 September 2001 - James Hammertonor the measures contained within the legislation referred to. Details on many of these issues can be found here at the MagnaCartaPlus website and my civil liberties site.

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The Anti-Terror, Crime and Security (ATCS) Act 2001

(See also Prime recent and proposed attacks on civil rights in the United Kingdom.)

Many people will be aware of the most publicised measure of the ATCS Act 2001, namely the indefinite detention of foreign nationals certified by the Home Secretary to be “suspected international terrorists”.

Were the Act to contain this measure alone, I might not have written this article, though I do find it rather objectionable (I’ll return to this later). However the Act contains 129 clauses, and those clauses that implement this measures constitutes only 15 of them. There are many other measures hidden in the Act such as:

    enabling the police to access confidential information held by government departments and public bodies for the purposes of any criminal investigation, including passing the details on to other police forces round the world (Sections 17 to 20).

    giving the Ministry of Defence Police jurisdiction across the UK, rather than only on various MoD properties as was allowed before (Sections 98 to 101).

    requiring communications providers to store details of users’ communications as the Home Secretary orders and provide them to the police for the purposes of any investigation (Sections 102 to 107).

    allowing the Home Secretary to extend criminal justice and anti-terrorism legislation via secondary legislation and without prior parliamentary approval (Section 124), thus allowing the government to legislate on criminal justice matters by decree, a power normally reserved for dictators.

Whilst this does not cover every measure in the Act, it does cover the most objectionable measures. I deal with each in turn below.

Allowing confidential information to be disclosed to the police

Sections 17 to 20 of the Act enable confidential information, stored by most government departments and public bodies, to be disclosed to the police for the purpose of investigating any crime. They do not need to provide evidence a crime has been committed, nor are there any judicial or other checks. The information covered is wide ranging, from medical records (thus compromising medical confidentiality) to financial records, amongst much else. Furthermore, the police can pass this information on to other police forces around the world.

Thus, on the basis of the flimsiest of excuses, the police can get access to confidential information and use it for their own purposes, and pass it on to other police forces.

Whilst some of this information may be useful in the fight against terrorism, it is not necessary for it to be made so easily available, or for it to be made available for investigating non-terrorist petty offences. The scope for abusing this power is considerable. If the police wish to get hold of information simply to discredit someone return to index on Civil Liberties in the aftermath of the atrocities of 11 September 2001 - James Hammertonor undermine their position, they can do so now using flimsy pretexts and with no scrutiny.

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Giving the MoD police jurisdiction over the entire UK

The Ministry of Defence Police are an armed police force who police various MoD installations. Their jurisdiction was restricted to those areas.

The ATCS Act (Sections 98 to 101) gives them the power to assist local police forces when requested. It also gives the MOD police the power to arrest people anywhere in the UK, on suspicion of committing any offence in circumstances where they believe their purposes would be frustrated by having to obtain the local police force’s permission ,and where they believe lives may be saved, or injuries prevented by doing so. Note that because this is based on what the MoD police officers believe, it therefore gives them considerable leeway to use their powers anywhere in the UK and then think of an excuse to justify it afterwards.

Unlike the normal police forces in the UK, the MoD police are not accountable to the Police Complaints Authority and nor do they answer to the magistrates and councillors of a police authority. The MoD police is accountable only to a Whitehall department. Thus, this clause effectively creates a national paramilitary police force accountable only to the government. Thus, it becomes a direct tool of the government that is not subject to the normal controls of the normal police. The scope for the government to abuse the power thereby acquired is considerable.

Is it necessary for the fight against terrorism? No, because the normal police have all the powers they need (and that the MoD police would have) to arrest suspects and question them, and they have armed response units should they face armed terrorists.

Nor is this measure restricted to fighting terrorism -- the MoD police could be called out to police a march or to deal with any offence.

Retention of communications data for use by the police/security agencies

Sections 102 to 107 of the Act make arrangements for companies to store communications data in order for the police to be able to trawl it. Thus, who you email, who you phone, what websites you visit, what information you give to those websites, what files you download, who phones you and who emails you would be retained and made available for the police investigating any offence. The main clause (102) involves voluntary codes of practice, but clause 104 enables the Home Secretary to require that a communications service provider do these things. This power lasts for 2 years. It can be renewed, however, and most probably will be, judging by earlier renewable legislation (see below).

Again the scope of this is not restricted to terrorism. Moreover terrorists are likely to use communications channels not covered by this, or communicate anonymously using code, or otherwise circumvent this measure. This will leave law abiding citizens with their communications being monitored and trawled by the police, return to index on Civil Liberties in the aftermath of the atrocities of 11 September 2001 - James Hammertonbut perhaps that’s what the government wants.

Extending anti-terrorist/criminal justice laws by decree

Section 124 of the Act allows the Home Secretary to issue orders that “make such incidental, consequential, transitional or supplemental provision as he thinks necessary or expedient for the general purposes, or any particular purpose, of this Act or in consequence of any provision made by or under this Act or for giving full effect to this Act or any such provision”. Furthermore these orders can make provision for “applying (with or without modifications) or amending, repealing or revoking any provision of or made under an Act passed before this Act or in the same Session”.

Thus, the Home Secretary can make arbitrary changes to any legislation passed prior to, or in the same session as the ATCS Act 2001, if those changes somehow supplement or follow on from the ATCS Act or its purposes. The purposes listed in the preamble to the ATCS Act include extending both terrorist legislation and criminal justice legislation in general. The orders come into effect without prior parliamentary approval (though they can be subsequently annulled). Thus, the Home Secretary has obtained the power to extend our anti-terrorism and criminal justice laws by decree!

This measure is not necessary for fighting terrorism, since Parliament can pass legislation quickly in response to terrorist acts (as shown by the ATCS Act itself) and otherwise has full legislative power. Allowing the executive to pass such laws without prior parliamentary approval is a dangerous increase in executive power—it means that legislation does not get scrutinised or approved by Parliament, thus removing an important check on arbitrary state power.

Nor is this measure restricted to terrorist legislation—general criminal justice legislation falls within the remit as well.

Indefinite Detention of foreign nationals

The Home Secretary is given the power to certify that a foreign national is a suspected terrorist and a threat to national security, based on his (or the security agencies’) suspicions (Sections 21 to 36). That person can then be detained indefinitely if he cannot be deported, subject to reviews held in secret where evidence can be kept secret from both him and his lawyer.

Not only does this measure require part of the European Convention on Human Rights to be suspended but it puts any foreign national in the UK at risk of being locked up. Yet a terrorist could relatively easily circumvent this by acquiring a false (or even a geunine) identity as a British citizen so its usefulness against terrorists is questionable -- note that the Sept 11th hi-jackers had well established false identities. Furthermore the definition of terrorism used is that in the Terrorism Act 2000 which covers various forms of protest and does not require anyone to have harmed, threatened to harm or intended to harm anyone. Thus the measure (like others in the ATCS Act that rely return to index on Civil Liberties in the aftermath of the atrocities of 11 September 2001 - James Hammertonon this definition) is not restricted to terrorism.

On the time-limits in the ATCS Act

Some of the measures in the ATCS Act are time limited, most notably indefinite detention of foreigners and the power to give orders requiring communications service providers to retain communications data. These limits were included as a sop to people who thought the measures went too far. There is explicit provision for renewing the powers.

However it must be remembered that the Prevention of Terrorism Act, originally introduced in 1973, was supposed to be temporary. Successive governments renewed it annually and, eventually, its powers were extended and entrenched in permanent legislation in the form of the Terrorism Act 2000.

Moreover, the government has the power to amend the legislation to remove the limits via section 124, enabling amendment of the legislation, or any other legislation passed prior to or in the same session as the ATCS Act. This could happen without prior parliamentary approval.

Section 122 and 123 provide for review of the Act by a parliamentary committee which can recommend that provisions be repealed and, if the report is not responded to within 6 months, the provisions automatically die. Whilst this does provide some oversight of the legislation, given the amount of control the executive has over parliament, it is unlikely to make much difference. Moreover Section 124 could be used to remove sections 122 and 123 should the Home Secretary so decide!

Other measures in the pipeline

There are other measures curbing civil liberties that have been proposed and are likely to be implemented under this government, such as:
    restricting the right to jury trial to only the most serious offences. This is proposed in the Auld report on “reforming” the criminal justice system in the UK. It will ensure that most people are tried solely by employees of the state, and remove a core protection and guarantor of a free trial for most people. Recent reports suggested the government may have dropped these proposals, however they are planning a new Criminal Justice Bill in response to the Auld report for the next parliamentary session (i.e. in Autumn 2002) and it remains to be seen what they’ll include in it.

    The European Arrest Warrant Under this proposal, one EU country can ask the police in another to arrest someone for an offence that need not exist in the country of the defendant, have them extradited without having to present evidence in the courts of the defendant’s country, and then change the charges once extradited. Effectively, it would give all courts in EU countries, EU-wide jurisdiction and leave people at the mercy of courts in countries other than their own. See Statewatch’s Observatory on EU anti-terrorism proposals for more information. (Also see Prime recent and proposed attacks on civil rights in the United Kingdom.)

    Databases of “suspected” protesters and third country nationals to be created by the EU The first proposal would involve a central database being created of people whom the authorities suspect may cause trouble at political, sporting or cultural events and who may be prevented from travelling to an EU country on the basis of such suspicion. Another database will also be set up of all non-EU nationals as they arrive in the EU, creating a centralised list of “foreigners” in the EU, with alerts being put on them if they fail to leave after visas expire, etc. The scope for abusing either database is immense. People won’t be informed that they’re on the first database, and the second could be used by xenophobic and racist officials to hassle foreigners. These are part of proposals to extend the Schengen Information System to create a database of intelligence for access by the police/security agencies of EU countries.

This is by no means a comprehensive list (ID cards for the UK are likely to be another measure put forward), but it shows that the trend is on-going return to index on Civil Liberties in the aftermath of the atrocities of 11 September 2001 - James Hammertonand spreading beyond the UK. It also shows that the state is planning to ramp up its control over citizens considerably beyond the current situation.

Conclusion: Looking to the Future

For some time I have been concerned by the progressive erosion of civil liberties in the UK. Recent developments have turned this concern into alarm, as the pace of the erosion has been drastically accelerated and the trend appears also to be spreading to other countries. Similar measures to some of the above have appeared in the US and Canada, as well as the EU, for example; as have other drastic measures such as the use of military tribunals in the US.

What will the impact of all this be? The short to medium-term answer seems quite clear to me. There will be increased miscarriages of justice, and an increase in the abuse of state power enabled by the laws concerned.

People will be spied upon, arrested, interrogated, and even imprisoned without good cause, possibly for offences that don’t even exist in their own country. Information that people give in confidence to government bodies (e.g. their medical and financial records) will be trawled for even the most petty criminal offences, and some of those with access to it will abuse the privilege, and use the information they gain against those they do not like, or who challenge their power.

People will be blacklisted with the authorities merely for attending certain political protests. The authorities will trawl records of who people phone or email, what websites they access or which files they download, under the slightest pretext. State officials will be able to perform such trawls for their own purposes under minimal pretexts.

Furthermore, the ability of people to hold the authorities to account, whether it be through court cases to assert their rights, through political protests against government policies or decisions, by supporting political groups who engage in campaigning, or even through writing articles/letters in newspapers or on the web, will be undermined by laws restricting freedom of speech, freedom of association, the rights to peaceful protest, and by laws which diminish the role of elected bodies in scrutinising and approving legislation.

In short, individual political freedom will be seriously undermined, and a police state is emerging. In the long term, if the attacks on civil liberties and accumulation of arbitrary power by the executive continue, then we will find ourselves living in a totalitarian police state. I hope this doesn’t come pass. However, I fear the legislation the government has put forward as a domestic response to September 11th will push us ever closer to that destination.

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© 2002, 11 june

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