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This page provides occasional items, linked to the original articles, as we attempt to keep up with the rapidly changing situation on civil liberties.
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1st Jan to 9th Sept 2005

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David Davis to Gordon Brown: “Will you restore the freedoms we lost under Blair?”

Writing in the Independent, David Davis, the Tories’ Shadow Home Secretary states:

As Tony Blair reflects on his legacy, Taking Liberties, a film released on 8 June, documents how New Labour has undermined our ancient British freedoms over the past decade.

The Government says the rules of the game have changed: the terrorist threat has escalated and we must trade some freedom for our security. That assessment is superficial. New Labour has undermined our freedoms, but the most damning indictment is the liberty taken with our security in the process. Each shortcut the Government takes with our freedoms masks a shortcoming in its counter-terrorism strategy.

And:

In the present control order crisis, the Home Secretary blames the opposition, the courts and human rights for three terror suspects escaping. He complains he has one arm tied behind his back. The truth is he has been sitting on both hands.

More than a third of control order suspects are on the run. Reid’s latest buck-passing masks three mistakes, all his responsibility. Why did he not use all the existing powers available, including tagging, if these individuals were as “dangerous” as he says? Why, when they disappeared, did the Government wait two days to release their names, allowing them to flee the country through Labour’s lax border controls? And why is Reid suggesting we need extra pre-charge detention before exhausting all other avenues, including seeking a derogation from the European Convention on Human Rights, if necessary?

Talking(sic) Liberties charts Tony Blair’s legacy. The question is where does Gordon Brown stand in this debate. It is a sign of the leadership to come that he has said nothing on these issues.

Liberty and security are not tradable commodities. We cannot defend our freedoms by sacrificing them.

Taking Liberties, The Movie

Taking Liberties is a documentary film charting the erosion of civil liberties since 1997 has been produced and is due to be released in cinemas on June 8th. There’s also a book accompanying this. It’ll be interesting to see how much of mountain of the liberty eroding legislation this government has produced gets covered.

On the proposed “Stop and Question” powers

Britain’s (soon to be ex-)Home Secretary, John Reid has apparently proposed that the police should be given powers to stop and question people (see also the Telegraph’s and BBC’s coverage), possibly without needing to have “reasonable suspicion” of those they stop. Those stopped will have to identify themselves and answer questions about their movements, on pain of imprisonment and/or a £5,000 fine. Ironically this would involve establishing powers in mainland Britain that are due to be phased out in Northern Ireland.

Putting the assault on liberty (in particular the assault against the right to silence) this represents to one side, an interesting question here is whether such powers will be effective in combatting terrorism, the ostensible “raison d’etre” behind the proposal.

Now bear in mind that the police can already ask anyone anything they like, but no one is required to answer any of the questions. They can also arrest those that suspect of involvement in terrorism and place people under surveillance and also have stop and search powers. The government can also place control orders on people suspected of involvement in terrorism. For the proposed powers to make a difference they’d somehow have to catch those they aren’t already investigating/catching using existing methods.

There’s a simple reason for thinking it won’t make much difference — an actual terrorist questioned under these laws will simply give a cover story. Unless the police are prepared to surveil those they question, then they are unlikely to uncover the lies told to them by any criminals or terrorists they stop. Yet if they are prepared to surveil them, they don’t need to stop and question them under these proposed powers.

The impact therefore would seem to me to be that the police will get fairly reliable information about what law abiding people are doing, plus unreliable information from others whom they’d use existing powers to investigate anyway. And of course some law abiding people may not wish tell the authorities what they are doing, despite it being perfectly legal, since it may involve betraying confidences, advertising that one is a member of an unpopular group, or revealing an affair. I.e. it may involve revealing sensitive information that could be used against them by unscrupulous police officers.

It’s also worth considering the words of Cardinal Richelieu in this context:

If you give me six lines written by the most honest man, I will find something in them to hang him.

The point being of course that if you get enough information about an individual then a determined mind can cherry pick and/or reinterpret bits of it to paint that individual in a suspicious light, and power such as this, give the authorities the means to obtain such information for the purposes of harassing/silencing individuals who might challenge their power.

Finally, UK Liberty, Iain Dale, Tim Worstall and Samizdata have all given good commentary on this issue.

Latest developments on Freedom of Information in Britain

Posted by James Hammerton @ 6:51 pm on 25 May, 2007.
Categories British politics, accountability, freedom of information.
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Latest developments regarding Britain’s Freedom of Information Act:

  • Alistair Darling, a government minister, has expressed concerns about the use of the Freedom of Information Act to obtain civil servants’ advice to ministers and MPs’ correspondence with Ministers, suggesting he wants tighter restrictions on the FoIA over such communications. In his leaked letter to Lord Falconer he writes:

    First there is the position of MPs’ correspondence under the Act. Disclosure of letters between MPs and Ministers, even if ostensibly innocuous, will inhibit the dialogue between MPs and their constituents and MPs and Ministers. It can’t be right that a constituent’s affairs could be made public because he asked his MP to write to a Minister. And if we are to live under the constant threat of publication, this will prevent MPs from expressing their views frankly when writing to a Minister. We need urgent advice on what the position is.

    Second, I am concerned that the FOI Act, as it appears, prevents us from protecting robustly and across the board advice from officials to Ministers. Here again we should be able to guard more effectively against the incremental harm to the policy development process that must inevitably arise from the disclosure of individually innocuous submissions.

    He concludes:

    For immediate purposes, I would ask that officials, led by yours, conduct a speedy review of these aspects of the FOI.

    On MPs’ correspondence and advice to Ministers, we need to examine whether a more robust approach is possible to applying FOI exemptions and the scope for a more generic approach to guard against incremental harm from individual disclosures.

    On coordination between Departments, it would be helpful if officials could examine interdepartmental arrangements for handling FOI requests, taking in the role of the Clearing House, to ensure a consistent and rigorous approach to cross cutting requests. I expect this would entail clear instructions across Whitehall from your Department.

    Beyond that, we will need to watch Information Tribunal case law carefully and in due course consider whether change to the legislation is needed to redress an apparent imbalance between the “right to know” and the protection of private space where necessary for good governance.

  • There are reports that Lord Trefgarne may have decided to sponsor David Maclean’s Freedom from Scrutiny Freedom of Information (Amendment) Bill in the Lord. Without a sponsor the bill will fall. From the Press Gazette:

    Critics of a backbench bid to exempt Parliament from the Freedom of Information Act today vowed to do everything possible to stop it becoming law amid confusion over whether it has found a Tory backer in the Lords.

    The Liberal Democrats said Lord Trefgarne had agreed to sponsor David Maclean’s Freedom of Information (Amendment) Bill - a claim later confirmed by Government sources.

    Maclean, the Tory former chief whip, refused to confirm the reports but said: “He is one of a few people I am talking to about it. There is no rush.”

    Meanwhile, a Conservative Party spokeswoman insisted a sponsor had not yet been secured in the Lords.

  • Richard Thomas, the Information Commissioner has stated he hadn’t received any complaints about MPs’ correspondence with their constituents being released, undermining the case being made for the bill by its proponents. From the Independent:

    Richard Thomas, the Information Commissioner, said he had not received any complaints from members of the public that their correspondence with an MP had been wrongly disclosed under the terms of the two-year-old legislation.

    Note that the legislation is actually 7 years old, but has only been in operation since 1st January 2005.

David Cameron and Freedom of Information

Posted by James Hammerton @ 9:06 pm on 24 May, 2007.
Categories British politics, accountability, freedom of information.
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After failing to turn up and vote (which Menzies Campbell, Tony Blair and Gordon Brown also failed to do) when the House of Commons voted for the Freedom of Information (Amendment) Bill, David Cameron has instructed Tory peers to block the bill:

David Cameron has told Conservative peers to vote against a controversial
bill introduced by one of his own backbenchers which would exempt MPs from the Freedom of Information Act.

The Tory leader said he wanted to find a way to protect MPs correspondence but that he could not support the private members’ bill, pushed through the Commons last week by former Conservative chief whip David Maclean. “If it could be amended in such a way that we are happy with, we would
consider it, but at the moment, it is no go,” Mr Cameron said.

In my view, this is the correct approach. The bill as it stands will exempt Parliament from Freedom of Information Act(FoIA) and will also exempt all correspondence between MPs and public authorities. The ostensible concern behind the bill was to protect the correspondence MPs made on behalf of their constituents with public authorities. If the bill had been written simply to protect this correspondence, then it would be a reasonable amendment to our current FoIA legislation making it absolutely clear such correspondence is not to be released.

Such correspondence should already be protected by the Data Protection Act, and sections 40 and 41 of the FoIA, but some MPs have expressed concern that this existing protection isn’t working. A bill targetted at strengthening this protection is fine, though I suspect issuing better/simpler guidance on the matter to the relevant public authorities would also be a solution.

However, I don’t understand why a bill completely exempting Parliament and the totality of MPs’ correspondence with public authorities was proposed as the means of dealing with this problem.

Finally, David Maclean has proposed to amend the bill to make publication of MPs’ expenses mandatory. Welcome as this move is, it misses the point which is that Parliament should not have a blanket exemption from the FoIA.

Gordon Brown and Freedom of Information

Posted by James Hammerton @ 8:59 pm on .
Categories British politics, accountability, freedom of information.
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The Telegraph reports that Gordon Brown will block the government’s attempts to water down the FoIA:

The Chancellor is ready to block plans drawn up by Lord Falconer which critics claim are designed to make it more difficult for people to obtain information from Whitehall.

I hope the Telegraph is right about this as it would be a welcome move, since Lord Falconer’s proposals would seriously weaken the FoIA.

There is also the matter of David MacLean’s Freedom of Information (Amendment Bill) that exempts Parliament from the FoIA. On this, the Telegraph reports:

Mr Brown wants to see the Private Members’ Bill, which was tabled by David Maclean, the former Conservative chief whip, rewritten to make clear that MPs will still have to publish full details of their expenses and allowances.

With David Cameron, the Conservative leader, adopting a similar position, Mr Maclean said last night that he was prepared to change his Bill to ensure that there was a statutory requirement to publish MPs’ allowances.

Whilst making the publication of MP’s expenses a statutory requirement would be a welcome move, it does not address the fundamental problem with David Maclean’s bill, which is that it would exempt Parliament from FoIA completely and thus the public would have no right to any information about Parliament’s business other than that which Parliament chooses to
release itself. Making it mandatory to publish the expenses would still leave all other information down to Parliament’s whim. And it would still exclude all MPs’ correspondence with public authorities.

The bill should either be dropped or should be amended to specifically exempt MP’s correspondence on behalf of their constituents with public authorities (the ostensible concern Maclean claimed to be addressing with his bill).

I’ll comment on David Cameron’s approach to this later.

The Freedom of Information Act and MPs’ correspondence

Posted by James Hammerton @ 12:06 am on 23 May, 2007.
Categories British politics, accountability, freedom of information.
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In my previous article on this topic, I noted that proponents of the bill claim the bill is necessary to protect MPs’ communications with, or on behalf of, their constituents from being released. This justification for the bill is set out in some detail in the Public Bill Committee’s consideration of the bill at a meeting on the 7th February 2007.

I shall respond to several points:
(more…)

Latest on the Freedom of Information (Amendment) Bill

Posted by James Hammerton @ 11:03 pm on 22 May, 2007.
Categories British politics, accountability, freedom of information.
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MPs voted for this bill last Friday and it now heads up to the House of Lords. However the Liberal Democrats and the Tories have pledged to block the bill in the Lords.

The latest version of the bill can be found here.

Proponents of the bill claim that it is necessary to protect the communications of members of the public with their MPs from publication. The problems with this argument are:

  • The bill exempts both the House of Commons and the House of Lords from the FoIA, i.e. the public will no longer have a right to know with regards to the business of Parliament. Parliament will decide for itself what information it releases.
  • The bill also exempts all correspondence between MPs and public authorities, not just the correspondence that references information about constituents.
  • Section 40 of the Freedom of Information Act already exempts information where its release would violate the Data Protection Act, and releasing information about what a constituent has said to their MP would count.

I will return to the arguments put forward by the proponents of the bill later.

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