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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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2002 - 2004

1st Jan to 9th Sept 2005

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Gordon Brown and civil liberties

Last week, at the University of Westminster, Gordon Brown gave us a speech on liberty and what it means for Britain. I have responded to this speech below. Quotations from the speech are indented.

Addressing these issues is a challenge for all who believe in liberty, regardless of political party. Men and women are Conservative or Labour, Liberal Democrat or of some other party - or of no political allegiance. But we are first of all citizens of our country with a shared history and a common destiny.

And I believe that together we can chart a better way forward. In particular, I believe that by applying our enduring ideals to new challenges we can start immediately to make changes in our constitution and laws to safeguard and extend the liberties of our citizens:

* respecting and extending freedom of assembly, new rights for the public expression of dissent;
* respecting freedom to organise and petition, new freedoms that guarantee the independence of non-governmental organisations;
* respecting freedoms for our press, the removal of barriers to investigative journalism;
* respecting the public right to know, new rights to access public information where previously it has been withheld;
* respecting privacy in the home, new rights against arbitrary intrusion;
* in a world of new technology, new rights to protect your private information;
* and respecting the need for freedom from arbitrary treatment, new provision for independent judicial scrutiny and open parliamentary oversight.

Note here how Mr Brown is talking about giving us “new” rights to express dissent, “new” protections of privacy and “new” rights against arbitrary intrusion. The main reason we need “new” protections is precisely because this government has trashed many of the old ones!

Furthermore, since becoming PM, Gordon Brown’s government has:

Despite all this, he expects us to believe he wishes to protect individual liberty! His speech goes on to discuss the history of liberty and the rights of the individual and the rule of law in a manner clearly aimed at pressing the civil libertarians’ buttons. He mentions Mill, Milton, Locke, Orwell, the Magna Carta, the 1689 Bill of Rights, the rise of the rule of law and Britain’s role in drafting the European Convention on Human Rights. All of this is very fine sounding verbiage, inspiring verbiage even, but actions speak louder than words. This government’s actions so far have been in the opposite direction, attacking liberty, undermining the rule of law, undermining the independence of Parliament, undermining democracy. But perhaps I’m being harsh. Perhaps a new approach will be forthcoming which seeks to mend the damage, perhaps we’ve seen the last of these attacks on civil liberties. Maybe Brown is going to put forward proposals in this speech that will genuinely change the direction this government has been going in on this issue?

Precious as it is, liberty is not the only value we prize and not the only priority for government. The test for any government will be how it makes those hard choices, how it strikes the balance. To claim that we should ignore the claims of liberty when faced with the needs of security would be to embark down an authoritarian path that I believe would be unacceptable to the British people. But to ignore the duty of government to protect its people - and to be unwilling to face up to hard choices - is the politics of gesture and irresponsibility.

In my view, the key to making these hard choices in a way that is compatible with our traditions of liberty is to, at all times, apply the liberty test, respecting fundamental rights and freedoms, and wherever action is needed by government, it never subjects the citizen to arbitrary treatment, is transparent and proportionate in its measures and at all times also requires proper scrutiny by, and accountability to, Parliament and the people.

And so I want today to give you some examples of how in accordance with this approach we can, consistent with our security and the other priorities of government, do far more to entrench liberty in our constitutional settlement.

Note that Brown has framed this argument in terms of liberty vs security. These are the very same terms with which the Blair government framed the debate, and which the latter used when justifying, for example, extended detention without charge, control orders, the exclusion zone round Parliament, the various extensions of the power to snoop on people’s electronic communications, etc.

So after all the verbiage and fine words about liberty, what concrete policies has Brown suggested as part of his supposedly new approach?

First, it is the British way to stand up for freedom of assembly, speech and press.

Wherever and whenever there are question marks over the ability to express dissent I believe that the balance should be with those taking action to defend and extend the liberty of individuals and their freedoms to express their views within the law.

So as I set out before the summer, I think it right - in consultation with the Metropolitan Police, Parliament, the Mayor of London, Westminster City Council and civil liberties groups - to review the law to ensure that people’s right to protest outside the very heart of our democracy - the House of Commons - is not subject to unnecessary restrictions. And the Home Secretary is publishing a consultation document on this issue today.

I.e. a vague commitment to do a consultation on the exclusion zone round Parliament. The way this government rigs consultations that is not promising much. Indeed it allows the issue to be kicked into the long grass for a while and then when the conclusions are published the government can deny all responsibility for producing the conclusions whilst either ignoring or following them as it suits!

Alongside this it is important, as the Government has made clear, that charities are guaranteed the independence and the right to have their voice heard and to campaign on the issues that matter to them.

How very odd to single out charities alone as deserving this right. I’m not aware that charities have had any difficulties with this right either. Is the government just reselling us something we already have here?

In addition, there is a case for applying our enduring ideas of liberty to ensure that the laws governing the press in this country fully respect freedom of speech.

The key is to achieve the right balance between freedom of the press, the protection of individual privacy, and public safety and security - and I now believe there is more we can do to ensure that freedom of expression and legitimate journalism are protected.

We agree with the Select Committee on Culture that a free press is the hallmark of our democracy, that there is no case for statutory regulation of the press, that self-regulation of the press should be maintained and that it is for the publishers themselves to demonstrate by their decisions that they can sustain and bolster public confidence in the way information is gathered and used.

But for our part - and to make sure that in pursuing essential policy objectives like combating terrorism and tackling hate crime any new measures do not curb legitimate liberties to speak and be heard - Jack Straw, the Secretary of State for Justice, will investigate the idea of a freedom of expression audit for future legislation.

An investigation into a freedom of expression audit for future legislation? I.e. no commitment to anything concrete here.

Last year, in a draft bill, we published proposals which would limit media access to coroners’ courts. Having undertaken extensive consultation we have now decided not to go ahead with these proposals.

One proposed restriction on press freedom is therefore being dropped.

No one wants to see criminals profiting from publishing books about their crimes. At the same time, we must ensure that the freedom of the press to investigate and report is maintained. Our preferred option, subject to further technical examination, would be for the public to have the right through civil orders to recover payments made to people where these payments can be constituted as benefits of crime.

This sounds like something they can already do under Part 5 of the Proceeds of Crime Act 2002 which allows assets to be seized if, on balance of probabilities, it is shown the assets were acquired through or in return for unlawful behaviour. I.e. nothing new, other than applying an existing measure (which can be used against people who have not been convicted of any criminal offence) in a new way!

The wilful abuse of personal data is of serious concern so there are proposals currently under consideration to clamp down on those who profit illegally from trade in personal data. But Jack Straw has asked the Information Commissioner to produce guidance, in consultation with the Press Complaints Commission, to make sure we take into account concerns about the new rules - which allow for a prison sentence of up to two years. Clear guidance will make sure that legitimate investigative journalism is not impeded but that the sanctions provide a strong deterrent to protect individual privacy.

I.e. a vague intention to issue new guidance. No new policy, and the government is still ploughing on with measures (e.g. the ID scheme, retention of comms data, snooper’s charter, etc) that will radically increase both the amount of data collected and the amount of sharing of that data across public bodies and thus multiplying the opportunities for misuse of that data!

I now believe there is more we can do to change the culture and the workings of government to make it more open — whilst of course continuing to maintain safeguards in areas like national security.

When anything is provided without cost, it does risk being open to abuse. However the Government does not believe that more restrictive rules on cost limits of FoI requests are the way forward. And so Jack Straw has decided, and has announced today, that we will not tighten FoI fees regulations as previously proposed.

OK, those proposals would have neutered freedom of information, they have now been abandoned, credit where credit is due. The government is not going to remove the admittedly weak teeth of the Freedom of Information Act.

So it is right also to consider extending the coverage of freedom of information and the Freedom of Information Act. And we are also today publishing a consultation document to consider whether additional organisations discharging a public function - including in some instances private sector companies running services for the public sector - should be brought within the scope of Freedom of Information legislation.

Another “consultation” promised!

Under the present arrangements historical records are transferred to the national archives and are only opened to public access after thirty years or where explicitly requested under the FoI Act. It is time to look again at whether historical records can be made available for public inspection much more swiftly than under the current arrangements.

There are of course cost and security implications of a more open approach which we will need to examine thoroughly. So I have asked Paul Dacre, Editor-in-Chief of Associated Newspapers and member of the Press Complaints Commission - working with Sir Joe Pilling, former Permanent Secretary of the Northern Ireland Office, and the eminent historian David Cannadine - to review this rule. And we look forward to receiving their proposals in the first half of 2008.

I.e. they ain’t promising anything here.

And even in the most sensitive sphere, national security - where everyone agrees that some safeguards have to be in place to respect confidentiality - it is right to consider the circumstances in which we open up more information for debate. For the first time - starting later this year - the Government will publish, for parliamentary debate and public scrutiny, our National Security Strategy setting out for the British people the threats we face and the objectives we pursue. New rules will also govern a more open approach to the working of the Intelligence and Security Committee and I have agreed with the Chair of the ISC that Parliament should have a clear role in the appointment of members to the Committee.

This is welcome, but it is tinkering at the edges. So far Mr Brown has not suggested repealing a single one of Blair’s anti-liberty laws.

There are a surprisingly high number - at least 250 - of provisions granting power to enter homes and premises without permission. This high number reflects how often they are drawn very narrowly - not least because of our traditional respect for liberty and privacy.

I share the concerns about the need for additional protections for the liberties and rights of the citizen. And I believe that one of the strongest guarantees is a clear understanding of what these rights are and that is more difficult with the very existence of hundreds of laws.

So the Home Secretary is working with the Association of Chief Police Officers to examine, in the name of clarity and the greatest possible protection for the individual, the scope for bringing together all existing police powers of entry into a single understandable code. But, besides the police, many other public authorities covering areas like public health, animal welfare, health and safety, and customs and excise, also have powers of entry. So, alongside the review of police powers, the Home Secretary will establish and coordinate a wider review of all other powers of entry.

I.e. another review, nothing being promised.

In the same way as we do more to safeguard privacy in the home, so too we will review in consultation with the police and civil liberties organisations whether we need - whilst never compromising our security - to improve the guidance for police officers on the exercise of Section 44 of the 2000 Terrorism Act — so we can both ensure that they have the powers they need and preserve trust in the way power is used.

Yet another review, nothing being promised.

In fact the speech continues by promising consultation on various things, including a new Bill of Rights and Responsibilities, but without committing to any of those things being consulted on. There is however one more solid proposal:

In my statement to Parliament before the summer, I proposed that in twelve areas important to our national life the Prime Minister and executive should surrender or limit their powers - the exclusive exercise of which by the government should have no place in a modern democracy - including:

* the power of the executive to declare war;
* the power of the executive to ratify international treaties without decision by Parliament;
* and powers in the appointment of judges — ensuring the independence of the judiciary and recognising their role in safeguarding liberty.

This is of course a re-iteration of something already promised. These changes are welcome, but again not one of the past attacks on civil liberties is being repealed. Moreover, Brown indicates that he will press on with extending the period of pre-charge detention, one of the most serious attack on civil liberties this government has come up with.

So, in the end what do we have? A speech with a lot of fine sounding words, but when it comes to actions, mostly it’s just reviews and consultations without any solid commitments.

What few commitments there are, are relatively minor, and some even continue the attacks on civil liberties we’ve seen under Blair and over the summer since Brown took office.

And I re-iterate: Not one of the past attacks on civil liberties from this government or the previous Tory administration is being repealed. At best, a couple of more minor proposed attacks have been dropped. It thus seems to me that Mr Brown thinks he can get away with talking the talk, but not walking the walk, on civil liberties.

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