ROYAL SOCIETY OF EDINBURGH Are Our Civil Liberties Being Unduly Eroded?

Monday, 19th November 2007 On 19th November 2007, the Royal Society staged a mock trial on the topic Are our civil liberties being unduly eroded? The event was sponsored by the Faculty of Advocates, the Clark Foundation, Messrs Balfour & Manson and Messrs Simpson & Marwick, solicitors. The Society is immensely grateful to them for their support. Magnus Linklater, standing in for Jim Naughtie whose flight from Pakistan had been delayed, acted as judge. The audience acted as jury and were asked to vote at the beginning and at the end. The protagonists were Baroness (Helena) Kennedy, QC, arguing the proposition that our civil liberties are being unduly eroded and Lord (Charlie) Falconer, QC, arguing the contrary. Each side led three witnesses. The question for debate had originally been formulated as Are our civil liberties being eroded? At the request of Lord Falconer the word unduly was inserted. At the outset, the audience voted: For the proposition 94 Against the proposition 33 Undecided 20 Baroness Kennedy, whose plane had also been delayed, had not arrived in time to be consulted about the introduction of the word unduly but pointed out that this was a concession that our civil liberties are being eroded. They had indeed been massively eroded since before 9/11 because of Mr Blairs authoritarian attitudes and anxiety to show that New Labour was neither a party of peaceniks nor soft on crime game-playing with the Tories to see who could be tougher. 2,000 new crimes had been introduced since 1997. She cited some 20 examples of authoritarian measures enacted, proposed or threatened, including detention without trial, control orders, removal of safeguards (jury trial, double jeopardy, burden of proof, right to silence, disclosure of previous convictions, admission of evidence based on torture, streamlining of extradition), neighbourhood curfews, keeping of DNA, identity cards. Public fears were stoked up to make these appear acceptable and necessary. The first witness was Shami Chakrabarti, Director of Liberty. She argued that the Blair Government notably successive Home Secretaries had pursued an authoritarian and repressive agenda. The Human Rights Act was a necessary protection against this agenda, but it was not in safe hands. Ministers treated it as an embarrassing love child, and were prepared to contemplate its repeal. Their true attitude was reflected in Mr Blairs statement that We asked the police what powers they wanted and we gave them to them. The measures taken were counterproductive, discriminatory and disproportionate. Control orders were a form of punishment without trial and without limit of time. Such measures should be taken only in a temporary and exceptional state of emergency. All proportionate alternatives should be considered first and were not. The second witness, Henry Porter, author and journalist, argued that there had been a steady erosion of civil liberties since the Home Secretaryship of Michael Howard. The state was intruding, by stealth, ever deeper into the private sphere of the individual in order to track and control their preferences, their reading, their movements, their purchases and their health. The police were able to take and retain DNA even where the person concerned was not accused, let alone convicted, of any offence. It was arguable that everyones DNA should be recorded on a database, but this should be on the basis of a comprehensive statute incorporating the necessary guarantees against abuse. The proposals for identity cards pursued the same covert agenda. The third witness was Roy Martin, QC, former Dean of the Faculty of Advocates. He concentrated on the independence of the judiciary, legal aid and the regulation of the legal profession. It was significant that the government north and south of the Border thought it necessary to introduce a

statutory guarantee of judicial independence. This was necessary only because, at the same time, the government was introducing legislation that would enable the executive to direct and control the workings of the judicial system. Limitation of expenditure on legal aid in criminal cases led to a denial of access to justice for those who could not afford to pay. Regulation of the legal profession, itself a guarantee of liberty, was to be transferred to a body appointed and directed by the government. Opening the case for the other side, Lord Falconer said that the issue was how we want to live. The government of which he had been a member had preserved two things well security and freedom. Our country was faced with new threats that required action to ensure security. There had been detention without trial during World War II. The measures taken to deal with the threat of the IRA had included internment without trial and even torture. Thanks to the Human Rights Act, the courts were now able to ensure that there is no abuse of executive power. Striking the right balance between security and liberty should be seen as a collaborative effort between the executive and the judiciary. The first witness was Lord Elder, who said that it was important that non-lawyers should have a view and should be able to express it. Civil liberty was discussed now more than ever before. Britain had been better able to deal with the threat of terrorism after 9/11 because, as a result of previous experience with the IRA, we already had stronger security systems in place. He could not speak for the Muslim community, but he was Chancellor of a Muslim FE College in Dundee and could say that the concerns expressed to him were about Iraq and Palestine rather than measures of security at home. The use of stop and search powers without a requirement to give reasons was a matter of proportionality. In current circumstances it was a reasonable response but should be subject to review. The second witness, Alistair Bonnington, solicitor to the BBC in Scotland, argued that the Human Rights Act provided a new context within which to assess the erosion of civil liberties. It was arguable that the criminal law was now more favourable to the accused than before the Act, and the Act had been the means of dealing with problems, such as the tenure of temporary sheriffs at the pleasure of the Lord Advocate, for which there would otherwise have been no remedy. While members of the Executive attacked the Act and the judges, the public were now so distrustful of politicians that it was an aid to judges to be attacked by politicians. The underlying problem with current anti-terrorism legislation was haphazard and inadequate drafting. The last witness was Lord McCluskey, who pointed out that there had been a threat from Islamic terrorism long before 9/11, and cited a list of examples. Meeting the threat from IRA terrorism had involved serious curtailment of civil liberties. The problem of dealing with Islamic terrorism was of a different order. Normal periods of detention without charge were inadequate to allow the police to investigate the contents of computer disks, etc. Power would inevitably be abused, and the purpose of civil liberties, enforced by judges, was to protect against abuse. If unduly constrained, the police were liable to resort to underhand methods indeed, one police chief had referred to perjury in a noble cause. Some extension of powers of detention was, in the opinion of the government, essential and we should accept that, subject to control by the judiciary. Summing up, Baroness Kennedy affirmed that law matters it tells us what our values are. Power is delightful. It will be abused and must be constrained. Erosion of civil liberties to deal with a threat leads to corruption of power and seeps into the culture of policing. Governments will always tell us that it is necessary. But the state and the executive derive their power from the people and the burden is on them to show cause why our civil liberties should be constrained. Laws are the autobiography of a nation and ours includes shameful chapters. The politics of what works are not enough. Lord Falconer did not dispute the importance of law. We must be guided by principle developed by collaboration between politicians and the courts. It is not enough to sign up to words. Our experience of the IRA trials, etc., had shown how the system could be manipulated, and enactment of the Human Rights Act had been essential to provide a new framework. No-one in government wanted to restrict liberty to any greater extent than was necessary to assure security. This country has a good record.

Summing up, Magnus Linklater observed that, over the course of the debate, the two sides seemed to have moved further apart. Whereas one side believed that civil liberties had been eroded, the other maintained that they had, on the contrary been strengthened. He then invited the audience to vote again. There voted: For the proposition 95 Against the proposition 48 Still undecided 7 There was a very enthusiastic round of applause for the two protagonists and the six witnesses. The event concluded with a vote of thanks to Magnus Linklater proposed by Lord Cameron of Lochbroom.

Professor Sir David Edward, KCMG, QC, PC

Opinions expressed here do not necessarily represent the views of the RSE, nor of its Fellows