On 15 December 2004 Labour Home Secretary David Blunkett resigned, following an investigation into the allegation he had fast-tracked a visa application for his married lover’s nanny. He thus missed having to comment on the House of Lords ruling the following day that indefinite detention of suspected terrorists under his Anti-Terrorism, Crime and Security Act was discriminatory, disproportionate and incompatible with the Human Rights Act. This judgment was a blow to Labour; however, with or without Blunkett as its front-man, the government will continue to pursue a vicious authoritarian agenda, trampling on human and civil rights, and has already set about finding new measures to compensate for this setback. NICKI JAMESON reports.
House of Lords judgment
Nine men who had been detained without trial in British prisons and mental institutions since shortly after the passing of the Anti-Terrorism, Crime and Security Act (ATCSA) 2001 contested the lawfulness of their detention. They had lost previous legal challenges, so appealed to the Lords for a definitive ruling.
Britain is a signatory to the European Convention on Human Rights (ECHR). Article 5 of the Convention forbids detention without trial, while Article 15 allows signatory states to opt out of certain of its other provisions in very specific emergency circumstances. These were defined in a 1969 ruling as there being an ‘actual or imminent’ public emergency, threatening ‘the whole nation’ and the ‘continuance of the organised life of the community’, for which ‘normal measures or restrictions…are plainly inadequate’. Following the 11 September 2001 New York attacks, the British government claimed that it faced such an emergency. It therefore derogated from Article 5 of the Convention, in order to give itself the power to imprison indefinitely suspected terrorists against whom there was intelligence information, but insufficient actual evidence to bring any kind of criminal prosecution.
The House of Lords was told that there was no evidence of ‘a real and imminent danger to public safety’ in Britain, and that no other country in Europe, including Spain, which suffered a major terrorist attack in Madrid in March 2004, had considered it needed to opt out of Article 5 in the wake of 11 September 2001.
The judgment focuses in particular on the government’s discriminatory and irrational decision to apply indefinite detention only to foreign nationals, while British citizens deemed to be ‘suspected terrorists’ continued to be dealt with only under the Terrorism Act (TA) 2000. Though massively draconian in itself the TA does not allow for indefinite imprisonment without charge.
Furthermore, under the ATCSA powers, foreign nationals detained as ‘suspected terrorists’ could be released if they agreed to be deported. One of the first men to be detained did this. That the remainder did not do so, indicated to the Lords just how strongly they feared torture if they returned to the countries from which they had sought asylum in Britain. Yet if their international terrorist potential was so great that it justified their indefinite imprisonment, surely it would have been highly irresponsible for the British government simply to allow them to leave, thus potentially endangering the citizens of other nations?
The House of Lords ruled that the derogation from Article 5 should be quashed and the relevant section of ATCSA declared incompatible with Articles 5 and 14 (discrimination) of the ECHR. The judgment consists of the opinions of nine Law Lords, one of whom, Lord Hoffman, makes it clear that in criticising the discriminatory nature of ATCSA, he ‘would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well.’ He concludes that ‘The real threat to the life of the nation…comes not from terrorism but from laws such as these.’
European rights and British wrongs
Britain was one of the first signatories to the post-Second World War European Convention on Human Rights, but it was not until the Human Rights Act (HRA) came into force in 2000 that the rights enshrined in the Convention became part of British domestic law. Prior to then anyone who wanted to complain that the government had infringed the rights set out in the ECHR had to take their case to the European Court.
The implementation of the HRA means that laws passed and decisions made in Britain have to be compatible with the ECHR and breaches of it can be ruled unlawful without the need to go to Strasbourg.
Already incensed at the many times Britain had been found guilty by the European Court of violating the rights of prisoners, subjecting poll tax non-payers to unfair trials and torturing Irish people, the Tory Party, Daily Mail, Sun et al opposed this further ‘European interference’ in British affairs. Indeed, although it was Labour that brought in the HRA, it has turned into a millstone around Prime Minister Tony Blair’s neck and he has been quoted as wishing he could opt out of Article 3 (prevention of torture) in order to deport asylum seekers more easily.
The ECHR is a bourgeois charter. It confers no right to eat, right to be housed, right to education, right to health. But it does outlaw torture, slavery, arbitrary detention, unfair trials and discrimination, and it protects freedom of speech, freedom of religion or conscience, freedom of assembly, the right to marry and the right to family life. As imperialism moves deeper into crisis and the ‘dictatorship of the bourgeoisie’ becomes more overt, these protections are now coming under attack, with the more virulent section of the middle class apparently happy to sacrifice its own democratic rights and freedoms in order to defend its privilege.
Rolling back rights – whose law and order?
The ATCSA detainees’ lawyers drew not only on the ECHR, but on what Lord Bingham describes as ‘the long libertarian tradition of English law, dating back to chapter 39 of the Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petitions of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day.’
Laws in any state are made by those in power and are designed to preserve the status quo. We live in an unequal society and our laws are designed to keep the rich rich and the poor poor. ‘Equality before the law’ is essentially a myth. However, the development of law over the centuries since the Magna Carta, as the bourgeoisie gradually took power away from the monarchy and aristocracy, and then strove to prevent that power being seized by the working class, has created a legal framework that enshrines some fundamental rights. These have been to the advantage of the working class as well as to that of the bourgeoisie.
Such reforms are now under attack, in particular those implemented in response to the mass movements of the post-war period. In July 2004 the Home Office launched a five-year strategic plan entitled Confident Communities in a Secure Britain. Blair announced that it marked the end of ‘the 1960s social-liberal consensus on law and order’ that had enabled some to take ‘freedom without responsibility’. The results of this ‘consensus’ he is so quick to dismiss include the abolition of the death penalty, outlawing of race and sex
discrimination, legalisation of abortion and decriminalisation of homo-
sexuality.
Destroying society – policing the crisis
Over the past 25 years, since Conservative leader Margaret Thatcher came to power, there has been a massive shift away from a society in which a sizeable section of the working class could rely on lifelong employment, affordable housing and welfare provision. Public services have been privatised and are unashamedly run for profit; large sections of manufacturing industry have been destroyed; trade union membership and organisation are now largely the domain of white-collar workers; council housing has been sold off; free health and education progressively run down.
This onslaught on previously relatively stable working class communities has resulted in unprecedented levels of alienation, poverty, crime, vandalism, family breakdown and drug abuse.
Fear of the worsening of the situation means the government is able to win popular support for draconian policing measures. The real reasons such measures are so vital to the state is that they assist in the preservation of inequality, shield the middle class from having to deal with the uglier face of a divided society, and ensure that any resistance from the oppressed can be easily put down. However, if stated overtly, this reasoning would clearly be unpopular with working class voters and further increase their disenchantment. Therefore, the vast network of repressive laws and punishments that is being assembled is introduced under the guise of providing assistance equally to everyone, with particular emphasis on the respite it offers to beleaguered working class communities.
All modern repressive states have used similar tactics to gain the support of the more privileged section of the working class.
Firstly, the state and its media create ‘bogeymen’ of various varieties, to deflect anger away from the real problems of poverty, inequality and destruction of services. These can vary from paedophiles or ‘terrorists’ whose threat is vastly exaggerated in order to whip up increased fear, to those who are actually doing no harm, such as asylum seekers, ‘benefit cheats’ and teenagers. Camden Council in north London recently commissioned a highly subjective MORI poll of local residents, in which it listed four types of ‘anti-social behaviour’ and asked if residents had witnessed or reported them. The four types of behaviour were dropping litter, ‘drunk or rowdy behaviour’, ‘teenagers hanging around’ and ‘people sleeping rough’. There was no suggestion that the hypothetical teenagers or rough-sleepers were actually doing anything anti-social; it was their mere existence that residents were being asked if they had witnessed, and if so reported.
Secondly, and connected to this, there is a deliberate overlapping between what are variously labelled as ‘anti-social behaviour’, ‘crime’, ‘dissent’ and ‘terrorism’. So, the imprisonment of the ATCSA detainees because ‘they cannot be deported’ becomes ‘all asylum seekers are terrorists’, while the use of the Anti-Social Behaviour Act 2003 on political protesters renders peaceful dissent ‘anti-social’, and the constant interchange between different powers to stop and search under the Criminal Justice and Public Order Act 1994 and Terrorism Act 2000 conflates all these headings and obscures the use of both sets of powers as a general means of harassment of young black and Asian men in particular.
Thirdly, problems of crime and disorder are presented as due, not to poverty and alienation, but to a lack of sufficiently strong policing. The state then offers the possibility of ‘tough’ solutions to this problem. Many working class people, whether they actually believe this portrayal of the problem or not, are understandably desperate for solutions to crime in their communities; local newspapers are full of community campaigns for increased policing, more CCTV cameras and more ASBOs. Anyone who complains can then be vilified as a ‘liberal’ and decried as ‘out of touch with reality’. Civil rights organisation Liberty recently felt compelled to apologise to residents on a Brent estate where it had taken up a case against the ‘naming and shaming’ of a group of young men by the local council.
Fourthly, the government relies on the oft-repeated myth that ‘if you are not doing anything wrong, you have nothing to fear’. This same nonsensical mantra has been repeatedly used in response to criticism that stop-and-search, omnipresent CCTV, the removal of the right not to have your silence when arrested held against you in court, DNA testing etc are repressive and attack fundamental rights. Hundreds of well-known wrongful convictions give the lie to this; not to mention the thousands about which we know nothing. This same nonsense is currently being parroted in relation to the introduction of ID cards, facial mapping and a database that will track every child.
Good riddance to Blunkett
David Blunkett became Home Secretary in 2001. His predecessor, Jack Straw, appeared until then to have been the most authoritarian and right-wing Home Secretary in living memory, outdoing current Tory leader Michael Howard, who previously appeared to have been the most draconian incumbent of the post. Blunkett’s ‘achievements’ in office under the joint pretexts of fighting international terrorism and preventing domestic crime and disorder include:
• Anti-Social Behaviour Orders – widespread and growing use, both against individuals and covering whole areas, where groups can be dispersed and a 9pm curfew is in place for under-16s.
• Enlarged police force, with increasing range of powers at every level, reaching down to local ‘community support officers’ and street wardens who can hand out on-the-spot fines for offences such as riding a bicycle on the pavement (£30), being drunk and disorderly (£40) or buying alcohol for a minor (£40).
• Terrorism Act 2000 – 701 arrests between 11 September 2001 and December 2004, resulting in just 17 convictions, although hundreds of people arrested under the pretext of terrorism were subsequently charged with minor criminal offences or immigration violations.
• Asylum seekers – repeated attempts to remove welfare benefits, despite popular opposition and adverse court rulings, disperse them around the country and imprison them in various types of detention centre.
• Sentencing – longer minimum periods for life sentence prisoners, weekend custody, more electronic tagging.
• Extradition – one-sided treaty with the US allowing suspects to be sent to the US with no proof of any criminal offence.
• Prisons – highest ever recorded figure for imprisonment in England and Wales – 75,544; nearly 11,000 under-21-year-olds in prison; 17,000 prisoners sharing cells built for one person; prison places costing the tax-payer an average of £37,305 per annum.
As Blunkett left office, ironically ousted as a result of the sole occasion on which he had assisted a low-paid overseas worker to come to this country, he snivelled that he had been driven by love. Meanwhile, pro-government commentators somewhat bizarrely lamented the passing of a champion of the working class. Labour hacks and anonymous ‘friends’ harped on about how gritty, northern, working class David Blunkett truly understood the man in the pub and on the street and could represent their views in a way that Tony Blair could only dream of.
Blair’s lack of connection with the working class is of course not at issue, so although Blunkett’s claim to champion the poor is based on a fabric of lies (see letters page), it is undoubtedly true that Labour ministers from working class backgrounds do play a vital role for Labour. While Blair courts business and the middle classes, Blunkett or Deputy Prime Minister John Prescott can speak directly to the labour aristocracy.
Parliament and the courts
With Blunkett gone and Charles Clarke only a day in post, it was left to ‘Blair’s babe’ junior minister Hazel Blears to argue weakly against Channel 4’s Jon Snow, when interviewed as to what the government would do now about the Belmarsh detainees. ‘Parliament will decide’ she repeated over and again as Snow equally doggedly repeated that the Lords are the ‘highest court in the land’ and they have ‘ruled against you’.
The Lords had indeed ruled that Labour’s law was unlawful, that it should not have been made. But it was now down to Parliament to unmake that law. The courts enforce the law and high courts such as the Lords act as a watchdog to ensure the laws passed are compatible with other laws already in place, and with international conventions. Here they found that the law made by Blunkett was not compatible. But, unless the detainees’ lawyers make a successful application under the ancient law of habeas corpus for them to be freed immediately, they will remain in prison while Parliament unmakes the unlawful law and makes a lawful one instead.
On 26 January new Home Secretary Charles Clarke announced his plans to replace indefinite detention with ‘control orders’. These orders, which have quickly been nicknamed ‘anti-terrorist ASBOs’, will be applicable to both foreign nationals and British citizens, suspected of terrorism. Clarke described ‘a range of controls restricting movement and association or other communication with named individuals; the imposition of curfews and/or tagging; and restrictions on access to telecommunications, the internet and other technology. At the top end, control orders would include a requirement to remain at their premises.’ These orders are strongly reminiscent of the banning orders and house arrest of apartheid South Africa, and ironically are still likely to require derogation from part of the ECHR.
During his time in the Home Office Blunkett repeatedly fell out with the judiciary, including the Lord Chief Justice and House of Lords. None of these institutions are bastions of liberalism, but they played the role assigned to them, scrutinising the law and government decisions when requested, and inconveniently told the Home Secretary that it was unlawful to starve asylum seekers and incompatible with the ECHR for him to retain personal control over the release dates of prisoners. His response to the latter ruling (again by the House of Lords) was that ‘life means life’ and, as he could not retain control over when life sentence prisoners who had completed their ‘tariff’ (minimum period) should be released, he would indeed change the law, forcing judges to impose longer tariffs in the first place.
Announcing the ‘control orders’, Clarke made his stance clear as to who should wield the power to detain: ‘I believe that this is a proper Executive responsibility that should be borne by the Executive – in this case, by the Home Secretary – and not by the courts’.
The future
The Queen’s speech at the opening of Parliament on 26 November 2004 announced 30 bills and draft bills, some proposed in the Confident Communities plan in July, and others, such as ID cards, which had been touted around for several years.
The Identity Cards Bill will create a national register and powers for compulsory ID cards; passports and driving licences to include fingerprints within five years. Other bills in the pipeline include: a Higher Education Bill – introducing £3,000 top-up fees; the Criminal Defence Service Bill, which will cut legal aid spending and reduce defendants’ access to legal representation, and yet another Immigration and Asylum Bill. This will give asylum seekers only one chance to appeal; families will have benefits stopped if their claims fail; children from these families will be taken into care, and asylum seekers can be forcibly returned to ‘safe’ countries if they have already lodged claims there.
In addition, the government announced the setting up of the Serious Organised Crime Agency, a sort of British FBI, compulsory drug testing of people arrested and ‘further legislation to tackle anti-social behaviour’.
Also on the way are plans to imprison people considered to have ‘dangerous and severe personality disorders’, whether or not they have committed a criminal offence, while the ‘extended sentences’ and other provisions which have already been made law by the Criminal Justice Act 2003 are due to come into force in April 2005.
Before he left office Blunkett, had even planned to put a clause into the Organised Crime Bill which would have the express purpose of evicting Brian Haw, who has protested outside Parliament against British warmongering for the past three years. The clause bans permanent daytime demonstrations and megaphones in Parliament Square and makes it a criminal offence to defy the law. Appropriately, the measure was announced not by Blunkett but by one-time anti-apartheid direct action demonstrator, Peter Hain, now Leader of the House.
When the emergency becomes routine
One of the most worrying pieces of legislation in the pipeline is the barely discussed Civil Contingencies Bill. Like the TA and ATCSA, this purports to be a response to ‘serious threats to the nation’, be they man-made or natural, and gives government unprecedented power in ‘an emergency’ to prevent people from leaving or entering any area, to deploy troops, ban gatherings, requisition property and disregard existing legislation.
Local and regional authorities will be required to draw up detailed plans for dealing with ‘events’, ‘situations’ and catastrophes’. This will involve the creation of a new tier of regional civil defence organisations, described as ‘resilience bodies’ to co-ordinate the response on a local and national level. Regional Co-ordinators will be assisted by Regional Military Commanders, police Chief Constables and Regional Controllers from a local council. This group will have colossal power to impose its will on the region it oversees. This is a blueprint for martial law.
A brief glimpse at the British policing methods employed in the north of Ireland, or in colonial Hong Kong tells us that as soon as a police force has ‘emergency powers’ it will not save them for emergencies, but will use them routinely. Statewatch magazine points out that the new law will ‘allow governments enormous discretion and allow them to mix ongoing business in normal times with powers that are intended to deal with peacetime emergencies. This new “normality” could see parts of cities or whole towns subject to exceptional laws and controls in the same way that emergency laws have been in place in Northern Ireland for more than thirty years’.
The dictatorship of the bourgeoisie
In the 20th century fascism only arose when capitalist states could not otherwise continue in the face of strong, communist or socialist working class resistance. However in Britain today, as indeed in the US, it appears that the ruling class has concluded that even in the absence of any such movement, the level of disintegration and alienation caused by a deregulated economy and stark inequality is potentially so great that in itself it poses a serious danger to the continued operation of capitalism. It has therefore set about reversing earlier reforms, confronting such rights as are provided for under European and British law and building up a mighty repressive apparatus. We need to inform ourselves about this build-up, guard against complacency and prepare for the struggle ahead!
Confident Communities in a Secure Britain – July 2004 – main measures
• Fixed penalty notices for increased range of minor crimes, including under-age drinking, petty theft, shoplifting and misuse of fireworks
• ASBOs to be processed within hours, less restriction on media reporting of those who break them, specialist anti-social behaviour courts and prosecutors to be created
• Number of Community Safety Officers to rise to 24,000 by 2008
• Doubling of electronic tagging to 18,000 people and the introduction of satellite tracking of offenders
• More ‘naming and shaming’ of repeat offenders
• Everyone entering or leaving the country, after 2008, to have their photo taken and facial mapping technology to be used.
Use of Anti-Social Behaviour Orders against political protesters
• Pro-Palestinian activists outside Caterpillar construction company’s offices in Solihull arrested under the Anti-Social Behaviour Act
• A Rugby man who has campaigned against the council over health and safety and corruption, was served with an ASBO, which he then broke, leading to his imprisonment
• Anti-DSEi protesters – two adults and a baby prevented from holding a banner and handing out leaflets outside Reed Exhibitions, the organiser of DSEi (Defence Systems and Equipment International); the world’s largest arms fair, under blanket ASBO in force in Richmond town centre
• Anti-McDonalds protesters in Leicester Square, central London, dispersed using Section 30 of the Anti-Social Behaviour Act
• Manchester Victory to the Intifada group threatened by local council and police with imposition of an ASBO. In the event the Public Order Act was used instead.
Useful campaigning or informative links:
http://statewatch.org/asbo/ASBOwatch.html.
www.defyid.org.uk.
FRFI 183 February / March 2005
