By Henry Porter
Republished from Independent Online: 29 June 2006
In the guise of fighting terrorism and maintaining public order, Tony Blair's Government has quietly and systematically taken power from Parliament and the British people. The author charts a nine-year assault on civil liberties that reveals the danger of trading freedom for security - and must have Churchill spinning in his grave
In the shadow of Winston Churchill's statue opposite the House of Commons, a rather odd ritual has developed on Sunday afternoons. A small group of people - mostly young and dressed outlandishly - hold a tea party on the grass of Parliament Square. A woman looking very much like Mary Poppins passes plates of frosted cakes and cookies, while other members of the party flourish blank placards or, as they did on the afternoon I was there, attempt a game of cricket.
Sometimes the police move in and arrest the picnickers, but on this occasion the officers stood at a distance, presumably consulting on the question of whether this was a demonstration or a non-demonstration. It is all rather silly and yet in Blair's Britain there is a kind of nobility in the amateurishness and persistence of the gesture. This collection of oddballs, looking for all the world as if they had stepped out of the Michelangelo Antonioni film Blow-Up, are challenging a new law which says that no one may demonstrate within a kilometre, or a little more than half a mile, of Parliament Square if they have not first acquired written permission from the Commissioner of the Metropolitan Police. This effectively places the entire centre of British government, Whitehall and Trafalgar Square, off-limits to the protesters and marchers who have traditionally brought their grievances to those in power without ever having to ask a policeman's permission.
The non-demo demo, or tea party, is a legalistic response to the law. If anything is written on the placards, or if someone makes a speech, then he or she is immediately deemed to be in breach of the law and is arrested. The device doesn't always work. After drinking tea in the square, a man named Mark Barrett was recently convicted of demonstrating. Two other protesters, Milan Rai and Maya Evans, were charged after reading out the names of dead Iraqi civilians at the Cenotaph, Britain's national war memorial, in Whitehall, a few hundred yards away.
On that dank spring afternoon I looked up at Churchill and reflected that he almost certainly would have approved of these people insisting on their right to demonstrate in front of his beloved Parliament. "If you will not fight for the right," he once growled, "when you can easily win without bloodshed, if you will not fight when your victory will be sure and not so costly, you may come to the moment when you will have to fight with all the odds against you and only a precarious chance for survival. There may be a worse case. You may have to fight when there is no chance of victory, because it is better to perish than to live as slaves."
Churchill lived in far more testing times than ours, but he always revered the ancient tradition of Britain's "unwritten constitution". I imagined him becoming flesh again and walking purposefully toward Downing Street - without security, of course - there to address Tony Blair and his aides on their sacred duty as the guardians of Britain's Parliament and the people's rights.
For Blair, that youthful baby-boomer who came to power nine years ago as the embodiment of democratic liberalism as well as the new spirit of optimism in Britain, turns out to have an authoritarian streak that respects neither those rights nor, it seems, the independence of the elected representatives in Parliament. And what is remarkable - in fact almost a historic phenomenon - is the harm his government has done to the unwritten British constitution in those nine years, without anyone really noticing, without the press objecting or the public mounting mass protests. At the inception of Cool Britannia, British democracy became subject to a silent takeover.
Last year - rather late in the day, I must admit - I started to notice trends in Blair's legislation which seemed to attack individual rights and freedoms, to favour ministers (politicians appointed by the Prime Minister to run departments of government) over the scrutiny of Parliament, and to put in place all the necessary laws for total surveillance of society.
There was nothing else to do but to go back and read the Acts - at least 15 of them - and to write about them in my weekly column in The Observer. After about eight weeks, the Prime Minister privately let it be known that he was displeased at being called authoritarian by me. Very soon I found myself in the odd position of conducting a formal e-mail exchange with him on the rule of law, I sitting in my London home with nothing but Google and a stack of legislation, the Prime Minister in No 10 with all the resources of government at his disposal. Incidentally, I was assured that he had taken time out of his schedule so that he himself could compose the thunderous responses calling for action against terrorism, crime, and antisocial behaviour.
The day after the exchange was published, the grudging truce between the Government and me was broken. Blair gave a press conference, in which he attacked media exaggeration, and the then Home Secretary, Charles Clarke, weighed in with a speech at the London School of Economics naming me and two other journalists and complaining about "the pernicious and even dangerous poison" in the media.
So, I guess this column comes with a health warning from the British Government, but please don't pay it any mind. When governments attack the media, it is often a sign that the media have for once gotten something right. I might add that this column also comes with the more serious warning that, if rights have been eroded in the land once called "the Mother of Parliaments", it can happen in any country where a government actively promotes the fear of terrorism and crime and uses it to persuade people that they must exchange their freedom for security.
Blair's campaign against rights contained in the Rule of Law - that is, that ancient amalgam of common law, convention, and the opinion of experts, which makes up one half of the British constitution - is often well concealed. Many of the measures have been slipped through under legislation that appears to address problems the public is concerned about. For instance, the law banning people from demonstrating within one kilometre of Parliament is contained in the Serious Organised Crime and Police Act of 2005. The right to protest freely has been affected by the Terrorism Act of 2000, which allows police to stop and search people in a designated area - which can be anywhere - and by antisocial behaviour laws, which allow police to issue an order banning someone from a particular activity, waving a banner, for instance. If a person breaks that order, he or she risks a prison sentence of up to five years. Likewise, the Protection from Harassment Act of 1997 - designed to combat stalkers and campaigns of intimidation - is being used to control protest. A woman who sent two e-mails to a pharmaceutical company politely asking a member of the staff not to work with a company that did testing on animals was prosecuted for "repeated conduct" in sending an e-mail twice, which the Act defines as harassment.
There is a demonic versatility to Blair's laws. Kenneth Clarke, a former Conservative chancellor of the exchequer and home secretary, despairs at the way they are being used. "What is assured as being harmless when it is introduced gets used more and more in a way which is sometimes alarming," he says. His colleague David Davis, the shadow Home Secretary, is astonished by Blair's Labour Party: "If I had gone on the radio 15 years ago and said that a Labour government would limit your right to trial by jury, would limit - in some cases eradicate - habeas corpus, constrain your right of freedom of speech, they would have locked me up."
Indeed they would. But there's more, so much in fact that it is difficult to grasp the scope of the campaign against British freedoms. But here goes. The right to a jury trial is removed in complicated fraud cases and where there is a fear of jury tampering. The right not to be tried twice for the same offence - the law of double jeopardy - no longer exists. The presumption of innocence is compromised, especially in antisocial behaviour legislation, which also makes hearsay admissible as evidence. The right not to be punished unless a court decides that the law has been broken is removed in the system of control orders by which a terrorist suspect is prevented from moving about freely and using the phone and internet, without at any stage being allowed to hear the evidence against him - house arrest in all but name.
Freedom of speech is attacked by Section Five of the Criminal Justice and Public Order Act, which preceded Blair's Government, but which is now being used to patrol opinion. In Oxford last year a 21-year-old graduate of Balliol College named Sam Brown drunkenly shouted in the direction of two mounted police officers, "Mate, you know your horse is gay. I hope you don't have a problem with that." He was given one of the new, on-the-spot fines - £80 - which he refused to pay, with the result that he was taken to court. Some 10 months later the Crown Prosecution Service dropped its case that he had made homophobic remarks likely to cause disorder.
There are other people the police have investigated but failed to prosecute: the columnist Cristina Odone, who made a barely disparaging aside about Welsh people on TV (she referred to them as "little Welshies"); and the head of the Muslim Council of Great Britain, Sir Iqbal Sacranie, who said that homosexual practices were "not acceptable" and civil partnerships between gays were "harmful".
The remarks may be a little inappropriate, but I find myself regretting that my countrymen's opinions - their bloody-mindedness, their truculence in the face of authority, their love of insult and robust debate - are being edged out by this fussy, hairsplitting, second-guessing, politically correct state that Blair is trying to build with what he calls his "respect agenda".
Do these tiny cuts to British freedom amount to much more than a few people being told to be more considerate? Shami Chakrabarti, the petite whirlwind who runs Liberty believes that "the small measures of increasing ferocity add up over time to a society of a completely different flavour". That is exactly the phrase I was looking for. Britain is not a police state - the fact that Tony Blair felt it necessary to answer me by e-mail proves that - but it is becoming a very different place under his rule, and all sides of the House of Commons agree. The Liberal Democrats' spokesman on human rights and civil liberties, David Heath, is sceptical about Blair's use of the terrorist threat. "The age-old technique of any authoritarian or repressive government has always been to exaggerate the terrorist threat to justify their actions," he says. "I am not one to underestimate the threat of terrorism, but I think it has been used to justify measures which have no relevance to attacking terrorism effectively." And Bob Marshall-Andrews - a Labour MP who, like quite a number of others on Blair's side of the House of Commons, is deeply worried about the tone of government - says of his boss, "Underneath, there is an unstable authoritarianism which has seeped into the [Labour] Party."
Chakrabarti, who once worked as a lawyer in the Home Office, explains: "If you throw live frogs into a pan of boiling water, they will sensibly jump out and save themselves. If you put them in a pan of cold water and gently apply heat until the water boils they will lie in the pan and boil to death. It's like that." In Blair you see the champion frog boiler of modern times. He is also a lawyer who suffers acute impatience with the processes of the law. In one of his e-mails to me he painted a lurid - and often true - picture of the delinquency in some of Britain's poorer areas, as well as the helplessness of the victims. His response to the problem of societal breakdown was to invent a new category of restraint called the antisocial behaviour order, or Asbo.
"Please speak to the victims of this menace," he wrote. "They are people whose lives have been turned into a daily hell. Suppose they live next door to someone whose kids are out of control: who play their music loud until 2 am; who vilify anyone who asks them to stop; who are often into drugs or alcohol? Or visit a park where children can't play because of needles, used condoms, and hooligans hanging around.
"It is true that, in theory, each of these acts is a crime for which the police could prosecute. In practice, they don't. It would involve in each case a disproportionate amount of time, money and commitment for what would be, for any single act, a low-level sentence. Instead, they can now use an Asbo or a parenting order or other measures that attack not an offence but behaviour that causes harm and distress to people, and impose restrictions on the person doing it, breach of which would mean they go to prison."
How the Asbo works is that a complaint is lodged with a magistrates' court which names an individual or parent of a child who is said to be the source of antisocial behaviour. The actions which cause the trouble do not have to be illegal in themselves before an Asbo is granted and the court insists on the cessation of that behaviour - which may be nothing more than walking a dog, playing music, or shouting in the street. It is important to understand that the standards of evidence are much lower here than in a normal court hearing because hearsay - that is, rumour and gossip - is admissible. If a person is found to have broken an Asbo, he or she is liable to a maximum of five years in prison, regardless of whether the act is in itself illegal. So, in effect, the person is being punished for disobedience to the state.
Blair is untroubled by the precedent that this law might offer a real live despot, or by the fact that Asbos are being used to stifle legitimate protest, and indeed, in his exchange with me, he seemed to suggest that he was considering a kind of super-Asbo for more serious criminals to "harry, hassle and hound them until they give up or leave the country". It was significant that nowhere in this rant did he mention the process of law or a court.
He offers something new: not a police state but a controlled state, in which he seeks to alter radically the political and philosophical context of the criminal-justice system. "I believe we require a profound rebalancing of the civil liberties debate," he said in a speech in May. "The issue is not whether we care about civil liberties but what that means in the early 21st century." He now wants legislation to limit powers of British courts to interpret the Human Rights Act. The Act, imported from the European Convention on Human Rights, was originally inspired by Winston Churchill, who had suggested it as a means to entrench certain rights in Europe after the war.
Blair says that this thinking springs from the instincts of his generation, which is "hard on behaviour and soft on lifestyle." Actually, I was born six weeks before Blair, 53 years ago, and I can categorically say that he does not speak for all my generation. But I agree with his other self-description, in which he claims to be a moderniser, because he tends to deny the importance of history and tradition, particularly when it comes to Parliament, whose powers of scrutiny have suffered dreadfully under his government.
There can be few duller documents than the Civil Contingencies Act of 2004 or the Inquiries Act of 2005, which is perhaps just as well for the Government, for both vastly extend the arbitrary powers of ministers while making them less answerable to Parliament. The Civil Contingencies Act, for instance, allows a minister to declare a state of emergency in which assets can be seized without compensation, courts may be set up, assemblies may be banned, and people may be moved from, or held in, particular areas, all on the belief that an emergency might be about to occur. Only after seven days does Parliament get the chance to assess the situation. If the minister is wrong, or has acted in bad faith, he cannot be punished.
One response might be to look into his actions by holding a government investigation under the Inquiries Act, but then the minister may set its terms, suppress evidence, close the hearing to the public, and terminate it without explanation. Under this Act, the reports of government inquiries are presented to ministers, not, as they once were, to Parliament. This fits very well into a pattern where the executive branch demands more and more unfettered power, as does Charles Clarke's suggestion that the press should be subject to statutory regulation.
I realise that it would be testing your patience to go too deeply into the Legislative and Regulatory Reform Bill, which the Government has been trying to smuggle through Parliament this year, but let me just say that its original draft would have allowed ministers to make laws without reference to elected representatives.
Imagine the President of the United States trying to neuter the Congress in this manner, so flagrantly robbing it of its power. Yet until recently all this has occurred in Britain with barely a whisper of coverage in the British media.
Blair is the lowest he has ever been in the polls, but he is still energetically fighting off his rival, Gordon Brown, with a cabinet reshuffle and a stout defence of his record. In an e-mail to me, Blair denied that he was trying to abolish parliamentary democracy, then swiftly moved to say how out of touch the political and legal establishments were, which is perhaps the way that he justifies these actions to himself. It was striking how he got one of his own pieces of legislation wrong when discussing control orders - or house arrest - for terrorist suspects in relation to the European Convention on Human Rights, which is incorporated into British law under the Human Rights Act. "The point about the Human Rights Act," he declared, "is that it does allow the courts to strike down the act of our 'sovereign Parliament'." As Marcel Berlins, the legal columnist of The Guardian, remarked, "It does no such thing."
How can the Prime Minister get such a fundamentally important principle concerning human rights so utterly wrong, especially when it so exercised both sides of the House of Commons? The answer is that he is probably not a man for detail, but Charles Moore, the former editor of The Daily Telegraph, now a columnist and the official biographer of Margaret Thatcher, believes that New Labour contains strands of rather sinister political DNA.
"My theory is that the Blairites are Marxist in process, though not in ideology - well, actually it is more Leninist." It is true that several senior ministers had socialist periods. Charles Clarke, John Reid, recently anointed Home Secretary, and Jack Straw, the former foreign secretary, were all on the extreme left, if not self-declared Leninists. Moore's implication is that the sacred Blair project of modernising Britain has become a kind of ersatz ideology and that this is more important to Blair than any of the country's political or legal institutions. "He's very shallow," says Moore. "He's got a few things he wants to do and he rather impressively pursues them."
One of these is the national ID card scheme, opposition to which brings together such disparate figures as the Earl of Onslow, a Conservative peer of the realm; Commander George Churchill-Coleman, the famous head of New Scotland Yard's anti-terrorist unit during the worst years of IRA bombings; and Neil Tennant, one half of the hugely successful pop group Pet Shop Boys.
The idea of the ID card seems sensible in the age of terrorism, identity theft, and illegal immigration until you realise that the centralised database - the National Identity Register - will log and store details of every important action in a person's life. When the ID card is swiped as someone identifies himself at, say, a bank, hospital, pharmacy, or insurance company, those details are retained and may be inspected by, among others, the police, tax authorities, customs, and MI5, the domestic intelligence service. The system will locate and track the entire adult population. If you put it together with the national system of licence-plate-recognition cameras, which is about to go live on British highways and in town centres, and understand that the ID card, under a new regulation, will also carry details of a person's medical records, you realise that the state will be able to keep tabs on anyone it chooses and find out about the most private parts of a person's life.
Despite the cost of the ID card system - estimated by the Government as being about £5.8bn and by the London School of Economics as being between £10bn and £19bn - few think that it will attack the problems of terrorism and ID theft.
George Churchill-Coleman described it to me as an absolute waste of time. "You and I will carry them because we are upright citizens. But a terrorist isn't going to carry [his own]. He will be carrying yours."
Neil Tennant, a former Labour donor who has stopped giving money to and voting for Labour because of ID cards, says: "My specific fear is that we are going to create a society where a policeman stops me on the way to Waitrose on the King's Road and says, 'Can I see your identity card?' I don't see why I should have to do that." Tennant says he may leave the country if a compulsory ID card comes into force. "We can't live in a total-surveillance society," he adds. "It is to disrespect us."
Defending myself against claims of paranoia and the attacks of Labour's former home secretary, I have simply referred people to the statute book of British law, where the evidence of what I have been saying is there for all to see. But two other factors in this silent takeover are not so visible. The first is a profound change in the relationship between the individual and the state. Nothing demonstrates the sense of the state's entitlement over the average citizen more than the new laws that came in at the beginning of the year and allow anyone to be arrested for any crime - even dropping litter. And here's the crucial point. Once a person is arrested he or she may be fingerprinted and photographed by the police and have a DNA sample removed with an oral swab - by force if necessary. And this is before that person has been found guilty of any crime, whether it be dropping litter or shooting someone.
So much for the presumption of innocence, but there again we have no reason to be surprised. Last year, in his annual Labour Party conference speech, Blair said this: "The whole of our system starts from the proposition that its duty is to protect the innocent from being wrongly convicted. Don't misunderstand me. That must be the duty of any criminal justice system. But surely our primary duty should be to allow law-abiding people to live in safety. It means a complete change of thinking. It doesn't mean abandoning human rights. It means deciding whose come first." The point of human rights, as Churchill noted, is that they treat the innocent, the suspect, and the convict equally: "These are the symbols, in the treatment of crime and criminals, which mark and measure the stored-up strength of a nation, and are a sign and proof of the living virtue in it."
The DNA database is part of this presumption of guilt. Naturally the police support it, because it has obvious benefits in solving crimes, but it should be pointed out to any country considering the compulsory retention of the DNA of innocent people that in Britain 38 per cent of all black men are represented on the database, while just 10 percent of white men are. There will be an inbuilt racism in the system until - heaven forbid - we all have our DNA taken and recorded on our ID cards.
Baroness Kennedy, a lawyer and Labour peer, is one of the most vocal critics of Blair's new laws. In the annual James Cameron Memorial Lecture at the City University, London, in April she gave a devastating account of her own party's waywardness. She accused government ministers of seeing themselves as the embodiment of the state, rather than, as I would put it, the servants of the state.
"The common law is built on moral wisdom," she said, "grounded in the experience of ages, acknowledging that governments can abuse power and when a person is on trial the burden of proof must be on the state and no one's liberty should be removed without evidence of the highest standard. By removing trial by jury and seeking to detain people on civil Asbo orders as a pre-emptive strike, by introducing ID cards, the Government is creating new paradigms of state power. Being required to produce your papers to show who you are is a public manifestation of who is in control. What we seem to have forgotten is that the state is there courtesy of us and we are not here courtesy the state."
The second invisible change that has occurred in Britain is best expressed by Simon Davies, a fellow at the London School of Economics, who did pioneering work on the ID card scheme and then suffered a wounding onslaught from the Government when it did not agree with his findings. The worrying thing, he suggests, is that the instinctive sense of personal liberty has been lost in the British people. "We have reached that stage now where we have gone almost as far as it is possible to go in establishing the infrastructures of control and surveillance within an open and free environment," he says. "That architecture only has to work and the citizens only have to become compliant for the Government to have control.
"That compliance is what scares me the most. People are resigned to their fate. They've bought the Government's arguments for the public good. There is a generational failure of memory about individual rights. Whenever Government says that some intrusion is necessary in the public interest, an entire generation has no clue how to respond, not even intuitively And that is the great lesson that other countries must learn. The US must never lose sight of its traditions of individual freedom."
Those who understand what has gone on in Britain have the sense of being in one of those nightmares where you are crying out to warn someone of impending danger, but they cannot hear you. And yet I do take some hope from the picnickers of Parliament Square. May the numbers of these young eccentrics swell and swell over the coming months, for their actions are a sign that the spirit of liberty and dogged defiance are not yet dead in Britain.
This article is taken from the current issue of Vanity Fair
Charged for quoting George Orwell in public
In another example of the Government's draconian stance on political protest, Steven Jago, 36, a management accountant, yesterday became the latest person to be charged under the Serious Organised Crime and Police Act.
On 18 June, Mr Jago carried a placard in Whitehall bearing the George Orwell quote: "In a time of universal deceit, telling the truth is a revolutionary act." In his possession, he had several copies of an article in the American magazine Vanity Fair headlined "Blair's Big Brother Legacy", which were confiscated by the police. "The implication that I read from this statement at the time was that I was being accused of handing out subversive material," said Mr Jago. Yesterday, the author, Henry Porter, the magazine's London editor, wrote to Sir Ian Blair, the Metropolitan Police Commissioner, expressing concern that the freedom of the press would be severely curtailed if such articles were used in evidence under the Act.
Mr Porter said: "The police told Mr Jago this was 'politically motivated' material, and suggested it was evidence of his desire to break the law. I therefore seek your assurance that possession of Vanity Fair within a designated area is not regarded as 'politically motivated' and evidence of conscious law-breaking."
Scotland Yard has declined to comment.
Enemies of the state?
Maya Evans 25
The chef was arrested at the Cenotaph in Whitehall reading out the names of 97 British soldiers killed in Iraq. She was the first person to be convicted under section 132 of the Serious Organised Crime and Police Act, which requires protesters to obtain police permission before demonstrating within one kilometre of Parliament.
Helen John 68, and Sylvia Boyes 62
The Greenham Common veterans were arrested in April by Ministry of Defence police after walking 15ft across the sentry line at the US military base at Menwith Hill in North Yorkshire. Protesters who breach any one of 10 military bases across Britain can be jailed for a year or fined £5,000.
Brian Haw 56
Mr Haw has become a fixture in Parliament Square with placards berating Tony Blair and President Bush. The Serious Organised Crime and Police Act 2005 was designed mainly with his vigil in mind. After being arrested, he refused to enter a plea. However, Bow Street magistrates' court entered a not guilty plea on his behalf in May.
Walter Wolfgang 82
The octogenarian heckled Jack Straw, the Foreign Secretary, during his speech to the Labour Party conference. He shouted "That's a lie" as Mr Straw justified keeping British troops in Iraq. He was manhandled by stewards and ejected from the Brighton Centre. He was briefly detained under Section 44 of the 2000 Terrorism Act.
