Reassurances that we should trust a particularly great general power only to be used in limited or exceptional circumstances are, unfortunately, too easily accepted. The problem is that power is rarely taken, nor liberty ceded, in one great dramatic coup. It is eroded. Erosion is generally boring. The powers are usually envisaged as being used for generally good purposes, and we are reluctant to accept that they contain within the potential for abuse. Resisting them appears dogmatic and inflexible.
Nonetheless inflexibility may well be required. The deprivation of liberty is, to use another metaphor, a slippery slope. Taking one freedom encourages the taking of more. Go too far, and the debate suddenly changes from whether to weaken a right, to the extent to which we should. Opposition becomes more difficult as the centre ground shifts. Thus ceding any deprivation beyond the absolutely necessary becomes licence for illiberal decadence. Mere reassurances are not sufficient; with any alteration to our rights must come the strictest possible safeguards.
This is not an abstract argument.
[Charles] Krauthammer’s first position was that torture should be restricted solely to ticking time bomb cases in which we knew that a terror suspect could prevent an imminent detonation of a WMD. His position a few years later is that torture should be the first resort for any terror suspect who could tell us anything about future plots. Those of us who warned that torture, once admitted into the mainstream, will metastasize beyond anyone’s control now have the example of Charles Krauthammer’s arguments to back us up.
At the less extreme end of the scale, we have the use of s.44 stop and search powers (i.e. ones not requiring reasonable suspicion) being ruled a disproportionate interference in our personal liberty by the European Court of Human Rights. The case is Gillan and Quinton v United Kingdom (4158/05) (press release here). You can find out more about it at Charon QC and MTPT‘s blogs. I haven’t finished reading the judgement (and may blog on it when I do), but what’s striking is the contrast between paragraphs 38-43 of the judgement. Lord Carlile of Berriew produced annual reports on the exercise of these powers. What is interesting is how the tone of these reports changes year on year.
In 2001 he starts by declaring:
“No difficulties have been drawn to my attention in relation to the exercise of these powers. They were used extensively in 2001. I have examined the full list of such authorisations, which have been deployed in almost every police authority area in Great Britain. It would not be in the public interest to provide details of the reasons and events. I am satisfied that their use works well and is used to protect the public interest, institutions, and in the cause of public safety and the security of the state. I have been able to scrutinise the documentation used for Section 44 authorisations. It is designed to limit inconvenience to the general public, and to ensure that no authorisation is given without detailed and documented reasons.”
By 2003, he reports that:
Last year I asserted that no particular problems had been drawn to my attention from the operation of these provisions during 2001. The opposite has been the case in relation to 2003. I have received many complaints
In particular, he notes that the Metropolitan Police circumvented the safeguards by using back-to-back authorisation of the powers. When one 28-day period expired, the next would begin, and so on.
By 2007, he is decreasingly patient:
I am sure beyond any doubt that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Whilst arrests for other crime have followed searches under the section, none of the many thousands of searches has ever related to a terrorism offence. …”
And in his 2008 report, the anger is palpable:
Examples of poor or unnecessary use of section 44 abound. I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop…
I now feel a sense of frustration that the Metropolitan Police still does not limit their section 44 authorisations to some boroughs only, or parts of boroughs, rather than to the entire force area. I cannot see a justification for the whole of the Greater London area being covered permanently, and the intention of the section was not to place London under permanent special search powers…
The figures, and a little analysis of them, show that section 44 is being used as an instrument to aid non-terrorism policing on some occasions, and this is unacceptable.
(Emphasis is my own).
Little further need be said. A power that was intended for use in specific circumstances, for specific reasons, ends up abused and distorted beyond its purpose. An act intended to disrupt suspected terrorist operations has been routinely used against photographers, protesters and all manner of other people who in no way were likely to be terrorists. Territorial and time limits were abused to give officers near-carte blanche to stop and search in London.
If you needed evidence that objections to illiberal measures are realistic, here you go.