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Tuesday, 12 January 2010

Section 44 and All That

I used to be a political partisan, with instincts to laud one political party and to damn all the others.

However, as I watched the course of domestic and international politics, I began to realise the force of George Orwell's observation at the very end of Animal Farm:

"No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which."

Party politicians have a great deal in common with each other: those whose careers consist only of seeking and, if possible, obtaining political power tend to do similar things once they have power.

There is actually little that the UK Labour government has done since 1997 in respect of criminal law and policy which would have been inconceivable coming from a Conservative government.

In particular, in respect of my own civil libertarian interests, the record of the Home Office shows no break at 1997 or at any other time: it still urges ID cards and a database state; and it still takes its political function to be the meeting of police demands for further power.

It does not matter whatsoever if the Home Secretary calls themself a Tory or a socialist, New Labour or Notting Hill Conservative.


Imagine a Martian, quite unaware of the supposed "political parties", being invited to observe British politics.

Imagine now that Martian being supplied with Edmund Burke's classic definition of a party:

"Party is a body of men united for promoting by their joint endeavours the national interest upon some particular principle in which they are all agreed."

Putting aside the sexist implication of this maxim, what would the Martian see as constituting the parties in contemporary politics?

I suspect the Martian would see a "Law and Order Party", consisting of the Home Office, the Metropolitan Police, the various constabularies, the secret services, and the government ministers of the day, of whatever purported political affiliation.

I hope that the Martian would also see a "Liberal" party, formed of those of any political affiliation, or none: those who who adopt a principle-based approach to questioning the use of the coercive power of the State, and those whose presumption is against the acquisition and exercise of powers by State agents against individuals.

I would further trust the Martian would be able to separate this "Liberal" party from those "Libertarians" who maintain that there is no role for the State, rather than there being a firm presumption against the State's use of coercive power.


The contest between this "Law and Order Party" and the "Liberal Party" can be seen, for example, in the controversy about section 44 of the Terrorism Act 2000.

As a modern Madame Roland could say:

"Oh Anti-Terrorism, what crimes are committed in thy name!"

Section 44 stop and search powers are routinely used - and in my view, abused - by police constables. They treat it almost like a formidable spell, invoking and chanting the magic word "terrorism" just so as to invade the privacy and autonomy of pedestrians, ranging from train spotters to architectural photographers.

Thousands of people have been stopped using this power: individuals who simply would not have been otherwise lawfully stopped.

What was most alarming was that this power can and is exercised by constables without any real accountability or control.

Today, however, there was a blow to the "Law and Order Party" in their ongoing abuse of section 44 powers.

The European Court of Human Rights, in a powerful judgment, held that section 44 was contrary to the individual's right to privacy under Article 8 of the ECHR.

The Court noted:

"84. In this connection the Court is struck by the statistical and other evidence showing the extent to which resort is had by police officers to the powers of stop and search under section 44 of the Act. The Ministry of Justice recorded a total of 33,177 searches in 2004/5, 44,545 in 2005/6, 37,000 in 2006/7 and 117,278 in 2007/8 (see paragraphs 44-46 above). In his Report into the operation of the Act in 2007, Lord Carlile noted that while arrests for other crimes had followed searches under section 44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of section 44 abounded, there being evidence of cases where the person stopped was so obviously far from any known terrorism profile that, realistically, there was not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop.

"85. In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. While the present cases do not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons is a very real consideration, as the judgments of Lord Hope, Lord Scott and Lord Brown recognised. The available statistics show that black and Asian persons are disproportionately affected by the powers, although the Independent Reviewer has also noted, in his most recent report, that there has also been a practice of stopping and searching white people purely to produce greater racial balance in the statistics (see paragraphs 43-44 above). There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protesters in breach of Article 10 and/or 11 of the Convention.

"86. The Government argue that safeguards against abuse are provided by the right of an individual to challenge a stop and search by way of judicial review or an action in damages. But the limitations of both actions are clearly demonstrated by the present case. In particular, in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.

"87. In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention."



That 2007/8 figure is startling, and presents one with a stark choice: either 117,278 stops were made on genuine terrorism grounds in one year, or the police were (as I suggest) routinely abusing their power.

The European Court rightly focused on the lack of legal safeguards. But there are many other human rights grounds for opposing such an illiberal provision, but the Court did not feel the need to decide these once it had determined the illegality of section 44 on Article 8 grounds.


I do not take terrorism lightly: indeed, a member of my family could have been easily killed in the Birmingham Pub bombing.

However, section 44 really has nothing to do with terrorism, but a grab for further power by the police and the Home Office in the name of anti-terrorism.

I would go so far to say that the relationship of the police and the Home Office to "terror" is similar to that the old Military-Industrial complex to communism. It is an excuse and not a reason.

Burke and Roland spotted that things done in the name of a good cause are not necessarily good; and Orwell showed how the pigs in Animal Farm and the Party in Nineteen Eighty-four sought ever more power on the back of contrived scares.

Nonetheless, today saw a victory for the "Liberal" Party.

It is sadly a rare victory, and one whch may have little practical effect; but it was a good victory all the same, in a real party battle which still continues.

And it is a party battle well worth fighting.


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For an excellent blogpost prompted by Sir Ian Blair's pathetic reponse to the European Court judgment, see The Heresiarch.



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17 comments:

John Gray said...

Hi Jack

You normally talk sense but not on this occasion. I was 17 when the Tories were elected in 1979 and the same sort of rot and nonsense that there was no difference between Tories and Labour was being talked about then.

If you are unemployed, low paid or in an insecure job or have mortgage arrears you know the difference.

Adam said...

I think that I would say that today saw a victory, albeit a small one, for the liberal traditions of this country

Steve said...

"If you've done nothing wrong you've nothing to worry about" is a common mantra with respect to the seemingly ever increasing powers state acquires with respect to individual freedoms and privacy.

How (in a soundbite world) do you counter that?

It seems to me that when laws are drafted and debated, the potential abuses of said laws should also be considered, for if it allowable under the law it will surely occur?

Benjamin Gray said...

Is it really fair to characterise it as "Law and Order" vs. liberals: surely the liberal side is pushing for the rule of law over arbitrary power?

Rob Heywood said...

I have long suspected that irrational fear of terrorism has been used as a vehicle to enhance the powers of the state and further, that the media in general is complicit in promoting this ideology. The mainstream news organisations in particular are guilty of distorting the degree of 'terrorist threat'.

Alex said...

On the nothing to hide argument, I recently had a link to this paper which takes issue with it (though I haven't read it yet):

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998565

twaza said...

Another excellent piece, thanks.

i have 2 comments:

first, there are 2 kinds of people: those who think that similarities are interesting and important, and those that think that differences are interesting and important. You pointed out some interesting and important similarities between political parties.

my second comment is that political parties always seek to destroy democracy and liberties as they seek to preserve and build their power and align themselves with the state - in theory parliament should provide an effective opposition to the governing party, but in practice the most necessary opposition always comes from groups outside parliament.

Martin Budden said...

I agree with Benjamin Gray: "Law and Order" and "Liberal" are misnomers. Instead I would use the names "Order party" (instead of "Law and Order party") and "Law party" (instead of "Liberal party"). This recognises the fundamental tension between law and order and avoids the overuse of the term liberal.

Jack of Kent said...

"Law and Order" - pronounced so that it is almost just one word - is the slogan which the illiberals themselves use.

I agree that, taken literally, it can be misleading, but it is such a fixture in modern political discourse that I choose to use it in this context. But your point on this, Benjamin and Martin, is well made.

Martin Budden said...

'"Law and Order" - pronounced so that it is almost just one word - is the slogan which the illiberals themselves use.'

Acknowledged. But by using the term yourself you are allowing the "illiberals" to set the agenda. Part of the battle against authoritarianism is reclaiming the language that has been appropriated.

I often think that the reasons advocates of human rights have such a hard time is that the term "human rights" just sounds so wishy-washy, especially when it is juxtaposed against the much more macho sounding "security" or "law and order".

Part of the battle against racism and sexism involved making people aware of their casual use of racist and sexist language and then avoiding the use of that language. Part of the battle against authoritarianism is a similar fight against misappropriation of our language. "Law and Order" verges on the oxymoronic and is almost Newspeak. The term should be avoided.

Rob said...

I think the problem emerges well before the politicians actually achieve power. Speaking as an old fart, it seems to me that a major change since my formative years in the 50s and 60s is not just the convergence of the two parties but the absence of effective opposition based on contrasting policies. Up until New Labour there was a clear difference in constituency, power base and - for want of a better term - class allegiance. In the last 15 or 20 years the old, organised confrontation between the 'establishment' and the 'worker's revolution' (excuse me while I get my tongue out of my cheek) has dissolved. This is perhaps a necessary part of adaptation to a world of new work patterns and lifestyles, but New Labour is part of the establishment; 'liberal' activity is now a threat to all political structures and coherent political opposition to anti-liberal legislation and its abuse has all but disappeared, perhaps with the occasional exception - ironically - in the House of Lords. One consequence of this ideological convergence is that while parliamentary power swapped between parties 5 times in the 30 years from 1950 to 1980, it has changed only once between 1980 and 2010, and some would argue that it was only a nominal change in 1997. (And yes, I have cherry-picked the dates a bit, but even so ... ). It's all swing and no balance.

Furthermore I have been amazed over the last 30 years how little accountability there is of the senior civil service, whose conservative (small 'c') and controlling instincts constrain the room for manoeuvre available to elected politicians, to say the least. The idea that they obediently carry out the wishes of their political 'masters' is a joke, literally: it is said that Margaret Thatcher enjoyed 'Yes, Minister' so much because of the accuracy of the parody.

Elrik Merlin said...

"It does not matter whatsoever if the Home Secretary calls themself a Tory or a socialist, New Labour or Notting Hill Conservative."

It seems to me that you are unlikely to find anyone in power presenting themselves as a "socialist" any more. And certainly I would agree with your statement above with respect to the UK since 1979. What happened at that point, in my view, was the destruction of the post-war consensus, that had stayed in place relatively unchanged through changes of government in the intervening period, and its replacement by a new agreement based on market forces and, basically, greed.

With Thatcher came a fundamental redefinition and a new consensus which suggested that rather than working together and contributing to a centralised system so that it could look after us, instead we should look after ourselves with the aid of market forces.

To me, this represented a significant rightward shift in the political consensus that has never been re-balanced. A "New Labour" government seems indistinguishable from a modern "Conservative" government and appears quite far to the right of, say, the Tory government of Edward Heath, let alone a 1960s Labour government.

Notably, following the 1997 apparent transition, privatisation measures undertaken post-1979 were never reversed, and the forces set in motion by Reagan and Thatcher that led directly and inexorably to our recent financial crises (not to mention other problems) were never curbed.

Despite the popular excitement in 1997, nothing really changed: a veneer conjured from focus groups was used to make it appear different to the casual observer.

I would suggest that today's major parties are in some sense "inside out": instead of proffering policies based on principles and trying to persuade the population that this or that party's principles are the ones to guide the country, instead they gather people in rooms and ask them what policies will give the party the best chance of winning. Those results, of course, are inevitably based on the current socio-political consensus, so it's hard to see how this will change.

Quite frankly, I would like us to rediscover the post-war political consensus of just before I was born, and the state of mind that had us all working together against adversity to build a better Britain, where Beveridge's Five Giants were to be eliminated. Instead, I fear, we are condemned to a future of "more of the same": untramelled greed, lack of concern for the planet and our grandchildren's life upon it, and an increasing number of alleged "choices" that are all indistinguishable and of poor quality, serving only to make money for someone rather than provide us with any tangible benefit.

Kimpatsu said...

I'm not very optimistic about improvements happening. The ECHR ruled on DNA before, and Zanu-Labour just ignored them. They'll do the same with this ruling, you'll see. Until the judges of the ECHR have the power to issue warrants for the arrest of politicians who ignore their rulings as contempt of court, Zanu-Labour will never budge. Sad, but inevitable, given their prediliction for authoritarianism.

John Collins said...

The trouble is that holding the reins of power is more addictive than heroin or cocaine can ever be.

Parties promise all sorts of things in opposition but once they cease to be opposition and they can't really see what could possibly be so wrong with the system that got them there.

Witness Blair's turnaround on PR which he pretended to believe in in opposition.

Recently I was reading about Timothy Evans - the guy framed and hanged for the murders of his wife and daughter - crimes undoubtedly committed by the serial killer Christie.

For years Tory home secretaries refused to reopen the case and were castigated by Labour ones.

Then when Labour got into power in 1964 the roles were reversed and the Tory party hacks who'd argued against reopening the case argued for it and vice versa with the Labour party hacks.

(To his credit Roy Jenkins did cut the Gordian knot in 1965 and got a pardon for Evans, not that it did him any good apart from reburying his remains).

We'll probably see the same thing with Megrahi the supposed Lockerbie bomber the poor sod.

Frugal Dougal said...
This comment has been removed by a blog administrator.
Alan Douglas said...

Steve asks how (in a soundbite world) you counter" :If you've done nothing wrong you've nothing to worry about"

My letter in the Times and Telegraph added "Not so - I fear having to prove I have nothing to hide."

Alan Douglas

ObiterJ said...

I agree that, had they been in power, the Conservatives would have done many of the same things as Labour. The endless and rather tiresome battle between the main parties to be seen to be "tough" on crime has caused them all to adopt a similar stance.

Unfortunately, the section 44 issue is not over yet. There could be a further hearing at The Grand Chamber. You can never really forecast how that might go but one possibility is that section 44 will be finally condemned on Article 5 (Liberty and Security) grounds.

It says something about the English judiciary that they all saw nothing seriously wrong with section 44 and the coercive power behind it in section 47.

It also says something about the governmental and Police attitude to the independent review process. The Reviewer had commented advsersely about how the Police were using section 44. The government's reaction and the Police reaction was to ignore his concerns.