Nick Pickles is Director of the civil liberties campaign group Big Brother Watch.
The recent debate about Terrorism Prevention and Investigation Measures (TPIMs) has raised serious questions about Labour’s commitment to liberty and democracy. It has also made abundantly clear how a wide review of our surveillance laws is needed.
TPIMs were the Government’s answer to reforming Control Orders, introduced in 2011. It is worth considering for a moment what a control order entailed. A Secretary of State could prohibit what you were allowed to possess, what jobs you could do, restrict who you spoke to, where you travelled or lived, who was allowed to visit you, when you were allowed to leave your home, surrender anything at any time for inspection and consent to electronic surveillance.
The law also allowed for “Any other restrictions whatsoever for up to 24hrs, when it is deemed necessary.” House arrest remains a gross understatement for such powers.
No court was involved, no evidence was cross-examined. The law granted the executive branch of government sole authority to deny citizens of their liberty, and anything else deemed necessary, with no oversight or restraint from the judicial or legislative branches. Despite this, one in six subjects of a control order absconded.
TPIMs are not perfect, but they are a vast improvement on control orders. The Government should be commended on reforms that recognised that in a free society a political official should not be able to end an individual’s liberty without recourse to a court.
Sadly, Labour’s stance on TPIMs this week only highlights how little the party has changed since the authoritarian excess and constitutional vandalism of Tony Blair’s Government, from 90 day detention without charge to ID Cards and more than a million innocent people on the DNA database.
It should be an obvious statement that in democratic countries people are prosecuted for crimes, and are presumed innocent until they are found guilty. Yet from listening to some of the opposition comments in the house, and reading some press reports, you would be forgiven for wondering why in the face of such apparent clear danger to the public, these individuals were going to be no longer subject to a TPIM and allowed to live freely, albeit under inevitable monitoring arrangements.
Herein lies the fundamental problem, one which Yvette Cooper seemed oblivious to. Why are these people not being prosecuted? It should be for judges and the courts to determine guilt and deny someone their liberty, not politicians and the media.
For this reason, the TPIM issue is in fact part of a much wider issue, concerning both the separation of powers and the ability of the security services to prosecute people suspected of being involved in terrorism.
Britain remains one of a few countries to not allow intercept evidence in court. As such, while the security services may have lawfully acquired evidence of participation in terrorist training or conspiracies to harm British citizens, if that evidence was acquired by intercept it cannot be used in court. Without other forms of evidence, people who pose a threat cannot be brought to trial.
This is one of the reasons Big Brother Watch called for the current 30 day limit on the targeted collection of non-content evidence to be lifted, with ongoing surveillance possible subject to judicial oversight. If such evidence were acquired it would allow for an increased availability of targeted internet surveillance of individuals – as opposed to collecting data on everyone – while also increasing the evidence that might be available to be used in court.
A full review of surveillance law would allow these issues to be addressed. Sadly, the Intelligence and Security Committee’s call for evidence does not look at the wider picture, denying a full debate that is long overdue.
Unfortunately, as is sadly too often the case with national security issues, political opportunism was too hard to resist and Labour simply wanted to score some points. A far more useful debate would have sought to understand why these people could not be prosecuted and how that might be resolved.
TPIMs were not introduced to protect the human rights of terrorists, as some have absurdly sought to caricature the debate. They go to the fundamental issue of the power of the state to deny an individual of their freedom. We need to do more to ensure those who seek to do us harm are prosecuted, in open court and judged by a jury of their peers. That should be the focus of a wide ranging review and public debate.
However, we do not enhance our commitment to freedom and liberty by undermining the judicial process and separation of powers that remain the basis of our democracy, and of those democracies yet to flourish. Control Orders were not fit for a democratic country and they should be consigned to the dustbin of history. The sooner Labour realise that, the better for all of us.