David Miranda: Remember his name

Even if it was legal, that doesn’t make it right.

Our attitude to anti-terror policing is very strange indeed. In many ways, it is like a magician’s trick. We (the public) turn up at the show with the full intention of suspending our disbelief so as to be entertained and entranced. The magician pulls the rabbit out of the hat, or makes the Statue of Liberty disappear. We applaud, we are entranced.

But we know, somewhere in the back of our minds, that we are being fooled.

As with our safety from terror. We are happy because major terrorist attacks in the UK or US are thankfully rare. We are told about countless attacks which have been thwarted. We applaud, we are entranced. But we know, somewhere, that there must be a price.

That price is our civil liberties. More accurately, that price is the civil liberties of others, who we don’t know but whose faces occasionally drift through the public conscience. Binyam Mohamad, who was tortured by the CIA, apparently with collusion by our own Security Services. Shaker Aamer, who has been detained in Guantanamo Bay without charge for almost 12 years. And it is no secret that many anti-terrorism laws are draconian and involve a huge potential for abuse.

Which is where we encounter David Miranda. Schedule 7 of the Terrorism Act 2000 includes a stop and search power which, according to the Independent Reviewer of Terrorism Legislation David Anderson QC, is “among the strongest of all police powers” (2012 report, para 9.3). I will leave the detail to others such as Obiter J, Joshua Rozenberg and David Allen Green. In essence, this is a power which allows a person to be questioned for up to nine hours, potentially without a lawyer , for the purposes of determining whether they appear to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism. No reasonable suspicion is needed.

This is a weighty power and also a heavily used one. 61,145 people were examined under Schedule 7 in 2012 alone (Anderson, 2013 report (pdf), 10.7). Most of them self-described as ethnic minorities (2013 report, p98).

And this is not news. Or at least, it shouldn’t be news. The power has existed in some form since 1974, and has received significant criticism from the Independent Terrorism Reviewer in successive reports, as well as being the subject of consistent campaigning. The Coalition Government has listened and after an extensive public consultation has now proposed in a new bill fairly significant reforms to the law.

But we, the public, have closed our ears to the this for years. It is all part of the magic trick. We are safe and we don’t ask questions. Or at least, the fear and noise generated by a major terrorist attack drowns out the sound of questions for years after.

Harvard professor Alan Dershowitz infamously argued in 2002 that the time had come for torture warrants. He was pilloried for seeking to legitimise torture, but perhaps he was misunderstood. He was right that, post 9/11, the US would torture anyway, so maybe he was also right to seek some sort of legal oversight.

This is incredibly difficult stuff, morally and legally. But the alternative is that we (certainly in the US, maybe in the UK) allowed state-sanctioned torture to happen, whether directly or by rendition, and accepted it as part of the magic trick of preventing terrorism. We express shock and disgust when, occasionally, these acts emerge from the depths, but who is really to blame here, the actor or the bystander?

And then comes the lull. There has not been a terrorist attack involving 10s or 100s of casualties in the UK or US since 2005. Our ears are slowly becoming attuned again to the underlying hum of illiberal legislation. And so a case like Miranda’s arises and it just sounds wrong, whether or not it is legal or illegal under current law. The detention of a journalist (perhaps a journalist’s assistant), the search of his journalistic materials without any of the usual checks or balances. There are hard questions about the line between whistle blowing and espionage (David Aaronovich has described the complexity best), but the sense of unease over this case is real and justified.

The legality of Miranda’s detention

Was he detained unlawfully? I am not sure. His solicitor’s pre-action letter sets out a fairly convincing case. But there are two potential holes in the reasoning, in my view.

First, the statement that the schedule 7 powers are “only capable of being exercised where the individual in question is not suspected of being involved in terrorism” (para 28). The argument runs: we know that Miranda’s detention was planned in advance, so surely he was suspected, so the power was used unlawfully. A similar argument has been made by David Allen Green. But unless I am missing something, that description of the limits of Schedule 7 is too narrow – see Mr Justice Collins in CC v The Commissioner of Police of the Metropolis & Anor [2011] EWHC 3316 (Admin):

16 … the language of s.40(1)(b) is wide enough to allow for examination not only of whether he appears to be a terrorist but also of the way in which or the act by which he so appears. The officer is not, unless the powers are to be ineffective in their purpose to protect from terrorism, prevented from examining a person even if it appears he is a terrorist in particular respects, for example if in the past or by acts only affecting a foreign government.

So it seems that suspicion of being involved in terrorism does not prevent the use of Schedule 7 to question about “the way in which or the act by which he so appears“. It is, as I have said, a very wide power.

A second issue with the solicitor’s letter is that the definition of terrorism (para 31) may be too narrow. In fact, section 1 of the Terrorism Act also defines an act of terrorism as one “designed seriously to interfere with or seriously to disrupt an electronic system.”

So if Miranda was carrying stolen state secrets on memory sticks, he might have fallen under the Schedule 7 powers. Just. It might be said that at the early investigatory stage, the Security Services and Police are entitled to find out a bit more about the state secrets apparently being carried, perhaps illegally, by Miranda, to see whether they could or have fallen into the wrong hands. This is not an arrest; merely questioning.

But the powerful counter argument, as made by a comment below, is that this kind of guerrilla journalism was never intended to fall within a provision which is clearly aimed at major cyber hacking. For a full discussion of this issue, see Carl Gardner’s post.

I expect that we will learn more about this troubling, fascinating case in the coming weeks. Do not be surprised, though, if the Judicial Review proceedings are quickly cloaked under a “Closed Material Procedure”, another draconian power which is, unlike Schedule 7, brand new. As to the outcome, I think this is going to be finely balanced, although as Miranda’s solicitor’s letter points out, under human rights law the courts have now begun to make encouraging noises about limiting stop and search powers, even when used to prevent terrorism, where a lot of leeway is given to states – the human rights proportionality exercise may be the most powerful weapon Miranda has.

The conjurer’s tricks

But even if it was legal, that doesn’t make it right. Schedule 7 is a very widely drafted power indeed. The fact that it can be used to investigate an act which almost nobody would define as “terrorism” is probably more a testament to its frighteningly wide scope than to the moral integrity of the action itself.

Which brings me back to the magic. The public may be happy to choose ignorance over moral hazard. But, paradoxically, underlying that choice is also a huge bank of trust. A strange kind of trust, because it the trust not to abuse these wide powers, but also – nudge, wink – to sometimes use them “robustly”. That dissonance probably cannot survive a long period without frightening major attacks.

An issue like this can be ignored for years until the time is right for it to emerge from our guilty subconscious. And even when the time is right, we still need a trigger. With phone hacking, it was Milly Dowler. Perhaps David Miranda will be the trigger to start unwinding some of our more oppressive anti-terrorism laws.

But, for that to happen, we need to remember his name, even after his story leaves the front pages. Even harder, we need to remember his name after the next terrorist attack. Because there is no magic, only the conjuror’s trick. And we, the public, are the greater fools for allowing ourselves to be tricked.

This post originally appeared on ukhumanrightsblog.com and is reposted here with the author's permission

David Miranda appearing on BBC News.

Adam Wagner is a barrister at 1 Crown Office Row chambers and editor of UK Human Rights Blog

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The 11 things we know after the Brexit plan debate

Labour may just have fallen into a trap. 

On Wednesday, both Labour and Tory MPs filed out of the Commons together to back a motion calling on the Prime Minister to commit to publish the government’s Brexit plan before Article 50 is triggered in March 2017. 

The motion was proposed by Labour, but the government agreed to back it after inserting its own amendment calling on MPs to “respect the wishes of the United Kingdom” and adhere to the original timetable. 

With questions on everything from the customs union to the Northern Irish border, it is clear that the Brexit minister David Davis will have a busy Christmas. Meanwhile, his declared intention to stay schtum about the meat of Brexit negotiations for now means the nation has been hanging off every titbit of news, including a snapped memo reading “have cake and eat it”. 

So, with confusion abounding, here is what we know from the Brexit plan debate: 

1. The government will set out a Brexit plan before triggering Article 50

The Brexit minister David Davis said that Parliament will get to hear the government’s “strategic plans” ahead of triggering Article 50, but that this will not include anything that will “jeopardise our negotiating position”. 

While this is something of a victory for the Remain MPs and the Opposition, the devil is in the detail. For example, this could still mean anything from a white paper to a brief description released days before the March deadline.

2. Parliament will get a say on converting EU law into UK law

Davis repeated that the Great Repeal Bill, which scraps the European Communities Act 1972, will be presented to the Commons during the two-year period following Article 50.

He said: “After that there will be a series of consequential legislative measures, some primary, some secondary, and on every measure the House will have a vote and say.”

In other words, MPs will get to debate how existing EU law is converted to UK law. But, crucially, that isn’t the same as getting to debate the trade negotiations. And the crucial trade-off between access to the single market versus freedom of movement is likely to be decided there. 

3. Parliament is almost sure to get a final vote on the Brexit deal

The European Parliament is expected to vote on the final Brexit deal, which means the government accepts it also needs parliamentary approval. Davis said: “It is inconceivable to me that if the European Parliament has a vote, this House does not.”

Davis also pledged to keep MPs as well-informed as MEPs will be.

However, as shadow Brexit secretary Keir Starmer pointed out to The New Statesman, this could still leave MPs facing the choice of passing a Brexit deal they disagree with or plunging into a post-EU abyss. 

4. The government still plans to trigger Article 50 in March

With German and French elections planned for 2017, Labour MP Geraint Davies asked if there was any point triggering Article 50 before the autumn. 

But Davis said there were 15 elections scheduled during the negotiation process, so such kind of delay was “simply not possible”. 

5. Themed debates are a clue to Brexit priorities

One way to get a measure of the government’s priorities is the themed debates it is holding on various areas covered by EU law, including two already held on workers’ rights and transport.  

Davis mentioned themed debates as a key way his department would be held to account. 

It's not exactly disclosure, but it is one step better than relying on a camera man papping advisers as they walk into No.10 with their notes on show. 

6. The immigration policy is likely to focus on unskilled migrants

At the Tory party conference, Theresa May hinted at a draconian immigration policy that had little time for “citizens of the world”, while Davis said the “clear message” from the Brexit vote was “control immigration”.

He struck a softer tone in the debate, saying: “Free movement of people cannot continue as it is now, but this will not mean pulling up the drawbridge.”

The government would try to win “the global battle for talent”, he added. If the government intends to stick to its migration target and, as this suggests, will keep the criteria for skilled immigrants flexible, the main target for a clampdown is clearly unskilled labour.  

7. The government is still trying to stay in the customs union

Pressed about the customs union by Anna Soubry, the outspoken Tory backbencher, Davis said the government is looking at “several options”. This includes Norway, which is in the single market but not the customs union, and Switzerland, which is in neither but has a customs agreement. 

(For what it's worth, the EU describes this as "a series of bilateral agreements where Switzerland has agreed to take on certain aspects of EU legislation in exchange for accessing the EU's single market". It also notes that Swiss exports to the EU are focused on a few sectors, like chemicals, machinery and, yes, watches.)

8. The government wants the status quo on security

Davis said that on security and law enforcement “our aim is to preserve the current relationship as best we can”. 

He said there is a “clear mutual interest in continued co-operation” and signalled a willingness for the UK to pitch in to ensure Europe is secure across borders. 

One of the big tests for this commitment will be if the government opts into Europol legislation which comes into force next year.

9. The Chancellor is wooing industries

Robin Walker, the under-secretary for Brexit, said Philip Hammond and Brexit ministers were meeting organisations in the City, and had also met representatives from the aerospace, energy, farming, chemicals, car manufacturing and tourism industries. 

However, Labour has already attacked the government for playing favourites with its secretive Nissan deal. Brexit ministers have a fine line to walk between diplomacy and what looks like a bribe. 

10. Devolved administrations are causing trouble

A meeting with leaders of Scotland, Wales and Northern Ireland ended badly, with the First Minister of Scotland Nicola Sturgeon publicly declaring it “deeply frustrating”. The Scottish government has since ramped up its attempts to block Brexit in the courts. 

Walker took a more conciliatory tone, saying that the PM was “committed to full engagement with the devolved administrations” and said he undertook the task of “listening to the concerns” of their representatives. 

11. Remain MPs may have just voted for a trap

Those MPs backing Remain were divided on whether to back the debate with the government’s amendment, with the Green co-leader Caroline Lucas calling it “the Tories’ trap”.

She argued that it meant signing up to invoking Article 50 by March, and imposing a “tight timetable” and “arbitrary deadline”, all for a vaguely-worded Brexit plan. In the end, Lucas was one of the Remainers who voted against the motion, along with the SNP. 

George agrees – you can read his analysis of the Brexit trap here

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.