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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How English identity politics will shape the 2017 general election

"English" voters are more likely to vote Conservative and Ukip. But the Tories are playing identity politics in Scotland and Wales too. 

Recent polls have challenged some widely shared assumptions about the direction of UK elections. For some time each part of the UK has seemed to be evolving quite distinctly. Different political cultures in each nation were contested by different political parties and with different parties emerging victorious in each.

This view is now being challenged. Early general election surveys that show the Tories leading in Wales and taking up to a third of the vote in Scotland. At first sight, this looks a lot more like 1997 (though less enjoyable for Labour): an increasingly hegemonic mainland party only challenged sporadically and in certain places.

Is this, then, a return to "politics as normal"? Perhaps the Tories are becoming, once again, the Conservative and Unionist Party. Maybe identity politics is getting back into its box post Brexit, the decline of Ukip, and weak support for a second independence referendum. We won’t really know until the election is over. However, I doubt that we’ve seen the back of identity politics. It may actually bite more sharply than ever before.

Although there’s talk about "identity politics" as a new phenomenon, most votes have always been cast on a sense of "who do I identify with?" or "who will stand up for someone like us?" Many voters take little notice of the ideology and policy beloved of activists, often voting against their "objective interests" to support a party they trust. The new "identity politics" simply reflects the breakdown of long-established political identities, which were in turn based on social class and collective experiences. In their place, come new identities based around people, nations and place. Brexit was never really about the technocratic calculation of profit and loss, but about what sort of country we are becoming, and what we want to be. 

Most social democratic parties in Europe are struggling with this change. Labour is no different. At the start of the general election, it faces a perfect storm of changing identities. Its relationship with working-class voters continues to decline. This is not because the working class has disappeared, but because old industries, with their large workplaces, shared communities and strong unions are no longer there to generate a labour identity. 

Labour is badly adrift in England. The English electorate has become increasingly assertive (and increasingly English). The Brexit vote was most strongly endorsed by the voters who felt most intensely English. In the previous year’s general election, it was fear of Scottish National Party influence on a Labour minority government that almost certainly gave the Tories the English seats needed for an overall majority. In that same election, Labour’s support amongst "English only" voters was half its support amongst "British only" voters. The more "English" the voters, the more likely they were to vote Ukip or Conservative. It shouldn’t be a surprise if Ukip voters now go Tory. Those who think that Ukip somehow groomed Labour voters to become Tories are missing the crucial role that identity may be playing.

So strong are these issues that, until recently, it looked as though the next election - whenever it was called - would be an English election - fought almost entirely in English battlegrounds, on English issues, and by a Tory party that was, increasingly, an English National Conservative Party in all but name. Two powerful identity issues are confounding that assumption.

Brexit has brought a distinctly British issue into play. It is enabling the Tories to consolidate support as the Brexit party in England, and at the same time reach many Leave voters in Wales, and maybe Scotland too. This serendipitous consequence of David Cameron’s referendum doesn’t mean the Tories are yet fully transformed. The Conservative Party in England is indeed increasingly focused on England. Its members believe devolution has harmed England and are remarkably sanguine about a break up of the union. But the new ability to appeal to Leave voters outside England is a further problem for Labour. The Brexit issue also cuts both ways. Without a clear appeal cutting through to Leave and Remain voters, Labour will be under pressure from both sides.

North of the border, the Tories seemed to have found - by accident or design - the way to articulate a familial relationship between the party in Scotland and the party in England. Scottish Conservative leader Ruth Davidson appears to combine conservatism, unionism and distance from English politics more successfully than Scottish Labour, which must ride the two horses of "near home rule" and committed unionism. Scottish Labour has a perfectly good call for a reformed union, but it is undermined by the failure of Labour in England to mobilise enough popular support to make the prospect credible.

Identity politics is not, of course, the be all and end all of politics. Plenty of voters do cast their ballots on the traditional tests of leadership, economic competence, and policy. Labour’s campaign will have to make big inroads here too. But, paradoxically, Labour’s best chance of a strong result lies in taking identity politics head on, and not trying to shift the conversation onto bread and butter policy, as the leaked "talking points" seem to suggest. Plenty of voters will worry what Theresa May would do with the untrammelled power she seeks. Challenging her right or ability to speak for the nation, as Keir Starmer has done, is Labour’s best bet.

 

John Denham was a Labour MP from 1992 to 2015, and a Secretary of State 2007 to 2010. He is Director of the Centre for English Identity and Politics at Winchester University

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