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23 July 2012

Selling surveillance equipment to vile regimes

The UK government now faces a legal challenge.

By David Allen Green

A totalitarian or repressive regime has many features. These include the restrictions on free association and free expression; and there will also be the unchecked powers and weaponry of those with coercive or lethal force.

But perhaps the most insidious and undermining aspect of internal control is the constant intrusion and surveillance. Of all the humiliations which were inflicted on Winston Smith in Nineteen Eighty-Four, the image of him cowering in the corner of his own apartment is perhaps the most telling of his overall predicament.

The UK government is supposedly against totalitarian or repressive states. The excesses of such regimes are routinely condemned and sometimes there are even sanctions. Prohibitions can be put in place against the export of certain military equipment. But, at the moment, the UK government is doing nothing to stop the export of surveillance equipment from British manufacturers to some of the most vile and illiberal governments in the world to use against their own people. And the horrifying truth is that it is entirely within the legal power of the UK government to stop this trade.

Back in April, the campaign group Privacy International wrote to the prime minister. The Guardian reported that:

In a letter to Privacy International, Downing Street said the government was “actively looking at this issue” and was working within the EU to introduce new controls on surveillance.

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But since then, there has not been a substantive word from the government. 

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It is correct that certain export controls can be agreed at EU level, and that this may be an ideal.  However, the Export Controls Act 2002 provides power for the Secretary of State to make provision of export controls for goods and technical assistance which facilitates internal repression in any country or breaches human rights (sections 1, 3 and 5 of the 2002 Act and paragraphs 3(2)D(c) and (d) of the Schedule to the Act).  But the Secretary of State has not exercised this power to prohibit exports of surveillance technology.

Privacy International has now instructed their lawyers Bhatt Murphy to write to the Secretary of State threatening an application for judicial review in respect of the failure to prohibit exports of surveillance technology under the Export Controls 2002.  Ambitiously, Privacy International has even given the government the ultimatum of bringing in such a prohibition within 21 days, or face legal action at the High Court.

However, the problem with any claim for judicial review is that it tends not to deal with substantive policy decisions. If a judge is satisfied that a minister or other decision-maker has acted within their powers then the decision will usually not be quashed. And the 2002 Act does not mandate that export control orders have to be made if the goods are being used for internal repression; the legislation merely provides that the government may make such orders on that basis if it so wishes.

I asked the Department of Business Innovation of Skills why exports of surveillance technology had not yet been banned and what they had to say to the Privacy International threat. Their response (with their emphasis):

This specific case may be the subject of legal action. So we need to consider Bhatt Murphy’s letter carefully and consider our response. It would be wrong to speculate on what our response might be.

But, in general terms:

a) where goods and technology are already subject to export control, we pursue this with the companies concerned. We do not comment on any licensing or enforcement issues relating to individual companies;

b) when subjecting goods or technology to export control, it is very important to ensure that the list is technically accurate – catching what needs to be caught without also impacting on significant legitimate trade;

c) we rarely use UK-only export controls – they can be circumvented easily and therefore tend not to be effective. Our preference is always to work with as wide a range of other Governments as possible to ensure concerted action.

Given that there are a finite group of British companies that manufacture this complex equipment, the last point is clearly unconvincing.  It will be interesting to see what their full response is to the Privacy International letter before claim.

Ultimately, however, this should not be a legal matter. It is not any more the job of a court to order the banning of any particular equipment than it is to order its export; the appropriate role of the court here is simply to establish whether a minster has acted lawfully. Instead, this is really a political and moral question, and it is one which our government is evading. 

The UK government has the legal power and the moral basis to ban the export of internal surveillance equipment to barbaric governments, and it is choosing not to do so.

And so, in the meantime, UK companies are supplying the very technology which converts merely unpleasant regimes into ones which are truly totalitarian and repressive.


David Allen Green is legal correspondent of the New Statesman