Would a Miliband-led Labour government be an improvement on British civil liberties?

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The troubling case of David Miranda, the partner of Guardian reporter Glenn Greenwald, who was detained by British police at Heathrow yesterday for nine hours under schedule 7 of the U.K. Terrorism Act, is now a full-blown fully international incident. United Kingdom Flag Icon

The case has implications not only for U.S. politics (Greenwald has been the chief source for the leaks about the U.S. National Security Agency’s Internet intelligence-gathering programs) and even Brazilian politics (Greenwald lives in Brazil with Miranda, a Brazilian native), but for British politics as well, where the issue of civil liberties has been contentious for the past decade and a half under both the Labour governments of Tony Blair and Gordon Brown and the Conservative-led government of current prime minister David Cameron.

Political strategist Ian Bremmer is already suggesting that the United States and/or the United Kingdom may be preparing an indictment against Greenwald (presumably under the U.S. Espionage Act), which would explain why Miranda’s laptop computer and other personal effects were confiscated in London.  We already know that the United States, by the admission of White House deputy press secretary Josh Earnest was given a heads-up by London prior to Miranda’s detention, though Earnest has denied that the United States requested or collaborated with the detention.  It’s equally plausible that overeager police officials in London jumped at an opportunity to gather information they thought top U.S. and U.K. officials would appreciate — if the United States and the United Kingdom really are pursuing an international case against Greenwald, you’d think they would be careful not to commit what seems like a prima facie violation of the U.K. Terrorism Act.

With both Scotland Yard and Cameron saying little about the incident, and with U.S. officials remaining relatively mum, most of today’s discussion has been dominated by vehement critics of the detention on both sides of the Atlantic.

One of the most striking has come from Labour Party’s shadow home secretary, Yvette Cooper, a rising Labour star who may herself one day lead the party, who has called for an investigation into whether the detention was appropriate under the Terrorism Act:

Schedule 7, which applies only at airports, ports and border areas, controversially allows officers to stop, search, question and detain individuals. Miranda was held for nine hours, the maximum the law allows before officers must release or formally arrest the individual.

According to official figures, most examinations under schedule 7 – over 97% – last less than an hour, and only one in 2,000 people detained are kept for more than six hours. It has been widely criticised for giving police broad powers under the guise of anti-terror legislation to stop and search individuals without prior authorisation or reasonable suspicion – setting it apart from other police powers.

As we approach the annual convention period in British politics, pressure on Labour leader Ed Miliband is growing to draw a deeper contrast with the current coalition government on many issues, including civil liberties.  Soon after his election as Labour leader in September 2010, Miliband criticized his party’s overreach on civil liberties, identifying in particular the Blair government’s plan to hold suspects for 90 days without trial and the broad use of anti-terrorism laws.  At the time, Miliband argued that he wanted to lead Labour to reclaim the British tradition of liberty, though Miliband also indicated at the time he supported Blair’s widespread introduction of what are now over 4 million closed-circuit television surveillance cameras throughout the country.

As the parties begin to jostle for position for an election that’s now just 21 months away, Cameron certainly won’t be able to run for reelection on as vigorous a pro-liberty position as he did in 2010, though his junior coalition partners, the Liberal Democrats, can point to their success in repealing Labour’s plan to introduce national ID cards and scrapping the Tories’ proposed communications data bill this year.

That leaves a key opening for Miliband to champion civil liberties, but given the durability of the British surveillance state and Labour’s role in creating the legal framework last decade for the British surveillance state, it is unclear whether Miliband will do so, though Cooper delivered a high-profile speech in July arguing for more oversight and protections in relation to the U.K. intelligence and security services.  It’s likelier, however, that a future Labour government will pursue many of the same pro-security policies that each of the Blair, Brown and Cameron governments have pursued.

British voters will certainly remember the truly dismal record of the past Labour government under Blair and Brown on liberty (whether the efforts made the United Kingdom more secure is another question) — the list of curbs on personal freedom is long, and it includes not only the push for CCTV cameras:

  • the passage in 2000 of the Terrorism Act that forms the basis for Miranda’s weekend interrogation and the passage the same year of the Regulation of Investigatory Powers Act, which provided the government powerful new surveillance powers;
  • the 2001 Anti-Terrorism Crime and Security Act, which was enacted in the wake of the 2001 terrorist attacks on the United States and allowed the government to detain indefinitely foreign nationals suspected of terrorist acts indefinitely;
  • the 2005 Prevention of Terrorism Act, which allowed the government to monitor anyone, including British citizens, suspected of terrorist acts, and allowed to government to restrict the Internet and phone usage and travel of such suspected individuals;
  • the 2006 Identity Cards Act, which introduced a national database and the introduction of national ID cards;
  • the 2006 Terrorism Act, which allowed terrorist suspects to be detained without any charge for up to 28 days (less than the original proposal of 90 days, which engendered so much opposition among Tory and Labour MPs alike that it delivered to Blair his first defeat in the House of Commons); and
  • the 2008 Counter-Terrorism Act, which extended the 28-day period to 42 days, which spurred shadow home secretary David Davis to a high-profile parliamentary resignation in protest — Davis protested the ‘strangulation of British freedom,’ though he was subsequently reelected in a by-election.

British voters will also recall the impassioned opposition that Cameron once espoused against Labour’s ‘surveillance state’ in 2009 and 2010 and his warning that under Labour, British citizens were in ‘danger of living in a control state.’  Though the coalition government scrapped Labour’s plan to introduce national ID cards shortly upon Cameron’s election as prime minister in May 2010, his record on civil liberties has been far less robust than his rhetoric as opposition leader might have suggested.  In particular, Cameron tried to push through a new communications data bill — popularly known as the ‘snoopers’ charter’ — that would have allowed UK officials to monitor e-mail and other Internet communications, requiring Internet and phone companies to store data tracking all email, phone and Internet usage for up to a year.  The Snowden revelations have firmly buried that bill’s chances of passage, though deputy prime minister Nick Clegg’s opposition to the bill probably doomed its success earlier this year.  Foreign secretary William Hague earlier this summer dismissed accusations that UK intelligence officials were receiving information from US intelligence officials through PRISM and other programs, thereby circumventing UK law, as ‘nonsense.’  But Hague did not deny that the Government Communication Headquarters (GCHQ) had access to information gathered from PRISM, remarking that law-abiding citizens have nothing to fear from British intelligence efforts.  Earlier this month, The Guardian reported that the GCHQ received payments from the NSA to secure trans-Atlantic intelligence cooperation.

The tradition of British liberty dates back to the 1215 signing of the Magna Carta by England’s King John, which secured for the first time key civil liberty concepts like due process and habeas corpus.  Magna Carta is a forerunner to the Petition of Right of 1628, the Habeas Corpus Act of 1679 and the English Bill of Rights of 1689 that, taken together, are as close to a set of constitutional principles as exists in English law.

Davis, who was the runner-up to Cameron in the 2005 Conservative leadership election, and who actually won more votes than Cameron on the first ballot, has remained in the backbenches throughout the coalition government, where he has remained one of the leading voices in Parliament on civil liberties issues, and he criticized Sunday’s detention as well:

Davis also dismissed the Downing Street position. He said: “This is absolutely not solely an operational matter for the police. This relates directly to press freedom and directly to our adherence to the rule of law. I’m afraid you cannot shove this one under the carpet on the basis of national security.”  He added: “What did ministers know of this? Did they authorise it? Have they returned his computers, have they retained data from those computers and phones? There are a lot of questions to be answered as a matter of urgency.

“The truth is there is too much of a habit in Britain of using terrorism law as a catch-all … The 2000 act was not designed, and certainly not presented as a mechanism for trawling through people’s private information when they passed through Heathrow between two other non-enemy countries.”

But even before the Snowden / PRISM revelations, commentators decried a surveillance state that’s now won support from both Labour and Tory governments:

Adding a vast swath of unfocused surveillance data to the pile – more than a trillion emails a year are sent from the UK – increases the size of the haystack many times over, while the number of needles stays unchanged. Our security services may drown themselves in data. Worse still, some users can hide their traffic, and avoid email entirely, by use of encryption or anonymising technology.

It’s not as if the innocent have nothing to fear; time and again data from official government databases has been lost, stolen, or mishandled. Only last week Channel 4 News uncovered details of data on the police national database being accessed or altered by criminal gangs. Hundreds of civil servants have been found to have committed “gross misconduct” when handling jobseekers’ data – and inquiries into the extent to which media organisations “blagged” records from public databases are ongoing.

Even these concerns are minor relative to the broader “mission creep” of new police and intelligence powers. The Terrorism Act was introduced by Tony Blair with the promise that it would be used only in the gravest of cases. Less than five years later it was used to bar an elderly man from the Labour party conference for heckling.

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