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The Constitution

Taking Liberties

" He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."
Thomas Paine

BBC poster threatens unlicenced TV viewers
London is in our database. Evaders will pay.
London 2008. BBC poster threatens those who watch TV without permission.

When the British police stop and search citizens at random or because of a gut feeling of wrong-doing they are usually faulted, not for doing so without a reasonable suspicion of law-breaking, but because a disproportionate number of non-white citizens may be stopped.

This may seem advantageous for those who suffer from such discrimination. But it may also have the disadvantage for them of creating the appearance that they enjoy special treatment. For it does indeed put them into another British minority, those whose civil liberties are taken seriously.

Why is it that it often takes the unfair treatment of a minority for the British to stand up in defence of their civil liberties? And why can those who belong to a minority group not depend on the majority's self interest to protect them from infringements of civil liberties that affect the entire population?

"Steven Jago . . . was charged under the (Terrorsim) Act for carrying a banner bearing the words of George Orwell - ‘In a time of universal deceit, telling the truth is a revolutionary act’ - and having in his possession copies of Vanity Fair which bore an article entitled ‘Blair's Big Brother Legacy’. Mr. Jago said the police seemed to consider his reading material subversive and evidence of his desire to break the law".
What Price Liberty. Ben Wilson

In Britain civil liberties, like democracy, are attenuated. This should not be a surprise. A feudal constitution is antithetical to freedom and equality. And the related tendency of the British to look upward for political authority, rather than outward to their fellow citizens, make them poor protectors of personal liberty. This is a country with a constitution that is grounded on the surrender of civil rights.

Home Secretary Theresa May has said that citizenship is a "privilege, not a right". If the Home Secretary decides that it is "conducive to the public good" to remove a person's citizenship she may do so by issuing an order and writing to the last known address of the person concerned. The government now (2014) wants to extend this to naturalised citizens who have no other nationality and would become stateless. Since 2006 42 people have been deprived of citizenship, 20 of them in 2013. Israel, one of the few other countries to do this, has done so only twice since 2000.

How civil liberties have been reduced in Britain

  • In 2016 Parliament passed the Investigatory Powers Bill. It gave the state, in the words of the Financial Times, "the ability to intercept and hack into millions of ordinary citizens' communications". In the words of that same newspaper "Dozens of public organisations and departments will be able to access your communications, in some cases without a warrant. These agencies range from the police, HM Revenue & Customs, customs officials and intelligence agencies, to the NHS, the Department of Health, the Food Standards Agency and the Gambling Commission".
  • In 2007 Privacy International ranked Britain the bottom five counties for privacy and surveillance.
  • In 2014 the British government tried to hold in complete secrecy a trial of two men accused of terrorism offences. Even the names of the accused were to be kept secret. The names of the defendants and some of the proceedings were revealed only after the Guardian newspaper applied to The Court of Appeal to be allowed to publish the names (Guardian News and Media Ltd v AB and CD ). However, most of the trial was still in secret and no satisfactory explanation was given to the people for this breach of their fundamental rights.
  • 13 government agencies can intercept phone calls and other electronic communications. In 2004-6 ministers granted 160 warrants a month. The number refused is not known. The issue of a warrant does not require the approval of a judge.
  • A police officer may stop a vehicle and question the driver in the absence of any grounds to suspect the law has been broken. Border Agency officers stop and questions individuals in the street on the grounds that they seem nervous at the site of the officer.
  • The Counter Terrorism Act has made it illegal to photograph a police officer or soldier if the photograph could be of use to a terrorist. Other counter-terrorism law has already been used by the state in a case not at all related to terrorism.
  • In November 2008 anti-terrorist police from the Special Operations Directorate of the Metropolitan Police searched the home and office of legislator Damien Green without a search warrant. They seized documents and equipment in an investigation into a "whistle-blowing" civil servant.
  • In 2005 a heckler at the Labour Party conference was held by police under Section 44 of the Terrorism Act.
  • 52 police forces, 474 local authorities and 110 other public bodies are among 800 agencies able to get access to communications data, including telephone and email records (This has been used by local councils in inquiries about dog fouling, illegal fishing and applications for school places). These powers are used under the Regulation of Investigatory Powers Act 2000 that allows such spying for as vague a reason as protecting "the interests of the economic well-being of the UK". It is legal for local councils to secretly follow citizens, without authorisation from a judge. They may film with hidden cameras and examine records of telephone calls and Web site visits. In 2008 - 2009 local authorities carried out nearly 5,000 "directed surveillance missions". Other public authorities carried out a similar number. In 2015 it was revealed that Metropolitan Police officers had been able to obtain the mobile 'phone records of a journalist on the authority of another police officer, not a judge.
  • In 2008 500,000 surveillance applications were made for information about citizens’ emails, text messages and telephone calls, around 1,500 every day. This is 40 per cent more than 2006. Although most applications were made by police and intelligence agencies, county, district and other local councils made 1,500 successful applications. The data revealed to these agencies does not include the content of the conversations and messages.
  • The Metropolitan Police has a database of at least 1,500 photographs of protestors many of whom have not been convicted of any crime.
  • Internet Service Providers are required to keep their customers usage data for 12 months. The UK initiated the statutory authority for this in the European parliament with no debate. Telephone companies and Internet service providers are to be required to monitor their customers’ telephone calls, emails, text messages and Web visits. The government will spend £2bn of taxpayers money to help them do so. The decision to do this followed criticism of plans for a state database that would have held details of all telephone and Internet activity. According to the Financial Times the companies may store details of TV programmes watched by their customers and the online games they play, as well as of telephone calls. The content of telephone call and emails will not be recorded.
  • There are as many as to 4.2m CCTV surveillance cameras,1 for every 14 people, according to research by the Information Commission in 2006. Such cameras are capable of reading 50m vehicle licence plates each day.
  • Britsh police run the largest DNA database in the world. In 2009 it had about 5m DNA profiles, including as many as 1m of adults and children who had been convicted of no crime. This is despite a European Court of Human Rights ruling against holding such records on innocent citizens. The government has said that in response to this ruling it would limit the time for which the profiles are held and remove thousands from the database. But DNA records of terrorism suspects released without charge would still be kept for life. Profiles of those arrested but not conviced of other serious violent or sexual crimes would be kept for 12 years. The profiles of those arrested but not convicted of other crimes would be kept for 6 years.
  • Government-sponsored legislation to allow suspects in terror cases to be held for 42 days without charge was dropped in 2008 only because a majority of legislators-for-life in the House of Lords did not support it.
  • In 2008 the Anti-terrorism, Crime and Security Act was used to seize the assets of a collapsed Icelandic bank in order to protect the money of British account holders.
  • Police charged a protester against Scientology alleging a placard saying "Scientology is not a religion. It is a dangerous cult" was "threatening, abusive or insulting".
  • If accused persons exercise their "right to silence" courts are able to hold this against the person concerned.
  • Trial jury is to be curtailed in complex cases.
  • Citizens are to be required to have a state identity card, for which they will be obliged to pay.
  • The Home Office is planning (February 2009) an intelligence centre that will store for 10 years the names, addresses, travel itineraries and credit card details related to 250m journeys to and from the UK each year.
Acknowledgements: Financial Times, New York Times and Sky TV.

Britain's feudal constitution, which requires the surrender of what should be considered democratic rights, has prepared the country's citizens to accept severe limites on their civil liberties. The law bars republicans from the legislature and from judicial and military positions, unless they are willing to swear a false oath. Catholics may not be head of state. The Anglican Churches is given privileges denied to other religions, to other denominations and to non-believers. These feudal evils are permitted because tradition, privilege and complacency have greater force in Britain than the love of civil liberty.

It is extraordinarily difficult for a people to take their civil rights seriously when they have allowed themselves to be denied the right to hold public office because of the family they were born into or because of their democratic beliefs. A people who do no protest when the son of the head of state is given £16m of their money year to spend, who bow their heads and give seats in the legislature to "lords", and who do not quarrel when told some of their fellow citizens are entitled to the privileges of "princes" and "princesses" are not predisposed to complain when stopped in the street and searched without good reason.

The feudal culture of deference is coupled to a constitution that allows the executive an excessive influence over legislators. Those who claim that their oaths of loyalty to a monarch mean nothing are happy to vote as told by their parties rather than as wished by the people. There is rarely any parliamentary debate about inroads into our civil liberties but when there is debate the Executive almost always enforces its wish to further control the people.

Parliament may remodel the British constitution, may prolong its own life, may legislate ex parte facto, may legalise illegalities, may provide for individual cases, may interfere with contracts and authorise the seizure of property, may give dictatorial powers to the government, may dissolve the United Kingdom or the British Empire, may introduce communism or socialism or fascism, entirely without legal restrictions."
Ivor Jennings, The Law and the Constitution (1933)

Civil liberties have been compromised so often from expediency, or in a misplaced spirit of pragmatism, in ways that leave the nation well short of a police state, that when a new challenge is made it is much more difficult to hold firm.

The funding of the British Broadcasting Corporation, illustrates this. To bring in the money to run its numerous TV channels, radio stations and Web sites, not to mention the drumming up of support for the feudal institution of monarchy, the BBC is able to deny all television to those that do not want its services. Citizens may exercise the human right to freely receive a communication from another, if the other is a TV company, only with the permission of the BBC. In order to enforce this requirement and ensure its income, the BBC monitors every home and workplace in the UK, threatens citizens who do not have a licence to watch TV and sends its investigators to “interview under caution” those who ignore its demands. To be able to broadcast sports, soaps and sitcoms the BBC uses police powers every day of the week in ways that that the police would hesitate to follow. When this is tolerated in order that soaps be broadcast it is that much harder to resist state-compelled ID cards that are justified as a defence against terrorism.

Every time the state takes away a freedom there is, of course, an excuse to justify it. Allowing the state to control access to TV is excused because the intention is to raise money for supposedly public service broadcasting. A ban on political TV adverts that allows the state to prohibit free speech is justified because the intention is to prevent those with more money having undue influence. Requiring legislators and others to swear a feudal oath is excused because some republicans are willing to swear false oaths. Monarchy and hereditary legislators are justified because people may love colourful traditions A state DNA database is justified because it helps the police catch criminals.

Some of these infringements may seem to the majority with a pragmatic attitude to be relatively harmless, with the perceived good outdoing the harm. In truth every concession opens the door to even more dangerous infringements, such as a national DNA database with records of citizens who have committed no crime. In October 2008 anti-terrorist legislation was used by the government to seize the assets of an insolvent Icelandic bank, something far removed from the intentions of the legislators who passed the law. When a majority that does not care ignores the rights of a minority, as when those who want the what the BBC produces forces those that do not to pay anyway, the door is opened to threats to its own interests, to attacks on rights it does care about. When pragmatism is preferred to principle there may no longer be solid ground on which to make a stand. When a people close their eyes to the forfeiture of their rights they will not see when what has been taken from them has left them unfree.

Neither conservatives or the left are reliable defenders of civil liberty. Conservatives are disarmed by a need or a desire to defend tradition. The left is weakened by its bias towards the state. Its inclination is to worry more about businesses that will use their personal data to sell more, than about the more serious threats from a state that it yearns to use for its own purposes.

This bias is seen in the National Council for Civil Liberties, know as Liberty. It prefers to emphasise the rights of the poor and oppressed rather than the indivisibility of human freedom. Thus in a TV discussion about the freedom to criticise Islam it's general secretary had to defend herself against the charge that it was not supporting freedom of speech. She insisted that it did. But, she said, Liberty was more worried about a young person who used foul language in the street being put under an anti-social behaviour order by the police than by any constraint on citizens criticising Islam.

"Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court, can save it".
United States Federal Judge Learned Hand.

When an organisation supposedly dedicated to civil liberty is selective about the freedoms it defends it is clear that there is no easy way of changing a culture in which neither the state nor individuals recognise the importance of civil liberty. And no easy way to engender in citizens a regard for their own liberties that would put them on guard.

A written constitution that did recognise those rights would provide a basis on which to build. A “bill of rights” that codified freedom of speech and other rights and that put the onus on a state that would put limits on those rights to justify itself would help. So would a system of government that recognised and encouraged the people to insist on the sovereignty of the people, not that of the executive. A social system that did not worship social hierarchy and privilege would encourage the people to better value the rights and freedoms of every citizen.

For civil liberty to be unmolested, or at least for assaults to be more easily fought off, Britain must discard its feudal past and learn to love democracy.

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