18 October 2018
Security and Freedom
An uneasy balance.
By John Watson
“Mirror, mirror on the wall, who’s the fairest of them all?” We all know the correct answer to that one, don’t we? It is “me” or, more grammatically, “I”, or, if you view things from the mirror’s point of view, “you”. No one, save in a fairy story, could possibly believe it was anything else. Still, that word “fairest” could mean a number of different things. To the wicked queen in Snow White it was a reference to physical beauty. To those who participate in government, it is a reference to decency, honour and justice. To describe yourselves as “fair” sends a “we can be trusted” message.
And, indeed, they really believe that they can. Give us the legislative ammunition, say the politicians and civil servants, and rely on us to act proportionately, not to apply the strict letter of the law out of context and in hard cases. They mean it, too, but there is always a risk that good intentions get lost and widely-drafted law feeds a system of oppression.
It is an almost impossible balance to strike, giving the authorities the powers they need to keep citizens safe on the one hand and allowing us citizens privacy and freedom on the other. Tightening up the law can have unexpected consequences and, indeed, loosening it can too. Look at Mrs May’s limiting of ‘stop and search’ when she was Home Secretary. The thinking was based on liberal instincts and concern for race relations, particularly at risk because ‘stop and search’ bore unduly heavily on minorities. So far so good. The result, however, has been an increase in the carrying of knives on the street with a lot of young people killed. Not good at all. That doesn’t mean that it was wrong to try it. The lesson is just that reform in either direction has unpredictable consequences. So how should issues of public safety be addressed? Over to the report of the Joint Committee on Human Rights on the government’s Counter Terrorism and Border Security Bill, which is now being debated in the House of Lords.
The principles of the Bill are not particularly contentious. Labour supported it in the House of Commons so, although there was opposition from the Lib Dems, there seems to be a broad agreement as to approach. The devil, however, is in the detail and buried among the Committee’s twenty-nine suggestions for amendment, some interesting questions are raised on how to handle the tension between security and freedom.
For a start, the Committee suggests removing from the Bill the new offence of “expressing an opinion or belief” in support of a proscribed organisation “reckless” as to whether the person addressed will be encouraged to support it. The change here is the introduction of “recklessness” as the hallmark of criminality, rather than the existing test of whether there was a deliberate intention to invite support for the organisation concerned. As a matter of principle, one would of course prefer the present law. It is hard to get comfortable with genuine debate being constrained by legal sanction unless there is an intention to do harm. Recruiting for illegal organisations is quite a different thing from arguing about them and that is the distinction which one would instinctively like to see being made. But how practical is that? Intention is a hard thing to prove to a jury and wouldn’t the result be that every hate preacher would justify his proselytising work by claiming that it was just debate? You can see why the government wants to cover this by going further, but the price of that further step is inevitably an infringement of the freedom of speech.
Then down at amendment 6, the Committee suggests the removal of a new offence of viewing or accessing material which would be useful to terrorists. Its objections here are to the absence of any need for an intention to do harm and the fact that someone innocently clicking on the wrong page of the internet could be committing a serious offence. Again, principle points one way and practicality another. Why should innocent curiosity be criminalised? On the other hand material on seized computers may be the only hard evidence against someone planning a terrorist outrage. Those designing the legislation sought to deal with this by providing an exception where the person accused can show a “reasonable excuse”. Is teenage curiosity a reasonable excuse or is it not? Hard to say and even harder to prove?
Quite a different freedom is undermined by the provisions forbidding a UK national or resident from travelling to an area proscribed by the Home Secretary. Britain is a trading nation and its status as such was built on the willingness of its people to travel widely. Should British travellers to exotic parts really have to prove that they are there for legitimate reasons? Fortunately, the sensitivity of this has been recognised and, if the defence of reasonable excuse is raised, the prosecution has to prove that it does not apply. That seems a complicated way of getting to the obvious position that only travelling to these countries with the aim of encouraging terrorism should be an offence but the balance struck is probably right.
There are other difficult provisions and the House of Lords will have its work cut out in sorting through them. Still, if you were designing this legislation, there would be two ways in which you could get the proportionality wrong and, unless you have the wisdom of Solomon, you are likely to fall one side or the other. The first is to legislate too lightly, leaving public safety at risk. The second is to legislate too sweepingly so that civil liberties are jeopardised more than they need to be. The difference is that if you do not go far enough you will leave dangerous gaps. If you sweep too wide the effect of the legislation can be mitigated by sensible administration. Put it like that and you must inevitably tend towards the second course, consoling yourself that all will be well because the law will be applied fairly.
“Mirror, Mirror, on the wall…?”