New Statesman & Society, 3 November 1995
In the week of the first anniversary of the Criminal Justice Act, the silencing of Clare Short on cannabis shows that it is not just the Tories who have an authoritarian tendency. Paul Anderson and Steve Platt look at the continuing assault on our civil liberties
“We have had telephones tapped, mail intercepted and the citizens’ privacy invaded by vetters and compilers of files. We have had official secrets privily leaked to right-wing columnists by persons in high public office or in the armed services, and we have seen no trace of even-handedness in the application of justice. We have had several persons (in Newcastle, Liverpool, Southall and Glasgow) who appear to have died at the hands of the police, and others who have been severely injured, and we have had neither prosecutions nor public inquiry . . . The state of the nation is no longer in question. That has already been decided, although it may never be clear by whom or how. The nation is to be a property managed by the state. And the state is to be a station of Nato, a station with a blue light over the door and sirens moaning in every street.”
So wrote the late E P Thompson in a celebrated extended essay, “The State of the Nation”, published first as a series in New Society in late 1979 and the next year whole in his best-selling collection Writing by Candlelight. In the introduction to the book, Thompson said that the pessimism of “The State of the Nation” was “excessive”, but there can be no doubt that he was expressing the feelings of most civil libertarians at the time.
The cold war had entered a distinctly chillier and more dangerous phase. As Thompson wrote his polemic, Nato was putting the finishing touches to its announcement of the deployment of cruise and Pershing 11 missiles in Europe and the Soviet leadership was preparing to invade Afghanistan – and Britain had just elected a party to government that, for all its rhetorical anti-statism, was more authoritarian in intent than any that had taken office since the early 19th century. Margaret Thatcher had come to power on a promise of ending Britain’s crisis of “ungovernability”, by cracking down on union militancy, subversion and immigration. Now, as her government announced a massive injection of money into the police, it appeared that the shift to authoritarianism was for real.
Worse, there didn’t seem to be a viable alternative. Labour had been in power for the five years before Thatcher’s election, and had itself presided over an erosion of civil liberties unprecedented in modern peacetime. There had been a string of high-profile political trials – of young Irish men and women accused of planting bombs in Birmingham and Guild-ford, of pacifists for alleged incitement to disaffection of troops sent to Northern Ireland, of radical journalists for revealing official secrets, of anarchists for supposedly conspiring “with persons unknown” to cause explosions. Labour had introduced the draconian Prevention of Terrorism Act to deal with insurgency in Northern Ireland and had accepted the previous Tory government’s abandonment of jury trial for terrorism cases in the province. The “public order” role of the police had been massively expanded, without any improvement of police accountability. As Thompson put it: “The injury to liberty, the corruption, and the law-and-order cant has come from an all-party ‘consensus’.”
Much that has subsequently happened, from the raft of legislation against trade unionism to last year’s Criminal Justice Act and the current plans for further curbs on the rights of asylum-seekers, bears out the concerns that Thompson articulated. But there was one very important change for the better that neither he nor anyone else writing about civil liberties at the time predicted: the Labour Party renounced its practice in government in the 19705 and rediscovered the libertarianism that had moved it when Roy Jenkins was Harold Wilson’s home secretary in the 1960s.
This was partly because of the election of Michael Foot, a veteran civil libertarian, as Labour leader. But more important by far was the revulsion among Labour’s grassroots at the authoritarianism of their party in government. Long after Foot had gone, and long after the other totems of party members’ antipathy to the 1974-79 Labour government had been discarded – the Alternative Economic Strategy, unilateral nuclear disarmament, withdrawal from Europe – Labour remained an unmistakably civil-libertarian party. By 1992, it was committed to a Bill of Rights, a Freedom of Information Act and a “positive framework” for workers’ and trade union rights.
Not that it made a lot of difference to the Tories. Since 1979, they have consistently strengthened the surveillance-and-control institutions of the state, introducing along the way a vast amount of legislation restricting civil liberties. Police powers and resources have increased inexorably, and the police have adopted an ever more military approach to their public order functions. Despite the end of the cold war and a series of scandals, the security services have escaped both severe budget cuts or effective scrutiny. The prison population has gone up and up, with the exception of a brief period following the Strangeways riot, and now stands at an all-time high of 52,000.
A procession of legislation (see over) has restricted the collective and individual rights of workers; other laws have withdrawn rights from refugees, immigrants and asylum-seekers. Last year’s Criminal Justice Act effectively put an end to freedom of assembly, severely curtailed freedom of movement, put limits on the right to jury trial and undermined the right of people under arrest to remain silent. Already tough laws on official secrecy have been made even tougher – and curtailments of liberties introduced as part of the struggle against Northern Ireland terrorism remain in place. Almost unnoticed, Europe-wide security and surveillance institutions accountable to no one have mushroomed and acquired wide-ranging powers.
Of course, we are not yet living in a police state or anything like one – and in some areas there have been small gains for civil libertarians: the reduction of the age of consent for homosexual men from 21 to 18, data protection legislation, video recordings of police interrogations and so forth. But when it comes to civil liberties, the overall balance sheet of 16 years of “the free economy and the strong state”, as Andrew Gamble described the Tories’ ideological recipe, is negative. If E P Thompson’s 1979 nightmare has not come to pass, his warnings about the state’s encroachments on the freedoms essential for any genuinely democratic polity are as apposite as ever. Certainly one would not expect Labour to be relaxing its civil-libertarian stance.
Yet that seems to be precisely what it has been doing recently. It’s not that it has officially given up on civil liberties. The formal policies remain much as they were in the run-up to the 1992 general election. But there has been a big change in the way that policies are presented.
Ever since Tony Blair became shadow home secretary in 1992, the emphasis of Labour’s home affairs team has been on how tough the party is on crime. Civil liberties have been consciously downplayed.
Thus, last year Labour decided to abstain on the third reading of the Criminal Justice Bill rather than oppose it – a decision justified by Blair on the grounds that, although the bill contained much that Labour disliked and would repeal in office, the party didn’t want to scupper some of the provisions of which it approved (such as the reduction in the homosexual age of consent). Thus, too, the bizarre outburst by Blair’s successor as shadow home secretary, Jack Straw, this summer, when he called for a clamp-down on graffiti artists, “winos and addicts”, aggressive beggars and windscreen “squeegee merchants”. Ditto this week’s rush to disown Clare Short’s broadcast remarks to the effect that it is at least worth considering the possibility of decriminalising cannabis.
Of course, there are electoral reasons for the shift of emphasis. There are far more voters who are worried about street crime and burglaries than are concerned about developments in public-order policing, or even qualifications to the right to silence – and all the opinion poll evidence in the late 1980s and early 1990s suggested that a substantial section of the population reckoned that Labour was “soft on crime”. In these circumstances, it’s hardly surprising that Blair decided to toughen up the party’s image.
The worry, however, is that the shift in emphasis from civil liberties to crime is not simply a matter of choosing the part of the Labour home affairs menu that best stimulates the public’s taste-buds, but is rather a reflection of a deeper change in the way that the upper echelons of the Labour Party are thinking about the world. An indication that this is the case is the growing enthusiasm among senior Labour politicians – most notably Blair himself – for the communitarianism extolled by Amitai Etzioni and others in the US, with its emphasis on “responsibilities as well as rights”.
It’s easy enough to see why Blair and others are impressed by Etzioni and friends. The rhetoric of communitarianism was undoubtedly useful to Bill Clinton in his 1992 election campaign, and there are many parallels between Clinton’s predicament in the run-up to 1992 and Blair’s today. Like the Democrats, Labour has suffered as the credibility of big-government welfare Keynesianism has been destroyed – partly through the sheer unpopularity of high (or, indeed, any) taxes, partly through the intellectual and political ascendancy of the new right, partly through the process of economic globalisation. Like the Democrats, Labour has been effectively attacked by conservatives for tolerating family breakdown, antisocial behaviour and criminality. The rhetoric of responsibility and community has an obvious appeal to centre-left politicians anywhere in the industrialised world who doubt their ability to generate full employment or sustain the welfare state – and who desperately need a pitch that addresses popular anxieties about drugs, violence and social disorder.
But there are also big differences between the US and Britain. In the US, rights are written into the constitution. Here, there is no written constitution. This means that many of the things the communitarians identify as symptoms of the imbalance of rights and duties in American life – from the legally encouraged gun culture to the use of the constitution to prevent effective police action against organised crime – are not problems here. It also means that the communitarians take for granted all of the advantages of American political culture, in particular the guarantees of freedom of expression and relative openness of government, that Britain does not enjoy. Even if the communitarians are right in the US – and plenty of civil-libertarians argue that their ideas and practice are unacceptable – their prescriptions are not necessarily applicable here.
To be fair, there is no sign yet that Labour has swallowed communitarian-ism whole. Blair has declared himself a communitarian, and Straw has enthused about “an approach that puts the stress equally on rights and duties”. But both deny that they have any enthusiasm for some of the more contentious ideas to come out of American communitarian circles (let alone for the death penalty, used so cynically by Clinton in his election campaign). At this year’s Labour conference, some of the shadow cabinet members closest to Blair appeared on civil-libertarian fringe platforms, and Straw has commissioned Liberty (formerly the National Council for Civil Liberties) to come up with ideas for no-cost civil liberties measures that could be implemented early in a Labour government.
If he’s not simply trying to keep Liberty busy to shut it up, that process, together with Labour’s existing commitments, should yield a radical reform package. The problem, put simply, is that civil libertari-anism now seems so low on Labour’s list of priorities that it would not surprise anyone if the reform package never saw the light of day. That’s certainly how it looks to the ravers, the travellers, the squatters and the protesters targeted by the Criminal Justice Act – even if there isn’t anyone of the stature of E P Thompson around these days to express their fears in print.
A YEAR OF THE CRIMINAL JUSTICE ACT
The Criminal Justice and Public Order Act is a year old today (3 November). Over the past 12 months, according to a new report by Liberty*, the act’s “aggravated trespass” provisions against forms of peaceful protest have resulted in the arrest of 86 environmental and anti-nuclear protesters, 107 anti-roads protesters and 153 hunt saboteurs. There have been 93 reported evictions of travellers under the parts of the act that created new legal powers against those who lead a mobile lifestyle. Smaller numbers of arrests have occurred under the provisions against “trespassory assembly”, raves and squatting. And, of course, the threat of the act has been used on many more occasions in pursuit of a nationwide clampdown on diversity and dissent.
This summer, for example, saw one of the most highly coordinated national police operations to prevent a peaceful protest since the miners’ strike. The weekend of 7 July saw police forces throughout southern and central England mobilised in a series of raids, roadblocks, searches and seizures to halt the” Mother”, a planned massive free-festival protest against the Criminal Justice Act.
At 6.30 that Friday morning, following an extensive surveillance and intelligence operation, officers from the Metropolitan and Hampshire police battered down the door of United Systems of Sound activist, Debbie Staunton. The same day, Michelle Poole, of the Advance Party campaign group, returned home to find officers from three different police forces bagging up her possessions, even seizing the pictures from her wall. She told Squall magazine: “They made no secret that they’ d been watching us for days; they were even boasting about the transcripts of my telephone calls that they’d taped.”
At one of the planned venues for the event, police used section 64 of the act to seize £9,000 worth of equipment belonging to the Black Moon Sound System from Derby-despite the fact that it had not even been used. Roadblocks set up exclusion zones around potential sites, and sections 63 (giving the police powers to direct people to leave land) and 70 (“trespassory assembly”) of the act were deployed against the people who turned up.
Michelle Poole and Debbie Staunton have since been charged with “conspiracy to commit a public nuisance”. Although a series of smaller parties still took place at various venues overthatweekend, the police operation succeeded in its main intent-to prevent the large-scale protest festival that had been planned.
Police use of the act has been less effective, though, in obtaining convictions. The first trial of someone charged with trespassory assembly-“King Arthur Uther Pendragon”, who was arrested with 27 other people at Stonehenge on 20 June – was thrown out by Salisbury magistrates in September. And although a subsequent case relating to an earlier “prohibited assembly” at Stonehenge resulted in two convictions, those convicted have pledged to take their case to the European Court of Human Rights. Among the 346 cases of people arrested for aggravated trespass monitored by Liberty, more than half have had the charges against them dropped. Only 12 hunt saboteurs – out of l53 charged – have so far been convicted. Similarly low conviction rates are expected in the other categories. The first Criminal Justice Act case against squatters also collapsed in Bristol last month.
Police use of the act has been patchy. While Kent police have arrested 62 anti-roads protesters atthe Thanet Way site, for example, the Metropolitan and Lancashire Police, who policed the M11 and M65 protests, have not used the aggravated trespass provisions. Some police forces even seem to have decided not to use the act at all, arguing, as Liberty put it, that “the law is too impractical to enforce, or thatthey have insufficient manpowerto implement it”.
Nonetheless, in many areas the police appear to have taken it upon themselves to interpret the new law as outlawing all forms of protest that take place without their consent. Liberty cites examples of a man being arrested for aggravated trespass while he was on a public road and of a Dover residentwho was arrested for wearing a “Ban Live Exports” T-shirt “outside the designated protest area”. Other arrests have included 15 Greenpeace activists at Sellafield, 19 protesters against an opencast mine in Leeds, and nine people protesting against the felling of trees originally planted at Petersfield cemetery as a permanent memorial for Canadian second world war servicemen.
Those who are charged often find that the new police powers to impose bail conditions are more onerous than the laws they are accused of offending against. Increasingly, the police are imposing conditions that amount to prohibitions on people being involved in further protests. In January, a Glasgow man was jailed for refusing the bail condition “not to approach, obstruct or interfere with any Wimpey construction site”. He told Liberty: “Conditions were ridiculously vague. I could be arrested for walking out of my house in the direction of the site.” A woman in Kent, meanwhile, was instructed “not to go within half a mile” of a road construction site-even though she lived closer to the site than that.
The anti-roads campaign group, Road Alert, has said that “the effect of the bail conditions has been to totally immobilise some of our protests”. But Liberty points out that roads protests are as prevalent as a year ago and arguably more organised. People who have fallen foul of the new law in different ways, moreover, have discovered a common cause as they find their activities outlawed. Far from clamping down on peaceful protest, the legislation has contributed to an upsurge in involvement. “Thousands of people who have never protested about anything before in their lives were outraged by petty legal restrictions and heavy-handed policing because they had previously believed that the right to protest was part of their heritage, “says Liberty. “Instead, they discovered that it’s something they’ re only allowed to do on certain days of the week, at the right time, in the designated area, in the approved manner, with advance notice, when they haven’t got a court case pending.”
And support for peaceful protest is growing, in parallel with the increasingdisenchantment with traditional vehicles for political action. ADaily Telegraph/Gallup poll in June showed that 68 per cent of the public believe that there are times when protesters are justified in breaking the law-prompting a thunderous response from the Telegraph leader-writer: “Middle England needs the Riot Act read to it. The belief that it is sometimes right to break the law as a protest has spread from the traditionally more anarchic classes – students, trades unionists, unilateralists – to embrace all sections of opinion, including those who used to know better. “
Every cloud has a silver lining. The Criminal Justice Act may not have been all bad, after all.