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Are these Britain’s ‘enabling acts’? Concern as state control tightens

As the government races emergency powers through Parliament to tackle the Covid-19 pandemic, STEVEN WALKER looks at Britain’s record of creeping authoritarianism and asks if we should be afraid

EMERGENCY powers being quickly enacted in response to the Covid-19 pandemic offer a rare glimpse of how quickly the state can trample on civil liberties and the rule of law. Currently, the 2004 Civil Contingencies Act is being invoked. This legislation unilaterally gives any government minister extraordinary power to do anything, anywhere to anyone without explanation. Margaret Thatcher used similar powers to attack strikers during the 1984 miners’ dispute, using the police as her storm troopers.

Tony Blair’s New Labour was described by Thatcher as “my finest creation.” So he proved when the Criminal Justice Act was introduced in 2003, allowing police to bail suspects without even taking them to a police station, with officers enjoying broad discretion as to which suspects should be treated in this manner. The Act also allowed the police to take DNA samples from anyone who was arrested.

The list of arrestable offences was expanded greatly by the Crime and Disorder Act 1998, Criminal Justice and Police Act 2001, Police Reform Act 2002 and Criminal Justice Act 2003. DNA samples can be kept on file indefinitely, even if that person is not charged with anything, and there are currently no procedures for getting the police to surrender or destroy such a sample, raising serious privacy concerns.

The fuel tanker drivers’ strike action in 2000 and natural threats like the widespread flooding and outbreak of foot and mouth disease in 2001 prompted a formal review of emergency planning arrangements.

Management of such problems had long depended locally on civil defence legislation dating from 1948, and nationally on the Emergency Powers Act of 1920, which covered neither terrorist nor environmental threats. The 1920 Act was used a dozen times, often to cope with the effect of strikes, including the 1926 General Strike and, the 1974 miners' strike, although the army was not called in by Ted Heath on the five occasions that he invoked its powers. Secret plans were drawn up to use troops to move coal and oil stocks by road and rail and operate power stations in the 1972 dispute, but they were never implemented.

Government policy under Blair was one of relentless attack on civil liberties, with new powers for the police and the introduction of new offences and harsher penalties involving longer custodial sentences — all of which was matched by a weakening of the safeguards in the criminal justice process.

While the government claimed that such changes were necessary to combat crime and ensure the safety of innocent citizens, the reality is that the new rules did nothing more than leave a dangerous amount of power in the hands of the organs of the executive.

There is a lack of accountability and rising hostility to judicial and legal supervision, so the new system is ripe for abuse and human rights violations. When combined with cuts to the legal aid system and court administration, it leaves vulnerable citizens virtually defenceless against state control.

Some of the new powers now enjoyed by police officers are used to harass young black people. The 2004 Criminal Justice Act allows the police to neatly get around the guidelines in the 1984 Police and Criminal Evidence Act; suspects can be stopped and searched, interrogated with no legal counsel present, have their fingerprints collected and then be bailed and released if there is not enough evidence to arrest them.

Since the guidelines on when the officers can use these new powers are sketchy at best and there is little accountability foreseen, the potential for abuse is vast — using the new powers on primarily minority suspects, keeping people under surveillance when there is little evidence they have committed a crime and potential for mistreatment during interrogation on the street.

It is no longer the case that only trained police officers can enjoy these extensive powers. Under the Police Reform Act 2002 (section 38, and schedule 4 part 1), police forces can now employ civilian “community support officers” and endow them with much of the same authority, including to issue fixed-penalty notices for certain offences.

Under the same legislation, civilian “detention officers” are allowed to exercise such powers as searching detained persons and taking fingerprints, samples, and photographs of detainees without their consent.

The police powers have also been extended to allow for greater control of behaviour such as protesting. The Criminal Justice and Police Act 2001, section 42, creates a new police power in relation to harassing behaviour directed at a person in a “dwelling.” The police can issue a direction to a person outside, or in a vicinity of a dwelling, if the officer believes that person is there to represent to someone on the premises that he should do or cease to do something that he is not required to.

This has proven useful to the state, especially against the animal rights movement, because the police would otherwise have no right to disperse peaceful demonstrations. The Protection from Harassment Act 1997, originally welcomed as the means to deal with stalkers, has also since been subverted to suppress animal rights protests.

The creation of the so-called “anti-social behaviour orders,” first brought into being by the Crime and Disorder Act 1998, section 1, and elaborated upon by the Anti-Social Behaviour Act 2003, saw a further erosion of civil liberties. Anti-social behaviour is a vague term, commonly assumed to apply to the problem of “bad neighbours” — noisy premises, noisy groups, litter, truancy from school, graffiti, premises where drugs are used — a broad range of behaviours, which has no clear definition.

This means that a breach of an anti-social behaviour order is a criminal offence, punishable by a maximum of five years’ imprisonment. Police or a local authority can obtain such an order based on second-hand evidence that a person has caused or is likely to cause harassment, alarm or distress, and it can be obtained against children as young as 10.

The most repressive pieces of legislation introduced by Blair were the Terrorism Act 2000 and the Anti-Terrorism Crime and Security Act 2001. The Terrorism Act extended police stop-and-search powers so that any person or vehicle can be searched for “articles of a kind which could be used in connection with terrorism” — a very broad definition that could cover practically any object in common use. Under section 47, anyone refusing to co-operate is guilty of a summary offence.

The Anti-Terrorism Crime and Security Act allows, among other things, for the detention of foreign citizens without trial for an indefinite period of time, without any requirement to inform them of what they are being arrested for and on whose information, leaving them effectively powerless to challenge their detention.

This constitutes such a serious violation of human rights that the passing of this Act required the government to derogate from the European Convention of Human Rights. Reviewed by the House of Lords, it was found by eight of the judges on the panel to be discriminatory, disproportionate and ineffective, violating our most basic rights and freedoms without sufficient cause.

Recently, controversial police use of automatic facial recognition technology to search for people in crowds was judged lawful by the High Court in Cardiff. The legal decision came on the same day that London Mayor Sadiq Khan admitted that the Metropolitan Police had used facial recognition software at the King’s Cross development in central London between 2016 and 2018, sharing some images with the property company running the scheme.

Britain has more CCTV cameras observing us than any other European state, while Edward Snowden’s revelations showed that GCHQ and the secret intelligence services are using mass harvesting of data to monitor, observe and track ordinary citizens. This country is gradually creating a state apparatus that can be used against peaceful protesters, specific ethnic minority communities and striking workers to silence any voices of dissent.

Steven Walker is former head of child and adolescent mental health at Anglia Ruskin University and author of Supporting Troubled Young People.

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