Protection of Freedoms Bill Published. Magna Carta Unfazed. – Dr Cian Murphy

14 February 2011 by

It’s no Magna Carta. Those of us who teach public law in British universities will certainly  have to grapple with the Protection of Freedoms Bill. But will it, like the that earlier constitutional text, echo through the centuries into the classrooms of 2311? I doubt it.

Although the Bill’s 107 sections will give Messrs Cameron and Clegg a long list of reforms to rattle off at party conferences it does little to coherently explain the coalition’s view of the appropriate relationship between the state and the citizen. The Government does not know what freedom is, but it knows freedom isn’t having your car immobilised without lawful authority (see section 54). In many respects, the Protection of Freedoms Bill seems to fit exactly with the coalition government’s attitude towards ‘freedom’, ‘liberty’ or – perish the thought – ‘human rights’. It is broadly libertarian but with no real coherent vision for fundamental rights. As a result the Protection of Freedoms Bill is a list of legislative pet hates, many introduced by New Labour, that the coalition wants to do away with.

The changes to counter-terrorism powers in Part 4 may well indicate the character of the Bill as a whole. Section 57 reduces the maximum period of pre-charge detention for terrorist offences from 28 days to 14. This is certainly a welcome move. The Terrorism Act 2000 originally provided for a 7 day detention period, which was increased to 14 days in 2003 and 28 days in 2006. The act that provided for the latter increase, the Terrorism Act 2006, marked the high-point of the Blair government’s counter-terrorism excesses. The 2005 Bill had originally provided for an astounding 90 day period. So the reversion to 14 days is an improvement, but only against the backdrop of post-September 11 over-reaching. (And the Government today also announced, lest we forget, their backup plan).

Section 58 provides for the repeal of sections 44 to 47 of the Terrorism Act 2000. Good riddance. Section 44 was a wholly illiberal provision which allowed police officers to stop and search individuals in designated areas without having to show reasonable suspicion. The subsequent sections elaborated on that power. The Government has been committed to repealing the section since last Summer – but only after the European Court of Human Rights held that it was a violation of the ECHR. Unsurprisingly, there is no mention of that in the Explanatory Notes, though there is a detailed analysis of the Bill’s Convention-compatibility available direct from the Home Office. Nonetheless, police powers abhor a vacuum, and as signalled in December, the section 44 power is replaced with new stop and search powers provided for by sections 59 to 62. The proposed new powers, at first glance, may be an improvement on section 44. But they have already been criticised and will require more considered scrutiny over the coming  months – especially in light of possible amendments as the Bill moves through Parliament.

Welcome though they may be, these changes do nothing to answer the more difficult questions about the appropriate role of state intervention in the face of violent politics. The vague offence of encouraging terrorism still blots the statute books whilecontrol orders continue in a new guise. New Labour’s flawed approach to the state-citizen relationship was to adopt theHuman Rights Act at the start of their term and spend the remainder of it chipping away at the constitutional foundation provided by the Act. Today, there is, once more, a move on to end Britain’s involvement in the ECHR once and for all. If the Government jumps on that bandwagon they will owe the constitution a replacement and this Bill is certainly not it. It is piecemeal reform of selective aspects of several years worth of intrusive legislation. Progressive reform should always be welcomed but let’s hold the fanfare. It’s no Magna Carta.

Dr Cian Murphy is Lecturer in Law at King’s College London. This post first appeared on the Human Rights in Ireland Blog and is reproduced with permission and thanks.

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8 comments


  1. Cian Murphy says:

    Diogenese,

    I agree – it is precisely this philosophical point that the government has failed to address. It does not have a coherent vision of the relationship of the state and the individual and the Human Rights Act – for all of its problems – does offer that.

    CM

  2. Diogenese says:

    Will Watson has hit the nail on the head; there must be an emphasis on the philosopy of human rights. This presumption of guilt that has crept in is dangerous and damaging.

    We do have the Magna Carta, it’s still valid and lawful and underpins many rights that are now being denied to us through Acts and legislation that seeks only to remove those rights.

    If we all acted “lawfully” we would be in Lawful Rebellion against the government right now which would, no doubt, prompt martial law and all sorts of draconian reactions from Parliament in order to protect their position which, according to Common Law is treasonous.

    The Protection of Freedoms Bill seeks to address certain items of legislation introduced by Labour – it does not deal with the fundamental philosophy of human rights.

  3. Cian Murphy says:

    All,

    Thanks for the comments. Stephen, it is true that there is now much financial surveillance in place, but we must bear in mind that that goes beyond the UK to EU and even UN level. See the Third Anti-Money Laundering Directive at EU level and the relevant parts of UN Security Council resolution 1373 and the related action by the Financial Action Task Force.

    CM

  4. Will Watson says:

    Good article, the Bill isn’t bad, nor is it necessarily good. It reads more like a list of common sense things and yes, ‘pet hates’ of the Coalition, rather than a document that revives the human rights and civil liberties denied to us by the former government.
    I would like to see it have more of an emphasis on the philosophy of human rights and liberalism. It seems odd that it does not, considering that the two parties proposing it consider themselves liberatarian and this is the natural territory of human rights!

  5. Stephen says:

    I wonder whether it does away with the disproportionate measures contained in the so called “Money Laundering” legislation which requires citizens to prove their identity and nationality in just about every transaction they enter into (save for shopping).

    Lawyers will know that these provisions require them to ascertin their clients’ identitiy and motives each time there is a transaction. Moreover, lawyers are obliged to report their client to the authorities if there is suspicion. How Orwellian is that?

    The Big Society? More like the Snitch Society.

    Sorry to rant. Just find these things outrageous.

  6. ObiterJ says:

    Quite agree. I think the bill’s title is more of a political slogan than a title which attempts to reflect accurately the bill’s content. Once authority gets power it only rarely gives it up. Thus we get makeovers but not proper reform. As ever, the devil is in the detail.

  7. Cian Murphy says:

    dw,

    That may be true. But the US responded to their “pet hates” by entrenching a ten-article Bill of Rights that set out, in succinct terms, the rights of the citizens of that state.

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    Compare that to any of the clauses in this Bill. Of course, it’s a little unfair – one is constitutional and the other legislative. But that’s precisely the point. The US Constitution has a bedrock of rights protection – one that is contentious and contested but there nonetheless. The coalition, despite assaulting the ECHR & Human Rights Act, has not offered an equivalent, merely a list of legislative provisions they seek to repeal.

    Thanks for the thought,

    CM

  8. dw says:

    [T]he Protection of Freedoms Bill is a list of legislative pet hates, many introduced by New Labour, that the coalition wants to do away with.

    The US Bill of Rights could also be described as a list of pet hates, introduced by the British, that the Americans wanted to do away with.

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