The role for Government in seeking to ensure people's liberty and security
Yvette Cooper MP, Labour’s Shadow Home Secretary, in a speech in conjunction with Demos, said:
CHECK AGAINST DELIVERY
Thank you to Demos for hosting today’s event as part of your important programme on violence and extremism.
Yesterday we marked the eighth anniversary of the 7/7 bombings. A time to remember those who lost their lives, the damage that terrorism can do and also the resilience of our capital, our citizens and our democracy.
Today I want to talk about how we sustain that democracy, protecting both our security and our liberty in the face of new threats and challenges.
In the last few weeks alone we have heard debates about access by intelligence agencies to e-mails, abuse of trust by undercover police officers, Abu Qatada and human rights, calls for action to tackle online child abuse, and claims MI5 should have done more to monitor the Woolwich suspects.
Each in its turn goes to the heart of the debate about liberty and security in a modern democracy.
What we expect our police, intelligence agencies and Government to do to protect victims and keep us safe?
How much protection we want for our own and everyone else’s privacy?
How far we trust those whose job it is to keep us safe?
How we ensure lack of trust doesn’t undermine confidence in action to protect our national security or keep us safe?
How we ensure action to defend democracy doesn’t undermine our democratic values?
None of these debates are new. Every generation has to debate afresh the settlement between liberty and security as new challenges arise.
And every generation gets some things wrong too.
We remember failures by the state to respect individual’s rights – such as the denial of a fair trial to the Guildford Four, or the betrayal of the Hillsborough families in the interests of the reputation of a police force.
We also remember the failure by the state to protect victims of abuse because of respect for the privacy of family life – such as allowing rape within marriage to remain legal until the early 90s, and failing to take seriously child abuse.
For some people the issues are clear cut. At one end there are some who believe any state intervention is something to be minimised and distrusted to protect liberty.
At the other, there are some who believe there should be few constraints on what the police or security services can do to protect safety and security.
Most of us stand somewhere in between. We want the police and security services to keep us safe from criminals and terrorists and to have the powers they need. And we want them to operate within limits, respect our privacy and dignity, and the rule of law.
So today I want to set out the principles by which Labour will approach these issues. We are clear we need to protect both security and liberty for democracy to thrive. We support strong action and strong powers where they are needed to protect our national security or keep people safe. But we also believe action must be proportionate and based on evidence. And we believe strong powers need to be matched by strong checks and balances so power is not abused.
I want to start by reflecting on recent challenges for both Labour and Coalition Governments.
After decades of rising crime the Labour Government rightly brought in more police officers and stronger laws against knife crime, domestic violence and antisocial behaviour. We responded to new terror threats – especially after 9/11 and the 2005 London bombings.
Some changes were controversial – for example we rightly changed the historic double jeopardy rule in the light of new DNA technology, despite strong protest from civil liberties organisations at the time. Two of Stephen Lawrence’s killers were finally convicted in 2011 as a result.
But stronger checks and safeguards were rightly introduced too – such as replacing the very weak Police Complaints Authority with the stronger IPCC, introducing the Freedom of Information Act and the Human Rights Act which provides for rights and responsibilities to be balanced by Parliament and the Courts.
But of course there were things we got wrong.
As we have said before, we were wrong to try to extend detention without trial to 90 days and then 42 days.
Neither extension were ever justified by the evidence, they were wholly disproportionate and the wrong thing to do. In that case the politics of security had become more important than the evidence.
As Ed Miliband has said, “We must always remember that British liberties were hard fought for and hard won over hundreds of years.... too often we seemed casual about them… protecting the public involves protecting all their freedoms.”
We should also have responded more quickly to evidence that RIPA was being used by local councils and others far more widely than ever intended or justified – undermining support for the whole framework. And we should have responded more quickly to concerns about stop and search affecting ethnic minorities – although the current Government has also been far too slow.
We also needed to do more to explain and embed the Human Rights Act in British debate rather than allow it to be caricatured by its opponents. And we faced the same frustrating challenges as the current Government with long delays both here and in Europe undermining confidence in the courts.
But the Coalition are getting things wrong too.
Some of their new measures have been very sensible. It was absolutely right to introduce more restrictions on local councils using RIPA. And they were right to reduce detention without trial to 14 days. In each of those cases the evidence was compelling in favour of change.
And Theresa May was right to continue to pursue the deportation of Abu Qatada through additional agreements with Jordan to address the court concerns about torture so he has finally been sent back and can stand fair trial.
But in other areas they have got the balance wrong – for three different reasons.
First, some of their measures have been rooted not in evidence but in the campaigning of opposition before the 2010 election. It is easy in opposition to run campaigns against state action or state power – and both Tories and Liberal Democrats frequently did so, often without waiting for an evidence base.
As a result policies such as restricting DNA use and abolishing control orders go far beyond the evidence, are not in the interests of fighting crime or protecting security, but have been pursued in order to meet pre-election political promises.
Second, both Tories and Liberal Democrats have shown too little interest in checks and balances, where powers are needed. Both parties have tended to concentrate on whether or not the state should have particular powers, and not on the safeguards, checks and balances that are needed to ensure power is not concentrated or abused.
So for example they have pushed through the extension of Closed Material Procedures (secret courts) with far fewer judicial safeguards than we argued for. The first draft of the Communications Data bill – signed off by both Theresa May and Nick Clegg – concentrated power in the hands of the Home Secretary, with few checks and balances.
Nor are they taking seriously the need for a proper effective system of oversight, checks and balances for both policing and the intelligence agencies and for example have concentrated too much policing power in the hands of single elected Police and Crime Commissioners.
And the Tories are promising to remove the Human Rights Act and are objecting to court constraints on executive decisions.
And third, the politics of the coalition is preventing them taking sensible evidence based decisions.
Theresa May and Nick Clegg have chosen to use the communications data bill to define themselves with their own back benchers – leaving the issue stuck in political stalemate as a result.
Meanwhile, Theresa May and Chris Grayling appear to be competing to please the Eurosceptic backbenchers hinting that they could pull out of the European Court of Human Rights and the Convention, despite the signal it would send to countries across the world who we are trying to persuade to improve their human rights record.
And they have also been trying to pull out of measures such as the European Arrest Warrant – simply because it has Europe in the title - and important cross border police powers and co-operation even though that will badly weaken the fight against cross border crime.
PRINCIPLES FOR LABOUR
Labour now needs to learn from the problems faced by both the coalition and by Labour Governments in the past.
I want to talk about four principles that should guide a One Nation Labour approach.
EVIDENCE ABOUT THE PUBLIC INTEREST – NOT JUST OPPOSITION
First, on serious issues such as these, we must make sure our approach is based on evidence and about what is good for the country and our democracy – not just what is in the interests of political campaigning.
As members of the front bench in the Legislature we have a strong responsibility to scrutinise and challenge proposals from the Executive. We will continue to do so as we have done on the Justice and Security Act where we argued more safeguards were needed.
But we won’t simply oppose the Government, police or intelligence agencies for the sake of it because we are in opposition – that isn’t in the interests of liberty or security.
LIBERTY AND SECURITY BOTH MATTER
Secondly, we must argue strongly for the importance of both liberty and security and be clear that there is no simple trade-off between the two.
Too often in the past we have been trapped into appearing to have to make a simple choice between liberty and security, or between rights and responsibilities.
A One Nation Labour approach needs to value both liberty and security and demonstrate the strong interdependence between them. People can’t exercise their freedoms unless they feel safe. Yet security measures to protect democracy are counter-productive if they undermine the democratic freedoms they were supposed to safeguard. If you don’t feel safe on the streets, you don’t have the freedom to go out at night. Yet, if you don’t trust the police, then you don’t feel safe either.
Baroness Manningham-Buller, former Director General of the Security Service, in her Reith Lectures in 2011, noted that she always refuses to speak at conferences and in debates that pit security versus liberty. She said, rightly, “I always refuse because I do not see these as opposites. They are different but there is not liberty without security, I wish to argue for liberty, not be falsely characterised as its opponent. The first human right listed in the European Convention of Human Rights is the right to life, the third the right to liberty and security.”
PROPORTIONALITY AND EVIDENCE
Third, where powers and intervention are needed we should make sure they are proportionate and based on the evidence, and we need to make sure that human dignity is always respected and protected.
We don’t take a laissez faire approach to dealing with crime or security threats. Strong action is often needed to save lives, catch criminals, or keep communities safe. Yet, interventions must be proportionate and justified by the evidence. And they must be reviewed too.
CHECKS AND BALANCES
Fourth – and particularly important – we must make sure that there are proper checks and balances in place.
Where strong powers for the police and courts are needed in the interests of public safety or protecting victims, there should be clear checks and balances in place to make sure action is proportionate and to prevent abuse.
Ed Miliband has argued strongly that we should challenge concentrations of power. Be it in energy markets, banking or the media, we know that concentrations of power can mean that at best important errors are hidden or ignored, and at worst, there is self-interested abuse.
The risks from concentrations of power are just as important when it comes to our security – to make sure that power is not abused, and to make sure there is proper action and accountability if things go wrong.
It is because we value the vital work law enforcement and security agencies do, and believe the public should be confident in their operations to keep us safe, that we also believe stronger checks and balances are needed to sort problems out quickly when things go wrong.
Those then are the principles that should guide us.
Now I want to discuss what that means in practice for certain key areas of debate.
For a start I think there are a series of areas where the law should be changed because stronger powers are needed – justified by the evidence and proportionate to the harm being caused.
For example the DNA of rape suspects should be held for several years not destroyed immediately just because they can’t be charged. The historic problems in securing rape convictions, and the benefits from DNA retention in catching repeat offenders justify the limited impact on privacy of holding a DNA code.
I also believe that people should lose their right to a gun licence if there is any evidence of domestic violence against them. Michael Atherton murdered his partner, her sister and niece. He had a history of domestic violence and he should never have been allowed a gun.
As a further example councils and the police should be able to impose dog control orders on owners who can’t control dangerous dogs. Horrific cases like the death of Jade Anderson as well as the growing number of dog attacks, mean it is reasonable and proportionate to insist that people’s right to own a dog is balanced with a responsibility to keep it under control and stop it being a danger to others.
And we continue to believe that the Government’s TPIMs are taking unnecessary risks with dangerous terror suspects too. One man found by the courts to have attended terrorist trainings camps was able to abscond in a black cab and hasn’t been seen since. Early next year a series of TPIMs run out and the Government has set out no plan to deal with those cases. We would have kept the stronger control orders, but we would also have kept annual votes in Parliament and strengthened accountability for them too.
STRONGER CHECKS AND BALANCES
There are also a whole series of areas where checks and balances need to be stronger.
For example we have already argued that although closed material procedures were justified in exceptional circumstances, more safeguards were needed, including more discretion should be given to judges rather than Ministers over whether they should be used. And we continue to support the Human Rights Act which provides important checks and balances too.
But I believe more checks and balances are needed over the work the police and intelligence services do too.
As a member of the Intelligence and Security Committee between 1997 and 1999 I have long been impressed by the dedication and work done by the intelligence agencies to keep us safe.
But I have also long believed in a stronger system of oversight to hold them to account and justify in a democracy the secrecy they need to preserve.
The Intelligence and Security Committee have had their powers strengthened, and they are doing important inquiries now into the allegations around the Prism programme, and also into the actions of the intelligence agencies around the suspects in the terrible Woolwich killing.
But we should go further – strengthening their role step by step, but also strengthening other forms of oversight too. The current arrangement of Commissioners – including one for intercept, one for intelligence, one for surveillance – is not satisfactory. Too much of the oversight is paper based, and too little assurance is provided for Parliament or the public that there will be rigorous investigations by Commissioners if things go wrong.
Those who work with the Commissioners commend them on their professionalism and integrity. But overall it is time for a more fundamental review of the Commissioners oversight regime.
The very nature of intelligence agencies is that their work needs to go on behind closed doors, and many of the checks and balances need to be behind closed doors too. But those checks and balances need to be strong enough so the public can be confidence in the vital work the agencies do.
POLICE CHECKS AND BALANCES
Policing needs more effective checks and balances too.
Our police have a strong international reputation both for rigour and for the respect shown towards victims and communities. Police officers work immensely hard often putting their lives at risk each day to keep us safe.
But it is because their work is so important that we also need a clear framework to investigate swiftly when things go wrong so the public can have confidence in the work they do.
We need a better culture of openness and accountability within police forces but we also need stronger checks and balances. The current Independent Police Complaints Commission lacks the powers, resources and authority to deal swiftly with the serious cases that have arisen – including Hillsborough, undercover policing and the Stephen Lawrence case – to ensure confidence is maintained.
They should be replaced by a new stronger Police Standards Authority with much stronger powers and direction and we have asked Lord Stevens’ independent commission on policing to advise on how that should be done.
In addition there is an overwhelming case for more safeguards particularly on under-cover police operations.
Covert operations remain limited within policing, but they are a vital tool especially dealing with serious organised crime or online child abuse.
But we know there have been appalling abuses.
There are allegations that rather than pursuing justice for the family of a murdered young man, police spied on the Lawrence family allegedly to smear the family’s name. The identities of dead children have been used as cover identities – unbeknown to the child’s family.
Women have discovered from newspapers that the father of their child was an undercover police officer.
These cases were clearly not justified or proportionate – they were not simply a violation of family privacy they were an abuse of the women and children involved.
Operation Herne needs to get to the truth about what happened.
But we also need reform.
I agree with the Home Affairs Select Committee. Police forces should not be authorising their employees to develop long term relationships under an assumed identity and having children.
If the police or security service want to break in and bug a room or intercept a phone call, they have to have a justification in the interests of national security, preventing or detecting serious crime or the economic well being of the nation. And it has to be signed personally by the Secretary of State.
On the other hand if they wanted to send in a police officer to live a secret life for years, building relationships and trust and fathering another human being – a far greater intrusion into someone’s life – they can do so in the wider interest of preventing disorder, public safety, or even collecting taxes and payments, and they only need the say so of a senior officer.
The Home Secretary has rightly tightened requirements on undercover policing but she needs to go further.
But given the scale of impact on people’s lives and the potential for abuse there is now a strong case for independent pre-authorisation, for example by the Office of Surveillance Commissioner, especially for the small number of long term covert operations.
And there also needs to be independent oversight and scrutiny of long term operations – not just a paper based exercise – either by the Surveillance Commissioner or the inspectorate.
Of course the real challenge for us in the next few years is not about changes to individual powers, or to checks and balances on existing institutions, but how we deal with new space, new ways of living and communicating and new forms of crime and threat in the digital age.
So far the Government’s attempt to engage with these new challenges has been very poor.
Theresa May’s draft Communications Data Bill was far too widely drawn, with far too much power concentrated in the hands of the Home Secretary. It was clearly disproportionate without any proper checks and balances as the Joint Committee powerfully pointed out.
The Home Office has continually refused to set out what powers it believes are really needed and why – making it impossible to have a sensible debate about what is justified and proportionate or what safeguards are needed.
However at the same time Nick Clegg’s apparent refusal to contemplate any change despite rapidly changing technology has raised huge alarm among senior police officers investigating online child abuse, serious crimes and terrorism.
Neither approach is helping the police or the public, liberty or security.
We have said clearly that action is needed to help the police keep up with changing technology, but that the draft Communications Data Bill was the wrong approach. And we wait to see what the Government will bring forward next.
We will apply the same principles, on evidence, proportionality, valuing liberty and security, privacy and the fight against crime, and seeking strong checks and balances too.
But we need also to recognise that this debate has only just started. And it raises far more issues than Theresa May’s plans.
We live much of our lives online. We work, shop, read, learn, talk, socialise, record our lives, all on line. The internet has become our personal space, like our homes, our corner of the pub where we sit and chat, our street where we meet our neighbours.
We don’t want our privacy invaded either by indiscriminate police searches, or by private companies who already target daily advertising at us based on our private messages, postings and plans.
But crimes happen and are planned online too. Fraud and identity theft are increasing. And there is a growing clamour to tackle online child abuse. CEOP estimate that 50,000 British citizens are downloading and distributing abusive images of children each year. More needs to be done to protect young people and deal with these horrible crimes.
So the debate about our privacy and security on line has only just begun.
Similar to the traditional debates there are some for whom the issues are clear cut.
Some believe there should be no police or intelligence intervention online at all – they see it as a free space.
Others see restrictions on what the police or intelligence agencies can do as playing into the hands of criminals.
Most of us again remain somewhere in between. We want protection for our privacy, protection for the innocent, but we also want tougher action on those using the internet to groom teenagers, or circulate awful abuse. And after a brutal killing such as in Woolwich, we want the police to be able to find out who the suspects have been calling and e-mailing to find out if a wider conspiracy is involved.
And in a digital age, Ministers won’t be able to get away with avoiding that debate.
The online debate isn’t a simple one.
But it is important.
Part of the debate each generation needs to have about how to make sure we respect both liberty and security and the relationship between them.
Of course public debate on liberty and security can sometimes be uncomfortable – especially for Governments. And it is complicated by the requirements for secrecy that security sometimes needs. But in a healthy democracy it remains essential so we never take either our liberty or our security for granted.
We can't anticipate every challenge we will face, every response needed in future. And no Government or Parliament will ever get the balance right on every issue. But we can use that debate to keep learning and keep responding.
That in the end is what sustaining and defending democracy is all about.