The owl of Minerva spreads its wings only with the coming of the dusk, wrote Hegel: his only really memorable phrase. He meant, I think, that philosophers tended to improve with age (clearly he never met Bertrand Russell); more broadly it implies that you only realise what's been going on when it's already too late. That is certainly true of many liberties we used to take for granted. After more than a decade of repressive legislation it is becoming common to hear some distinguished pillar of the Establishment warning that we are "in danger" of "sleepwalking" into a police state, a surveillance society, a privacy dystopia or some combination of the three. The former Lord Chief Justice Lord Bingham is the latest:
In times of heightened tension, caused by war, terrorism or other public emergency, ministers tend to exert their powers to the limits of what they believe to be politically acceptable and legally permissible.
Actually, your lordship, it's not just in time of "heightened tension" that they try it on. As Michael Portillo admitted on last week's Moral Maze, that is the natural tendency of government - not just ministers, either, but the whole apparatus of the civil service, the police and the security services. Abuse of government power "isn't something that happens exceptionally, it happens all the time". War, terrorism, or exaggerated fear of war or terrorism, simply provide opportunities that they might otherwise lack to justify and intensify their exertion of power. A climate of fear enables them to claim to be defending liberty and the rule of law even as they dismantle it.
A few months after he came to office, Gordon Brown made a much-praised speech about "British liberty". I didn't think much of it (though no-one was reading Heresy Corner at the time): I noticed all the Blair-like references to the "new" world we had supposedly entered, and the promises of massive data-sharing, the implications of which are only now being noticed. He complained that "the public dialogue in our country has undervalued the importance of liberty", as though his government's addiction to surveillance and galloping police powers had nothing to do with it.
Despite all this, the speech was welcomed by many as signalling the end of the dark days of Tony Blair, who treated traditional civil liberties as part of the outmoded apparatus of "conservatism" that a shiny modern Britain was better off without. And to have a prime minister speak of liberty as something important, even if he didn't seem to have much idea what it entailed, was enough of a novelty to have some naive souls cheering in the aisles. He even made the speech at a meeting of Liberty. This sort of empty symbolism impresses some people, though I would have taken it more seriously if he had delivered the remarks to ACPO.
Most of the enthusiasm might be put down to the brain-numbing effects of Gordon's "honeymoon". But the speech did have its high points - for example, this:
Indeed the character of our country will be defined by how we write the next chapter of British liberty - by whether we do so responsibly and in a way that respects and builds on our traditions, and progressively adds to and enlarges rather then reduces the sphere of freedom.
To claim that we should ignore the claims of liberty when faced with the needs of security would be to embark down an authoritarian path that I believe would be unacceptable to the British people.
Fine words. But, a year and a half later, it has become obvious even to many who cheered that speech that far from writing the "next chapter of British liberty" Brown has been going back through earlier chapters and striking most of the contents through with a red pen, that far from respecting our traditions he has trashed them, and that instead of adding to and enlarging, he has progressively been reducing the sphere of freedom. Until today we find yet another former head of MI5 warning that modern Britain increasingly resembles a police state.
In the course of the speech, Brown promised several practical steps to realise his vision of enshrining liberty at the centre of British life. He singled out six main areas in which new rights would be created to safeguard traditional freedoms:
1. respecting and extending freedom of assembly, new rights for the public expression of dissent
2. respecting freedom to organise and petition, new freedoms that guarantee the independence of non-governmental organisations
3. respecting freedoms for our press, the removal of barriers to investigative journalism
4. respecting the public right to know, new rights to access public information where previously it has been withheld
5. respecting privacy in the home, new rights against arbitrary intrusion
6. in a world of new technology, new rights to protect your private information and respecting the need for freedom from arbitrary treatment, new provision for independent judicial scrutiny and open parliamentary oversight
Has any of that been accomplished? On the contrary, in every one of these areas government and the police have been given new powers to encroach on basic freedoms:
1. By "new rights for the public expression of dissent" he appeared to mean repealing the ban, introduced by Tony Blair, on unauthorised protests near Westminster and Whitehall - a law that became a national scandal when peace campaigner Maya Evans was convicted for reading out a list of soldiers killed in Iraq. Brown promised in his speech to "review the law to ensure that people's right to protest outside the very heart of our democracy - the House of Commons - is not subject to unnecessary restrictions". It's a bit rich to describe as a "new right" the restoration of a freedom that was only taken away - to widespread howls of outrage - by his own government. But in any event the prohibition is still in force, as is the notorious s44 of the Terrorism Act 2000 under which Walter Wolfgang was ejected from the Labour party conference and numerous journalists and campaigners have been harassed. Meanwhile, other restrictions continue to increase. Yesterday it became illegal to photograph the police - in theory the ban only applies if it would be "useful to terrorists", in practice it will probably be used to prevent people recording evidence of police wrongdoing.
2. By "guaranteeing the independence of non-governmental organisations", it appears Brown had in mind giving "charities" the "independence and the right to have their voice heard and to campaign on the issues that matter to them". In other words, to use their funds for blatant political campaigning. Many of these "charities" are in fact funded by the government, and use their new-found freedom to campaign for more laws (often, by coincidence, laws already in the pipeline). So while this aim might have been realised, the effect on freedom can hardly be described as positive.
3. Brown stated in the speech that there was "more we can do to ensure that freedom of expression and legitimate journalism are protected". Since then we've had the case of Sally Murrer, the journalist prosecuted for having received leaked information from a police officer (the case collapsed when evidence emerged of outrageous abuses of her human rights), Shiv Malik, whose "offence" was to have been taken in by the fantasies of self-declared ex Islamist Hassan Butt, and Damian Green, arrested because he was publicising information embarrassing to the government. Brown then said:
Last year, in a draft bill, we published proposals which would limit media access to coroners' courts. Having undertaken extensive consultation we have now decided not to go ahead with these proposals.
Which is presumably why the virtually unaltered proposals are now contained in the Coroners and Justice Bill, currently making its malign way through Parliament.
4. Brown claimed that:
Because liberty cannot flourish in the darkness, our rights and freedoms are protected by the daylight of public scrutiny as much as by the decisions of Parliament or independent judges
Public information does not belong to Government, it belongs to the public on whose behalf government is conducted.
This must explain why Labour fought tooth and nail to exclude MPs expenses from the Freedom of Information Act
5. Brown stated that "I am aware of concerns that have been expressed about the powers of public authorities to enter homes and business premises without permission" and promised a review. He admitted that there were "more than 250" provisions granting power to enter homes and premises without permission. There still are.
He also said this:
In the last year we have tried, in the interests of protecting the privacy of the home dweller, to regularise the circumstances in which bailiffs have permission to enter homes. But I believe we can go much further.
It was presumably in the "interests of protecting privacy", that Brown has now made it legal, for the first time in English history, for bailiffs to break into people's homes and use "force" on householders.
6. Brown promised "new rights to protect your private information" but has instead, in this year's Coroners and Justice Bill, proposed vast powers of data-sharing which will dissolve the invisible walls between government departments - and in many cases enabling information to be shared with outside agencies as well. The effects of this proposal are devastating for privacy, opening up massive opportunities for identity fraud and blackmail as well as recasting the balance between the citizen and the state. It has been condemned by the BMA and by the House of Lords as well as by privacy campaigners, and most recently by the British Computer Society who point out that the bill "runs counter to the intentions and provisions of the Data Protection Act (DPA)" and "severely curtails the independence of the Information Commissioner". The BCS's Ian Ryder comments
As past experience suggests, it is unwise to rely on the benevolence of a government to sensitively deploy such wide-reaching and general powers as these. In the wrong hands, it would permit the restriction - and ultimately the destruction - of the right to personal and corporate data privacy.
But even in his supposed speech on "liberty", Brown was quite open about his enthusiasm for what is euphemistically termed "transformational government", calling it "the great prize of the information age". His answer then, as now, to any fears caused by the piling up of enormous quantities of personal data is that there should be "safeguards" against loss or misuse. But the only effective safeguard is not to allow data sharing in the first place. He spoke of "winning people's trust in the ways in which information is held and used". In other words, it's not a case of preserving liberty or protecting privacy. It's all about PR.
At the time, what struck me most about the speech was its two-facedness, on the one hand promising reviews and "new rights", on the other redefining liberty as something that not only had nothing to fear from a hyperactive government, but actually benefited from it. Looking back, however, what is striking is that most of the laws Gordon Brown promised to roll back, he has extended and that most of the freedoms he promised to extend, he has curtailed.