Another Step Towards the Big Brother State

Another Surveillance Law:
One More Step towards the Big Brother State
By Sean Gabb
(Published in The Barrister, May 2012)

At the beginning of April 2012, the BBC and a couple of newspapers reported that the British Government was considering a new surveillance law. This would allow it to monitor the telephone calls, text messages, e-mails and website visits of everyone in the United Kingdom. There was a flurry of debate about civil rights and the need to protect us all against terrorists. There was a side argument between those who said the law was required by the European Union, and those who said it would be in breach of European Union law. Since then, the various debates have gone quiet. Possibly, the Ministers have decided to drop the matter. More likely, the initial leak was to soften us up for something less ambitious to be announced in the Queen’s Speech. The Ministers will say they have “listened” to our concerns – and will use the lesser measure they had in mind all the time as a precedent for moving to the full measure in later stages. This being so, whether greater or lesser, another step will have been taken to a Big Brother police state.

In common with other civil libertarians, I have been arguing for thirty years that Britain is heading towards a police state. There are two main reasons why we were, until recently, ignored. The first is the residual inability to believe that a police state could emerge here. England is the land of the common law and habeas corpus and trial by jury, of freedom of speech and religious toleration, of accountable and representative government, of privacy and individualism. We have enjoyed these things, at least in outline, since the middle ages. We taught them to the rest of the world. The doctrines known as classical liberalism are, however abstract their statement can often be, a meditation on English history. That eight hundred years of development – and perhaps longer, if we look beyond the Conquest – could be swept aside in one or two generations is hard to conceive.

The second reason is that a police state is commonly defined by its extreme manifestations. We have no obvious secret police in this country, nor any counterpart of the Soviet and national socialist concentration camps. Children are not given medals for informing on their parents, and we can make jokes about our rulers. Oh, nasty things are beginning to happen. Last year, for example, Mark Duggan was dragged by the police from a taxi in London and shot to death. In general, the police are increasingly partial to killing members of the public – sometimes at random. Or there has been the arrest and prosecution of Emma West, for being rude to the other passengers on a South London tram. But these events are still exceptional. If you want to define a police state by South American or East European practice, Britain is not a police state.

However, a police state is less about enforcement than control. Its function is to make a ruling class irresistible when robbing and oppressing, or when imposing its utopian fantasies. If people can be made to obey without being clubbed to death in a police cell, why bother with violence? There is no British Gestapo or KGB or Stasi, because our own police state rests on a foundation of changes of investigatory and criminal procedure and of omnipresent surveillance. When people know that they are being watched in all that they do, and when they know that stepping over some invisible line will put them to great inconvenience and expense, they will change their behaviour and their attitudes to authority. It is not illegal to buy most kinds of pornography. It is not illegal to buy a bottle of whisky every day, or two hundred cigarettes a week. It is not illegal to join a group that works for the mass-conversion of the white population to Islam, or to join the British National Party. But how many people will decide not to do these things if the details are being logged against their names in a central database? After all, being a known consumer of pornography may bring the police to the door when a child goes missing from down the road. Smoking and drinking may compromise the right to NHS treatment, or to adopt children, or even to continue looking after their own without supervision and preaching by the authorities. Membership of disapproved organisations may bring all manner of quiet persecutions.

When watched in this way, people will be more inclined to conform to whatever may be the current preferences of those in authority. Moreover, many will be inclined to show cheerfully willing – after all, a state able to persecute is also able to reward. Perhaps, when it has become enough of a habit, cheerful obedience will even ripen to love of the authorities. After all, resistance to oppression has always been less common than loyalty to the oppressors. When Stalin died, it was not only from prudence that millions in Russia broke down and wept in public. Possibly much of the grief when Kim Jong Il died the other month was also genuine. Show most people a stick, and beat them with it, and their response will eventually be to kiss it.

And this is what makes the logging of our electronic communications so important. It is a central component in the apparatus of surveillance and control. Of course, the Ministers and the general authorities will never admit that this is its purpose. They insist on its need so we can all be kept safe from terrorists and other criminals. They tell us that no ordinary people will be affected – that those with nothing to hide have nothing to fear. Well, this argument should by now be seen with the contempt it deserves. We all have something to hide, even if it is not presently against the law. And the argument has been used again and again. How often have we been told that a deviation from the old constitutional norms is needed in the face of some exceptional danger, and that the new powers will only be used against that danger? How often have the new powers been immediately used to spy on and control ordinary people?

Well, there was the Drug Trafficking Offences Act 1986. This made it possible for criminal proceeds to be confiscated after conviction, and by reversing the burden of proof, so that the defence had to argue that any assets in question were not the proceeds of crime. Enoch Powell denounced this in the Commons as a gross breach of our due process rights. The Ministers in the Thatcher Government replied that the evils of drug trafficking were so great, they justified a specific departure from due process that would never be allowed to form a precedent. This “specific departure” was made general in the Criminal justice Act 1988, and was eventually widened and consolidated into the Proceeds of Crime Act 2002 – a law that abolishes financial privacy for everyone but the rich, and that enables something like the American civil asset forfeiture.

Or there was the Regulation of Investigatory Powers Act 2000. This law to enable snooping, for any purpose, by any public authority, was brought in amid promises that it was needed for the fight against serious crime, and that it would never be used for normal crime investigation. The Act is mostly used by local authorities to check whether people are recycling their waste as demanded, or to check whether parents really are living in the catchment areas they put on school allocation forms.

Or there was the Extradition Act 2003. This made it possible for British citizens to be deported to face trial in the United States for actions committed in the United Kingdom that may not have been offences under British law. We were assured by the Home Secretary that this was needed for the fight against terrorism and “serious international crime.” Look at these uses of the Act:

  • Giles Darby, David Bermingham and Gary Mulgrew (the “NatWest Three”) extradited on charges of fraud committed in the United Kingdom
  • Babar Ahmad – awaiting extradition on charges of running web sites supporting the Chechen and Afghan insurgencies, without having left the United Kingdom
  • Ian Norris – eventually extradited on charges of price fixing that were not currently illegal in the United Kingdom
  • Richard O’Dwyer – facing extradition on charges of copyright infringement
  • Christopher Tappin – extradited on charges of breaching American sanctions against Iran, though the alleged offence was committed in the United Kingdom, and though he was entrapped by American officials who swore that no law was being broken

Even in the case of Abu Hamza – no doubt a very wicked man – the charge was only of conspiracy. If we add to all this a discussion of how the European arrest warrants have been used in practice, we see that the Extradition Act has been less about protecting us from global terrorists and Bond villains, than about exposing British citizens and residents to arbitrary deportation to foreign countries, usually with lower standards of justice than our own, and often for acts that are not criminal offences here.

This is how every law allegedly made to protect us from terrorism and serious crime has been used in practice. This is why we should be so suspicious of the new electronic surveillance proposals.

But, even if the authorities are acting this time in good faith, the proposals ought still to be resisted. Our British police state is extraordinarily careless about the data it collects. This is always being lost or stolen. In 2007 alone, the Department of Work and Pensions lost the personal details of 45,000 claimants; a London education authority lost the personal details of 160,000 children; HM Revenue and Customs lost the personal details of 25 million families who were claiming child benefit; The Driving Standards Agency lost the personal details of three million candidate drivers. Even if it does not hand them over to despotic foreign governments, or sell them to multinational corporations, can the British State be trusted to keep our electronic communications secret? How unlikely is it that a database of our credit card purchases will not be left on a memory stick in a pole dancing club?

But let us join this theme of incompetence to the main subject of a police state. I have admitted there is much that distinguishes us from really nasty places like East Germany. But one of these points of difference is that the East German police state at least kept people from being robbed in their homes or beaten up in the street. Whatever the price in human rights, the East German police state gave people a country in which they could feel safe. Our own situation is best described as “anarcho-tyranny.” People who urinate in bus shelters, or dig up and steal copper wiring from the National Grid, or make life hell for their neighbours, or may be involved in real terrorist offences, are not prosecuted, or are defended by an army of human rights lawyers at our expense. The police state never touches them. Instead, the rest of us get our post opened by town hall snoops, who think we are trying to get our children into a better school. A man gets an ASBO for standing alone beside the Cenotaph and reciting the names of our war dead in Iraq. A student gets arrested for suggesting a police horse might be gay. Christian evangelists get arrested for quoting some of the less charitable verses from the Bible about homosexuals.

I suggest, given all the available evidence, that this county is ruled at best by some very stupid and incompetent people. At worst it is ruled by people who say they need a police state because they want to fight crime and terrorism, but in fact need fears of crime and terrorism because they want a police state. Whatever the case, they should not be given the right to gather and store details of our electronic communications.

8 responses to “Another Step Towards the Big Brother State

  1. Hard to argue against Sean Gabb’s view that there is a danger of a police state.

    After all the right to keep and bear arms (what both Common Law, and Greek and Roman law in the preImperial period, held to be the mark of the free man) went with hardly any real opposition. So did freedom of speech and freedom of association-nonassociation (a series of Acts since 1965 have rode over this). Ethnic harmony was considered (by Parliament) more important than freedom of speech and freedom of association-nonassociation (the idea that ethnic harmony is helped by state edicts is dubious – but even if it was helped by such edicts, is not freedom of speech and freedom of association-nonassiation rather important?)

    If all this can go – why should we assume that the rest of liberty is safe?

    Even in the 19th century “mainsream” legal writers (Maitland springs to mind) mocked the very idea of natural law (all that mattered was untilitarian calculations of advantage – with nothing “trumping” these calculations) and held that Parliament could do anything it liked (building on Blackstone and others long before). The job of Parliamnt was to do anything it liked to promote the happinesss if the people – thinking like that can “justify” just about any degree of statism (liberty is a “dead man walking” if this becomes the mainstream view).

    The modern view is that “rights” are gifts from government (not from nature and “nature’s God”) indeed “rights” are often considered goods and services provided by government, not limitations on government power (the influence of people such as Harold Laski and E.H. Carr on the international declaration on “Human Rights” should be noted).

    It really should be stressed how far back this goes – even in the 19th century (indeed even in the 18th century- see the Bowood Circle) the sort of language that one finds in (for example) parts of the Constitution of Texas (1876 – although even this is hardly perfect, see what it says about education, the great flaw in American 19th century liberal thought was the belief in state education) would have been mocked in “enlightened” circles in the United Kingdom.

    Both “conservatives” such as Disraeli (see his legislation of 1875) and “liberas” such as “we are all socialists now” Harcourt, regarded the idea of strict limitations on government as an “old fashioned”.

    It is true that the Constitutional Club networtk and the British National Rifle Association remained strong in Britain up til the First World War – but what Greenleaf called the “Libertarian Strand” (see his “The British Political Tradition”) had already lost among the elite in the late 19th century.

    Actually what is astonishing is not that liberty is under threat in the United Kingdom – but that parts of liberty have lasted so long. After all the intellectual foundations of liberty in this country were destroyed long ago.

    Belief in God and in sacred oaths (without which such things as the Corination are just entertainment events)? This was being mocked by elite intellectuals in this country more than a century ago.

    Belief in natural law? Again – mocked by the elite long ago.

    Belief in basic right and wrong and the ability of human beings to choose between them? This can be a basis for liberty even when belief in God is rrejected – but this bedrock founational belief was also being undermined long ago.

    Joad (in his refutation of Logical Positivism) admits that the forces mocking the very idea of basic right and wrong were sweeping Oxford even before the Second World War (and if any Americans are smileling at this point – your “Pragmatists”, William James and co, were undermining belief in objective right and wrong, indeed in objective truth, as far back as the 19th century).

    When Harold Prichard dragged himself to ask the visiting Wittgenstein some civil questions about the nature of human beings – he (Prichard) was mocked by the Oxford “intellectguals” (he died soon after), how silly and reactionary to beleve in human reason (indeed to believe that humans were individual moral agents at all).

    It is a GOOD thing to argue about the details of this or that Act of Parliament (as Sean does) or this or that Act of Congress (or whatever), but if the foundations of liberty are destroyed then liberty itself is bound to fall – sooner or later.

    For example (again if any Americans feel like mocking the decline of liberty in Britain) the intellectual revolution that is marked by, for example, the retirement of James McCosh (of “The Scottish Philosophy” 1877) as President of Princeton and the taking of the position, a few years later, by Woodrow Wilson (with his Prussian collectivism – covered up with canting talk about democracy) was bound to lead to lead to a (disguised) political revolution later.

    The economics of A.L. Perry and Frank Fetter (based on the value of human reason and the value of objective reality) was relaced by the collectivism of Richard Ely (he of the German Historical School – mentor to both Woodrow Wilson and T. Roosevelt). This was at least as radical as the decline in the understanding of Poltiical Economy in Britain.

    The Harvard Law School of the early 1900s hated (and still hate) the foundational principles of the Constitution of the United States just as much as Maitland and co mocked and despised the very idea that there were (unwritten but real) constitutional principles in the United Kingdom – the only difference is that Maitland and co were more open and honest, they did not pretend to love what they despised. Although the reaction to Dicey and (in 1929) Chief Justice Hewart was dishonest – the elite publically sort-of supported the defence of liberty of Dicey and Hewart but privately mocked these “reactionaries” (see Hayek “Constitution of Liberty” and “Law, Legislation and Liberty” – although, tragically, Hayek did not see how his own acceptance of fashionable, but FALSE, philosophy [on the nature of human beings and the nature of morality] totally undermines everything Dicey and Hewart stood for).

    The United KIingdom does not have the written Constitution that the United States (and States such as Texas) have.

    But what is the point of such documents if the intellectual (the foundational)principles upon which they are based are undermined? How can we hold these things (the principles of liberty) to be “self evident” when such ideas (the Common Sense philosophy of Thomas Reid – and long before him to people such as Ralph Cudworth and forward to such Harold Prichard or Antony Flew) are utterly rejected by the elite? This is indeed the “Treason of the Intellectuals”.

    In Britian the Acts of Parliament that Sean carefully examines, undermine liberty, the practice of strict limitations upon the size and scope of government.

    In the United States the “interpretations” of the courts do the same job (turning both the Constitutional text and the intentions of those who wrote it, on their heads).

    Is this so very different?

    Is liberty really more secure in the United States than in the United Kingdom?

    And, as Sean points out in this post, liberty is certainly not secure in the United Kingdom.

    The foundations of liberty were undermined long ago – now it is the “end game”.

  2. As always, I’ve no interest in taking the writer to task by requesting more detail even though the devil himself might reside there. To do that needlessly I feel wastes time when what we need to be doing is cutting to the chase of the matter – checking the most vital nuts and bolts. I’m also not a legal-aid lawyer whose sole purpose it is to find and then argue over the fine and complex and ever changing detail. Detail too often passed into law precisely so it can be repeatedly argued over.

    In my humble opinion, this is a good summing-up of the UKs current political and social situation. It’s all of major concern of course but there are other and perhaps more immediate concerns. The average citizens health- care and future income. The future of village communities. Pornography and other falling public standards that are stripping away freedom and not increasing it. The Uk’s increasingly poor education standards are back in the news again – along with the lack of jobs for young people. A media so infiltrated by left-wing theory and biased reporting that harms all of us more than it helps.

    What a bloody awful time to be a parent in the UK?

    Over this past week I read how in 1913, a local post card posted in the morning, at a cost of one halfpence, would be guaranteed to arrive by tea-time the same day. Some things, during the past century it seems, haven’t moved on much. I spent more than 1 hour on the internet this morning booking train tickets that I could have obtained in less than 10 minutes on the telephone forty years ago.

    What I think we have missing more than anything else these days, are enough citizens who share a sense of national pride. They’ve been brainwashed into believing it’s wrong to own pride at any level. Can anyone imagine Britain losing WW2, then within 50 years being successful enough in engineering to buy-up Mercedes, then bring back to England the best of Mercedes historic and most important vehicles in order to restore them here?

    The Germans’ would have more pride in themselves than to allow that to happen. The British no longer care a toss about stuff like that.

    Those people who’ll allow the gagging of an 85 year old woman and fellow citizen, then see her handcuffed and put in a police van before being carted off to the local nick just because she’d been accused of apparently upsetting a crowd of people by suggesting they should return home, can’t have much pride in who they are. It’s truly shameful. The old dear should have been quietly calmed down by a kindly officer (assuming we still have a few) taken home and given a good cup of tea. However, instead, she’s been charged with inciting racial hatred by talking too loud. Just when you think it can’t get any worse.

    Anyway, the above post has been duly printed off for the record.

  3. Nick diPerna

    You can be arrested for posting an offensive tweet. And there are plenty of non-government organisations willing to act as boot boys for the state.

    But as Sean indicated, at least totalitarian regimes managed to protect old ladies.

    I think the power of ostracism and public shaming is grossly underestimated. In our biological past, being cast away from the ‘tribe’ would have meant certain death. Now it just means loss of opportunities and access to fair maidens, but the primal fear is still there.

  4. You need to stop saying things like “One More Step towards the Big Brother State” (the title of your article, and instead re-title it as “Our Big Brother State keeps growing.”

  5. Edward Spalton

    Essentially with the help of the media, the Big Brother state has become very powerful with very little need for outright coercion, During the 2005 election I did a fair amount of knocking on doors. People started to tell me their minds, usually about immigration and often automatically checked themselves, asking “Am I allowed to say that?” I lost count of the number of times this happened. Even when I reassured them by saying “Of course you must say what you think. It’s our own country you’re talking about” or something similar they would generally just clam up on the matter and not continue in the vein they had started spontaneously.

  6. Actually you know, we don’t need to use violence, we just need to let them know that we have the will and the capability, a bit like having nuclear weapons, once we’re armed, they’ll treat us with respect, and get out of our lives. And we don’t even need traditional weapons, just imagination. But the best weapon of all, is information, if the police and military could be shown the sort of police state gulag they’re helping to set up for their own children, they’d turn their guns against the political elites, so our weapon of choice should be educating the police and military.

  7. john warren

    But don’t we already have an overload of information? Isn’t information-confusion part of the problem in the ever worsening information age? We need courageous men right now. Doers not sayers. Men who are not prepared to be bullied by those awful elites currently holding the reins of total power. They own everything: The media, local government, police, the health services, transport, banking, all the utilities, the judiciary, in fact the entire bloody kit and caboodle of what once was the British way of life. The best achieved on the planet thus far but now almost lost.

    Not men and women standing alone however – they can easily be picked off one at a time. No matter how smart they are, or for that matter how high-born they are, they will be got at, compromised and then destroyed. It happened to Enoch, Lady Di and many others, so it can very easily happen to anyone. He who stands alone today falls alone.

    We need durable men with mighty arms, backed by others in possession of high intellect and both sorts supported by others with great experience. An army of free and fearless men. They must be fully prepared to respond in kind. If arrests begin then counter-arrests should follow. Trade blow for blow until those currently calling the tune realise that the same music has been played for too long.

    Sadly but essentially, it usually comes down to a man fighting for what is right for his own family. For their future freedom and natural desire to hopefully live a happy life.

    Remember the old song, ‘I gathered my loved ones around me and gazed at each face I adored and I heard a voice within me thunder, this is worth fighting for.’

    So it is and always will be for the family of man no matter who they are or where they were born. What else is there that’s really worth fighting for? It’s surely always been so. Only when the security of a man’s family becomes firmly established can society itself then begin to truly flourish.

    Any man that doesn’t care, above all else, for his own is I submit not yet become human. It seems to me that it’s the simple stuff that always works best for humans. That’s how most of us would prefer to live. KISS – simple things do sometimes change but change so slowly we should never really notice the changes.

  8. Educating the police and army is a bit pointless in Britain – as ordinary people will obey any order of the government WITHOUT being forced to do so. To grumble but to obey is our way in Britain (oddly enough the term “Britain” is correct – not “the United Kingdom” as to “grumble but obey” is NOT the way of Ulster – and never has been).

    Large areas of the United States (perhaps most of it) is the same, in this respect, as Britain – but there are some areas where this is not the custom, Where, instead, people may actually refuse to obey government orders (especially Federal government orders) – and “need to be” forced to do so.

    Thus reminding American soldiers that their loyality is to the Constitution (not the President of the day) is vital – as a there is a big move on to “educate” military people that they have a duty to shoot American citizens if called upon to do so (actually they have a duty not to shoot – a duty to refuse to obey unconstitutional orders).