The Free Range electrohippies Project The 'Research Papers' (Q) Series
Q2. Britain's Secretive Police Force
Version 1, April 2009. Produced by the Free Range electrohippies Project
web: http://www.fraw.org.uk/projects/electrohippies/ email: firstname.lastname@example.org
Section 1. 'The Background'|
Section 2. 'The Process'
Section 3. 'NETCU, WECTU and NPOIU'
Section 4. "The Era of Economic Change"
Section 5. Conclusions
Section 2. The process
The threat of terrorism is not an uninvited threat. Arguably it is our past involvement with foreign policy measures from the West's arming of anti-Russian groups in Afghanistan that gave rise to Osama bin Laden, to the support for repressive states in the Middle East and Central Asia against the wishes of large sections of their population that has been partly responsible for our present problems. However, within anti-terrorism policy in the UK, the recent external terrorist threat has not been the initiating force for change; instead it has been a "bandwagon" on which the State has leapt in order to promote measures that were proposed long before (for example, ID cards). We can trace this process, in the legislation that governments in Britain have enacted over the last ten to fifteen years, and show how it has been used to restrict the public's right to public protest.
Over a period of five years before the terrorist attack on "11/9", the British government passed a series of laws which began a creeping process of criminalisation of protest and dissent by the public:
- Section 93 of
Police Act 1997 and Section 5 of
Security Services Act 1996 (which amends the Intelligence
Services Act 1994) enacted the principle of common purpose,
Conduct [which] constitutes one or more offences, and either
involves the use of violence, results in substantial financial
gain or (our emphasis) is conduct by a large number of persons in
pursuit of a common purpose
- Section 1 of the
Act 2000 extends the definition of
terrorism to the motivations of the individual when it uses the
the use or threat is designed to influence the government (our
emphasis) or an international governmental organisation or (our
emphasis) to intimidate the public or a section of the
- Sections 5 and 22 of the
of Investigatory Powers (RIP) Act 2000 enacted powers to monitor communications,
and to require the decryption of encrypted data, as part of
investigations by the police and by local authorities
define the criteria for issuing warrants as
5(3), which permits intrusive surveillance,
bugging, reading post, etc.,
...on grounds falling within this subsection if it is
(a) in the interests of national security;
(b) for the purpose of preventing or detecting serious crime;
(c) for the purpose of safeguarding the economic well-being of the United Kingdom and
22(2) which permits the disclosure of
communications data, information about phone numbers, times used,
...on grounds falling within this subsection to obtain
communications data if it is necessary
(a) in the interests of national security;
(b) for the purpose of preventing or detecting crime or of preventing disorder;
(c) in the interests of the economic well-being of the United Kingdom;
(d) in the interests of public safety;
(e) for the purpose of protecting public health;
(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department;
(g) for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health.
- In Section 5(3), which permits intrusive surveillance, bugging, reading post, etc.,
The application of these laws is clearly a matter of definition and interpretation, and how those within the criminal justice system feel that they can or cannot apply the terms of the law will vary in each individual case. Whilst judges and magistrates may on the whole be reasonable people, they are only allowed to interpret the law and apply it within the terms prescribed by Parliament. The basis of how this interpretation takes place will of course always come down to the facts of the case as they are presented to the judge/magistrate by the police in order to secure the necessary authorisations or warrants under the law.
The problem is that these laws use a number of very broad and vague terms which are rarely defined in detail. The most problematic issue is the judicious use of the word "or", as highlighted above. This allows innocent activities, such as non-violent protest, to be categorised as something more serious. For example, if a hundred people sent emails to a government minister to influence his decisions, and this act disrupted his work because he has so much email to read through, that technically could be investigated as a terrorist act (under Subsection 1(2)(e) any act to further an "ideological" cause can be classed as terrorism if it causes "disruption to an electronic system").
Under the common purpose principle even minor offences can be treated as serious crime if enough people carry it out together but the term "large number of people" is not specifically defined. For this reason the modern common purpose principle has the potential to be applied to many acts of "civil disobedience" used as part of non-violent protests today (later, in relation to NETCU's Policing Protest Pocket Legislation Guide, we'll also look at some of the criteria used for policing groups of protestors). However, the concept of 'common purpose' originates in much older legislation: from the old Combination Acts (made in the Eighteenth and Nineteenth Centuries) which sought to restrain the development of early trades unions and political parties; to the Riot Act 1714, the terms of which still influence the modern concepts of public order legislations today. In fact, under the terms defined in the Riot Act 1714, only twelve people need be acting unlawfully for their actions to be equivalent to a "serious crime".
Of the above legislation it's perhaps the RIP Act that has proved most controversial. In UK law there is no specific right to privacy, and no legal definition to encompass what aspects of our lives may be considered "private" in relation to the actions that the state might take against us (in terms of the problems of modern surveillance, this was a point made before a House of Lords committee who recently investigated the "surveillance society"). Whilst there is a general principle that any action taken by the state must be proportionate to the alleged offence committed, no such considerations are explicitly set out in relation to the surveillance of British citizens.
It comes as no surprise to those who raised concerns at the time that over the last few years there have been cases of local authorities using their powers under the RIP Act excessively. This related not just to minor crimes but also administrative matters that are not criminal offences. For example:
- Poole Borough Council has admitted using the RIP Act to check the address of a three-year-old child applying for a primary school place; and
- Derby City Council, Bolton, Gateshead and Hartlepool used surveillance to investigate dog fouling.
Of course, these incidents took place despite the promise from the Home Office of "stringent safeguards" when the law was introduced, and despite the warnings from privacy advocates that such infractions of the law were bound to take place. It has just been announced that a review of the RIP Act's use by local authorities is about to be begin, but as yet there is no clear information about the scope of the review or whether it will include the use of the Act by other agencies.
As noted in the previous section, all this legislation was enacted before "11/9" in the context of the UK's legal framework the issue of "terrorism" does not stem from the attacks of September 2001, but from a period of years before that date. This is not surprising, given the recent history of terrorism in Northern Ireland, but against the background of the successful peace process of the 1990s we might have reasonably expected new terrorism legislation to free up, rather than tighten, the controls over individual action.
Of course, since 2001, we have had a whole raft of new anti-terrorism legislation that has built on the pre-"11/9" foundations, and that can be used by the State to target those that it considers represent a challenge to the "well-being" of society. In addition there are new "anti-social behaviour" powers that can also be used to restrict the rights of individuals to movement or assembly. The most recent detailed examination of how these laws were being used was by the House of Lords/Commons Joint Human Rights Committee in their report, Demonstrating Respect For Rights? A Human Rights Approach To Policing Protest, published in March 2009. This produced many examples of the problems that the new framework for controlling disorder has created. For example, in paragraph 49 of the report, the Committee cite evidence from the National Union of Journalists
...the police are now more concerned with controlling
and preventing demonstrations than facilitating protest.
Journalists and protestors referred to what they regarded as the
increased use of police powers including:
- stop and search (including under the Terrorism Act) to intimidate and harass and allow "police the opportunity to obtain identity, gain intelligence, prevent photography";
- intrusive photography and filming of protestors and journalists;
- wide ranging seizures of property, including personal belongings;
- use of legal powers not designed to deal with protests such as inappropriate use of anti-social behaviour legislation;
- overuse of breach of the peace; and
- "function creep" in the use of the Protection from Harassment Act 1997 (for example to restrict protest outside company premises).
In relation to the use of anti-terrorism powers, specifically Section 44 of the Terrorism Act 2000, paragraph 93 the Committee's report stated
Whilst we accept that there may be circumstances where the
police reasonably believe, on the basis of intelligence, that a
demonstration could be used to mask a terrorist attack or be a
target of terrorism, we have heard of no examples of this issue
arising in practice. We are concerned by the reports we have
received of police using counter-terrorism powers on peaceful
protestors. It is not clear to us whether this stems from a
deliberate decision by the police to use a legal tool which they
now have or if individual officers are exercising their
discretion inappropriately. Whatever the reason, this is a matter
Another target for criticism in the report is The Protection from Harassment Act 1997. Originally intended as a means of dealing with stalkers and troublesome ex-partners, the purposes of the Act laid down by Parliament have been twisted to encompass the activities of protesters in a process common under the application of such laws (and new technologies that can have hidden privacy or surveillance uses) called "functional creep". Companies have used the Act, the proceedings for which are usually held in private, to obtain court injunctions to limit the right of protest. Amongst a number of others that have taken place in recent years the most notable involved the operators of Heathrow Airport who were seeking to ban potentially tens of thousands of people from a large zone around the airport. Paragraph 99 of the Committee's report stated
We appreciate that injunctions bring benefits to those who
have experienced violent and intimidatory protest, especially at
their homes. However, we are concerned that the Protection from
Harassment Act 1997 (which was not designed to deal with
protestors, but has developed over time to encompass this area of
activity) has the potential for overbroad and disproportionate
Despite the protestations of the Joint Human Rights Committee these infractions continue because remedying the problem does not have a high priority on the government's legislative programme; in general politicians make political capital by tightening laws, not relaxing them. Instead what we see is further potentially repressive laws being enacted.
The most significant new restriction since 2001 is the Serious and Organised Crime and Police Act (SOCPA) 2005. This law enacted many controversial measures, such as giving the police the powers of arrest for any offence (in Section 110 ending the previous definition of "arrestable" and "non-arrestable" offences). However, this seemingly minor amendment means that the police must find a reasonable cause to arrest someone, and one of those reasons is
to allow the prompt and effective investigation of the offence
or of the conduct of the person in question.
This means that the police can now use any minor infringement as a pretext to arrest in order to remove a person from a demonstration. Perhaps the most controversial measure has been the banning of protests, of any kind, within certain "designated areas" (section 132-138). This includes a large area around the Houses of Parliament and most Whitehall government buildings, as well as a number of military establishments around the country.
In relation to the ability of the police to curtail the right to protest the measure with the most widespread application is probably Section 112. This gives the police the power to direct someone to leave a place if the officer believes that they do not have the right to be there, and arrest them if they refuse to go. Public order powers already give the police very broad powers in relation to people who are "misbehaving" on private property. With the greater privatisation of public space in most urban areas across the country Section 112 potentially gives the police a simple means to prevent or relocate demonstrations which are in no way presenting public order problem. For example, most shopping centres are technically private property, and technically, despite being "public buildings", the public have to automatic right to be on the land owned by local councils. In the conclusions to their report the Joint Human Rights Committee raise this issue of protests on "private property" in point 3 of their recommendations
In the past, there were good reasons for maintaining a strict distinction between private and public space, insofar as protests were or were not permitted. However, given the increasing privatisation of ostensibly public space, such as shopping centres, we consider that the situation has changed. Where preventing protest on private land to which the public routinely has access would effectively deprive individuals of their right to peaceful protest, the Government should consider the position of quasi-public spaces to ensure that the right to protest is preserved.
Most recently we have what can best be defined as the "European RIP Act". Under the framework agreed under the European Cybercrime Convention 2001, the European Union's Council of Ministers approved a plan in November 2008 to grant police and security services the power to perform remote searches of suspects' computers (that is, using "back doors" in programs to remote access, to "hack" people's computers). In January this year, the Home Office announced that it was going to participate in this plan, although it has not yet announced any details.
In any case, such an agreement doesn't affect British citizens significantly. It has been legal for the police to hack into the computer systems of British citizens without a warrant since 1995. This followed the amendment of Section 10 of the Computer Misuse Act 1990 which exempted the police and security services from prosecution for the offences of "computer misuse" that the Act seeks to prevent.
If we look at the change in the policing of protest in Britain over the last decade it's clear that the state is seeking to stamp down on any action that seeks change "outside of the usual channels". This limits protest to the scope of "regular" representative processes, such as letter writing, talking to your MP, or signing petitions in short, those things which don't create significant changes in the public debate because they happen outside the media and the public's gaze.
One of the more problematic aspects of the new framework has been the effect upon our ability to act collectively in public. Under the new legal framework the role of the police has shifted from facilitating the use of public space to allow protests to take place to actively using the law to curtail or deter protest. This is because the action of policing protest, as with other aspects of community policing since the advent of the "anti-social behaviour" agenda, has been shifted from that of facilitating the rights of the citizen to have free movement in public space to preventing "crime and disorder". Unfortunately the scope of the law, and the way it is applied by the police against protesters, cannot distinguish between the types of "crime and disorder" that take place in town centres at night and the types of protest action that have a political or social objective.
In the conclusions to their report, the Joint Human Rights Committee raises the issue of the "facilitation" of protest
The evidence we received inevitably focused on some of the
largest and most controversial protests, which are the most
difficult events to police. However, we also received evidence
from some small longstanding protest groups. We were struck by
the accounts of the use of a wide range of police powers against
protestors and others involved with protest such as
journalists as well as the significant mismatch between
the perceptions of protestors and the police about the way in
which protest is managed. These factors could serve to diminish,
rather than facilitate, protest and also risk encouraging
conflict rather than co-operation between protestors and the
police. In addition to its positive duty, the state is required
not to restrict protests unless it is justified as being both
necessary and proportionate to do so in pursuance of a legitimate
aim: this is a high threshold. Whilst protests may be disruptive
or inconvenient, the presumption should be in favour of protests
taking place without state interference, unless compelling
evidence can be provided of legitimate reasons for any
restrictions and those restrictions go no further than is
strictly necessary to achieve their aim.
There will of course always be disagreements over the extent of protest, but there exists today an obvious disparity between the stated "rights of the individual" to free expression and association and the way in which the public's exercise of those rights are policed. Should this position continue to worsen, as it has in the last decade or so, rather than improve as the Joint Human Rights Committee have requested, then we should have real concerns for our rights in the future.
It's at this point that we must turn to the activities of NETCU, WECTU and NPOIU, and their role in this process.
Section 1. 'The Background'|
Section 2. 'The Process'
Section 3. 'NETCU, WECTU and NPOIU'
Section 4. "The Era of Economic Change"
Section 5. Conclusions
Produced by the Free Range 'electrohippies' Project
© 2009 Paul Mobbs/The Free Range Network. This document has been released under The Creative Commons Attribution Non-Commercial Share Alike License ('by-nc-sa', version 3).