The 800th anniversary of Magna Carta is 2015 and it provides a useful time to reflect on the balance between human rights and state power, especially in the light of the Snowden revelations of state surveillance through the internet, mobile phones and other technology. How strong are our rights as compared with the needs of the state to maintain security and public safety and its other responsibilities? Are democracies succeeding in curbing state power and guaranteeing the rights of the citizen?
Magna Carta and its legacy
Magna Carta, the Great Charter of 1215, was an attempt to limit monarchical power by the English landowning aristocracy which initially failed but over time became incorporated into the law of the land and has served in the centuries since as a rallying cry against the arbitrary use of power by government. Limits were set to the power of our rulers, such as:
- The right for “free men” (a small number who were not villeins) to justice and a free trial by peers of the realm, what later became trial by jury
- Freedom from arbitrary arrest
- The right not to pay taxes without consent
- In essence the core constitutional principle of the rule of law
- An attempt to set up an elected body of barons to limit the king, which after various twists and turns was later to be Parliament. The 750th anniversary of Simon de Montfort’s Parliament which contained an elected “Commons” is also in 2015.
The Great Charter has today almost entirely been superceded by other laws, such as the Human Rights Act (see below) but it remains of great symbolic significance in the UK and a vital reference point in the USA’s legal system.
Human rights and the power of the state today
Yet the question of the balance between state power and individual rights has continued to concern us right through to today. Many would say that we cannot afford to be complacent about this balance. Recently the European Convention of Human Rights was enacted into British law through the Human Rights Act of 1998 and yet three years later the 9/11 atrocities galvanised the security services into seeking out, monitoring, and hunting down terrorists. Only later, revelations by the NSA contractor Edward Snowden in 2013 showed that a massive scale secret surveillance of internet communications was being conducted by the USA’s NSA and the UK’s GCHQ, apparently without people’s knowledge or consent and with unclear accountability.
In other ways there have been apparent breaches of human rights, the most concerning of which have been the detention of alleged terrorist suspects without a trial, seemingly in violation of that key principle of Magna Carta. Moreover the pursuit of people like Abu Qatada led the UK government into conflict with the European Court of Human Rights (ECHR), a body the UK helped set up in 1953. He has still not been convicted by any court. However people like the Justice Minister Chris Grayling in the UK government have been talking of repealing the Human Rights Act and of leaving the ECHR.
State surveillance and the abuse of power
The Snowden revelations led to a storm of protest about the activities of the security services, although the government has sought to justify their actions as very necessary in the interests of the state in the fight against terrorism. In fact successive Home Secretaries (an “Interior Minister”) have been pressing to extend surveillance powers, already far reaching as a result of RIPA (Regulation of Investigatory Powers Act, 2000), to compel ISP’s to retain their customers’ data for security services’ inspection, known as the “Snoopers Charter“. Successive ministers have denied that the law was being broken through security service surveillance. On one occasion William Hague, in reiterating this denial, stated that law-abiding citizens “have nothing to fear“.
However, a range of NGO’s have taken the UK government to court in a class action that will probably end in the European Court of Human Rights if their case is not upheld by the UK Supreme Court. So far, the UK government has been losing. It recently lost one case on the illegal mass collection of data, when the Investigatory Powers Tribunal ruled in February 2015 that GCHQ’s activities had in certain ways been in breach of the Human Rights Act in relation to the rights to privacy and freedom of expression. In another case the state has admitted that it had been illegally snooping on privileged communications between lawyer and client in a case about what seems to have been an illegal rendition of a Libyan to face torture under Gaddafi’s regime in 2004. This is also in breach of the Human Rights Act.
Security versus human rights
This issue will run and run, since the state argues that it needs special powers to deal with the terrorist threat, while others say that this should not be at the expense of our hard-won civil liberties. I say hard-won since it is not often said today that the civil liberties we enjoy today have in the past been the subject of major conflict between the state and its citizens, not least the English Civil War of the 17th Century, the American and French Revolutions of the 18th Century and the Suffrage campaigns in the UK in the 19th and early 20th Centuries. Similar arguments are currently running in the US Congress.
The spread of surveillance is a recent phenomenon, as technological advance has brought powerful new means for criminals and terrorists to covertly communicate with each other but also brought an extension in the state’s ability to watch its citizens. The UK is currently considered to be the most watched society amongst “advanced” societies, and alleged to be “sleepwalking into a surveillance state”. Counter-terrorism is considered to be very important, although arguably under-resourced. Yet civil liberty campaigners will also argue that it can be abused. The tendency, they say, has been for the state to take special powers and then use them for purposes outside the original purpose of the legislation. A well-known example has been how local authorities have used RIPA to monitor the use of dustbins or to enforce their powers in relation to school catchment areas.
A need for openness and accountability?
Thus there is arguably an issue to be confronted as regards striking a balance between the state’s need to defend itself and provide for public safety as against the human and civil rights of its people. Critics would argue that there is a lack of adequate safeguards and that trust in the authorities is weak. The areas concerned are about oversight:
- The powers of the Data Commissioner are said to be too weak
- GCHQ’s own legal advisors have the first responsibility to ensure they observe the law, and they might be both judge and jury in their own cause given that what has happened has been secret so far
- The home secretary signs off warrants for surveillance, but who monitors the Home Secretary?
- There is provision for scrutiny by independent watchdogs, surveillance commissioners for the intelligence services and interception commissioners – but they operate in secret
- There is a Parliamentary committee, mainly of past senior politicians and often those who have served at senior level in government – but they also operate in secret
Much seems to be about a lack of openness, a tricky area since the bodies concerned operate in secret, and many would say must continue to do so. A key question is whether human rights are seen to be being respected, and to do that there needs to be some level of transparency. In addition the scrutiny bodies need to be seen to be genuinely independent of government, again not easy in the British system of government’s tendency towards a theoretical overlap of powers while attempting to respect a practical separation of powers. This brings us back to the lack of a written constitution.
Confidence is not high that the state will fully honour human rights given its recent track record. How that is to be achieved is a thorny question. Many but not all Conservatives seem happy with what we have at present and want the changes discussed above in relation to the “Snoopers Charter” and repeal of the Human Rights Act. Conservatives like David Davis would disagree. The Liberal Democrats want a commission of experts to review the whole issue. Labour has so far been equivocal, despite calling for an overhaul of the security services, since it is they who first introduced many of the measures discussed above. It has mainly been left to NGO’s to criticise the current system. Much is now on hold pending the general election.
We are thus left with an ongoing debate in Parliament about proposed extensions to security service powers of surveillance of digital communication, along with a continuing NGO campaign on behalf of human rights. As stated before, this issue will run and run.