May 27, 2010
Before I start, I should point out that the other morning I re-joined the Labour Party. I say ‘re-joined’ because as a debt-ridden student, at one point, all the direct debits had to go, and so my Labour Party membership went with them.
I wanted to spell out my political allegiances because in an odd way they lend an extra dimension, I hope, to the comments I make here.
I think The Coalition may well be disastrous on many fronts for British society. But that’s my personal, political opinion. However, on the legal front I’m most concerned with, there has been a positive move in the form of an appointment to the Coalition Cabinet.
A prominent Conservative (now Attorney-General), Dominic Grieve, in a Conservative policy publication, has co-authored something I wish I had had the same kind of platform and backing to suggest. This policy publication does a lot to suggest that in terms of society, and the control of society, small and local is beautiful.
Reversing the Rise of the Surveillance State has stolen my thunder; I don’t mind admitting it. It was published some months ago; and it suggests many of the things my own research has suggested for the way that civil liberties should be protected from escalating, and intrusive, electronic governance. Electronic governance is by its very nature intrusive, and threatens our informational privacy and self-governance and self-determination. It should not do so unlawfully; which in legal terms means that it must be authorised with due attention from Parliament… and our civil liberties are eroded, yes, but with utmost care.
The Ministry of Justice under Brown’s Labour government asserted, for example, that Section 2 of the National Health Service Act 2006 allows for the NHS to construct huge, national databases as part of programme to improve patient care. There are also, supposedly, efficiency savings to be made in the longest of terms. However, NHS databases are hugely expensive. Many people and organisations – at least those informed on the subject – are hesitant about the intrusiveness inherent in these programmes. Some health practitioners are strong in their support and more closely involved, but these issues are lost amongst many others. But there are also issues of legality, or rather, unlawfulness here.
The lawfulness or unlawfulness of NHS IT and electronic governance initiatives is a matter of legal doubt, and therefore of legal opinion. If you are following me up to this point; it comes down to the bland degree of wording found in Section 2 of the NHS Act 2006. The wording in legislation that intrudes into our rights, or ‘infringes’ and ‘engages’ them to use the legal parlance, cannot be bland. Our own courts have interpreted the Human Rights Act 1998 in such a way as to establish this ‘anti-blandness’ idea, or an ‘anti-ambiguity’ principle. (It is better known as the Simms principle, after the case in which Lord Hoffman outlined it most definitively.)
Back to the politics.
Dominic Grieve, of course, is a Conservative MP and has been appointed as Attorney General. And I hope he carries out all but one of the electronic governance policies he has outlined.
Reversing the Rise of the Surveillance State articulated eleven policy and/or legislative proposals, each one trying in some way to highlight how civil liberties might be strengthened for all people living in, and visiting, the UK.
They are mostly sensible changes, with one exception that I’m concerned about, namely the idea of “Reviewing protection of personal privacy from the surveillance state as part of a British Bill of Rights.”
Given that it is our own courts that have determined that our rights cannot be stripped away from us without, is it really sensible to repeal the Human Rights Act 1998 and replace it with a less-flexible (though better defined) set of ‘British right that do not depend on our courts interpreting the European Convention on Human Rights? That’s if we can establish exactly what ‘British rights’ are?
My overall point is that the current Simms principle-based rights framework keeps Parliament sovereign, so that difficult decisions legitimising the infringement of people’s rights can be made – but does not limit the scope of when and how rights can be protected in our courts.
Dominic Grieve needs to make sure that he does not help to leave the UK with a narrowly-prescriptive piece of constitutional legislation that leaves rights ‘gaps’ for any future authoritarians to exploit; even if in so doing he is the anti-Orwellian A-G we deserve, and helps persuade Cameron and Clegg on sensible ways to roll back the (poorly planned) database state.
Jamie Grace, author of ‘Behind Closed Doors’, is a Lecturer in Law at the University of Derby, School of Law and Criminology.