The Labour Government's latest terrorism legislation got an unopposed Second Reading in the House of Commons on Tuesday 1st April 2008. The Opposition parties and the media, as we predicted when the Bill was announced, have been distracted by the extremely controversial 42 days internment without charge provisions and have, so far, ignored all the other sneaky and repressive bits of the Bill.
The text of the Counter-Terrorism Bill 2008 and the (not very) Explanatory Notes is available on the Parliament website.
Where is the Business Case and the Regulatory impact Assessment setting out why such further legislation is actually necessary, why the existing vast legal powers available under the large amount of existing Primary and Secondary legislation is somehow inadequate, how much extra this is all going to cost to enforced, and what the expected result will be in terms of the number of terrorists who will be caught, convicted or even slightly deterred. Neither the Explanatory Notes, nor any of the media spin and manipulation so far presented to the public have made any of this clear.
There appears to be a carte blanche for legally covering up any of DNA or fingerprint sample abuses "that are not held subject to existing statutory restrictions."
The Bill also provides for the use of DNA samples and for fingerprinting to be used not just for terrorism cases , not just for serious crime, not just for petty crime, but for general "identification" purposes, whether you are dead or alive.
There also seems to be another statutory attempt to destroy the Common Law Duty of Confidentiality, and probably also to circumvent the "Wilson Doctrine".
Any legislation which claims that "Nothing in that section shall be read as casting doubt on the legality of anything done by any of the intelligence services before that section came into force." only succeeds in raising precisely those sort of doubts in the mind of anyone reading it.
Power to take fingerprints and samples from person subject to control order
Clauses 10 to 13 further erode the freedoms and liberties of people who have not been arrested or charged with any crime, by allowing the authorities to take, by force if necessary, fingerprints and non-intimate samples including human tissue samples, for DNA and other database analysis and matching. Remember that the people currently or in the future who are subjected to the wretched Control Orders have not committed any crime in the UK for which they can be charged with, let alone convicted of. None of the supposed terrorist suspects who have, so far, been the people subjected to this monstrous legal power have been considered to pose a serious terrorist threat in the UK, even when they have escaped from the regime.
Bundled along with this extension to Control Order suspects, in Clauses 14 to 17 is the further extension of the national DNA Database to include cross checking with samples ("fingerprints, impressions of footwear or DNA samples") held by the Security Service MI5 and the Secret Intelligence Service MI6.
Sneaking along in this section of clauses is an extraordinary carte blanche:
Clause 18 - Material not subject to existing statutory restrictions
(1) This section applies to--
(a) DNA samples or profiles, or
that are not held subject to existing statutory restrictions.
The Forensic Science Service, its sub-contractors, the Police and presumably the intelligence agencies have a history of exceeding their legal powers when it comes to the illegal retention of too much personal data, for too long. This clause seems to exempt them from any past or future sins, and it applies not just to terrorism cases or investigations, but is a general exemption applicable to the pettiest of crimes, and also for no crime at all, simply for "identification" purposes.
(a) in the interests of national security, (b) for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or (c) for purposes related to the identification of a deceased person or of the person from whom the material came,
What is the justification for this general power of "identification" of innocent people ?
Clauses 19 to 21 - Disclosure of information and the intelligence services are a bit puzzling at first glance. Why exactly is new Primary legislation required simply for MI5, MI6 and GCHQ "for the purpose of the proper discharge of its functions" ?
That is what these agencies are already legally obliged to do anyway with the information which they obtain.
19 Disclosure and the intelligence services
(1) A person may disclose information to any of the intelligence services for the purposes of the exercise by that service of any of its functions. (2) Information obtained by any of the intelligence services in connection with the exercise of any of its functions may be used by that service in connection with the exercise of any of its other functions.
Perhaps the clue is in
20 Disclosure and the intelligence services: supplementary provisions
(4) Nothing in that section shall be read as casting doubt on the legality of anything done by any of the intelligence services before that section came into force.
"No smoke without fire" - what exactly are they trying to cover up ? GCHQ is not, presumably involved with fingerprints and DNA samples. Is this an attempt by the Government to sneak in another legal exemption to cover up a United Kingdom equivalent of the SWIFT or US FISA / AT&T snooping scandals, involving the illegal snooping on millions of innocent citizens ?
Clause 19 (6)
(6) A disclosure under this section does not breach--
(a) any obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information (however imposed).
This is another bit of legislation (like the Children Act 2004) which completely destroys the Common Law Duty of Confidentiality which is expected of practitioners in the medical, legal or accountancy professions and commercial entities like banks or telecommunications and internet companies.
Although this exempts informants from being sued for breach of confidence and trust, there are no actual "whistleblower protection" features in these short clauses.
Members of Parliament who do not bother to get these sections clearly spelled out, and amended with some legally enforceable countervailing checks and balances (not through the discredited and useless mechanism of just Yet Another Censored Annual Report to a Minister or to Parliament) will only have themselves to blame when they themselves are subjected to snooping by the intelligence agencies,since these Clauses would also destroy the Wilson Doctrine.