The Bill gets closer

Andy Beckett on the new legislation that will give police unprecedented powers
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The Independent Online
In December 1979, seven months after the Conservatives returned to power, the sociologist Stuart Hall gave a lecture entitled Drifting into a Law and Order Society. "We are now in the middle of a deep and decisive movement," he said, "towards a more authoritarian kind of society." For evidence, Hall offered the arrival of the welfare "scrounger" as a tabloid demon, the first moves against the unions, and, at greatest length, the growing powers and fierceness of the British police.

Seventeen years later, a few months before the Conservatives are likely to lose power, their construction of a "disciplinary common sense" about crime, spotted early by Hall, is close to completion. Newspapers have been primed to demand "crackdowns", judges ordered to impose "tough" sentences, suspects advised to answer questions or risk further suspicion. But the clearest sign of change in law enforcement - from an identifiably liberal, and ancient, care for private liberties to their current scorning as cover for criminals - appeared only recently, last November, with the publication of the Police Bill.

The contents of this 90-page fold of cream paper are just as Hall might have anticipated. There are clauses to allow employers to demand a "criminal conviction certificate" from job applicants - the incremental, now familiar, expansion into everyday life of a modern state only pretending to be shrinking. And then there are the clauses about phone-tapping and burglary.

Part III of the Police Bill is subtitled "Authorisations to interfere with property etc". Beneath that small-print "etc", great new vistas of official intrusion open out. Police officers will be able to enter anyone's home or workplace, and conduct a search, or hide surveillance devices. Permission to do so, which currently must be obtained from, respectively, a magistrate or the Home Secretary, will come from the officers' chief constable. It will not have to be in writing "in an urgent case".

The chief constable will agree to a break-in or bugging if "it is likely to be of substantial value in the prevention or detection of serious crime". The Bill defines such a crime as law-breaking which "involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose".

These criteria are as loose as the circle of policemen considering them will be tight. Rave organisers, anti-roads protestors, unwitting friends of criminals - all could be snared by the Bill's careful deployment of the vague words "substantial", "likely" and "serious". And the legislation makes no exception for professional confidentiality: the secrets of clients held by doctors, lawyers, priests and management consultants will be there for the raking.

Yet not many people seem worried. In November and December, a few critical articles appeared in our few liberal newspapers. A handful of Lords complained of freedoms threatened. The Liberal Democrats promised to vote against the Bill in the Commons for the same reason; the Labour Party said it would not. The voters thought about Christmas.

With the legislation due for a third reading in the Lords in a fortnight, the Bar Council and the Law Society are quietly lobbying the Government. Any decision to spy on law offices, they suggest, should be taken by a circuit judge, not by a chief constable. "If the police can go into solicitors' offices," says Robert Roscoe, chairman of the Law Society's criminal law committee, "there is no reason why they cannot go into closed court proceedings, or judges' private rooms." He is hoping for an amendment in the Lords.

Any sharper challenge - to the whole premise of the legislation rather than its mere operation - is harder to find. Within the Labour Party, the Bill's threat to civil rights is thought a matter of technical, metropolitan concern, and an issue which can only lose votes this spring. Much of the public wants draconian policing, this logic dictates, and those who don't - like the young black men disproportionately targeted by every crime-fighting measure - are hardly likely to vote Conservative. But Labour is also actively helping form the political consensus on which the law and order society depends. In the New Statesman last month, Jack Straw, the shadow home secretary, made his satisfaction with the legislation clear: "The police have been doing this [bugging and burgling] for years. Now they will be supervised. They will be more accountable."

It is worth dwelling on this argument. First, it ignores the fact that evidence obtained illegally is inadmissible in court; legalised, every sneaked photo can be used. Second, it suggests a certain credulity about accountability. Besides letting the police authorise themselves to become spies, the Bill establishes a "Commissioner" to "keep under review" their activities and "investigate any complaint". Once a year, this commissioner will submit a report to Parliament. Given that it will omit any "matter [that] would be prejudicial to the continued discharge of the functions of any police authority", it is hard to imagine this report taking very long. Complaints, too, will be barely scrutinised,without any right to appeal, or damages, or explanation. The last restriction is revealed in the Bill's seventh appendix.

More broadly, Labour's recommendation that illegal acts by the state should be legitimised, for no reason other than their past profusion, makes for queasy reasoning. No such pragmatism colours the party's policy on, say, drunken driving by the young. Instead, legal slack will be cut solely for police officers, rather as it is in Singapore.

"It has rather shaken me," says Robert Owen QC, the new chairmACOaaaaaceeeeiiinoouuupounds Oo...--""`'an of the Bar Council, "to hear that illegal activities should be put on a statutory basis ... as a serious argument. It is a feature of a state where the rule of law does not run." Alan Beith, the Liberal Democrats' deputy leader, talks of a liberal democracy entering a coercive "unknown territory".

The Labour Party, however, will have none of this. "Unknown territory" is precisely where it wants law enforcement to head. "The criminal justice system is remarkably ineffective at catching criminals," says one Labour MP not noted for his law and order credentials. Liberal critics of the Police Bill are, he implies, melodramatic and out-of-date.

He may well be right on the latter. Before November, when civil servants were drafting the legislation, "they thought they would get praise, not blame," says John Wadham, director of the civil rights pressure group Liberty. Wadham's own criticism of the Bill, though forthright and, slowly gaining publicity, is frequently qualified by assurances that he is not against effective crime- fighting - anyone with reservations about the draconian experiment must, it seems, declare their loyalty to law enforcement.

In this bracing climate, there is a musty air about Robert Owen's protesting reference to "Edward Coke's opinion of 1628 that a man's house is his castle". With surveillance cameras already in most city centres, peering into private and public spaces alike, this notion of a citizen's sacred enclave was wearing thin before the Police Bill.

Most likely, the legislation will survive the Lords unamended. The Government has declared the offices of lawyers to be potential places of criminal activity. With Labour abstaining, the Bill will pass in the Commons, and the protections against the state offered to British citizens will shrink further from those of other democracies. Policemen are naturally inclined to burgle in every country, but from France to America, New Zealand to Germany, governments have long thought it useful to make them ask a judge first. The European Convention on Human Rights guarantees domestic privacy; the European Court of Human Rights may not take kindly to the Police Bill.

Until it objects, the police will act as they wish. Officially, the Bill is intended to combat the stealthy web- building of drug smugglers; but the legislation mentions no specific purpose, and, even if the limited intentions of Michael Howard and Jack Straw are to be believed, future home secretaries and chief constables may perceive different threats. If the powers are there, they will be used. And police officers, seeing their past excesses legitimised, may try more. Perhaps Stuart Hall should mind his window locks.