Comment: Our legal battle against schedule seven
By Isabella Sankey
Is it possible to be shocked but not surprised? The detention of David Miranda at Heathrow airport on Sunday starkly distils all that is wrong with the dangerous power to stop, search and detain without suspicion under schedule seven of the Terrorism Act 2000.
It's also a chilling reminder of how easily those who cause the authorities embarrassment or discomfort are swept up by blanket measures passed in the name of national security. Miranda is the partner of Glen Greenwald, the former civil rights litigator and award winning author and journalist who conducted the watershed Snowden interviews and writes powerfully about the threat to democracy, freedom, rule of law posed by NSA and GCHQ spying revelations.
His investigative work and influential articles have no doubt riled securocrats on both sides of the pond. Previously publicly unacknowledged, Greenwald's work in shining a light on Prism and Tempora surveillance programmes sent global shockwaves, triggered a diplomatic backlash and public outcry.
The irony of blanket surveillance in freedom's name is not lost on most; legal challenges have been filed and political pressure is now being brought to bear on US and UK legislatures.
No wonder then, the widespread suspicion that Miranda's detention was not unconnected to the ground-breaking work of his partner. But whether it was or wasn't, this latest scandal neatly demonstrates the fundamental problem with a law that is ripe for urgent repeal.
For many in Britain, schedule seven has become a byword for racial profiling, provocative and derogatory questioning and routine hassle when entering or leaving the country. Liberty believes the power is unlawful, contravening basic rights to liberty and respect for private life protected in the post-war Convention on Human Rights.
In 2011–2012, 69,109 people were stopped and examined under schedule seven and of these, 2,240 were held for over an hour. Most disturbingly, you are 42 times more likely to be stopped if you are Asian than if you are White.
Worse still, recently conducted qualitative research (Choudhury, T and Fenwick, H Durham University) evidences the pervading sense within communities that being stopped because you are Muslim is part and parcel of travel in and out of the UK. This is further borne out by the questions reportedly asked once an individual is detained, for example; what mosque they attend; how many times a day they pray; and whether they knew where Osama Bin Laden was hiding.
Journalists and those linked to them are similarly vulnerable to the inevitable abuses of a dangerously broad power like this. There is no need for any suspicion of terrorism or any other type of criminal activity.
Detention can last for up to nine hours (8am – 5pm in Miranda's case); people can be strip searched and have their fingerprints taken without consent. If you are held at the port or border for this duration, all this can happen without any access to a publicly funded lawyer.
Confiscation of property can include phones, computers – anything you have on you – which means emails, contacts, messages and documents are readily confiscated and trawled. The implications for journalists, their loved ones and the protection of journalistic source material are plain to see.
The amount of intimate information we now carry combined with powers such as these wholly undermine traditional safeguards against abuse, such as the requirement of a judge's warrant before a home is searched and property seized. It is darkly ironic that blanket powers, similar to the indiscriminate surveillance Greenwald helped uncover, have been used indirectly against him.
Schedule seven suffers from the same defects – and worse – as the discredited and now repealed section 44 counter-terrorism power also formally contained in the 2000 Act. For many years this allowed for stop and search without suspicion across large parts of the UK. While never leading to a terrorism conviction, it too was used to target minority ethnic groups, journalists and peace protesters. Liberty successfully challenged it in the Court of Human Rights, bringing an action on behalf of journalist Pennie Quinton, and it was declared unlawful.
We've now brought a Strasbourg challenge to schedule seven. It concerns a British man of Asian origin, who was detained, also at Heathrow, for four and a half hours in November 2010. During his detention, he was questioned about his salary, his voting habits and the trip he had been on, among other things. Copies were taken of all his paperwork and credit cards and the police kept his mobile phone, which was only returned to him eight days later after having to pay for its return himself. His fingerprints and a mouth swab were also taken.
He had never previously been arrested or detained by the police and was travelling entirely lawfully. On 28 May 2013 the European Court of Human Rights considered the arguments and decided that our case is admissible. The government is due to submit their submissions by 12th September 2013.
In what looks like a desperate scramble at damage limitation, earlier this year the government tabled amendments to schedule seven in its latest Home Office bill.
Failing to accept the fundamental and fatal flaws of this type of law, they have tinkered around the edges in a manner unlikely to reassure those now disturbed by the Miranda scandal
As this story unfolds, politicians have expressed surprise that the law can be used in this way. Chilling and alarming as it is, we aren't surprised. Our statute book is littered with loose powers like this that are routinely used and abused.
We now look to Parliament to take heed of this latest high profile abuse of power and repeal the offending legislation – for the sake of press and personal freedom alike.
Isabella Sankey is the director of policy at Liberty (the National Council for Civil Liberties) which she joined in November 2007. Isabella leads Liberty's parliamentary lobbying and policy development, working in particular on the protection of human rights in the context of counter-terror policy.
The opinions in Politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.