A Hostile Activity?
Mar 16, 2019Posted by on
This week on Facebook: Interpretation of the rule of law brought about the English Civil Wars, vexation over it created fertile ground for the American Revolution and it is (probably) the main cause of the present split between the UK and the EU (Brexit). Last week I posted about ‘The Rule of Law‘, and on the Sunday before posted an article from the Oxford Human Rights Hub (OHRH)¹. The OHRH compared the Chinese Communist Party (CCP) support for the ‘Rule by Law’ and its meritocratic abuse with the democratic ‘Rule of Law’ espoused by governments in the West.
To my mind there is a very fine line between the two with personal wealth and influence being the key to justice under both, with the OHRH claiming that the distinction between the two is more than semantics. While both police law’s rules, the OHRH states that the formulation of the rules have quite different intentions. The human rights element is considered intrinsic to the ‘Rule of Law’, however the OHRH states that in China — ‘Rule by Law’ is less about ensuring compliance with the law than about ensuring the top leadership’s control over its bureaucracy in the CCP.
Peter Oborne wrote in his 2008 book that politicians now despise the values of traditional institutions that once acted as restraints on the power of the state — the independence of the judiciary, the neutrality of the Civil Service and the accountability of ministers to the Commons. Decades earlier in 1979 James Anderton stated that from the police point of view, what will be the matter of greatest concern will be the covert and ultimately overt attempts to overthrow democracy, to subvert the authority of the state.
Both point to a desire by politicians to increase the authority of the State and by the police to enforce the laws that do so. Increasingly the State in UK is introducing laws that increases its authority while purporting to protect the civil rights and civil liberties of its citizens. In doing so, the public administration of the UK State moves inexorably closer to that of a supreme authority who ‘Rule by Law’.
Of all the ills that human hearts endure,
How small that part which laws may cause or cure.
A New Examination Of Morals And The Law By T. E. Utley
The UK public administration has chosen to put into criminal law the offence of a ‘hostile activity‘ as now being sufficiently circumscribed. It is yet to be determined how successive public administrations deal with a hostile activity and whether or not such an activity is confined to that of terrorism. In the UK, the legal definition of terrorism is provided in section 1 of the Terrorism Act 2000, which is open to interpretation by the authority of the State. The UK parliament has little (if any) record for completely withdrawing Bills that they have previously passed as being useful for the enforcement of authority by the public administration of the State².
Off goes the head of the king, and tyranny gives way to freedom. The change seems abysmal. Then, bit by bit, the face of freedom hardens, and by and by it is the old face of tyranny. Then another cycle, and another. But under the play of all these opposites there is something fundamental and permanent — the basic delusion that men may be governed and yet be free. H. L. Mencken: The American Credo (p12)
H. L. Mencken was quite prescient in the alarums he created that can certainly be still applied to practical politics, the following Mencken quote is (and has) been used many times and in many contexts since it appeared in 1918.
The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary. H. L. Mencken: In Defence of Women (p53)
Perhaps not quite the terms that James Anderton (Chief Constable of Greater Manchester Police 1976 to 1991) put political alarms in, yet Anderton’s remarks are also of great prescience in today’s practical politics. Something that I have posted about a number of times and apropos this post The State, Domestic Extremism and Terrorism is considered most relevant. Proof — perhaps — that Mencken was right when he wrote about the common man, his liberty, the law, and the police.
What the common man longs for in this world, before and above all his other longings, is the simplest and most ignominious sort of peace: the peace of a trusty in a well-managed penitentiary. He is willing to sacrifice everything else to it. He puts it above his dignity and he puts it above his pride. Above all, he puts it above his liberty. The fact, perhaps, explains his veneration for policemen, in all the forms they take — his belief that there is a mysterious sanctity in law, however absurd it may be in fact. A policeman is a charlatan who offers, in return for obedience, to protect him (a) from his superiors, (b) from his equals, and (c) from himself. This last service, under democracy, is commonly the most esteemed of them all. H. L. Mencken — Notes on Democracy (p158)
Mencken’s views on practical politics and the ignorance of public opinion are as valid now as they were at the time of his writing. He would have been as scathing of modern public opinion — perhaps even more so given the information now available to the populace on-line.
Public opinion, in its raw state, gushes out in the immemorial form of the mob’s fear. It is piped into central factories, and there it is flavoured and coloured and put into cans. H. L. Mencken — Notes on Democracy (p203)
Mencken would have ridiculed the complacency of the government in their somewhat broadly defined concept of ‘hostile activity’, where it plays to the mob’s fear, is piped to the populace and put it into a can labelled ‘public opinion’. However, it not only engages human rights considerations, but also has implications for the rule of law and legal certainty. Writing it into the Counter-Terrorism and Border Security Act Fact Sheet does not provide the circumscription necessary to allay these concerns.
Lord Bingham of Cornhill may have had some thoughts in mind regarding Menken’s ‘hobgoblins’ when he wrote the following, but it is more than likely that he was aware of how much politicians are swayed by public opinion and how, certainly in the UK, parliament seeks supremacy over judicial independence.
The advent of serious terrorist violence, of those willing to die in the cause of killing others, tests adherence to the rule of law to the utmost: for states, as is their duty, strain to protect their people against the consequences of such violence, and the strong temptation exists to cross the boundary which separates the lawful from the unlawful. (Lord) Tom Bingham — The Rule of Law (p158)
1. Amend Flawed Counterterrorism Bill: In response to the Salisbury poisonings, the bill also would empower customs and immigration officials to stop, question, search, and copy or seize personal belongings of anyone at ports, airports or border crossings to determine whether they may be involved in “hostile activity” on behalf of a foreign government. Detention could last up to six hours. No grounds for suspicion would be required and hostile activity is vaguely defined. Failure to provide information or belongings would be punishable by up to 51 weeks in prison.
2. Threat to client confidentiality: The Counter-Terrorism and Border Security Bill, has already passed through the House of Commons and is due to have its second reading in the House of Lords in October. It gives border guards powers to stop and detain travellers for questioning without suspicion they have committed an offence.
3. Government’s Counter-Terrorism and Border Security Bill receives Royal Assent: New laws affording the UK greater powers to crack down on hostile state activity have received Royal Assent. The Counter-Terrorism and Border Security Act 2019 also ensures sentencing for certain terrorism offences can properly reflect the severity of the crimes, as well as preventing re-offending and disrupting terrorist activity more rapidly.
4. Counter-terror bill is a threat to press freedom, say campaigners: New counter-terror powers designed to tackle the “vaguely defined” crime of hostile state activity threaten the protection of journalistic sources, campaigners for freedom of expression and the press have warned. In a joint statement, nine organisations including Index on Censorship and Reporters Without Borders have called on the House of Lords to recommend significant amendments to the bill as it reaches the closing stages of its passage through parliament.
5. HRW criticises new UK counter-terrorism bill: Regarding the right to privacy, the bill provides border security officials the ability to detain and question a person to determine if they have engaged in hostile activities. The bill specifies that the grounds for suspecting that a person is or has been engaged in hostile activity is not necessary. HRW states that similar measures in the UK disproportionately affect minorities in the country.
Referenced Articles Books & Definitions:
- A bold text subscript above and preceding a title below (¹·²·³), link to (usually free) content.
- Links (without superscript) and in italics reference the intended context of words used.
- Links without superscript and not in italics reference a source.
- A long read url* is followed by a superscript asterisk.
- Brackets containing a number reference a particular included article (1-5).
- Occasionally Open University (OU) free courses are cited.
- JSTOR lets you set up a free account allowing you to have 6 (interchangeable) books stored that you can read online.
¹Le Droit, C’est Moi: Xi Jinping’s New Rule-By-Law Approach (url): China’s party-and-state leader tries to bring government officials under the reach of the legal system. But the purpose of this approach is less about ensuring compliance with the law than about ensuring the top leadership’s control over its bureaucracy.
²Grading The War On Terror (url/2014): The ‘war on terror’ has now been waged for over a decade. It continues to be waged under many guises warranting, perhaps, the naming of The 1984 War.