Friday, September 30, 2005

Scaring the nation

Or: what's being said about the Walter Wolfgang incident, and what isn't.

It's appalling that this should happen to an old man / a lifetime Labour Party member / a former refugee from Fascism

This is roughly the Blair line. I have every respect and sympathy for Walter Wolfgang as an individual, but really... spare us. Blair's recourse to this argument suggests a worrying confusion between ethics and sentiment, between 'wrong' and 'unpleasant'. (A very New Labour confusion, incidentally.) If Walter had been a strapping twenty-year-old who'd recently joined the party from the BNP, what happened to him wouldn't have been any less wrong. (An ex-fascist being manhandled by security would have had a certain entertainment value, admittedly, but it would have been just as wrong.)

It's appalling that Labour should treat dissenters this way

This is closer to the mark. The idea of suppressing all heckling at a Labour Party conference in the 1970s or 1980s would make a cat laugh. You've got to wonder quite how much the party membership has changed in that time - does nobody oppose the leadership any more? Or have the members simply been managed into submission? We knew, of course, that the New Labour takeover had involved restructuring the apparatus of the Labour Party; perhaps until Wednesday we didn't appreciate quite how far it's gone. Wednesday's scenes put me in mind of accounts of BUF meetings in the 1930s ("a solitary heckler was quickly removed from the hall by burly stewards"). To be fair, the WRP in its heyday had a similar way with dissent; if Blair's a Fascist, so was Gerry Healy. (So, not quite out of the woods yet, Tony.)

It's appalling that the Terrorism Act should be invoked

I almost endorse this line of argument wholeheartedly. The Terrorism Act 2000 (commonly known as TACT) explicitly classifies as terrorism such activities as politically-motivated vandalism, political protest which threatens the 'health and safety' of the public and politically-motivated hacking. Even more alarmingly, it makes no distinction between the action itself and the threat of carrying it out. As I said earlier, if I threatened to take down the Home Office Web site on behalf of NO2ID, that threat would in itself amount to terrorism. The same would be true of threatening to impinge on public health and safety by... oh, I don't know... preventing petrol tankers from leaving oil refineries, say, or clogging up the M4 with a convoy of farm vehicles. TACT, in other words, is a catch-all law, which can be used to criminalise as much or as little of the spectrum of effective political protest as the government of the day chooses. This is not only an authoritarian law, it's an arbitrary law - a law which legitimises arbitrary state action instead of limiting it.

This vein of arbitrary authoritarianism runs right through TACT. Section 44 of TACT, under which Walter was supposedly detained, is all about defining situations in which police powers can be extended. Section 44 enables a senior police officer to issue an authorisation, covering a specified area for a period of up to twenty-eight days, under which the police have extended powers to stop and search people and vehicles. The authorisation must be issued because the person giving it considers it expedient for the prevention of acts of terrorism. Once it's issued, however, individual searches don't need to be justified; the existence of the authorisation, together with a police officer's stated belief that the search is related to the prevention of terrorism (as defined by TACT), is justification enough. Assuming that the area of the conference was already covered by a section 44 authorisation, all that would be needed to justify hauling Walter Wolfgang out of the conference hall and searching him would be a police officer's belief - well-founded or not, reasonable or not, the law explicitly makes no distinction - that Walter was on the verge of committing a terrorist act and that searching him would bring to light articles of a kind which could be used in connection with terrorism. For instance, after shouting 'Nonsense!' Walter might have advocated mass civil disobedience in order to bring the country's war effort to a halt; a blockade of military bases would certainly create a serious risk to the health or safety of the public or a section of the public. He might even have called for protesters to vandalise missiles and war planes (serious damage to property). And he might have been about to take a list of military bases from his pocket and read it out (articles of a kind...). Of course, he wasn't about to do any of these things, but the police weren't to know that. Under the provisions of section 44 of TACT, Sussex Police were entirely justified in searching Walter; which is to say that TACT is a arbitrary, authoritarian monstrosity.

But they didn't search him. And what's not being said about this incident is:

It's appalling that the police should have exceeded their powers

Contrary to much popular belief, the police do not have a legal right to play Simon Says: failure to comply with a police officer's requests is not a criminal offence. More specifically, the police do not have an unfettered right to detain people - indeed, this is precisely why section 44 of TACT was invoked in this case. But TACT doesn't give them this right either - section 44 provisions, as broad as they are, relate only to searches. If, as most observers seem to agree, Walter was detained under section 44, then he was detained unlawfully.

When it comes to outrage, this incident is a target-rich environment: New Labour management of dissent is genuinely appalling, as is TACT. But there seems to be yet a third level of arbitrary authoritarianism. Section 44 may give the police a free hand in selecting people to search, but that's all it does. Wednesday's incident suggests that Sussex Police, at least, are interpreting it as giving them much broader powers to clamp down on protest - and they're not, as yet, being called to account. That's really worrying.


Anonymous Dan said...

Are you a lawyer? Your grasp of the law is excellent, I think this is an article that a lot of people should see.

5/10/05 10:30  

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