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Freedom and security: an appropriate balance?

A Note by the Director (Ditchley 2005/10)
 
30 September-2 October 2005
The first home conference of the season turned out to be even more topical than the high Ditchley average, following the bombings and attempted bombings in London in July.  The reactions to those, and to America’s 9/11, underlay the debate.  The bombing in Bali on 1 October brought the point home in a sobering manner.  To what extent had the rules of the game really changed, as the Prime Minister had claimed in August?  The conference was more UK-oriented than it should have been, to the occasional frustration of our Canadian, American, French, German, Indian and Nepalese participants;  but the central features of the British debate held a universal application and the discussion was remarkably constructive. 
There was a majority tendency to be suspicious of government as always wanting more powers for itself.  We had a good discussion of the fundamental values in society which need to be protected at all costs.  Beyond that, most people agreed that freedom and democracy had their limitations.  A distinction had to be made between sacrifices of lives and major attacks which endangered the life of the nation itself.  Anything which threatened the centrality of the rule of law would be a victory for terrorism.  So would changes in our judicial system to the presumption of innocence and the standard of proof, as well as to freedom of speech.  But it did not help to claim fundamental value importance for things which did not qualify:  the debate over identity cards came into this category.  Many participants felt that using the phrase “the rules of the game” blurred these important distinctions and debased the argument.
So the conference rightly turned to discussing the threat from terrorism and whether it was so different as to be exceptional.  It transpired during the discussion that avian flu scored higher on the government’s early warning charts for probability and seriousness of effect than did the risk of a major terrorist attack.  Some participants wondered whether the American Administration had been right to consider the threshold between exceptional and unexceptional crossed by the events of 9/11.  A terrorist attack using WMD was a better candidate for that threshold.  Nevertheless our collective assessment concluded that Al Qaeda-type terrorism was evolving into a serious global threat, having mutated from home-grown terrorism in a number of countries to becoming a cause rather than a mere instrument and a pole of attraction for fundamentalist recruits.  It was more likely than not that terrorism had not yet peaked in its delivery of massive incidents.  The exceptional nature of the threat from terrorism was not necessarily ideological, but more due to the fact that the evolution of terrorism was reaching a point where the tactics of terror could easily combine with CW, BW or NW.  Most people recognised that an enormous amount of work needed to be done to defend societies from it.  This presented a challenge not just for executive government but for the institutions that lay at the heart of our society, including international ones.
This brought us into quite a detailed discussion of how governments could be expected to deal with the challenge.  The question of trust lay at the heart of the public’s perception of this.  The basis for the allocation of new powers to the executive had to be very clearly explained and the tendency to hasty or piecemeal legislation resisted.  The experience in other categories of action, such as economic activity or health and safety, showed that a light basis of regulation extended by a plethora of add-on measures did not improve the situation.  This should be resisted in the prevention of terrorism.  Nevertheless there was a general recognition that the executive was placed in a very difficult position:  avoiding ill-considered action could not be allowed to lead to inertia.  The fundamental job of government was to reduce the risk of a successful terrorist attack without affecting normal living:  in other words, to build a ‘safe, just and tolerant’ society by finding the best form of compatibility between those three different aims.
While people with different perspectives came out at different parts of the spectrum in terms of acceptance of new government measures, there was general agreement that government had to offer an intelligible overall strategy which covered all the important aspects of what was a complex problem.  No-one claimed that the US or British Administrations had so far done this;  yet the need to clearly articulate both the nature of the threat and the strategies evolving to counter that threat was repeatedly emphasised.  The urgency of the need for preventive action might have been one reason for this;  the complicated linkages between threat assessment, police and court powers, social attitudes, the involvement of minority communities, the high expectations of individual freedom and the international context, might present another.  Nevertheless the discourse so far, in all the national communities represented around the table, had been fuzzier than it should have been.  Governments needed to recognise this message.
Excellent work was done in the working groups to try to refine some of this thinking and produce practical responses.  Consensus was difficult to find in most areas, but the weekend brought growing agreement that the following approaches could be usefully developed. 
First, there was no substitute for the highest possible quality of performance by the police and intelligence services.  As far as the UK was concerned, these services did not need any further re-structuring;  though it was vital that their work was explained in a way which gave them maximum legitimacy in the eyes of the general public.  If changes and adjustment of resource allocation had to be made anywhere, it should first be made in these fields.  The public could sustain a fair degree of inconvenience to that end.  As regards the obtaining of information on possible terrorist action, most participants felt that allowances could be made for the sake of the most effective surveillance and information collection.  The input from foreign governments, even those with doubtful practices in their own structures, could not be ignored.  There was much discussion of whether governments which practised torture should be excluded from the provision of information:  the majority felt that a distinction should be made between the use of what might be relevant information, from whatever source, and the sending back of deportees to countries which might treat them badly.  As for torture itself in the extraction of information, virtually everybody agreed that it was both wrong and ineffective.  Information known to have been extracted by torture should be avoided.
We saw the second requirement as being clear, precise and proportionate laws, needing adaptation only if effective police and intelligence work required it.  There was no strong objection, for instance, to the admissibility of telephone intercepts in courts, under the right conditions.  Participants were more divided over preventive detention and the deportation of suspects back to their countries of origin.  In all of these areas good public explanation was necessary within a clear strategic context.
The conference came back several times to the question of preventive action.  No-one argued strongly for such a range of intrusive preventive measures as to guarantee no future serious attacks.  The cost of that to society would be too high unless the foundations of society itself were threatened.  Nevertheless better preparations needed to be made, along civil defence lines, for a massive attack, especially if it involved biological, chemical or nuclear weaponry.
The need for good oversight mechanisms, particularly for executive action in the police and intelligence fields, was generally accepted.  Those in place in the UK were by and large regarded as a good basis, though some felt it was worth looking further at the structures currently in place.  If the tendency grew towards greater use of intelligence from a bigger intelligence community, then the public would have to be reassured that this capability would not be abused.  A combination of parliamentary and judicial oversight was favoured.
In the social sphere, more deliberate action was needed both in educating young people to the circumstances in which they were growing up and in communicating with the communities, not least the minority communities, who became associated in people’s minds with the threat.  It was vital not to allow an “us” and “them” culture to develop, nor particular communities to be demonised.  The Muslim communities in our various countries were particularly in people’s minds;  yet the linkage between terrorism and particular communities was not nearly so strong in France, for instance, as in the UK.  It had to be much more widely accepted that such communities were as interested in the rule of law and in constraining criminal behaviour as any other.  The ingredients for a better discussion in the UK context were beginning to form, but there was much work still to be done. 
Finally, we looked at the international context.  There was no doubt in anyone’s mind that greater international cooperation was required and that the results in this area so far had been disappointing.  The UN experience in implementing Resolution 1373 was instructive and in many ways useful, but had not been taken far enough, partly because of UN politics.  International agreements were regarded as vital:  not just in a fundamental sense, as with the Universal Declaration of Human Rights, but also in practical ways, as with the Geneva Conventions, the Conventions on various aspects of terrorism and other instruments which maintained a standard of collective international behaviour.  The upholding of international values was practicable and essential:  it could not be claimed that different cultures on different continents cut across them – this was not the experience of the Universal Declaration of Human Rights so far.
The other international aspect that arose was the need to forge a political consensus across different cultures that terrorism was a crime which could threaten any society and which had to be stopped for basic reasons of law and order.  Agreement at the UN on a definition would be highly useful and should continue to be pursued.  In this context, the conference heard good reasons, which were uncontested, why the vigorous promotion of western forms of democracy around the world might be a mistake.  The need for law and order and the protection of individual rights did not necessary require a democratic structure, yet was very widely accepted and sought. 
So we came back to where the real trade-offs were needed.  The conference was encouraged to think not so much of a balance between freedom and security as of a mix of particular ingredients which those in power needed to ensure produced the best overall results.  Indeed the real trade-off to be made, it was suggested, was not so much between freedom and security but between invigilation and repression:  the more intelligence was available and the more effectively it was acted on, the less need there would be for the application of exceptional measures and the easier it would be to justify due process in criminal justice.  It was perhaps surprising that the conference came close to a consensus on this point.  It was further contended that human rights were irreducible, but arrangements to protect society’s comforts and conveniences were not.  So long as equity and fairness were maintained and the multicultural nature of our existence in the global context was understood, there was a range of responses which might be accepted by the population at large, so long as it was properly explained and applied in an even-handed way.
In summary, most participants agreed that five things in particular were still needed:
(i)            Understanding and explanation;  have governments understood, explained and communicated sufficiently to connect with the public and internationally?
(ii)           An accurate sense of the degree of urgency as terrorism evolved through its various stages.  This might be a longer-term effort than we realised and society needed to pace itself for the long haul;
(iii)          A sense of the geographical spread of the problem:  it was definitely international;
(iv)          A sense of strategy:  if it was indeed to be a long haul, we needed a compass to steer between some of the choices.  Our society might be quite fragile in several respects and an accurate assessment of resilience was necessary.  Nonetheless there was a plea for us to remain confident about the resilience of the values that underpinned expressions of democracy and the rule of law.  If the threat ever became exceptional enough to require the threshold to be crossed, a strategy back into normality was also required. 
(v)           A good analysis of whether institutions and attitudes needed to be adapted, with accurate decisions on what sacrifices might be necessary in the area of privacy and other individual liberties.  Different countries would have different answers in their particular context.  This in the end might be the essential question in our reaction to events so far. 
This conference was remarkable for the depth of expertise around the table on the precise subject-matter we were discussing.  We benefited from a Chair of great experience and perceptiveness, who steered us through the shoals with a firm but sympathetic hand.  Ditchley will be coming back to some of these questions, not least with a further conference on the ineradicability or otherwise of terrorism in December 2006.  But this weekend left people with a deeper understanding of the competing aspects of the subject and of other people’s points of view.
This Note reflects the Director’s personal impressions of the conference.  No participant is in any way committed to its content or expression.
PARTICIPANTS
 
Chairman    :    Baroness Kennedy QC
Life Peer (1997-);  Chairman, The Human Genetics Commission.  Formerly:  Chair, British Council (1998-2004);  Task Force on Terrorism IBA (2001-2002);  Barrister and Author.
CANADA
Mrs Margaret Bloodworth
Deputy Minister, Public Safety and Emergency Preparedness (2003-).  Formerly:  Deputy Minister, National Defence (2002-03).
Mr Taleeb Noormohamed
Assistant Director and Senior Advisor to Mr Bob Rae, Department of Public Safety and Emergency Preparedness:  Air India Review Secretariat (2005-).
The Hon Robert K Raw PC OC QC
Partner, Goodmans LLP, Toronto;  Independent Advisor to the Canadian government, 1985 Air India bombing.  Formerly:  Premier of Ontario (1990-95);  Leader, New Democratic Party of Ontario (1982-96).  A Director, Canadian Ditchley Foundation.
Dr Wesley Wark
Associate Professor of History, University of Toronto;  Fellow, Munk Centre for International Studies;  President, Canadian Association for Security and Intelligence Studies.
FRANCE
Mr Roger Errera
Senior Member, Conseil d’Etat;  Visiting Professor, Central European University, Budapest;  Member, Advisory Committee, Interights, London.  Formerly:  Member, UN Human Rights Committee.
Mr François Heisbourg
Special Advisor, Fondation pour la Recherche Strategique;  Chairman, Council of the International Institute for Strategic Studies (London) (2001-).
GERMANY
Dr Constanze Stelzenmüller
Director, Berlin Office, German Marshall Fund of the United States.
Professor Michael Stürmer
Chief Correspondent, Die Welt and Welt am Sonntag (1998-).
INDIA
HE Mr Kamalesh Sharma
High Commissioner to the United Kingdom.  Formerly:  Special Representative of the Secretary-General to Timor (2003-04);  Permanent Representative and Ambassador the United Nations (1997-2003).  A Governor, The Ditchley Foundation.
UNITED KINGDOM
Mr Peter Bottomley MP
Member of Parliament, Conservative, Worthing West (1997-).  Formerly:  Member of Parliament, Conservative, (Eltham 1983-97).
Baroness Bottomley JP
Life Peeress (2005);  Director, Odgers Ray & Berndtson (2000-).  A Governor and Member of the Council of Management, The Ditchley Foundation.
Lord Brennan QC
Life Peer (2000);  Independent Assessor to Home Secretary on Miscarriages of Justice (2001‑).
Mr Sholto Byrnes  
Interviewer and Senior Feature Writer, The Independent and The Independent on Sunday.
Sir Roger Carrick KCMG LVO
Deputy Chairman, The Development Group Ltd;  Non-Executive Director, Strategy International Ltd.  Formerly:  HM Diplomatic Service (1956-97);  High Commissioner to Australia (1994-97);  Ambassador to Indonesia (1990-94).
Mr Dominic Casciani
Correspondent, Community Affairs, BBC News;  BBC, Northern Ireland.
Ms Shami Chakrabarti
Director, Liberty.
Dr Mark Currie
Civil Servant, Ministry of Defence, counter-terrorism.
Sir John Gieve CB
Permanent Secretary, Home Office (2001-).  A Governor, The Ditchley Foundation.
Professor Christopher Greenwood CMG QC
Professor of Law, London School of Economics and Political Science.  Barrister.  A Governor, The Ditchley Foundation.
Mr Dominic Grieve MP
Member of Parliament, Conservative, Beaconsfield (1997-);  Shadow Attorney General (2003‑).
Professor Peter Hennessy FBA
Attlee Professor of Contemporary British History, Queen Mary College, University of London (1992-).  Author and Broadcaster.  Member, Programme Committee and a Governor, The Ditchley Foundation.
Dame Patricia Hodgson DBE CBE
Principal-elect, Newnham College, Cambridge;  Chairman, Higher Education Regulation Review Group;  Member, Board of Higher Education Funding Council for England.
Professor Sir Michael Howard CBE MC FBA
Emeritus Professor of Modern History, University of Oxford (1989-).  Formerly:  Regius Professor of Modern History, Chairman of the Faculty Board and Fellow of Oriel College, University of Oxford (1980-89).  Author.  A Governor, The Ditchley Foundation.
Professor Sir Andrew Likierman
Professor of Management Practice in Accounting, London Business School.
Sir David Omand GCB
Formerly:  Security and Intelligence Co-ordinator and Permanent Secretary, Cabinet Office (2001-05); Permanent Under-Secretary, Home Office (1998-2001);  Director GCHQ (1996‑98).
Professor Sir Adam Roberts KCMG
Montague Burton Professor of International Relations and Fellow of Balliol College, Oxford (1986-).  A Member, Programme Committee and a Governor, The Ditchley Foundation.
Mr Martin Rose
Director, Counterpoint, The British Council.
Dr David Sambar
Principal, Sambar Associates;  Chairman Emeritus of British American Properties.
Mr Tom Weisselberg      
Barrister, specialising in Public Law, Commercial Law, Media Law and Employment/Discrimination Law.
Sir Michael Wood KCMG
Legal Adviser, Foreign and Commonwealth Office (1999-);  Member, Advisory Council, Institute of Advanced Legal Studies (2000-).
UNITED KINGDOM/NEPAL
Mr Anuj Mishra
British Council Chevening Scholar from Nepal at University of Warwick.  Author.
UNITED STATES OF AMERICA
Professor Jane Kirtley
Director, The Silha Center for the Study of Media Ethics and Law, University of Minnesota (2000-).
Mr Nicholas Rostow  
Senior Counsel, State University of New York Research Foundation (2005-).  Formerly:  General Counsel and Senior Policy Advisor to the US Representative to the United Nations (2001-05).
UNITED STATES OF AMERICA/GERMANY
Count Riprand von Arco
President, American Asset Corporation.  A Governor, The Ditchley Foundation.