In a liberal democracy, the law restrains the government. The people consent to the law that creates the government, which in turn, enforces the law and protects the people. In the basic social contract, protection and obedience are linked by consent. A government protects us so we obey the law, and we obey the law so the government protects us. As such, obedience to the law is what keeps liberal democratic political institutions healthy and allows them to endure.
The theory is fine, but what happens in practice?
In practice, the courts ensure the law is enforced correctly, proportionately, and accurately. The courts are the final arbiter of these issues. However, before we get to the courts, our first defence is always the bureaucracy. It deals with the law every day and it determines how it is applied. If the paperwork is not right, the issue may go to the court and the law may fail. Thus, the bureaucracy defends your freedom without you realizing it.
We can see this in practice in the recent case of Miranda v. Secretary of State for the Home Office Department. In that case, the Metropolitan Police stopped and interrogated David Miranda following a request from the UK intelligence services. To ensure the stop was legal, the police had to complete a form called a Port Circulation Sheet (PCS). To the public, it can often appear that when someone asks for a form to be completed that they are being a “jobsworth” or being a “bureaucrat”. What they do not realize is that bureaucrats face the same challenge. Often times, an employee of one organisation can be reluctant to complete the form with sufficient detail for the other organisation. People sometimes use the bureaucracy as an excuse. “I did not have time to complete the form” or “It takes too long to complete the form.” While these laments are often true, they mask a deeper reality of life within the modern state.
In such moments, your freedom and the freedom of others can hang in the balance. In extreme cases, such as in a hospital, it can mean the difference between life and death. In the Miranda case, it decided whether the case succeeded for failed, whether we have justice or arbitrary power to determine how the law is applied.
The paragraphs 9-13 of the Miranda ruling tell the story.
“9. The Security Service (for which the first defendant Secretary of State is responsible by statute) had undertaken an operation relating to Mr Snowden. They became aware of the claimant’s movements. At 0830 on Thursday 15 August 2013 they briefed Detective Superintendent Stokley of SO15, the Counter-Terrorism Command in the Metropolitan Police, the second defendant. On Friday 16 August a Port Circulation Sheet (PCS), a form of document used to provide information to counter-terrorism police officers, was issued by the Security Service to the Metropolitan Police and received at the National Ports Office at 2159. On page 2, against a box asking for confirmation “that the purpose of an examination will be to assist in making a determination about whether the person appears to be someone who is or has been concerned in the Commission, Preparation or Instigation of acts of terrorism (CPI)”, the Security Service had entered the words “Not Applicable”. On the same page this was stated:
“Intelligence indicates that MIRANDA is likely to be involved in espionage activity which has the potential to act against the interests of UK national security. We therefore wish to establish the nature of MIRANDA’s activity, assess the risk that MIRANDA poses to UK national security and mitigate as appropriate. We are requesting that you exercise your powers to carry out a ports stop against MIRANDA.”
This first PCS was not actively considered when it was received. A second PCS was received at the National Ports Office on Saturday 17 August at 1247. This too contained the “Not Applicable” entry, and also the invitation to the police to carry out a port stop (plainly a reference to Schedule 7). Another section, headed “Guidance for Port Officers”, was considerably expanded, setting out a series of questions which the Security Service desired should be asked of the claimant.
10. Acting DI Woodford was the Ports Duty Officer for Heathrow over the weekend 17 – 18 August. He viewed the second PCS at the behest of PS Holmes, who had received it. He “immediately saw that the PCS did not give sufficient information to provide police with the assurance that the use of Schedule 7 would be appropriate and lawful” (witness statement, paragraph 11). He considered that the “Not Applicable” entry was in conflict with the invitation to the police to carry out a port stop under the Schedule. He agreed with PS Holmes that the PCS should be returned to the Security Service for confirmation that any examination of the claimant following a port stop would be for the statutory purpose given by Schedule 7 (paragraph 13).
11. Meanwhile on Friday 16 August 2013 the Security Service had sent a note to D/Supt Stokley headed “National Security Justification for proposed operational action around David MIRANDA”. The redacted text includes this:
“2… We strongly assess that MIRANDA is carrying items which will assist in GREENWALD releasing more of the NSA and GCHQ material we judge to be in GREENWALD’s possession. Open source research details the relationship between POITRAS, GREENWALD and SNOWDEN which corroborates our assessment as to the likelihood that GREENWALD has access to the protectively marked material SNOWDEN possesses. Our main objectives against David MIRANDA are to understand the nature of any material he is carrying, mitigate the risks to national security that this material poses…”
3. We are requesting that you exercise your powers to carry out a ports stop against David MIRANDA…
4. We judge that a ports stop of David MIRANDA is the only way of mitigating the risks posed by David MIRANDA to UK national security… Additionally there is a substantial risk that David MIRANDA holds material which would be severely damaging to UK national security interests. SNOWDEN holds a large volume of GCHQ material which, if released, would have serious consequences for GCHQ’s collection capabilities, as well as broader SIA operational activities, going forwards…”
12 At 1719 on Saturday 17 August a final PCS was delivered to the police from the Security Service. It had some text in common with earlier versions (“Intelligence indicates… ports stop against MIRANDA”), but also this:
“We assess that MIRANDA is knowingly carrying material, the release of which would endanger people’s lives. Additionally the disclosure, or threat of disclosure, is designed to influence a government, and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under Schedule 7.”
On his own account DI Woodford did not see the final PCS on the Saturday, but was told what it contained over the telephone. Accordingly he “indicated that [he] was satisfied that the use of Schedule 7 was appropriate” (statement paragraph 14). Meantime at about 1730 that day another officer, DS Bird, head of the Ports Team, told D/Supt Stokley that following “dialogue” between the Security Service and the Ports Team he (DS Bird) “was now satisfied that there was a justification for the Schedule 7 stop”. D/Supt Stokley was given to understand that this was reflected in the PCS, which however he did not see (“it is not my role to approve them”: witness statement of 30 October 2013, paragraph 38).
13 DI Woodford saw the final PCS early in the morning of Sunday 18 August at Heathrow. He “did not know at the time what ‘the material’ referred to in the PCS consisted of” (paragraph 16). However “[w]ith regard to the PCS forms, if [he] had not been satisfied that the MPS would be acting lawfully in undertaking a Schedule 7 stop based on the information received, [he] would not have agreed to the examination” (paragraph 19). And so the stop went ahead, as I have said at 0805 on 18 August. It was executed by two SO15 officers, PC 206005 and PC 206610. They detained the claimant (for nine hours, the maximum permitted period – Schedule 7 paragraph 6) and questioned him. DI Woodford was with them to meet the aircraft at the gate. The claimant’s hand luggage was examined, and items retained which as I have said included encrypted storage devices. Mr Oliver Robbins, Deputy National Security Adviser for Intelligence, Security and Resilience in the Cabinet Office, indicates in his first witness statement (paragraph 6) that the encrypted data contained in the external hard drive taken from the claimant contains approximately 58,000 highly classified UK intelligence documents. Many are classified SECRET or TOP SECRET. Mr Robbins states that release or compromise of such data would be likely to cause very great damage to security interests and possible loss of life.”
If the Police had not insisted that the paperwork was completed and the reasons section of the form completed to their satisfaction, then the stop may not have happened. The police understood that an incomplete form could make the stop illegal. The incomplete form could be used to undermine any evidence gathered as a result. Just like everyone else, they know they have to obey the law and the law requires the paperwork to be completed.
If that form had not been completed properly, the case would have collapsed. The claimants would be able to show due process was not followed. The stop would not have been legally justified. Instead of justice, it would have been the exercise of arbitrary state power.
Now, I doubt that routine requests like this in local government, such as those relating to s.29 (3) of the Data Protection Act, receive such scrutiny. However, democracies survive in part because local government officers are vigilant about the paper work. From the highest levels of national security to the everyday business of a local council, justice is served when we follow the law.
In that brief moment, you can see how a bureaucracy and the due process of the law make the difference between justice and arbitrary state power. So the next time you are concerned about state power being used arbitrarily ask to see the paperwork. If it is surveillance by a local authority, ask to see the Regulatory Powers Investigation Act (RIPA) authorisation. If it is an exemption under the Freedom of Information Act (FOIA) ask to see the public interest test. If your personal data is breached, ask to see the data breach investigation report.
These and other small bureaucratic acts are what help you keep the government in check. In this way, a bureaucracy can protect you from arbitrary power.