Schedule 7 of the Terrorism Act 2000

Last Sunday, David Miranda, a Brazilian, was questioned by police for nine hours at Heathrow airport.¹ This was not a case of questioning on suspicion of a crime, but questioning under Schedule 7 of the Terrorism Act of 2000.² This is a special piece of legislation that gives the Police expanded powers of search and detention within airports, seaports and international railway stations. He was questioned because he is the partner of Glenn Greenwald, a journalist for the Guardian who has been closely involved in reporting the Edward Snowden leak. Miranda was, apparently, carrying sensitive leaked information with him.

A Home Office spokesman, justifying Miranda’s Detention said this:

"If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that. Those who oppose this sort of action need to think about what they are condoning."³

As usual with Home Office statements, this is a bit muddled, but it tries to imply that opposing the framework that allows police to act in this way is condoning terrorism. Of course, opposing police action is not the same as condoning terrorism. I oppose police action in lots of cases where I also condemn the act. Cheating at a board game, adultery, using a mobile in the quiet carriage. This aspect of the statement is therefore hyperbole and can be ignored, but that renders the rest of the statement almost meaningless. It states that the police must be allowed to act but does not explain what the police action is supposed to achieve and consequently it does not address whether what they are permitted to do is proportionate to the alleged threat.

What is the police action supposed to achieve? Presumably it is supposed to keep sensitive information out of the hands of terrorists, but in the age of the internet, destroying hard drives holding sensitive information will not work and the government must know this. Its only conceivable purpose is as an intimidatory deterrent against future leaks. Don’t leak information or you might get held at an airport by officials. Don’t leak information or your property will be confiscated and destroyed. In fact, don’t have anything to do with people who leak information or these bad things will happen to you. This is threatening punishment without procedure, it is arbitrary and tyrannical.

Security is there to protect our way of life, and that includes not being subjected to arbitrary detention. We may be punished for crimes we commit, but only after a fair procedure, and the procedure itself must not be a part of the punishment. This is the problem in this case. It’s true that being held and questioned at an airport is not the end of the world, and nor is losing personal property. But then nor are virtually any of the punishments we inflict and even absolute discharges, where there is no punishment at all, are not given without a trial. Once we accept the principle that some minor punishments may be inflicted with only an administrative process, we are into very dangerous territory indeed. Small freedoms such as rights to lawyers and rights to appeal can help, but they are not enough. In Miranda’s case, after eight hours, he was given access to a lawyer⁴ but as he was not under arrest, this was at the discretion of the Police. Miranda was not legally permitted to refuse to answer police questions, or to leave,⁵ and he was threatened with prison for failing to comply.⁶

Even if the police action did achieve something, placing an individual in a position where another is helplessly dependent on their good will can quickly create monsters. Police already have powers of arrest if they want to detain someone, and all that is required is a reasonable suspicion of criminal activity. In theory, a person under arrest is not subject to arbitrary power but has a well-defined set of rights that ensure that while they are at the mercy of the law, they are not at the mercy of individuals. In practice, this does not work perfectly, but under Schedule 7, there seem not to be any such protections at all. What’s more, this seems to be the point of it. The only objective protection seems to be the time limit on how long a person can be detained. In those nine hours though, who can say what would be permitted for sake of security? Intimidatory questioning, bullying threats, humiliating searches, and all without even being suspected of doing something wrong. At Gatwick, a study found that women were highly disproportionately likely to be strip searched,⁷ and another found that 67% of person searches at Heathrow were unjustifiable. It might be that the Police are better trained than the border security personnel in these studies but this does not justify the existence of the discretionary powers in the first place.

The Home Office wants us to think about what we are condoning. I invite it to do the same thing.

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