Crisis, Control and The Rule of Law: The Democratic Paradox of Surveillance Legislation Under English and Welsh Law
By Ayodele
This excerpt is drawn from my undergraduate dissertation, which examines post-9-11 and War on terror surveillance legislation and its socio-legal implications, especially on vulnerable communities through methods such as Prevent. I was able to draw from critical legal theory from reputable writers such as David Dyzenhaus to examine ethical tensions between liberty and national security. I ultimately ask the question how much liberty must we sacrifice as a society founded upon those values to battle an enemy grounded in fear and crisis?
“Prometheus stole fire from the gods and gave it to man. For this, he was chained to a rock and tortured for eternity.” In many ways Liberal Western democracies embody Prometheus in this quote as they prided themselves in championing the world with civil liberties, democracy and human rights, yet in the face of fear and uncertainty it waives those values and turns them into tools of control and civil conformity, punishing what it hopes to stand for. Mass surveillance which has been framed as a necessary defence of freedom has paradoxically becomes the mechanism by which freedom is most endangered.
In his 2010 book, Lord Bingham’s central premise in defining the rule of law was that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the court’.1 He also added the principle that ‘the law must afford adequate protection of fundamental human rights’.2 These rights are the ethical foundations for a free society. Once surveillance powers become less transparent, questions begin to arise on whether this Is about public security, or a veiled attempt at political consolidation.
Former NSA contractor responsible for massive GCHQ leaks, Edward Snowden stated in his memoir ‘Permanent Record’, that “the American government, in total disregard of its founding charter, fell victim to precisely this temptation, and once it had tasted the fruit of this poisonous tree it became gripped by an unrelenting fever. In secret, it assumed the power of mass surveillance, an authority that by definition afflicts the innocent far more than the guilty”.3 This soliloquy is not exclusive to the American government but shares the same sentiments with the UK, as well as highlighting the shortfalls of mass surveillance in combating terrorism.
This observation is further expanded on page 124, where Snowden writes ‘after a decade of mass surveillance, the technology had proved itself to be a potent weapon less against terror and more against liberty itself.”4 His assertion underlines a fundamental contradiction: in seeking to preserve liberal democratic values from extremists, western governments have mirrored authoritarian tactics they claim to oppose.
‘War on terror’ mass surveillance programmes did more to erode civil liberties than it did to combat terrorism, the war against terror in the West was originally meant to combat extremism and protect Western values, yet the legal responses to the threat have eroded civil liberties they were meant to defend, the increase of such surveillance powers push the boundary between ‘us’ and ‘them’, the lines between protector and violator become blurred.
Nonetheless, it is critical to assess the motivations of the organisations consistently opposing surveillance powers. Civil liberties organisations such as Liberty and Big Brother Watch are rooted in progressive and left-leaning traditions and would always default to opposition against state surveillance regardless of the threat landscape. While their advocacy plays important roles in safeguarding individual rights, their critiques might often lose sight of the complex nature of national security threats. In rebuttal to claims made by liberty groups, William Hague, the former UK secretary of state and former conservative party leader stated in 2013, ‘Law abiding citizens have nothing to fear’,5 referring to surveillance practices carried out by GCHQ. The assertion Hague gives in the BBC interview refers to the logical fallacy ‘nothing to hide’ used by law enforcement to justify surveillance techniques,6 hence- ‘nothing to hide, nothing to fear’.7
However, this logic is flawed due to the negation of privacy as a democratic safeguard, overlooking broader social consequences of surveillance such as lack of public trust and potential self-censorship. In the surveillance climate with expansive executive discretion and opacity, the role of fundamental human rights is essential as a buffer between secretive state power and public scepticism. The following chapter will explore the human rights and ethical tensions, that arise in the balance between public safety and individual liberty.
Cost of war: Civil liberties in times of crisis.
The cost of emergency governance during times of crisis needs to be analysed to understand how exceptional powers and legislation passed during times of crisis trickle down and shape surveillance frameworks. The political rationale of policymakers is pivotal in understanding the thought process taken when passing legislation.
Central to this is an evident tension between liberal and non-liberal standpoints of mass surveillance and governmental powers in times of emergency. I will be drawing from David Dyzenhaus’ belief in the endurance of the rule of law in emergency which contrasts to Carl Schmitt’s belief in the suspension of legality to preserve the state.
Schmitt’s theory in Political Theology was that legal norms should only apply during normal times, during times of war and emergency, the sovereign should suspend the legal order thus not being regulated by the rule of law.8 This non-liberal perspective underpins emergency powers seen during the war on terror, even if that meant the violation of civil liberties.9 It is important to note that Schmitt was a member of the nazi party from 1933 and his framework on the suspension of legality was used to justify authoritarian rule. The ethical problems this creates come from social democracies borrowing autocratic values to defend democratic values, this is paradoxical in nature and casts doubt over the moral consistency of state powers.10
This is in sharp contrast to Dyzenhaus who advocates for the avoidance of ‘legal black holes’ and that even during emergencies such as the war on terror,11 the rule of law should still be intact, he further asserts in ‘Legality in Times of Emergency’ that liberal moral commitments are key to legitimate governance.12
The different viewpoints from both liberal and non-liberal standings create both a moral and ethical incongruency, that the liberals support transparency, oversight and human rights, while the latter prioritizes control and centralized authority during times of crisis is more in line with the UK and other western nations during the war on terror, believing that such measures are necessary as instruments of national security.
The power of the executive during such periods raises questions about the credibility of the individuals in power and their intentions, especially when political and economic interests cloud their judgment. This is seen in the UK’s role in the Iraq war, through the creation of the report ‘Iraq: Its Infrastructure of Concealment, Deception and Intimidation’, infamously known as the ‘Dodgy Dossier’, which was a UK intelligence report stating that Saddam Hussein in Iraq had Weapons of Mass Destruction (WMD).13 It was later found out that the claims in this dossier were greatly exaggerated and manipulated for political support for the invasion of Iran,14 this is a testament to how crisis powers can be exploited for personal or political gain. This highlights the dangerous potential of national security being manipulated by political actors to pursue agendas beyond public safety, this Schmittian fabrication of urgency, coerced democratic deliberation and manipulated public fear during a period when tensions were already high after the 9/11 attack.
This and the broader war on terror further distort foreign policy, which influenced domestic governance and the construction of the ‘Muslim threat’ throughout the West which was invoked by the political elite. Dr Maha Hilal argues that this was not the byproduct of isolated fear,15 but deliberate political espionage, she further stated that the war on terror exclusively targeted Muslim states and further justified the subjugation and surveillance of Muslim communities in the West. Under English and Welsh law this was done through surveillance strategies such as Prevent.16
Prevent and its effects on Muslim communities.
Prevent is a part of national counter-terrorism policy under Contest, it was introduced in 2003 as a post-9/11 approach to Prevent the radicalisation of individuals to terrorism.17 The approach to Prevent was further strengthened by section 26 of the Counter-Terrorism and Security Act 2015 (CTSA),18 which introduced the Prevent duty, this is a legal obligation for specific authorities including education, health, police and local authorities to Prevent the risk of people becoming terrorists or supporting terrorists.19
Although Prevent has been framed as a safeguarding tool, Muslim communities and scholars such as Dr Shereen Fernandez argue that it has created suspicion in communities and turned Muslim communities into a ‘pre-criminal’ space.20 The phrase ‘pre-criminal’ refers to when individuals are monitored and scrutinized based on pre-conceived notions of radicalism rather than evidence of criminal activity.21 Muslim groups such as CAGE have come out and stated that the Prevent strategy has fostered societal distrust, likening it to authoritarian regimes such as the Stasi,22 which was East Germany’s infamous secret police revered for their institutionalised fear and surveillance.23
Institutional Islamophobia is beyond the scope of this section, although targeted surveillance and its effects on the community warrant critical attention, the thesis for the argument against state surveillance is that the line between surveillance and safeguarding is being blurred by government surveillance expansion that can be seen as opportunistic.
The impetus behind the reasoning for the Prevent programme is that increased surveillance and early intervention are necessary for the identification and mitigation of radicalism before it manifests as extremism.24 However, Haggerty and Gazso argue that in passing surveillance laws post 9/11 and 7/7 governments have used a climate of fear and anxiety to for opportunistic expansions of powers for a permanent surveillance infrastructure.25 This climate of fear has entwined the Muslim identity in the UK with that of terror and extremism, enforcing a socio-legal architecture that judges individuals for who they are perceived to be rather than who they are.26
This climate of fear is further increased by the government inflating terror stats by including non-criminal activities in terrorism statistics.27 We see this in the case of Umm Ahmed who was convicted for owning literature she downloaded to better understand her brother’s trial,28 the climate of fear is exhibited when a 4-year-old boy was referred to the police for mispronouncing the word cucumber.29 Even though the 4-year-old’s case was not forwarded to Chanel, children younger than 14 have been flagged under Prevent for showcasing political and religious views, these impose long-term implications on their educational records, and although these are not criminal convictions they risk following individuals into adulthood.30
The United Nations Committee for the Elimination of Racial Discrimination (CERD), called in 2024 for the Prevent programme to be suspended, stating that the UK’s monitoring of individuals based on suspicion reflects a wider pattern of securitisation that targets historically marginalised communities.31 This securitisation of the state has embedded suspicion into education, healthcare and public services, as CERD warns this approach could manifest into a vehicle for societal exclusion under the disguise of public safety.32 Rather than a safeguarding policy Prevent has the potential to beget pre-crime governance infrastructure.33
Liberal democracies once lit the promethean fire of liberty, now those liberties have been quelled, using methods eerily similar to those they once condemned.
