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Despotism: state power beyond the law

The distinction between the legal order in Western democracies and the tyrannies of Stalinist Russia or modern China or the Arab gulf states, is often thought to be stark. In Britain in particular, we are complacent that 800 years of the common law will protect us against the overreaching power of state functionaries.

Today comes a case that shows this conceit to be ill-founded. It was already widely known that the Home Secretary would like the power to lock anyone up for seven weeks on her say-so. But it is not in effect yet, and is likely to be opposed in parliament. Who knew that the British state is already punishing 70 people with effective suspension of all their economic rights on mere accusation, by freezing their assets by Treasury order without any legal warrant or process?

The Terrorism (UN Measures) Order 2006 and the 2006 al-Qaeda and Taleban (UN Measures) Order were made under section 1 of the 1946 UN Act in order to implement resolutions of the UN Security Council. These orders are not parliamentary instruments but “orders in council” – the council in question being the Queen’s Privy Council, so that the rules under which (according to solicitors for the victims)…

We have the madness of civil servants checking Tesco receipts, a child having to ask for a receipt every time it does a chore by running to the shops for a pint of milk and a neighbour possibly committing a criminal offence by lending a lawnmower.

…have not troubled parliament even under the pathetic ‘negative resolution’ procedure by which most of our law is now made. Nor has any judge or other independent authority been in involved in these seizures or assessed the evidence (if any) that justifies them. Nor is there any time limit. Or need to bring charges to support the indefinite punishment.

Which remains, though the learned judge found it entirely illegal, indefinite:

Jonathan Crow QC, for HM Treasury, had told him the UK government would be left in violation of a UN Security Council order were the orders to be quashed immediately.

The Treasury said the asset-freezing regime and individual asset freezes would remain in place pending the appeal.

A spokesman said the asset-freezing regime made an “important contribution” to national security by helping prevent funds being used for terrorism and was “central to our obligations under successive UN Security Council resolutions”.

To which I say, and not for the first time, damn the UN. Neither the UN nor Treasury officials are supposed to make our law. And if this proscription stands, then we might as well have no law.

27 comments to Despotism: state power beyond the law

  • here’s another one…

    (Link)

  • Spyblog was mostly on the case all the way back in 2006: http://spyblog.org.uk/2006/11/more_treasury_financial_snooping_triplicated_red_tape.html

    If you’re not subscribed to that blog, I suggest you remedy that forthwith.

  • guy herbert

    Victoria Brittain(Link) provides a bit more detail:

    None of the listed men or their lawyers know precisely what they are accused of, nor by whom. None of them have any idea how long this sanctions regime will last. And, perhaps worst of all, none of them can be sure how to interpret the complicated rules they have been told they must live under, but they know that a seven-year prison sentence can result if they, or their families and friends, break these rules, even by mistake.

    There appears to be some difference of opinion as to how many people are under this regime, as well there might be, since it appears to be largely secret. The BBC says 70, she says:

    … among at least 106 individuals in Britain who are known to be on one or more UN or EU list. Their bank accounts and any assets they have are frozen and their wives have new bank accounts which are monitored and through which most family expenses are managed with debit cards and direct debits.

    The men have no money except £10 a week, and their wives must account, with receipts, to the Treasury for every bottle of milk or packet of sweets bought at a corner shop. In a related case recently before the judicial committee of the House of Lords, Leonard Hoffman expressed incredulity at the “meanness and squalor” of a regime that “monitored who had what for lunch”.

    [...]

    The men are subject to licensing by the Treasury (and by the security council for those who are also on the UN list) for any expenses. G, for instance, had to wait three months for a “basic expense” licence permitting funds for food and rent, and six months for a license to obtain legal advice about the situation he found himself in.

    Victoria Brittain is not someone I would once upon a time have expected to find myself entirely in agreement with. Strange times.

  • guy herbert

    On spyblog,

    Mark is very good at spotting possible dire consequences of legislation. He sometimes over-interprets, though.

    What’s new here is the fact that this notional power is being used on individuals, and without seemingly any independent oversight, or possibility of redress. The Treasury response to Mr Justice Collins was basically, “We are the law.”

  • Eric

    In the US this kind of thing would result in government officials spending time in jail for contempt of court. Is there no similar mechanism in Britain for a judge to enforce his ruling?

  • Kevin B

    I find myself in a bit of a quandary on this one.

    I’m having a bit of difficuly feeling sympathy for these people since I’m pretty sure that the vast majority of those on this list know exactly why their liberty is being curtailed, and though I’m sure that they all feel badly about having to tell their kids to get a receipt when they go down the corner shop for a pint of milk, they also want access to their money for other, perhaps more nefarious, purposes.

    Whilst it is terrifying that the UN, one of the most corrupt institutions on the planet, has this kind of power, I also find myself fantasising over a couple of names I’d love to see on this list. (Soros and Galloway for a start.)

    It all comes back to that same dilemma: What does a society do with the bad actors who use the institutions of that society to subvert and, ultimately, destroy it.

  • Laird

    That’s not entirely true, Eric. Under our drug forfeiture laws the government can seize any asset it alleges (no proof required) was acquired with the proceeds of illegal activity, and that’s true even if the property doesn’t belong to the defendant (such as borrowed automobiles and even rented houses). Many times those people find all their bank accounts frozen and they can’t even pay for counsel.

    Similarly, under the USA Patriot Act (at least as originally passed; there might have been some liberalization to this) a target under the Act (such as a librarian who is being forced to disclose the activities of some suspected terrorist) is not permitted to tell anyone that he received the demand, including his spouse or counsel. In other words, even going to your lawyer for help is a felony.

    And of course we all know that an alleged “enemy combatant”, even one who is a US citizen, can be held indefinitely in Guantanamo without charge.

    What a country!

  • Eric

    I would have a few technical quibbles with what you’ve written, but you didn’t address my point. All the cases you’ve listed were actions taken either before a judge had a chance to rule or in keeping with a judge’s ruling.

    Even in the Padilla case Justice decided to charge him eventually because they were afraid the ruling would go against them.

    In this case, unless I’m not understanding something, the judiciary has actually ruled against the government and is simply being ignored. I do not believe you would see that in the US, as judges here have virtually unlimited power to force compliance.

  • guy herbert

    Not quite, Eric. It appears that Treasury Counsel hinted strongly enough that the court would be ignored that the court acquiesced in allowing the regimne to stay in place pending an appeal.

    HM Government does have form in ignoring courts however. In the Marper case in 2000 (which is now being considered in Strasbourg), the law lords ruled that police were acting unlawfully in retaining indefinitely DNA samples and profiles of those not convicted (and not even charged with) an offence. In 2001 the Government changed the law retorspectively to legalise existing police practice, which continued unaltered in the intervening months, though clearly illegal.

  • Sunfish

    What is the standard in the UK to freeze a bank account or another asset? What about the process there to forfeit an asset?

    Over here, the forfeiture process isn’t actually the horror show that Laird suggests, but it’s close enough for discomfort. I’m not sure how I’d freeze a bank account. I imagine some sort of warrant, but this isn’t something that locals deal with much.

    And a second to the question above: why didn’t the judge just start having Treasury officials jailed for contempt? Do UK judges not have that power? I know that if I kissed off an order from a judge here, I’d be wearing orange clothes and hospital shoes for a while.

    Kevin B:

    Whilst it is terrifying that the UN, one of the most corrupt institutions on the planet, has this kind of power, I also find myself fantasising over a couple of names I’d love to see on this list.

    You go down a very dangerous path here. I can fantasize about a few people I’d like to catch in a dark alley “approaching me on foot at a high rate of speed while raising an unknown shiny object, size consistent with a knife” but that doesn’t make it right. (And to think that most guys my age, their fantasy lives probably center around Keira Knightley. I must be sick.)

    In all seriousness, limitations on government powers aren’t there to protect Hadji Q. Shitbird and his Merry Men. They’re there for the rest of us, when some prick in Whitehall decides to go after people for ‘libertarian hate speech’ or some assclown decides that people who run against Richard M. Daley need to be jammed up for whatever.

    At any rate, what really makes me queasy here is the tapdancing around evading a judge’s order. Even though the UK doesn’t appear to have an independent bench the way I would use the term, this is still a crock. Even more so since the judges are subject to pressure from the G, and this one still tried to tell Treasury that yes, they had to follow the law as well.

  • Midwesterner

    Keira Knightley. Mmmmm . . .

    There actually is a similar case in US history, Worcester v. Georgia, in which the Supreme Court was ignored by both the state of Georgia and the President of the US.

    Perhaps fearing the possibility of a showdown between the Supreme Court and the Executive, and realizing the real likelihood of Jackson refusing to adhere to the Court’s pro-Cherokee decision, the Justices did not follow the standard procedure of requiring federal marshals to carry out the decision.[2] In doing so, the Supreme Court implicitly permitted Andrew Jackson not to carry out the decision, thus avoiding the possibility of a political conflict between two branches, while also retaining the pro-Cherokee decision of Worcester as good precedent for subsequent Supreme Courts and subsequent presidents.[3]

  • Sunfish was his usual incisive, well argued, self.

    I, on the the other hand, will just go off on one…

    Why does anyone give a flying cluster-fuck what the UN says?

    We are talking about a bunch of clowns who couldn’t get a fuck in a monkey whore house if they turned up with a sack full of bananas. They are arguing the toss about whether the current antics in Darfur are “genocide” or merely “ethnic cleansing”. Like if you’ve been raped or murdered you give a bastarding toss about the fucking semantics?

    It is well past time that that bunch of evil fucking bastards in NYC were dumped in the East River at bayonet point.

    Oh, come on! Let’s just ignore this forum for dictators, nutcases, fantasists and generalized scumbags. Ban Ki Moon, how many divisions do you have? You reckon you can stand against the USMC, the Royal Marines, even the army of Botswana? Can you fuck.

    The genocides of Kosovo, Rwanda, Darfur resulted in the UN achieving nothing to the purpose. People are being butchered and raped in Darfur by militias who still think the camel is a pretty neat way to get around and the UN is blaming this on climate change and doing fuck all about going in and kicking the shit out of these bastards.

    And we take those mendacious cunts on Turtle Bay seriously? You know the same lot that gave a forum for that somewhat shaved monkey from Tehran to spout shite (or shout spite) a couple of years back? The same lot that were once headed by a Nazi war criminal or the hopelessly corrupt Kofi Annan. Heading out of our solar system at a rapid rate of knots is a message “from all humanity” recorded by a Nazi Gauleiter. This is shit you just can’t make up.

    Sorry, no. There is only one solution and that is that the rational countries of the planet have bloody good militaries. End of. Chewing the fat at Turtle Bay has achieved fuck all for 6 decades.

    Is it just me or d’ya think the UN exists primarily to provide a bunch of gits with a life of luxury in NYC rather than in the unmitigated hell holes they have created back home?

    I mean we’re talking about an organisation that allowed Libya to chair it’s human rights commission. That is beyond my capacity to invent. I couldn’t invent it so they actually did it.

    My country has enough nuclear warheads to flatten every city in the Northern Hemisphere with more than a million people and we are taking a bunch of complete ass-hats who are powerless to stop rape and pillage by the Sudanese fucking Camel Corps seriously!

    General Kitchener is currently developing extremely high angular momentum in his grave.

  • ‘libertarian hate speech’

    Bureauphobia?

  • guy herbert

    Nobody does. That’s just the excuse that UK Gov (quite possibly following instructions from US Gov in this case) is using for doing what it wants to do.

    Why didn’t the judge just start having Treasury officials jailed for contempt? Do UK judges not have that power?

    It is in desuetude. Summary punishment for direct contempt of court has almost died out here. Judges are extremely circumspect about using it even on parties who directly insult the bench. It is generally only used only to sanction direct breach of a formal court order.

  • Laird

    “desuetude” (What a great word!)

    “libertarian hate speech” (bizarre concept of the day!)

    I love this site!

  • “Jonathan Crow QC, for HM Treasury, had told him the UK government would be left in violation of a UN Security Council order were the orders to be quashed immediately.”

    The UN be damned! If the Lord God himself were to ask that British Liberties be taken away it would be the Government’s duty to tell God to fuck right off.

    Nobody has quoted Sir Thomas More yet (I think there’s a dual to Godwin’s law there) so I will.

    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

    Robert

  • Nick M wrote:

    We are talking about a bunch of clowns who couldn’t get a fuck in a monkey whore house if they turned up with a sack full of bananas.

    I thought the blue helmets were well known for their inappropriate sexual behavior on lots of missions.

  • Paul Marks

    Laird:

    What is the basis of your claim that United States citizens can be held for ever without charge (at Gitmo or anywhere else)?

    I thought the Supreme Court had ruled against this. Although I would rather be held at Gitmo than in a normal American prison (rape and so on are unknown at Gitmo)

    However, you are correct about RICO and the rest of the statutes – they go against the basic principles of the Common Law as clearly stated in the Constitution of the United States.

    On the specfic example of the taking money supposedly (no proof required) gained by drug dealing we have similar statutes in the United Kingdom. I believe that the late Member of Parliament Enoch Powell was the only politician to oppose them (on violation of the princples of law grounds).

    However, at least these things are statutes in the United States – Congress could vote against them if Senators and Representatives wished to do so.

    In this country (it appears) that even United Nations regulations can be given the force of law without any vote in Parliament.

    And people who say that giving United Nations regulations the force of law in the United States are called paranoid.

    Time to break out the “Get the U.S. out of the U.N.” shirts.

  • Paul Marks

    Laird:

    What is the basis of your claim that United States citizens can be held for ever without charge (at Gitmo or anywhere else)?

    I thought the Supreme Court had ruled against this. Although I would rather be held at Gitmo than in a normal American prison (rape and so on are unknown at Gitmo)

    However, you are correct about RICO and the rest of the statutes – they go against the basic principles of the Common Law as clearly stated in the Constitution of the United States.

    On the specfic example of the taking money supposedly (no proof required) gained by drug dealing we have similar statutes in the United Kingdom. I believe that the late Member of Parliament Enoch Powell was the only politician to oppose them (on violation of the princples of law grounds).

    However, at least these things are statutes in the United States – Congress could vote against them if Senators and Representatives wished to do so.

    In this country (it appears) that even United Nations regulations can be given the force of law without any vote in Parliament.

    And people who say that giving United Nations regulations the force of law in the United States are called paranoid.

    Time to break out the “Get the U.S. out of the U.N.” shirts.

  • yankee

    asset forfeiture in the US does in fact require proof. paperwork on law enforcement’s side is quite extensive. that doesn’t mean that they’ll wait to take the property, however; they’ll seize it and then you can fight it out later.

    that said, I’m deeply disturbed by Guy Herbert tainting an otherwise sound argument by randomly throwing in the parenthetical that this action was likely at the request of the US. based on what exactly?

    sadly ironic, given the context.

  • Nick M wrote:

    … bunch of clowns … evil fucking bastards … dictators, nutcases, fantasists and generalized scumbags … mendacious cunts … bunch of gits … complete ass-hats …

    I wouldn’t have sugar-coated that. ;^)

  • Rollory

    The Victoria Brittain article ends with the comment that this issue is well-known among the Muslim community in Britain.

    From this, one can probably safely conclude that the individuals in question are Muslim.

    In which case, I don’t have a problem with this at all. All Muslims need to leave Europe. Better to do it through annoyance and humiliation than through a Balkan-style civil war – and make no mistake, civil war will be the outcome all across Europe if current immigration policies continue.

    There is the issue of these measures being applied against real Britons once the Muslims are gone, but that is something that can be sorted out when the time comes. Much of the European ruling class needs to be tossed out on its ear anyway, might as well let them give the populace a good pretext.

  • Jim Rockford

    Let’s talk the political reality about why you have repressive measures (this one, CCTV all over the place, DNA on demand, etc.) with an appalling high crime rate not to mention terrrorism up the wazoo.

    It’s simple. Labor liberalism demands pandering to Muslim votes, which Labor also depends on. This prevents any real attempt to de-Jihad British Muslims, demand integration into British norms, get rid of all the things that make Jihad/terror possible.

    So the Labor Government is caught between two things: the demand of the public for nor more terrorism, i.e. they don’t want to get blown up, and the need to get Muslim votes and thus allow terrorism, by not taking obvious measures to stop it.

    Thus the need for non-Parliamentary “regulations” which have the force of law, don’t have Labor votes on them, and can be put at the feet of the UN, or EU, or International Association for Putting Things on Top of Other Things. Yes by all means, Gordon Brown didn’t want to do this. But the IAPTOTOOT made him do it!

    If you don’t like this, or other losses of civil liberties, force your politics into the open. Have a law and order society that jails public drunks on sight, for long stretches. Don’t release criminals early. Build lots of prisons and crack down on crime, despite cries of “racism!” and allow gun ownership again. Allow Concealed Carry for licensed people who meet requirements. No payoffs/politicking allowed. Crack down hard on thuggery of all stripes, and ditch the cameras.

    For terrorism, have a party that doesn’t depend on Muslim votes, campaign on getting tough on jihad, with strict anti-Jihad terrorism measures. Among them cut welfare so jihadis can’t sit around all day plotting, they have to work.

  • guy herbert

    I wondered how long it would be before the “its fine to do it to them Muslims” brigade would turn up.

    The “political reality” is we have these things in Britain because we have a political culture that is afraid if its shadow and no checks and balances in our system against official rapacity for arbitrary power.

    Nothing whatsoever to do with Islamism, which is the opportunity and occaision, not any compelling threat. Certainly nothing to do with the average Muslim.

    yankee,

    My shot at British government “security” agencies and activities being often under the direction of US ones, was perhaps unjustified by any particular evidence in this case – which evidence is of course lacking since all accusations against the people so ill-treated are secret, but it is reasonable to induce probability from their record in such matters. The people on the UN lists are there because UN members have identified them as connected with terrorism to the Security Council – which means they are very largely people who have been named by the intelligence services of the United States, which has the longest lists of suspects.

    There are a number of people who have been held by the UK authorities on information from US authorities and against whom no evidence that would stand up in a British court has ever produced, which would never have been entertained had they come from any other source. Example.

    Rockford,

    Thus the need for non-Parliamentary “regulations”…

    There is no need as you characterise it. But if there were a need it could be put to parliament (which is highly malleable, having passed the most appalling pieces of legislation with virtually no scrutiny). The claim “we have to do this to meet international standards” sells very well in parliament. And the government is well capable of employing it to justfy the otherwise unsupported – even, and perhaps especially, when it has taken a part in constructing the “international standards” that it now claims are binding on it.

    This is a familiar process, known as ‘policy laundering’.

    In fact they are not binding in this case. There’s no sanction the UN Security Council has to enforce the implementation of its resolutions in any particular way or at all. The UK, being a permanent member has its own veto, and can prevent any resolution it doesn’t like being passed, or ignore it as it chooses.

    The government implemented these measures freely, because it wanted to, and with no regard for maintaining the rule of law or fair treatment of individuals. Note that it is potentially a completely circular and self-sustaining process. The intelligence services identify somone as associated with terrorism; they are named; their acquaintances and contacts come under suspicion. Governmnts discern a threat, demand powers to deal with it, then exhibit the use of the powers as evidence that they are justified both in having the powers and their actual application.

  • PersonFromPorlock

    Well, you’re ‘subjects’, not ‘citizens’. You’ve never had rights, just permission from the Crown to act as if you did. If that permission is revoked it doesn’t really alter your status at all, it just makes it more obvious.

    This is something you might want to think about changing.

  • Ed

    Habeas corpus? Only if you’ve broken an ordinary law. If you’re a heretic, you must be hanged, drawn and quartered. Say, where have I heard this before?

  • Sunfish

    Guy Herbert said,

    I wondered how long it would be before the “its fine to do it to them Muslims” brigade would turn up.

    Normally, that’s where I lose interest in a thread. Next time you post something like this, though, we should probably set up a pool about how long it will be before the “oh teh noes here come the Muslims!!11!one” posts show up.

    I’m in for five bucks on 36 hours.

    Seriously, though, US readers should probably be very careful going there. Remember what happened in 1995? And the aftermath? And the concerns about BATF running wild? If the state has the power to seize people or assets without having to show cause, there’s pretty much every guarantee that they’ll use it.