The First Amendment; Patricia Hewitt

The First Amendment and a free people a weekly examination of civil liberties and the media in the United States and around the world. The program has produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University the host of the program is the institute's director Dr. Bernard Rubin. I'm very pleased to have as my guest on this edition of The First Amendment and a free people which is being recorded at the London studios of the British Broadcasting Corporation. Miss Patricia Hewitt who is the general secretary of the National Council for Civil Liberties here in Great Britain which is roughly equatable I would think to our civil liberties organizations in the United States but with certain different emphasis. Patricia Hewitt first let me ask you what is the background to the National Council. Well NCCL was established in 1934 and as you say we are in effect the British equivalent of the American Civil Liberties Union where a much much smaller

organization we were set up somewhat later than your ACLU we were set up quite specifically because of. Violence and conflict between the police and the hunger marchers the unemployed workers who were marching in protest in the early 1930s. And we were set up originally to provide an independent body of observers who could go along to demonstrations and report on the behavior of police and demonstrators. And that's something that we've been doing ever since. The biggest difference perhaps apart from size between ourselves and the ACLU is that ACLU and other civil liberties and civil rights bodies in the states have been able to pursue a lot of their issues through the courts in Britain. That's not been the case. We do not have a written constitution in this country. We do not have a bill of rights and you cannot therefore take issues of due process of freedom of speech of whatever it happens to be of discrimination for instance and

ask the courts to rule on them. So far more of our work is concentrated on legislative lobbying on actually getting the law changed and then implementing specific laws and on raising public consciousness on fighting individual cases through the courts. So it's a different kind of emphasis. You know the word you your ultimate test is where you can get parliament to change the law or to create a new law or whether you can get local councils in terms of their oath already to do something. But you also have other problems do you not. Do you have the notices and Official Secrets Act and so on and so forth which make for a peculiar let me let me change that would make for an individual listed environment in Great Britain. I think Americans are very often shocked when they discover the structures of secrecy which government in Britain has built to protect itself. We have an Official Secrets Act which was passed in the early part of the century. It was passed by parliament in a few hours of panic as a result of a particular scare

about preferred World War spies. And it's a law which goes far beyond anything that might be needed to deal with foreign espionage or to protect the security of the nation. And in essence our Official Secrets laws make it a crime for anyone to communicate or publish any official information if that information hasn't been authorized. It may be something as silly as how many rolls of loo paper are consumed by the Ministry of Defense each day or what the Ministry of Defense was paying for its army fatigues. It can be very very trivial information and the government therefore has total discretion as to what is kept secret and what is published and who is prosecuted for publishing what. Now how vigorous is the government in pursuing its goals using the Official Secrets Act and perhaps could you give me a case or two that would illustrate. The government is careful about prosecutions because in the early 1970s the government prosecuted Jonathan Aitken who is now a conservative member of parliament and the

editor of The Daily Telegraph. They had published an article relating to the BIA for a war which drew on some secret material. And the judge in that case said that he thought it was a deplorable prosecution and that it was high time thought was given as to whether Section 2 of the Official Secrets Act needed to be pensioned off and as a result of that the government set up a committee and the committee reported nothing has yet been done about the report of that committee. What is Section 2 Section 2 is simply the catchall offense of communicating or publishing unauthorized official information. And that's the section on which most criticism is focused. Now despite that criticism despite the report of the committee which said that it needed quite considerable reform despite the fact that up until fairly recently we had a government which was actually committed to reforming the Official Secrets No. Nonetheless there has been one major prosecution in the last 18 months and that was the case of Barry and Campbell it was referred to as the ABC trial and it was the case of a former soldier and two journalists who talked they had a meeting.

They presumably discussed some secret although highly out of date information relating to Barry's days in the Army is about 10 years ago and they were prosecuted not only under Section 2 which carries a maximum sentence of two years imprisonment but also under section 1 which in theory relates to spying but in practice is much broader than that which carries a maximum sentence of 14 years. And again I'm glad to say the judge in that case said that the government's use of the law was repressive and that the section one charges in particular were quite unjustified in the government was forced to drop them. So the actual trials under the Official Secrets law all fairly rare. And the government can come unstuck if the judge doesn't like what it's doing what's in a way more disturbing about the official secrets law is that the government can thread. Civil servants and journalist if they leak if they step out of line they might be prosecuted they might lose their jobs they might find it impossible to get employment again. And that's

really where the weapon becomes effective. The prosecutions are just the kind of tip of the iceberg of secrecy. We think of Britain as a constitutional monarchy which it is we think of Britain as a country in which Parliament rules. We think of Britain as a country which since Magna Carta has elevated the individual to to a dignity which has been emulated around the world certainly in the in the western world. And yet as you said others who come into the country from the outside are surprised at the centralization which is inferred by you. To what degree does your organization have success as a state its position on these cases. Well it's very difficult to draw up any single balance sheet and say we are better or worse off than they were say five or 10 years ago. You win some you lose some is really the simplest way of putting it. I think on the whole

the frontiers of the state to misquote Maggie Thatcher are being rolled forward and the individual is being crushed underneath them. We now have in this country not only this very elaborate structure of secrecy in which any notion of civil rights or the public right to know is is really quite lost. We also have a very disturbing structure of emergency legislation originally introduced into Northern Ireland because of the conflict over there. It has now extended throughout the whole of the United Kingdom and briefly to summarize it. The police can now detain anyone whom they suspect of involvement in terrorism not of any specific crime simply of involvement for up to seven days without any right of habeas corpus without any right to see a lawyer without their being charged with a criminal offense or taken before a court at all seven days detention without trial. And even worse than that the Home Secretary who is our kind of secretary of state of affairs can deport a

citizen of the United Kingdom from Britain to Northern Ireland. And over a hundred people have been told without again being charged with any criminal offense not taken to court not tried not given any right of appeal. They have been told You may not enter Britain that's to say you may not and England Wales. But you must go back to Northern Ireland and live there. It's a very cynical policy because by definition these people who are suspected of involvement in terrorism and Northern Ireland have quite enough terrorists of its own without having a few more exported to it. It's it doesn't really work like that because in fact there's no evidence to suggest that any of the people who have been deported under this law actually were ever involved in. Well they are all from Northern. They were people who were. Yes them. They're mainly people who were originally born in Northern Ireland but unless they have lived in England for 20 years then they can still be sent back to Northern Ireland and refused and treated I have to believe me no wish to interfere with the internal qualities of Great Britain especially since my wife was born in

Great Britain. You know I met her. Could you could you tell me is this consistent in your view with the whole concept of the United Kingdom. It clearly isn't and when the anti-terrorist laws were first introduced the deportation of terrorists was a one way process they could be deported. In other words from Britain to Northern Ireland if it was where they originally came from. Now a number of the Ulster Unionist MP members of parliament who support the union of Northern Ireland with the rest of the United Kingdom quite rightly and all of you said that this made a mockery of the sense of the United Kingdom as one country. The government responded by saying well they would make the deportation of terrorists a two way traffic of any English born terrorists were found in Belfast they would be deported back to Britain. Now you can imagine the outcry that would come from the British press and the British public if someone who'd been involved allegedly in terrorism in Belfast was sent back to Birmingham or to

London. It it could never happen and in fact it never has happened. So it does in fact make a mockery of the concept of the United Kingdom. And I think it goes further than that. It is quite clearly in all of you emergency powers of this kind all quite clearly in breach of our international obligations under the European Human Rights Convention and the International Covenant on Civil and Political Rights. Very interesting case came up when Mr. Harold Evans of the times pursued for more than eight years the case on earth the element of fair which was kept through the British courts out of British newspapers and other publications because of the battles between the company that was the manufacturer which asked for an injunction against such publications. What's your view on that theology business. For those of the listeners who don't know about it. It was a chemical which led to the formation of youngsters being born.

Yes this was the thalidomide came under number of children born in the early 60s were born totally deformed Sunday Times has been one of the major campaigning bodies about getting a fair settlement for those children. The case in front of Europe is enormously important because what European Human Rights Court said was that the British contempt of court laws which prevent publication of material that might jeopardize the eventual court decision. Those contempt of court laws were in breach of the European Human Rights Convention in effect bringing civil rights to Britain from the outside as a notoriously embarrassing is it not. Yes and it's an excellent thing that it happens when Britain ratified the European human rights covenant in 1951 I think it was nobody in the United Kingdom government ever dreamt that Britain would find itself in breach of the convention they all regarded it as. An arguable unsinkable in it I mean Britain was manifestly a country in which human rights and civil liberties were more respected than anywhere else in the world and we could teach these foreigners a lesson or two. In fact Britain has found itself the recipient of

more complaints to the European Human Rights Court than any other Western European country apart from West Germany on various things censorship of prisoners letters the thalidomide contempt of court case various other quite important cases. The United Kingdom government has actually found itself wrapped over the knuckles by an international court most notably of course in the case brought by the Republic of Ireland government because of the British government's treatment of Irish internees in Northern Ireland. How do you protect the individual in terms of his privacy and his right to speak. What are some of the typical cases that you have dealt with lately. Well as far as the right to privacy privacy as the Americans say goes we have a big problem in this country that there is in fact no legal right to privacy whatsoever. We are most concerned at the moment about secret records that are held on people again in this country who have no legal right to see our personal file on you except in a quite specialized

case of credit reference files which you can see and correct. And I spent a lot of my time advising people for instance somebody who phoned me a couple of days ago who has recently had an open heart operation major operation. He happens to be writing about it he wants access to his medical records and the ridiculous thing is that the only way he can force the hospital to let him have a look at his own records is by threatening to sue the hospital take him to court he doesn't want to take him to court or he just wants to write about his own operation. And we had quite a distressing case yesterday where some parents telephoned us there this is mid-July end of July 19th end of July so we're at the end of one school year children going back to school in September. These were children who had had some problems at their present school. I think got into some difficulty with the teachers which had eventually been sorted out by their parents and because their moving school parents wanted to have a look at what was actually on the record that was going to go with his children to the new school and make sure that it didn't contain any of the wrongful allegations that the

parents had managed to counter. And in that case again there's no legal right for the parents to see that record but we will take it up with the school authorities and try and get it opened up. Another problem that I know you have is the question of civil servants and their attitude toward giving out information. This is traditional in England that you have a neutral civil service at least on the federal level and on the national level. And they feel that they don't want to get involved in politics but the unique interpretation here in Britain is that not getting involved in politics has led to a diminuendo of the public's right to know information about ordinary processes of government. Are you making any headway there. Very slowly the public has no right to know about what government is doing in this country and it's not so much civil servants unwillingness to give information although it is the lot of them aren't really. It's the tradition and it's the law. Civil servants who give information which they've not been allowed to give are likely to lose their jobs and you know in

the Ultimate be prosecuted. Now we've been very involved in the campaign for Freedom of Information Act and. We got a little bit closer to that in the last session of parliament when a backbench liberal member of parliament Clement Freud introduced a Freedom of Information Bill which we and other pressure groups had drafted. It got unopposed second reading it went into committee it came out of committee it fell when the government fell and it was lost with the with the general election. The present government is talking I believe of a code of practice for open government which would be a sort of declaration of intent but which would have no actual legal weight. And we're continuing to press although with a little less hope of success right at the moment for a strong Freedom of Information Law which like the American law would actually place a duty on government to release documents is the fact that we have a Freedom of Information Act in the United States inhibiting. I know there's there is a strong sentiment in Great Britain that if there is something going on in the United States it need not be imitated here is there any of that.

There is some of that feeling yes and there's a lot of talk about the costs of the American legislation although when one looks at that that seems to be American civil servants exaggerating their own costs and all civil servants cheerfully accepting those exaggerated estimates on the wholly American experience has been very useful to us because we have a ridiculous situation where information that is relevant to the British people is available in Washington under the Freedom of Information Act but is not available in Westminster. And this really came to a very absurd head when the last Labor government published a discussion paper on Freedom of Information and official secrecy and they said in that that the American experience was very expensive and they didn't propose to follow it was very brief comment. And a journalist said Well could we have a look at the background papers that you worked on to draw up this discussion. It's published a discussion document and amongst those background papers we assume you have material from America which led you to make this comment. And the government said the material that we had from America was confidential information given to us on a

government to government basis and of course we couldn't publish it. So the journalist involved went to the government in Washington. I don't think even needed to use the Freedom of Information Act he said I'm very interested to know what information you gave the British government. Could I have a look at it. And they said sure we can. The British government the same handouts that we would give any member of the public who asked for it in the United States of America. British government was finally forced to blush and miss its ludicrous mistake. It's a very good example of the kind of secrecy kind of rationalization that it was a lot Cargan gay when he was charge of the Light Brigade where he didn't look after the interests of his men he said. Never occurred to me. Yes indeed and never because the British government to publish anything that they don't think is in their interests. Tell me to turn the door on to another room as it were you are involved when individuals get into trouble minorities get into trouble you're involved.

I'm sure the National Front is you know a Fascist Party in Great Britain trying to agitate against West Indians Pakistanis and everyone else you probably are interested in the speeches of Enoch Powell over the boat people things of that nature. Just what manifestations do you have in that range or area where people new immigrants and and and the like are in difficulties and need someone to help. Well one of our main concerns is about Britain's immigration levels and I should say we're only concerned with what's going on in the United Kingdom. Our remit as it were doesn't run to the boat people and to international human rights issues. But Britain's immigration laws for the last 12 years and longer have really been based on a quite deliberate racist division and in particular the 1971 law which operates at the moment allows into the country a large number of white Australians New Zealanders Canadians Commonwealth citizens but does not allow any black Commonwealth citizens from India Pakistan Bangladesh all the

the all the West Indies Pakistan of course until it left the Commonwealth. And we've been enormously concerned about the way in which these immigration laws have become increasingly divisive. A famine is an increasingly unjust if for instance you as an American husband of a British woman want to come to this country at the moment. You can do so without having to wait in queues at the British embassy in Washington for a very long time. Not sure whether you even need an entry certificate you can come in very easily. If an Indian or Pakistani woman married to a man who is legally settled in this country working in this country paying taxes and the rest of it. If she wants to join her husband here and bring their children with him. And very often of course the man did come first and the wife wants to join him subsequently. She will have to wait anything up to two years simply to get an interview with the immigration officer who is going to decide whether she can come or not. And there is a very very high refusal rate very often as one subsequently discovers

to quite genuine applicants so that although in theory a man who is legally settled in this country has a right to have his wife and family join him. In practice if you come from the Indian subcontinent your wife and children will not be allowed to join you here. I forgot whether it was the Irishman Tyrone going back into my constitutional history who was instrumental in getting heavy as corpus on his behalf. But whether it was or not seems to me that maybe these Indian women should prefer Tavia's coppers to have their coffers abs. So this came to this country. Yes I said that our courts would not be receptive but the new government is proposing an even more vicious extension of this sort of attitude towards the family which is that in future they all saying a foreign husband marriage to a British woman should not be allowed to come to Britain. They are actually saying that if an American man marries an English woman then that couple are going to have to live in America

or if the wife wants to stay in Britain. And she may have family and friends work here. She'll have to do without her husband. Now the thinking behind this is entirely racist. The aim is to keep our Asian men who want to come here to maybe marry Asian women. But the actual proposal will apply to all British women whether they're black or white. And it will apply to all foreign husbands from outside the common market and outside of very narrow immigration categories. Again regardless of whether husbands are black or black or white you know the proportions of people who are of non-British background historically to those who are are far different than they are in the United States about half of our total population is what would be called. Other than white the official designations but here it's a very small percentage. And yet the issue is very great is it not. That's correct and really as Britain's economy has got worse as unemployment has gone up as the urban crisis has become more and more difficult a

lot of the pressures and tensions generated by those social conflicts have have turned into attempts to scapegoat the immigrant community. It's of course quite ludicrous We had massive housing and urban problems since they came and most of the West Indian and Asian immigrants who came to this country to seek work came specifically to do jobs which nobody is already living in the country would actually do and one of the great historical ironies is that Enoch Powell in the mid-1950s when he was Minister of Health was setting up recruiting stations in the West Indies to get nurses and in fact transport workers over to Britain to run our essential services again. I respectfully submit just as a reader of newspapers when I read the other day that he had said in Parliament I can speak as an American because I'm speaking as a reader of a newspaper not as somebody interfering. He said that what reason should we have to bring in the boat people from the ethnic Chinese from Vietnam a country with which we have. I'm just alluding now to the comments not the words almost no contact with

and I was very much struck by the fact that it was almost a parallel about Turkle survive here. And Chamberlains what have we got to do with a country far distant from us just before World War 2. Yes the level of morality is about the same but I don't question his morality but I think he's probably a consummate politician and he is reflecting a very strong band of public opinion. I don't believe that's true. You know engineers are not respected by people at all I think there is enormous sympathy for refugees and it's one of the kind of contradictions in British public opinion that he does ride on the colored immigrants. Certainly he does. But when you look at the only political party in this country that actually takes a power like view on immigration is the National Front. Unfortunately the National Front performance at the last election was pathetic. Every single candidate lost their deposit they couldn't even scrape up a minimum number of votes. I know there's your problem is not of electoral support. You're working in the National Council for Civil Liberties sometimes leave you lose your distress or

disheartened but that last fact that they lost so. So overall certainly must have hardened you and made you go to the next day's work with a little bit more cheer. Yes as did the vote on a restoration of capital punishment which was soundly defeated by the House of Commons only recently. I gather that there was a great turn of sentiment on that while it would be defeated many more members voted against the return of capital management than had been expected in the minute or two that perhaps minutes is left. Could you tell me just where you're going now in the National Council of civil liberties. We are a main project over the next couple of years is to ensure that the police are given workable but properly defined legal limits under which to operate. We have a royal commission on criminal procedure sitting at the moment the chief commissioner of the Metropolitan Police in London has made an outrageous proposal for in effect unlimited periods of detention for questioning on the say so of one magistrate alone and that's just one of the kind of

proposals that is coming up. What we're pressing for is greater safeguards for the individual suspect to ensure that people are not either ill treated in the police station or wrongfully convicted in the Colts and that really together with the impact of emergency powers on the situation in Northern Ireland is a major priority for NCCL. And you do that with a very small organisation. We do that with 16 staff and I think we have some remarkable effects given how small will the numbers be increased by by legions. Certainly I think you deserve every support. Patricia Hewitt of the National Council for Civil Liberties I'm delighted to have had you on this program and for this addition coming from the BBC studios in London. This is Bernard Reuben. The First Amendment and a free paper a weekly examination of civil liberties and the media in the United States and around the world.

The engineer for this broadcast was Margo Garrison. The program is produced by Greg Fitzgerald. This broadcast has produced cooperatively by WGBH Boston and the Institute for democratic communication Boston University which are solely responsible for its content. This is the station program exchange.