Selling surveillance equipment to vile regimes
The UK government now faces a legal challenge.
DAVID ALLEN GREEN
The New Statesman
23 JULY 2012 16:21
http://www.newstatesman.com/blogs/david-allen-green/2012/07/selling-surveillance-equipment-vile-regimes
A totalitarian or repressive regime has many features. These include
the restrictions on free association and free expression; and there
will also be the unchecked powers and weaponry of those with coercive
or lethal force.
But perhaps the most insidious and undermining aspect of internal
control is the constant intrusion and surveillance. Of all the
humiliations which were inflicted on Winston Smith in Nineteen
Eighty-Four, the image of him cowering in the corner of his own
apartment is perhaps the most telling of his overall predicament.
The UK government is supposedly against totalitarian or repressive
states. The excesses of such regimes are routinely condemned and
sometimes there are even sanctions. Prohibitions can be put in place
against the export of certain military equipment. But, at the moment,
the UK government is doing nothing to stop the export of surveillance
equipment from British manufacturers to some of the most vile and
illiberal governments in the world to use against their own people.
And the horrifying truth is that it is entirely within the legal
power of the UK government to stop this trade.
Back in April, the campaign group Privacy International wrote to the
prime minister. The Guardian reported that:
"In a letter to Privacy International, Downing Street said the
government was "actively looking at this issue" and was working
within the EU to introduce new controls on surveillance".
But since then, there has not been a substantive word from the government.
It is correct that certain export controls can be agreed at EU level,
and that this may be an ideal. However, the Export Controls Act 2002
provides power for the Secretary of State to make provision of export
controls for goods and technical assistance which facilitates
internal repression in any country or breaches human rights (sections
1, 3 and 5 of the 2002 Act and paragraphs 3(2)D(c) and (d) of the
Schedule to the Act). But the Secretary of State has not exercised
this power to prohibit exports of surveillance technology.
Privacy International has now instructed their lawyers Bhatt Murphy
to write to the Secretary of State threatening an application for
judicial review in respect of the failure to prohibit exports of
surveillance technology under the Export Controls 2002.
Ambitiously, Privacy International has even given the government the
ultimatum of bringing in such a prohibition within 21 days, or face
legal action at the High Court.
However, the problem with any claim for judicial review is that it
tends not to deal with substantive policy decisions. If a judge is
satisfied that a minister or other decision-maker has acted within
their powers then the decision will usually not be quashed. And the
2002 Act does not mandate that export control orders have to be made
if the goods are being used for internal repression; the legislation
merely provides that the government may make such orders on that
basis if it so wishes.
I asked the Department of Business Innovation of Skills why exports
of surveillance technology had not yet been banned and what they had
to say to the Privacy International threat. Their response (with
their emphasis):
"This specific case may be the subject of legal action. So we need to
consider Bhatt Murphy's letter carefully and consider our response.
It would be wrong to speculate on what our response might be.
"But, in general terms:
a) where goods and technology are already subject to export control,
we pursue this with the companies concerned. We do not comment on any
licensing or enforcement issues relating to individual companies;
b) when subjecting goods or technology to export control, it is very
important to ensure that the list is technically accurate - catching
what needs to be caught without also impacting on significant
legitimate trade;
c) we rarely use UK-only export controls - they can be circumvented
easily and therefore tend not to be effective. Our preference is
always to work with as wide a range of other Governments as possible
to ensure concerted action".
Given that there are a finite group of British companies that
manufacture this complex equipment, the last point is clearly
unconvincing. It will be interesting to see what their full response
is to the Privacy International letter before claim.
Ultimately, however, this should not be a legal matter. It is not any
more the job of a court to order the banning of any particular
equipment than it is to order its export; the appropriate role of the
court here is simply to establish whether a minster has acted
lawfully. Instead, this is really a political and moral question, and
it is one which our government is evading.
The UK government has the legal power and the moral basis to ban the
export of internal surveillance equipment to barbaric governments,
and it is choosing not to do so.
And so, in the meantime, UK companies are supplying the very
technology which converts merely unpleasant regimes into ones which
are truly totalitarian and repressive.
David Allen Green is legal correspondent of the New Statesman
--
Roger Clarke http://www.rogerclarke.com/
Xamax Consultancy Pty Ltd 78 Sidaway St, Chapman ACT 2611 AUSTRALIA
Tel: +61 2 6288 1472, and 6288 6916
mailto:[log in to unmask] http://www.xamax.com.au/
Visiting Professor in the Faculty of Law University of NSW
Visiting Professor in Computer Science Australian National University
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