There is a famous civil liberties case concerning Robert Liversidge, a wealthy Jewish businessman imprisoned at Belmarsh prison in 1942. No evidence was presented against him and he was never found guilty of anything, yet the Home Secretary at the time, Sir John Anderson, had him detained indefinitely on the grounds that he held 'hostile associations.' The law courts refused to strike down the ruling, behaving as one judge put it 'Like mice squeaking under the chair of the Home office.'
This kind of governmental behaviour is not unprecedented today. In 2004 the Home Office was found to be in breach of EU Law for keeping the so-called Belmarsh 9, suspected terrorists, imprisoned at Belmarsh without trial. In this case, however, a vibrant judiciary demanded a reworking of the Terrorism Act to prevent this kind of abuse from happening again.
Fast forward 10 years to 2015. On the weekend at least 129 lost their lives in the deadliest terror attacks in Europe since 2004. Already since Friday French police have raided over 150 homes and a State of Emergency granting wide-ranging executive powers may last up to 3 months.
In the UK the Conservative government has rejected calls for the so-called 'Snoopers Charter' (Draft Communications Data Bill) to be rushed through parliament, but they expect to face less opposition to it than previously thought. This is unsurprising. Many in the UK travel regularly to Paris and it is a mere 2 hour train journey from Kings Cross.
What to do about spying?
Perhaps this is just the spirit of the time following a contemporary terror attack. In the early 2000s both the Terrorism Act (UK) and the Patriot Act (USA) gave their respective governments extremely far ranging powers to suppress civil liberties on the grounds of national security.
Evidently these powers went too far, with the imprisonment without trial or foreign nationals in both the UK and the US a severe challenge to Western claims of supremacy, victimhood and authority around the world.
Though there has been a slight retreat since the early 2000s, the events in Paris have thrust civil liberties back into the spotlight. This is not necessarily a bad thing. As Edward Snowden said following his exposure of the NSA's illegal PRISM spying programme:
"Remember, I didn't want to change society. I wanted to give society a chance to determine if it should change itself...All I wanted was for the public to be able to have a say in how they are governed."
Now, when they are threatened, it is more important than ever to protect civil liberties. New programmes of detention without trial, curbs on freedom of expression and extra-judicial rendition would set the West back years in terms of their battle with Islamic extremism.
But it is of equal, if not more, importance to protect the public. The proximity of the Paris attacks, combined with the downing of Metrojet flight 9268 and the deaths of 38 holiday-makers in Sousse suggests the so-called Islamic State possesses the capability to consistently threaten 'soft' Western targets in a way we have not seen before.
At home, then, new techniques will need to be found to ensure public safety without compromising civil liberties. This should not frighten us.
Effective law making
With proper judicial oversight, good lawmaking can offer greater protections for those like the fans tragically murdered in the Bataclan concert hall, without compromising the rights of us all. Correctly accountable and overseen by an independent judiciary, our security services can and do prevent attacks like this. We should not fear our state, but recognise our ability to influence its formation and in turn, its ability to help us.
In the UK we must then do two things.
First, we must be constantly aware of the mistakes of the Terrorism Act, whilst not allowing previous errors to deter us from passing good (and indeed much smaller scale) legislation. There is no binary between civil liberties and an effective security service; we can aim to have both.
Second, with this in mind, we must ensure that our judiciary remains strong and independent. Only by building in practical judicial oversight can we ensure that our security services stay within their legally bound remit, in turn protecting the civil liberties that we fear losing.
Whilst France's state of emergency may last up to 3 months, the Snooper's Charter will last a lot longer. We should therefore take great care to ensure it is fair legislation. We must constantly ask: if this is keeping us safe, then at what cost? We must be willing to repeal it or build in more safeguards to ensure individual freedoms are protected.
Our judiciary was strong enough to reject the government's programme of illegal detention in 2004 and it must be strong enough to act again to protect individuals from arbitrary state power. The introduction of the new, separate, Supreme Court in 2009 will help here.
Even so, new legislation may still conflict with certain individual freedoms. But If intelligence gathering procedures are strengthened then they may prevent an attack like the one we saw in Paris this weekend. This may keep hundreds of people alive. What greater freedom is there than that?