Following meekly in the undistinguished footsteps of the Queen of Complacency, Polly Toynbee, Johann Hari, writing in the Indy, has turned his attention to the always thorny issue of government, databases and personal data, and put up a sterling effort at becoming Polly Pot’s ‘Prince Consort’…

The Seventies pop screecher Leo Sayer announced last week that living in the Celebrity Big Brother house is “like being in Abu Ghraib”. When another contestant pointed out that the tortured Iraqis weren’t being paid hundreds of thousands of pounds and didn’t have the option of popping into the diary room for a chat, he conceded. “Okay, I see what you mean,” he said. “It’s more like Guanatnomo Bay.”

Err, that’s Guantanamo Bay, surely, unless a few days in the BB house has caused Leo to begin morphing into Jade Goody.

I don’t know why everyone laughed.

See above, if the quotation is accurate and not just an uncorrected typo of your own contrivance.

The people who will ritually jerk their knees today by declaring that Tony Blair’s proposals for a simple centralised Whitehall database are “a step towards tyranny” sound startlingly similar.

Is this database, about which there has been much speculation but little by way of concrete facts, actually such a simple thing? Is there even going to be such a database? Apparently John Hutton thinks not…

Pensions Secretary John Hutton told BBC Radio 4’s Today programme the proposals were a “routine part of the process of engaging with the public services”.

The government was not creating a giant database and people would not have to allow details to be shared, he added.

Still Johann continues…

The Prime Minister is proposing to make it easier for government departments to share information. The Department for Work and Pensions will be able to find out from the Department of Health which pensioners are so sick they count as disabled, so they can give them the hundreds of extra pounds they are entitled to every month. The Housing Department will be able to find families who are slipping into financial chaos and help them out before they turn up at their local town hall one day, clutching their kids and some hastily stuffed boxes, after being evicted. The Land Registry will be able to catch more middle-class people who cheat on their council tax returns by not declaring home extensions. If it succeeds – as it has in most democratic countries – the state machinery will become smoother, faster and more efficient.

Johann – you seem to know an awful lot about precisely what this new ‘data sharing’ ‘system’ (it’s unlikely to be a physical system such as a central database) is intended to achieve and also remarkably glib about some of your suggested ‘benefits’ this system will have. Have you been briefed in advance, or are you merely taking a guess as to what this might mean – and have you really thought about what some of your example might imply?
For the DWP to ‘find out’ from the Department of Health, which pensioners are ‘sick’ enough to qualify as being disabled would surely necessitate both the DWP and DoH being given detailed access to individual medical records. Does that not mean violating the doctor-patient privilege? Is that not exactly what many people are most concerned about in relation to the creation of the NHS spine? That it will open up their medical records to scrutiny by non-medical personnel who have no business (or need) to be inquiring into such personal matters.

Yes, early intervention in cases where families are financially overextended could help prevent many from becoming homeless, but does that necessarily mean that we should blithely give Housing Departments carte blanche to go rooting through our personal financial affairs?

And why the Housing Department? Are they universally best placed to be providing debt counselling? I mean I know that some Housing Departments do have advice teams that carry out such tasks, but others don’t and rely instead on referring people to the CAB and other voluntary sector debt advice services – are we then to give them access to to people’s bank accounts as well?
Why would the Land Registry, specifically, be trying to catch people cheating on their Council Tax? Surely that would work the other way around, with Council’s using the Land Registry for that purpose and not vice versa? And even then, surely it must be the case that the most appropriate source of such infiormation would be the local planning system and not the Land Registry, as any extension large enough to impact on the Council Tax Band of a property would surely require planning permission before being built?

Sorry, Johann, but either you, or the government (if this comes from a pre-announcement breifing), just don’t appear to have thought through properly and, if you’ll excuse the expression, most of the ideas present have all the quality of having been pulled out of someone’s arse.

Yet these proposals are already being presented by the Conservatives – and many on the left – as yet another step into 1984, part of a proto-tyrannical package ranging from CCTV cameras to Asbos to the DNA database that they cite as evidence Britain is sleepwalking into a surveillance society.

Most of the people who are tetchy and tense at news of more government powers are good people with good worries. Blair’s government has abused civil liberties. They reintroduced internment, and only ditched it in favour of the almost-as-awful house arrest because the House of Lords forced them to. They allowed British airspace to be used to “render” human beings for torture in secret US prisons in Eastern Europe. They slashed back jury trials. They imprisoned refugees and their children in camps, for the “crime” of seeking asylum. They tried to criminalise fierce criticism of religion. I wouldn’t trust that old Stalinist John Reid with a kitten, never mind fundamental freedoms – so everything the Government proposes needs to be scrutinised carefully.

No shit, Sherlock!

But there is a danger that, in response to these real abuses, we have ended up with a right-wing reflex reaction. If we assume all state action undermines human freedom, we will end up opposing smart measures that help people along with the ones that cause real harm.

Perhaps – but then if we also begin from a position of solid scepticism, we also force the government to put forward a solid, cohesive and coherent argument for such measure rather than fob people off, as has been the case in relation to ID cards, with claims of public support based on three year old opinion polls taken at a time when the vast majority of the public had no understanding of the real issues that ID cards would raise, with specious and ever changing arguments, none of which stand up to detailed scrutiny, or simply with a blank refusal to address the arguments of critics – ‘I do not recognise your argument’ or ‘you’re biased and have an agenda’ has been the stock response of Minister’s when faced with detailed and substantive criticism that they’ve simply been unable to answer.

Better (and safer), I think, to assume the worst and require government to show sound evidence to the contrary, than take government assurances at face value.

The philosopher Isaiah Berlin famously drew a distinction between “negative liberty” and “positive liberty”. Negative liberty is freedom from interference by the state. Positive liberty is freedom to achieve your goals – and sometimes, that requires help from the state. Most of us have now sunk into an unspoken belief in negative liberty alone. When we hear the government is acting, we automatically assume there is something to be feared – as though government can only take liberty, and never help us to achieve it.

Have we really sunk into an unspoken belief in negative liberty alone? I don’t think so.

What has happened over recent years is precisely that which Berlin identified (and even feared) might be the consequence of his work on the ‘Two Liberties’; that ‘Postive Liberty’ would be taken up and used (and misused) by government to justify ever more intrusion and control of individuals in their private lives. It’s noticable, for example, that in launching his ‘Respect Agenda’ last year, Blair went so far to a cite Thomas Hobbes as authority for the principles upon which he claimed it was based, and the authority afforded to Hobbes ‘Leviathan’ is a far cry from the balance of positive and negative liberties advocated by Berlin.

Moreover, if one looks at the extent to which Blair has been seeking to extend the authority of the state over its individual citizens, much of this has been to an extent that even Hobbes would have baulked at; his Leviathan was empowered only to keep the citizenry from affecting physical harm on each other, not to mediate their general behaviour in situations where no harm would ensue. What Blair has come to, after ten years in office, is a deeply pessimistic view of society and human nature, one animated by a personal philosophy that is the bastard offspring of the worst that both Hobbes and Berlin had to offer; the Levaithan’s unrestrained authority couple with Positive Liberty’s conceit that the state is acting always for your own good, even when at its most oppressive and overbearing.

I suspect, Johann, that you need to re-read Berlin, and especially some his later re-evalutions of his original work on the ‘Two Liberties’ in order to appreciate just how badly the concept has been abused in recent years – just as Berlin predicted.

Look at the recent creation of a DNA database. Many people (myself included) reacted with an instinctive retch. What right does the state have to store my DNA? But then positive liberty enters the picture. The biggest civil liberties violation happening in Britain – by far – is the epidemic of unpunished rape. Some 50,000 women are raped in this country every year, and only 600 of the rapists ever end up in jail. That’s not a problem of too much state action. That’s the state failing to act. Women deserve the same positive liberty to walk the streets at 3am as anybody else – and the hard evidence shows that the DNA database helps to ensure they can.

Once the DNA database became available to the police, forces across the country started to trawl through their ‘cold’ rape cases, the ones lying dormant in their files with no new leads. By checking the old blood and semen in the archives against the database, they found literally hundreds of rapists and jailed them before they could rape and rape again. (We know from all the research that rapists rarely stop with one woman). To pluck one small police force at random: Avon and Somerset Constabulary have used the DNA database to catch Nigel Palmer-Batt, a man who forced his way into a 21 year-old woman’s flat in 1979 and raped her. They used it to catch Jason Reed, who raped a sex worker in 1992. They used it to catch Ron Evans, who raped a woman in Bristol in 1977 and sexually assaulted another woman two years later. The list goes on. All this has been achieved with only 5 per cent of us being stored on the database. If all of us were, rapists would have real reasons to be afraid.

Would they [rapists] really have reason to be afraid, Johann?

I think your understanding of the value of a DNA database is somewhat over-optimistic – remember DNA evidence alone is NOT proof of rape, merely proof that sexual intercourse took place. At best, all such a database can provide, for certain, is the identity of the alleged rapist – whether or not a conviction then follows is largely a matter of what additional evidence can be supplied by the prosecution to support the contention that a rape actually took place.

Before getting caught up in your little CSI fantasy world, there are a couple of things that you should consider carefully.

First, in terms of public perceptions of the use and value of forensic evidence, you should carefully acquaint yourself with what, in the US, has come to be called the ‘CSI effect’. Real life is not like a television police procedural drama and the forensic evidence presented in court rooms is rarely as conclusive or compelling as that compiled by Grissom or Horatio Caine – in the main because very few forensic laboratories possess even a fraction of the bleeding edge technology on display in the TV shows, some of which is so unrealistic as to be laughable. Try enhancing an out of focus snapshot in Photoshop and getting anything like the image quality and resolution you see one CSI in a matter of seconds, and you’ll soon appreciate the problem.

Programmes like CSI have, inadvertantly, raised public expectations of forensic evidence in the US to such an extent that some Judges have taken to explicitly reminding jurors that real life isn’t like CSI and the forensic evidence that they’ll see in the course of the case upon which they are to deliberate is neither so conclusive or neatly packaged and that they may have seen on TV – there have even been reported acquittals in which the failure of real-life forensic services to deliver Grissom-grade evidence has been cited as a primary reason why the State failed to secure a conviction, even though other evidence was sufficiently compelling for the prosecutor to believe that a conviction was merited.

Second, and specific to Britain’s own rapidly growing DNA database, while one cannot dismiss its successes in enabling the police to clear up a number of previous ‘cold cases’, before one goes down the road of advocating universal storage of everyone’s DNA ‘signature’ one must ask just exactly what proportion of those previously unconvicted rapists found themselves on this database without having got there by virtue of other criminal activity and whether this, in turn, would serve to justify a universal system.

The Big Sister state has saved thousands of women from rape by taking this positive action. The DNA database has become a feminist tool. But if we only see the world through our anxiety about negative liberty, we won’t see all these women who have been rescued. This is hardly a lone example. Thanks to CCTV, many people – particularly women – feel safer at night. Thanks to Asbos, people living on some of the poorest estates in Britain have been saved from constant intimidation. These are net gains for freedom.

Sorry, Johann, but this is absurd.

There is no concrete evidence, as yet, to show that the DNA database has saved a single woman from rape – the use of this technology is simply too new and too recent to make such an unqualified assertion.

Nor can it stated with any degree of certainty that it will save women from rape, or at least not in the kind of numbers that would reasonably justify universal DNA registration of all citizens.

Johann appears, at least in part, to think that universal registration will serve as a deterrent to potential rapists – and to some small degree it might have just such an effect on some, but that presupposes that uppermost in rapist’s minds at the time the carry out a rape is the fear of being caught and punished for their crime. Such a presumption is, I think, stretching credibility rather too far.

As already noted, DNA evidence is not conclusive proof of rape, its only proves that sexual intercourse took place, so such has evidence will have little or no bearing on what are almost certainly the vast majority of rapes, in which the alleged assaillant is know to the ‘victim’ either as a pre-existing sexual partner, date or even just someone they’ve met on a night out, given that in most such cases the contended issue is not whether intercourse took place but whether that intercourse was consensual.

Moving to the other extreme, that of the pathological/predatory rapist, it questionable, again, as to whether such a rapist will be deterred by the fear of being caught as a consequence of DNA evidence. Not only might such a rapist be operating under a compulsion that overrides any such considerations, but one would expect some of the more ‘intelligent’ specimins to modify their modus operandi in ways designed to try and circumvent the use of DNA evidence, which could mean anything from using a condom to avid leaving semen in the victim, to using bleach and other chemicals to try an obliterate the crime scene (yet another facet of the ‘CSI effect’ is that some criminals are starting to learn how to cover their tracks more effectively due to information obtained from the programme) to murdering the victim and disposing of the body.

Yes, statistically speaking, some women could be considered to have been ‘saved from rape’ (and perhaps murder as well) where use of a DNA database results in a serial rapist being caught relatively early on in their ‘career’ – such a success would, of course, be of only limited comfort to those who have still been raped before he was caught.

But, and this is the other sign of the coin, there is also the risk that rather than act as a deterrent, such a database may in some case increase the risk of women being murdered by their assailant in the course of or following a rape, either because their attacker feels that they have nothing to lose by such actions or because the one way in which DNA identification might be circumvented is if the victim is killed and the body never found. Even in relation to rape, the creation of a universal DNA database is not universally beneficial or even a zero-sum game.
Given that Johann advances the detection of rape as a primary justification for univeral DNA registration and that female involvement is such crimes is necessarily negligable (although not entirely impossible), his argument is only really applicable, in full, to half the population – the male half. So one wonders quite what argument he might advance in favour of universally registering the other (female) half of the population – surely not ‘equal treatment’, which would be about as thin and unconvincing as it is possible to conceive of.

But a rigid, no-exceptions belief in negative liberty is still tempting, because it allows you to have a quick response to every proposal: state bad. You don’t have to look at the detailsor the victims. You can feel morally superior. Yet in reality, freedoms often compete with each other. It is a very small violation of liberty to have a swab put in your mouth for a DNA sample; it is a very large violation of liberty to be raped. People who really want to maximise human freedom have to make hard decisions in weighing one against the other.

Nice comparison here, Johann – apples and oranges, I believe.

The comparison here is not between a small violation of liberty arising out of the act of taking a DNA swab and a large violation of liberty – rape – but between a temporary violation of liberty – many, if not most rape victims do ‘come to terms with their experience’ over time and go on to live fulfilling, and fulfilled lives – and a permanant violation of liberty that changes, fundamentally, the relationship between citizen and state and treats all citizens, implicitly, as suspects.

If we’re going to play the old ‘what about the victim’ game, then perhaps we should be asking how rape victims feel about their own DNA profiles being stored on a universal DNA database, alongside those of their assailant. Some may feel that a small price to pay for justice – assuming they get justices, which as I’ve already pointed out is still far from certain – others may be horrified at such a prospect.

Actually, that’s an interesting question an one that I’m not sure has ever been asked explicitly. One has to remember that at least the beginnings of the present DNA database were compiled illegally by the Police. Before the passing of the Criminal Justice and Police Act 2001, the law permitted the Police to keep DNA records only on those convicted of a criminal offence, anyone whose charged were dropped or who was acquitted should have been removed from the database and their samples and fingerprints destroyed, restrictions which the Police ignored until they were caught in the act, at which point the government stepped in to legalise not only the retention of information from those who had been charged but not convicted, but afford retrospective legitimacy to the action of the Police in disregarding the previous law.

And since the Criminal Justice Act 2003, anyone arrested for any reason, even that of mistaken identity or a false allegation, can have their DNA and fingerprints taken and retained by the Police.

I wonder – in some cases a fairly standard ‘defence tactic’, especially in relatively low-level matters (like common assault) is often to level a counter allegation against the other party, which could theoretically mean that not only does the present DNA database include records of entirely innocent individuals, it may even include records of people who only contact with the Criminal Justice System is as victims of crime. How many there might be who fit that category one cannot guess – and I suspect an enquiry would elicit the stock answer, ‘we do not hold that information centrally and it would too expensive to compile’, but it remains a distinct possibility.

We all have to do this, slowly, agonisingly, with every government proposal. Often this will lead rational people to oppose the government proposals of the day. For example, I can’t see any gains in human freedom flowing from ID cards, and I can see plenty of drawbacks – like giving the police an excuse to harass young black men who are simply walking the streets.

Johann – there is a rather important point you are missing here. Leaving aside legislation such as the Data Protection Act for a moment, the single greatest barrier to large scale sharing of information between many government departments is the absence of a common unique identifier for personal data. The DWP and DoH cannot currently marry up their respective records with sufficient accuracy and reliability to make data sharing worthwhile because each system uses a different method of identifying individuals and the data associated with them – the DWP uses the National Insurance Number, which is not issued until one reaches the age of 16, while the DoH (and NHS) use the NHS Medical Number, which is issued shortly after birth, and there is no central index which cross-reference these two numbers.

So what do you think ID cards and, especially, the National Identity Register with its National Identity Registration Number, are for.

For many, I guess that news of this proposed new data sharing regime across government has come as a bit of a surprise – not me, I was discussing just this exact thing more than five years ago with officers from local government, the NHS and the Police (amongst others). What is now coming to light is not something new or even something that the government has only recently come up with as a policy. What these proposals are, in reality, are the real raison d’etre behind the entire policy that has led to identity cards.

This is what ID cards have been introduced for; not to combat terrorism, cut identity fraud or assist in curbing illegal immigration – any benefits they might deliver in those areas are entirely ancilliary to their real purpose, which is to provide government with a single, unique, identification number for every individual, against which every piece of personal data held by government (local and national) can be cross-reference, connected together and shared/exchanged. ID cards, or rather the National Identification Registration Number, is not only what makes these data sharing proposal possible, they proposals would be as near impossible as makes no difference without it.

Finally, we have revealed, the biggest lie – well omission of fact – perpetrated by government in the introduction of ID cards, the real purpose of the system.

But the automatic we-must-stop-this-Government-plan paranoiablocks out thought, and has percolated into ridiculous areas. Recently, Patricia Hewitt suggested computerising the NHS’s medical records. This would save hundreds of lives: I know of at least one person who died because she was taken ill out of GP hours and her written records couldn’t be easily accessed. Yet when I discussed this on the radio recently, many in the audience reacted as if it was part of a semi-Ba’athist plan to erect a police state. No doubt this sensible new Whitehall database will sound to them like the thud of a jackboot.

Yes, Johann, there are many potential benefits to be gained from the NHS spine and the computerisation of medical records…

…but there is also much potential for such systems to be abused.

Databases aren’t the problem. All they do is hold information and supply that information to users in response to the user asking a ‘meaingful question’.

The problem is the government, the state and its many agents and the real question being asked, and which should always asked is can we trust them.

Can we trust them to keep this information secure?

Can we trust them to only use this information for our benefit?

Can we trust them to use this information only for the purposes for which they have either individual or democratic ‘permission’ to use it?

Well as the history of the DNA database demonstrates, the answer to the last question is no.

On first being permitted, by law, to retain DNA information, the Police were given clear directions in statute by the government as to when and how they could retain that information – i.e. on one securing a conviction.

And what the Police did is disregard the law and conceal the fact that they retained DNA information illegally for five years, until their actions were brought to light by a case in the High Court.

And how did the government (admittedly a different government to that which introduced the first law) respond to the discovery of the Police’s unlawful conduct?

Was there an inquiry? Disciplinary action? Dismissals? Prosecutions?

No. What the government, under this current Prime Minister, did was move the legal goalposts – change the law to suit the interests of the Police and legitimise their previous unlawful conduct.

Now, Johann, I have three questions for you.

1. Does that [the history of the DNA database] not constitute good reason for maintaining a distrust of government when it comes to their dealings in our personal information?

2. Does that not also suggest that any assurances that might given about the use to which personal information (and now data sharing) at the time that laws and regulations are passed should be considered to be largely meaningless. Parliament is sovereign, which means safeguards, even in legislation, are only as good as the will of Parliament (which is near enough the will of the government in recent years) to uphold them? and

3. Should we not do everything possible to prevent further government encroachment into our personal lives, ever as the expense of delaying and deferring the possible benefits of some of this technology, until such time as we, as citizen, have put in place secure and reliable safeguards against the misuse of personal data by government and the state – safeguards put in place not by Acts of Parliament, that be easily overturned by future governments, but by a full constitutional Bill of Rights, enacted by plebiscite (referendum) in such a way as to remove its principles and protections beyond the sphere of governmental interference.

Is it not, in fact, long past time for us to become a truly modern democracy in which it is the democratic will of citizens and not parliament that is actually sovereign.

When did we all start singing Leo Sayer’s songs?

Is my memory at fault, or did Leo once cover ‘Send in the Clowns’ – if he did then some of us have been singing that song in relation to the government and its obsession with information technology and databases for quite a while.