Can anyone remind me why Anthony Giddens used to be a big deal in New Labour circles? Because if this is the best he can come up with

Gordon Brown has recently spoken of his plans for tough new laws to combat terrorism. His proposals have been met with hostility from civil liberties groups and the Labour left - just as many of Tony Blair’s innovations in this area were.

One can hardly catch one’s breath for the giddy pace at which Giddens opens his piece by spinning his agenda. Brown’s new laws are ‘tough’ - this is apparently the supreme virtue in law-making these days, never mind other qualities like ‘fair’ and ‘just’.

And why do they need to be ‘tough’? Because their purpose is to ‘combat terrorism’ - what was it that Hilary Benn was saying a while back about stepping away from the rhetoric of the ‘war on terror’? Don’t you believe it for a minute. ‘Combat’ is an obvious military metaphor and the implied meaning of a phrase such as ‘combat terrorism’ is clear - terrorism is that which we are ‘at war’ with even if we may have taken the decision not to admit it openly, or more to the point to eschew a particular line of rhetorical phraseology because of its close association with a discredited public figure, George W Bush.

And the reaction to these ‘tough’ new laws? Hostile, of course (which imputes a largely personal motive) with this ‘hostility’ coming from ‘civil liberties groups and the Labour left’ - who’re obviously in cahoots in projecting such hostility.

But who is this ‘Labour left’? Labour is a centre-left political party, which would presumably mean that all of its members are the ‘Labour left’ as opposed to being the ‘Conservative right’.

Of course, what Giddens actually means is clear. The ‘Labour left’ in this case means the ‘Old Left’ or ‘Hard Left’, a rump of left-wing ideologues and hardened oppositionalist troublemakers and his juxtaposition of this phrase with ‘civil liberties groups’ is, consequently, a carefully constructed attempt to label these unspecified ‘civil liberties groups’ as belonging to or allied with the ‘Labour left’ bogeyman by association.

Finally, Giddens describes Blair’s policies as ‘innovations’, which, again, is far from being a neutral appelation in common usage. An innovation is merely something that is new, but in common usage the word is used to imply that the newness is somehow definitively better that that which which preceded it and which has now been replaced, regardless of whether there is evidence to support such a view.

In fact, the Blair government has been seen by some of the harsher critics as betraying the freedoms upon which British democracy is built. Who is in the right in this continuing controversy?

Blair/Brown, naturally. Giddens has made his position entirely clear in his first two heavily spun sentences which makes the question of ‘who is right?’ merely a rhetorical device. Giddens’ intent is not to answer that question in rational terms, it serves merely to set the scene for an Giddens to supply an explanation of why Blair and Brown and right and anyone who disagrees with them (and Giddens) is wrong.

I would suggest that one unacknowledged factor in this debate is risk.

Is it really? Or is this merely the vehicle by which you intend to demonstrate the self-presumed validity of your position on the premise that few other than statisticians and actuaries ever take the time to calculate risk in mathematical terms or fully understand the maths.

The choice of ‘risk’ as the ‘unacknowledged factor’ in this debate is far from being a politically neutral decision. What Giddens is relying on here is two things. First, that because risk is calculated and expressed in terms in terms of mathematical probabilities, this alone lends credence to his arguments because ‘numbers don’t lie’.

This is, of course, nonsense. Numbers themselves may not lie, but statistics do on a routine and regular basis because what matters is not just what the numbers are, but how and one what basis those numbers are interpreted.

Take, for example, the medical/health ’scare stories’ one see reported in the press with monotonous regularity. We’re all familiar with them, the kind that tell us that engaging in behaviour X (smoking, drinking alcohol, eating fatty foods, etc.) increases one’s chances of Y (lung cancer, heart disease, any other nasty or debilitating illness) by Z times (or Z%). A quick look at the BBC’s health news section yields just such a story from yesterday:

Low-carb diet ‘cancer risk’ claim

Low-carbohydrate diets may increase the risk of people suffering bowel cancer, scientists have claimed.

Researchers from Aberdeen’s Rowett Research Institute believe there is a link between eating less carbohydrate and reducing cancer-fighting bacteria.

So a low-carb diet may increase the risk of contracting bowel cancer, allegedly, but by how much? What are the actual risks associated with such a diet?

The researchers said they found low-carbohydrate regimes could cause a four-fold reduction in the cancer-fighting bacteria.

Okay… but how does that affect my risk of contracting bowel cancer?

Prof Harry Flint, who led the research, said: “In the long run, it is possible that such diets could contribute to colorectal cancer.

“It is a preventable disease, and there is evidence that poor diet can increase your risk.”

He said it was likely the results would be the same in women.

So its possible that low-carb diets could contribute to colorectal cancer because cancer is a preventable disease and there is evidence that poor diet can increase your risk. Oh and its likely that results would be the same in women…

Anyone thinking what I’m thinking here? That Professor Flint’s answer amounts to ‘I’m fucked if I know but the research grant’s up for renewal, so we need to look like we’ve done something just to get next year’s cash?’

The article tells me nothing whatsoever about the personal risk I might face if I choose to adopt a low-carb diet, all it says is that a scientist who is very likely in need of research funding thinks there might be an increased risk but he can’t say for certain what that risk might be or if it even exists.

This is pretty much the standard pattern in such reporting - doing X increases the risk of Y by Z - but rarely if ever do such reports tell you the single most critical piece of information necessary to evaluation this increased risk - what your starting risk was in the first place. If the chance of Y happening is 1 in 3 and doing X doubles the chance of such an event to 2 in 3 then that’s a risk you’d do well take seriously, but if the chance is only 1 in 1 million, then doubling the chance of it happening is really not that big a deal - at that level of risk, one can perfectly justifiably take the view that one should carry on as normal and if you’re one of the two unlucky one’s out of a million, well that’s just because shit happens.

To clarify the issues, we would do well to unpack the implications of risk management more thoroughly. In the contemporary world, we are faced with a range of new risks whose assessment is difficult. It is quite easy to calculate recurrent risks. The risk that a car journey will result in the injury or death of the driver can be calculated with some precision, since there are many cases to go on. This is not the case with risks such as those posed by international terrorism, global warming, pandemics or global financial crises.

So what Giddens is saying, in effect, is that is that people are generally ignorant of the risks associated with unusual events, like international terrorism, because there is insufficient data to measure those risks reliably. But, hang on a second, the reason that there is so little data to go on is precisely because they are so unusual. Giddens is deploying circular logic - we can’t give an accurate assessment of what the risk of being killed in terrorist attack actually is because the risk is so small that we don;t have enough data to to calculate what the risk is.

What this tells us that, one way or another, the risk is very small - small enough, in fact, to look on the prospect of getting killed by in a terrorist attack as one of those unpredictable ’shit happens’ events about which one could have done nothing in the first place.

By such an obvious inference is not going to stop Giddens.

Such risks have some special characteristics.

No. You don’t say?

First, it cannot be known in advance with certainty how great the risk really is.

True, but that’s only because the risk is so small that it provides insufficient data to calculate an accurate level of risk.

However. what one can do, to arrive at a calculable measurement of risk is postulate hypothetical scenarios in which an event occurs with sufficient frequency to allow one to make a measurement of probability, as shown in this article from Reason Magazine:

To try to calculate those odds [of dying in a terrorist attack] realistically, Michael Rothschild, a former business professor at the University of Wisconsin, worked out a couple of plausible scenarios. For example, he figured that if terrorists were to destroy entirely one of America’s 40,000 shopping malls per week, your chances of being there at the wrong time would be about one in one million or more. Rothschild also estimated that if terrorists hijacked and crashed one of America’s 18,000 commercial flights per week that your chance of being on the crashed plane would be one in 135,000.

Even if terrorists were able to pull off one attack per year on the scale of the 9/11 atrocity, that would mean your one-year risk would be one in 100,000 and your lifetime risk would be about one in 1300. (300,000,000 ÷ 3,000 = 100,000 ÷ 78 years = 1282)

Before getting to these calculations, the same article takes a quick run through the numbers for several, much more common/well known risks:

Your lifetime odds of dying of a particular cause are calculated by dividing the one-year odds by the life expectancy of a person born in that year. For example, in 2003 about 45,000 Americans died in motor accidents out of population of 291,000,000. So, according to the National Safety Council this means your one-year odds of dying in a car accident is about one out of 6500. Therefore your lifetime probability (6500 ÷ 78 years life expectancy) of dying in a motor accident are about one in 83.

What about your chances of dying in an airplane crash? A one-year risk of one in 400,000 and one in 5,000 lifetime risk. What about walking across the street? A one-year risk of one in 48,500 and a lifetime risk of one in 625. Drowning? A one-year risk of one in 88,000 and a one in 1100 lifetime risk. In a fire? About the same risk as drowning. Murder? A one-year risk of one in 16,500 and a lifetime risk of one in 210. What about falling? Essentially the same as being murdered. And the proverbial being struck by lightning? A one-year risk of one in 6.2 million and a lifetime risk of one in 80,000. And what is the risk that you will die of a catastrophic asteroid strike? In 1994, astronomers calculated that the chance was one in 20,000. However, as they’ve gathered more data on the orbits of near earth objects, the lifetime risk has been reduced to one in 200,000 or more.

So, given a hypothetical 9/11 scale attack on America occured every year, your risk of dying in terrorist attack would come out to be a bit less than that of you drowning or dying in a fire, just less than risk of dying while crossing the road, less than a fifth of the risk of being murdered by one of your fellow citizens and almost 16 times less than your chance of being killed in a car accident.

On those numbers, you’d be safer hanging out with the terrorists as long as their base is not next to water and their fire extinguishers are checked on a regular basis.

Second, the consequences are potentially cataclysmic, so we have to bend our efforts to preventing them, rather than picking up the damage afterwards.

Having started out by asserting that ‘risk’ is the unacknowledged factor that explains why people are wrong not to accept Blair’s (and now Brown’s) use of terrorism to justify curbing civil liberties, Giddens is now abandoning that argument in favour of a appeal to consequences - even if the risk is so small that we can’t actually calculate what it is (which is untrue as demonstrated above) the consequences of a terrorist attack are likely to be so overwhelmingly terrible as to override all other considerations.

Thing is when Giddens states that the “consequences are potentially cataclysmic’ what he’s doing is expressing a probability and, therefore, a measurement of risk, albeit one he declines to assess at this point.

The risk of dying is a terrorist attack and of dying in a ‘cataclysmic’ terrorist attack are not the same, because as well as factoring for the probability of being caught up in terrorist attack one also has to factor in the probably of such an attack being of ‘cataclysmic’ proportions.

How big does an such an attack have to be to be considered ‘cataclysmic’? 10 deaths? 50 deaths? 500 deaths? 3-4000 deaths? Millions? Who knows - a cataclysm is defined simply as a violent upheaval, with the qualifier that it also results in great loss or misfortune - but nothing in that gives us any clues as to the precise scale that an event must reach to qualify as a cataclysm not even, necessarily, what kind(s) of loss or misfortune one should take into account. Does cataclysmic apply only to deaths or do financial losses and misfortunes count as well? The fact is that even if, say, the authorities had had enough warning of the 9/11 attack on the World Trade Centre to clear the towers, with the result that there we no casualties, the financial costs of the attack, both in terms of the destruction of the towers and the disruption to world financial markets would have been much the same - so would that scenario have made the attack more or less cataclysmic than that which actually happened?

Probably less, in most people’s estimation, because of the emotional value we place on human life and human ’stories’ - the 9/11 attacks would have provided been much less compelling television if it was only the buildings at stake - which leads us to Giddens next point.

Third, how we respond to the risk - how seriously we take it - affects the very nature of that risk.

This is where Giddens starts to really get tricky in his arguments.

For example, the risk posed by avian flu to world health is serious. Some 20 million people were killed in the outbreak of avian flu in 1918-19. Conscious of its lethal implications, nations and health agencies have devoted large-scale resources to trying to limit its spread, and to minimise the possibility that it could jump from animals to humans.

Actually the risk posed by ‘avian flu’ to world health is nothing like as serious as Giddens is trying to make out. Avian influenza is not a singular disease but an entire genus (or species, if you prefer) of influenza virus, which is hosted by and endemic in birds, within which there are numerous subtypes and strains, relatively few of which are capable of crossing the species divide to humans and fewer still likely to result in the development of a pandemic strain such as that of 1918-19. The H5N1 subtype, which has spawned recent concerns about a possible pandemic is not the same subtype as that which caused the 1918/19 pandemic (that was the H2N2 subtype) merely the most likely candidate for crossing the species divide as a virulent strain at the present time - yes, more probabilities.

We don’t know if such precautions will be successful, but let’s suppose (and hope) that they are, and that avian flu does not affect humans on a widespread basis. The result is likely to be that many people will say: “It’s like Sars a few years ago - you were scaring us unnecessarily. Look: nothing has happened!”

Giddens is making a blatantly false comparison here. We can comfortable evaluate the success of efforts to manage the Sars virus and limit its spread precisely because that virus ceased to be merely a risk and became an actual threat which required intervention. The Sars virus affects and is transmissible between humans.

This is not yet the case with H5N1. It can, and has, crossed the species divide into humans is very specific circumstances and shown its potential to become a pandemic strain, but as yet it has not mutated in such a way as would enable it to spread from human to human - one is only presently at risk if one works in close proximity to birds and, especially, to large amounts of bird faeces. H5N1, therefore, remains only a potential risk - a candidate for a pandemic strain that may, or may not deliver on its potential threat to humans not just because of our efforts to limit its capabilities but simply because there is the possibility that it may not mutate in such a way as to become a human transmissible strain.

We cannot, therefore, quantify the success of existing intervention to prevent the spread of H5N1 because we no way of knowing whether or not those intervention make the slightest bit of difference.

A risk is a risk - by definition, it is not even close to being an inevitability. The risks from Sars and now avian flu, however, were - and are - very real.

But, as I’ve just explained, the risks from Sars and H5N1 may be real, but they are far from being the same - the risks associated with the spreads of Sars are considerably higher than those of H5N1 ‘avian flu’ precisely because the Sars virus is habituated to and can be transmitted between humans, neither of which is true, at the present time of H5N1.

To say simply that a risk is a risk is an entirely meaningless statement unless one can quantify the risk. The risk of dying in a car accident in the US in anyone year is 1 in 6500, the risk of being killed by an asteroid strike is estimated at 1 in 200,000 or more - both are risks but they’re not the same risk and how one responds to each will be, and should be, very different.

And the same is true of international terrorism.

Only if one completely ignores the importance of quantifying risks in order for them to have any meaning.

Some of those who hold that the government is bent on undermining civil liberties doubt that such is the case.

But its not the fucking case.

No one doubts that there is a ‘risk’ arising from international terrorism. What we do consider is that this risk is insufficiently great to justify the wholesale abridgement of civil liberties in the name of security.

Risk is not an ‘unacknowledged factor’ in any of this - Giddens is merely making the false claim that civil libertarians do not account for the risks of a terrorist attack in order to try an undermine their arguments by spreading the false view that their opposition to further legislative curbs on civil liberties is predicted purely on ideology and not any rational considerations.

It is complete fiction to suggest that risk plays no part in the view of civil libertarians. What Giddens’ is doing here is seeking to exploit public ignorance of how risks are assessed and calculated, and the public tendency to significantly overestimate certain kinds of risk to suggest that the civil libertarians’ opposition to illiberal legislation has no basis in a rational evaluation of the realities of the current situation.

They might argue that we have faced the threat of terrorism before, in the shape of the IRA, so why is it necessary to take special precautions now? Or they might claim that al-Qaida and other such organisations are really very limited in their capabilities, the dangers they pose to us here in Britain exaggerated for political purposes. Or they may use a Sars-type argument - it is now six years on from 9/11 and there has been no other incident on a comparable scale.

Or they may argue that the risk posed by international terrorism is insufficient to justify curbing civil liberties to the extent sought by government and that there are parallel risks arising from the creatio, by government, of the machinery of a police state that raise equal, if not greater concerns, than the risks of international terrorism.

It would be dangerous to be too swayed by such reasoning, not matter how well-motivated it may be.

Patronising cunt!

International terrorism is potentially far more lethal than the local terrorism of the IRA. “Traditional terrorism”, IRA- or ETA-style, is concerned with establishing states where there are stateless nations; its objective is clear and delimited, and the use of violence restricted.

Jihadist terrorists have ambitions that are, at the same time, more vague and far more encompassing; and they are willing to contemplate an altogether different scale of violence in pursuing these ends.

This is complete bullshit. Leaving aside the absurdity of suggesting that the IRA sought to establish a state where there was only a stateless nation - Giddens has clearly not looked at a map for some time and, therefore, missed the bit marked ‘Eire’ - its simply untrue to suggest that ‘Jihadist’ terrorist lack clearly defined political aims or that their goals are somehow vague and ‘far more encompassing’.

Al Qaeda’s political objective, following the withdrawal of Soviet forces from Afghanistan, was, and still is, the removal from power of the House of Saud, the origins of which stem from Saudi Arabia’s support for the international coalition that expelled Iraqi forces from Kuwait during the first Gulf War rather than Osama Bin Laden’s preferred solution, that of retaking Kuwait using his Mujahideen forces - and every action undertaken by Al Qaeda since this dispute has proceeded from this primary objective.

There is nothing vague about Al Qaeda’s political motives, its methodology - its use of spectacular acts of revolutionary terrorism comes straight from Bakunin via Qutb - or its use of theological rhetoric as propaganda to manipulate its followers. Al Qaeda is not some insensate, irrational bogeyman, its a cellular terrorist network run on the basis of its leaders having received the very best training the CIA could provide during the period of the Soviet occupation of Afghanistan.

Al Qaeda operates international because its primary strategy is to target those Western nations whose support ensures the continuation of the existing Saudi regime in the hope that it can make that support so costly as to cause America, and others, to back off, leaving the House of Saud isolated and ripe for overthrow.

There is nothing incomprehensible about Al Qaeda’s motives at all, if one merely take the time to look past both its own propaganda and the way that Western governments buy into that propaganda and recycle it to justify their own actions.

We should remember that, in a worst-case scenario, 50,000 people could have died in 9/11, rather than the 3,400 who actually did. And if it hadn’t been for the bravery of the passengers on American Airlines flight 93, that plane might have destroyed either the White House or the Capitol building.

But in neither case did the worst case scenario come to fruition - 50,000 people did not die in the 9/11 attacks and the figure itself is based on the unrealistic proposition of an attack that could wipe out both towers and everyone working in them in one fell swoop. By the same token, citing the possibility that AA flight 93 might have destroyed either the White House or Capitol Building were it not for the actions of its passengers, tells us precisely nothing about the possible human costs of such an attack or even whether such an attack might have been successful. Its impossible to know with any certainty whether that flight would have reached its target without being shot down to US Air Defences had its passengers not acted as they did, or if it did reach its target what the casualty figures might have been - the most one can say with any measure of certainty is that had the passengers not acted, Washington might have been rather poorer in terms of its architectural heritage.

International terrorism (like avian flu) is a “low probability/high consequence” threat.

Low probability, yes but not ‘high consequence’ - that depends entirely on the nature of target of an attack and the means by which that attack is carried out. The assassination of a political leader or public figure is a terrorist act but hardly one that is necessarily high consequence in terms of the cost in human life is carried out by a sniper rather than using an explosive device.

Hopefully, the possibility that there will be a large-scale terrorist attack in the UK is small - especially if we take intensive measures to guard against it. However, the consequences, if one did occur, could be devastating. A dirty bomb - a small-scale weapon - exploded in the centre of London would not kill many people directly, but it could cause mass panic, have long-term health implications and render an area temporarily uninhabitable. We cannot afford for such an event to happen even once.

But what are the actual risks of such an attack?

What evidence is there to suggest that terrorists may possess both the knowledge and material to construct a ‘dirty bomb’?

What are the risks of such an attack? Are they roughly the same as those of dying in a car accident? Or drowning? Or being struck by lightning. Or winning the lottery?

Giddens doesn’t say because the scenario he puts forward - a dirty bomb - would have such terrible consequences that ‘we cannot afford for such an event to happen even once’ - the risk of such an event becoming a reality is completely immaterial as anything other than a zero risk is unacceptable, negating the value of his entire argument about risks and risk management.

His entire argument about risk is intellectually bankrupt because, when all else fails, he simply postulates a scenario in which he contends that no risk whatsoever would acceptable as means of automatically gainsaying any attempt to mount a rational challenge to his arguments

However strong al-Qaida might or might not be - students in the field disagree - international terrorism is what its name says. Terrorist attacks in the UK might be planned and organised many miles away from this country itself; those who seek to carry them out may be part of encompassing networks. It is obvious that investigating them with a view to preventing terrorism is going to be more time-consuming and difficult than in most cases of home-grown crime.

Ignoring the obvious non-sequiteur - Al Qaeda’s capabilities are irrelevant because international terrorism is, well, international - there is actually nothing new or unusual in terrorist attacks being planned overseas (WTF does Giddens thing there is between the UK and Ireland? Raspberry Jelly.) or their being carried out by cellular networks. What makes Al Qaeda rather different from some past terrorist groups is that its use of traditional Islamic familial structures as part of its cellular structure makes it difficult to infiltrate and/or obtain human intelligence for informers and that its use of theologically-derived propaganda to motivate is followers and supporters can increase the risk of attacks coming from under the radar of the police and security services from individuals who are personally motivated by the message without having any clear connections to an actual cell or network. In simple terms, Al Qaeda’s has used propaganda and media coverage to establish a media ’signature’ that can be easily and readily emulated by individuals and small groups who are, otherwise, no more than copycats who’ve bought into Al Qaeda’s propaganda message.

One could argue that introduces and heighten element of unpredictability that enhances the arguments of those, like Giddens, who unquestioningly support further restrictions on civil liberties in the name of security but that ignore the question of risk. When one comes to assign risk to attacks of that kind, that they stem from an unexpected and possibly unpredictable source has little or no bearing on the probability of such an attack (or of finding oneself at risk from such an attack) but it does have a considerable effect on how we assess such an attacks’ potential consequences. There is little or no possibility of such an attack coming anywhere close to the ‘dirty bomb’ worst-case scenario as copycat ‘cells’ of this kind lack the knowledge to construct such a ‘dirty bomb’ and, certainly, the resources and contacts needed to acquire the material necessary to construct such a device. The nearest such a cell might get to constructing a dirty bomb would be if they chicken shit mixed up in its fertiliser base.

A responsible government cannot maintain a classic civil liberties position in this area, any more than it can in respect of the wearing of seatbelts, acceptance of speed limits on the roads, restrictions on public smoking, or conducting searches of passengers checking in to board planes.

What is a ‘classic’ civil liberties position? If you’re going to argue for limitations on civil liberties and try an justify them in rational terms then you should at least have the courtesy to define that nature of that position and what it entails. Giddens does none of this, because as soon as one does define what one is talking about one has a basis on which to weigh up the costs and risks associated with deviating from such a position and, more importantly, by giving precise names to these liberties - habeas corpus, freedom of movement, freedom of expression - one makes the public aware of precisely what it is that at stake.

What Gordon Brown is proposing seems to me a decent balance: to recognise the changed security situation, but at the same time to ensure maximum accountability and provide for regular public monitoring of what is likely to be an evolving problem.

But, remember, Giddens is not arguing from a balanced position. Rather he’s chosen to gainsay all possible opposition by citing the ‘dirty bomb’ scenario in which no amount risk is permissible and, therefore, by extension no limitation on civil liberties cannot be justified. The argument from consequences overrides, in Giddens’ view all considerations of risk, especially those that acknowledge the very low probability of finding oneself caught up in an actual terrorist attack.

His suggested measures include an extension of the 28-day limit on detention without charge, making terrorism an aggravating factor in sentencing, as is already the case in racially-motivated crime, and considering whether phone-tap evidence can be used in court. There will be a judicial review of detention every week and an annual report to Parliament on the use of the powers.

Only now, in the parameters of his support for Brown do we finally see what Giddens means by a ‘classic’ civil liberties position.

Extension of detention without charge, i.e. goodbye habeas corpus.

Terrorism an aggravating factor in sentencing? Sentencing for what exactly? Given the ever growing canon of terrorism-related offences one has to wonder exactly what the scope is for using terrorism as an aggravating factor in other offences, and what offences this will apply to? Are we to see judges solemnly intoning that they would have sent someone down for six months for benefit fraud but for the evidence of their having watched a Bin Laden video on Al-Jazeera, which ups the ante to 10 years in Belmarsh?

And as for using phone-tap evidence in court. The reason why that has widespread support amongst even ardent civil libertarians is that, used correctly, it could and should remove any necessity for using extended periods of detention without charge - or has the government forgotten that conspiracy to commit a criminal offence is, itself, an offence - I’m guessing that this is also one area where the ‘aggravating factor’ line will come into play.

Judicial reviews of detention once a week sounds good on paper but, in practice, one cannot judge such a suggest without knowing the criteria under which judges will be asked to decide whether or not someone should continue to be detained - nor, one suspects, will we find out as such proceedings are likely to be conducted in-camera.

And as for an annual report to Parliament, is that really any substitute or compensation for the single biggest alteration in the government’s approach to security over the last ten years, that of placing anti-terrorism legislation on permanently on the statute books rather than requiring annual renewal by Parliament as was previously the case with the Prevention of Terrorism Act that saw Britain through the’IRA-era’.

If Gordon Brown wants to make one clear statement in support of a proper balance of security and civil liberties it would be to ensure that those elements of both the existing and proposed framework of anti-terrorism legislation that do not relate specifically to prosecutions, conviction and sentencing for defined criminal offences - e.g. extended detention periods, are made subject to a annually renewable sunset clause such that they may be speedily dropped from statute should then become unnecessary or unjustifiable in future.

It is crucial that these provisions are applied in a rigorous way, but here, as elsewhere, as prime minister in waiting Brown has made a good beginning.

A good beginning to what, exactly? No, don’t answer that… I’ll only end up calling you a cunt.

Oh, Columbo moment… (just one more thing)

As we’ve been discussing risk, this article by Bruce Schneer on the difference between perceived and actual risk and the reasons why the public often dramatically overestimate certain risks - which is actually what Giddens is relying on to support his argument in this piece - is well worth reading as an adjunct to Giddens’ piss poor arguments.

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John Reid, speaking yesterday in the House of Commons on the subject of the three control order abscondees:

Let me put it simply. The European convention on human rights was intended to defend the individual from the unparalleled destructive capacity of the fascist state. That is what gave rise to it. People did not envisage at that time that the state and the community might now be under threat from the unparalleled destructive capacity of fascist individuals working in networks. That is what we face today. The arbitrary imposition of one’s will on another by destructive power is fascism, whether it emanates from Europe or any other area.

To say that Dr Demento is a fucking moron is to do an extreme disservice to adults with a genetically determined mental age of between 8 and 12 on the Binet scale - that’s the clinical definition of ‘moron’, by the way.

Before being cut off in full flow by the Speaker, Reid went to say:

We now face a historical development that requires all of us to build on the European convention on human rights, strengthen it and ensure that the most fundamental of all rights—the right to life and to protection of that life-without which no other right-

Never has an intervention from the Speaker’s Chair been more welcome, as it spared us yet more of the madman’s ahistorical nonsense.

In ‘Reason in Common Sense’ (vol. 1 1905-6) the Spanish philosopher, George Santayana, made an oft-paraphrased - and misquoted - observation, the full text of which bears careful consideration:

Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it.

It’s a point entirely lost on Reid, and other members of the Blairite faction in the Labour Party who’ve gone anywhere near the Home Office is recent years, for whom novelty is everything and progress means a directionless hike from ‘who cares where we’ve been’ to ‘who the fuck knows where we’re going’, in the context if which which Reid’s statement to the House, yesterday, recalls another of Santayana’s observations from the same work:

Fanaticism consists in redoubling your efforts when you have forgotten your aim.

Only such a fanatic could possibly think that a derogation from Article 5 of ECHR, which serves as a guarantor of most basic rights in criminal law - the presumption of innocence, right to trial by jury and habeas corpus - is necessary for the preservation of our basic rights and freedoms.

There were many different factors that came together to send Germany spiralling into fascism in the 1930s, not least of which were the combined effects of the brutally inequitable terms of the Treaty of Versaille and the Great Depression, which conspired to destroy the German economy and drive its citizens into penury.

But in political terms, the factor (and practice) that most captures the attention and carries with it the greatest portents of the horror that was, at that time, yet to come, was the deliberate and relentless scapegoating of Jews as the ‘enemy within’ - this passage from a 1936 manual for Nazi propangandist is typical of the anti-Semitic rhetoric of the era:

There are still Jewish lackeys today who attempt to disrupt our storm attack on the Jewish world rulers, trying to stop us or even cause us to fall. The following hints show how one can reply to these arguments by our opponents, or even turn their arguments against them.

Argument 1: “You say that religion is a private matter. But you fight against the Jewish religion!”

Counterargument: “Actually, the Jewish religion is nothing other than a doctrine to preserve the Jewish race.” (Adolf Hitler).

“In resisting all government attempts to nationalize them, the Jews build a state within the state (Count Helmuth von Moltke).

“To call this state a ‘religion’ was one of the cleverest tricks ever invented.” (Adolf Hitler).

“From this first lie that Jewry is a religion, not a race, further lies inevitably follow.” (Adolf Hitler).

If the history of the twentieth century should teach us anything at all, it is that the scapegoating of migrants and individuals of foreign descent as the enemy within, coupled with demands for arbitrary state authority to preserve the safety of the citizenry is one of the clearest and most obvious steps on the road to totalitarianism.

History, therefore, is clearly not Dr Demento’s strong suit.

Reid’s suggestion that those who drafted the European Convention on Human Rights did not anticipate ‘the unparalleled destructive capacity of fascist individuals working in networks’ is absurd - what were the Nazis prior to Hitler becoming Chancellor of Germany if not ‘fascist individuals working in networks’.

ECHR provides no protection for individuals from the destructive capacity of the fascist state.

Why?

Well, simply (and obviously) because one of the first actions of a fascist party on attaining power in any European state currently signed up to ECHR would be to derogate from its terms and proscriptions - which is precisely what Reid is suggesting he may attempt to do in an effort to bully the judiciary into accepting his illiberal demands for arbitrary authority.

If the legislature is under the control of a totalitarian political party, what possible protection can citizens be afforded by laws that may be readily and swiftly repealed or overridden, especially in circumstances in which the ruling party has granted itself sweeping and arbitrary powers by means of a wide-ranging enabling act, which comes into effect should the government of the day declare a state of emergency. This was the means by which the Nazis took complete control of Germany in the 1930s and tore up its constitution, the same means that Reid has at his disposal by virtue of the Civil Contingencies Act 2004 - see this briefing from ‘Statewatch’ on CCA 2004.

ECHR can do nothing to protect the individual from a totalitarian state once it holds the reins of power. Rather it seeks to protect the citizenry from just such a scenario after the fashion of a prophylactic.

In settings out the basic rights of the citizen, ECHR provides a measure of protection from the use (and abuse) of arbitrary power by government in two ways. First, by giving an independent judiciary the legal means to rein in government should it seek to abuse its authority and second by providing a set of benchmarks for the civilised conduct of government against which citizens can assess and evaluate the actions of their leaders. In a wholly literal sense, ECHR protects the individual from the threat of a fascist state by limiting the power and arbitrary authority of fascist individuals and by making them (in theory) relatively easy to identify and remove from office before they have the opportunity to do any real damage.

Reid’s arguments are infantile and ahistorical, and more than than deeply dangerous.

It is the duty of the state to preserve both the life and liberty of its citizens as Miguel De Cevantes Saavedra (yes, that Cervantes, the author of ‘Don Quixote’) observed:

Liberty, as well as honor, man ought to preserve at the hazard of his life, for without it life is insupportable.

Equally the British conservative Statesman and Philosopher, Edmund Burke, noted that:

“Whenever a separation is made between liberty and justice, neither, in my opinion, is safe.”

Burke is far from being a favourite author of mine, but in this he is entirely correct.

If either of the above is not warning enough, consider for moment the extent to which Blairite rhetoric on the subject of human rights, in recent times, has focussed heavily on promoting the idea that such rights may be considered in relative terms, i.e. both the suggestion that individuals might be accorded a differential level of rights according to their status as being either deserving or undeserving (the ‘rights’ of victims as opposed to those of offenders) and the equally pernicious suggestion that there exists, within the concept of human rights, a hierarchy under which certain rights are perceived to be ‘trump’ others by virtue of being of greater importance. This is evident, of course, in Reid’s attempt, yesterday, to launch into yet another exposition of the pre-eminence of the right to life.

Now consider how such rhetoric might relate to this quotation:

The keystone of the Fascist doctrine is its conception of the State, of its essence, its functions, and its aims. For Fascism the State is absolute, individuals and groups relative.

That statement was first published in 1932 in the Enciclopedia Italiana, and was officially attributed to Benito Mussolini (although its though likely that the actual author was the fascist philosopher, Giovanni Gentile).

Is it just me, or can others see the convergence between Reid’s rhetoric - and the government’s increasing (and voracious) appetite for greater arbitrary powers in the area of criminal justice and security - and the Mussolini/Gentile conception of the fascist state?

As to the last word on this article, let me crave your indulgence for a moment and turn to the document from which the rights that Reid is talking of curbing, should the courts not make their required set of ritual obesciences and formal kow-tows should Reid find himself before them in the (thankfully) limited time he remains in office, truly spring and bring this  quotation to your attention:

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

That, dear friends, is Magna Carta -and to be a little precise, that is the section of Magna Carta upon which the right of habeas corpus - which is what Reid is seeking to curb - is founded.

And that, for those of you too stupid to think it through properly (i.e. the Daily HateMail and Richard ‘Littlecock’) or blinded by unnecessary fear and ignorance to consider fully the import of Reid’s comments, yesterday, is what we stand to lose should Dr Demento get his way.  Not an alien piece of legislation written on foreign shores - neither of which is true anyway, as ECHR was drafted, in the main, by British lawyers and championed by Sir Winston Churchill - by one of oldest, most cherished and most precious rights.

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It’s Tony Blair’s favourite trope when it comes to the subject of law, order and criminal justice; the suggestion that what is needed to modernise Britain’s approach to criminal justice are measures that ‘rebalance’ the system in favour of the presumed ‘rights of victims’.

But I wonder, on hearing this, just how many people thought that this all too seductive idea might mean turning victims of crime into criminals?

What? Surely not, you might think. Well not only is this being suggested by a senior police officer in today’s Guardian but it already happened - and no one seems to have noticed.

To begin at the beginning, today’s Guardian features an article on gun crime in which the Chief Constable of Merseyside police, Bernard Hogan-Howe, makes the frankly staggering suggestion that witnesses to, and even victims of, gun crime should be subject to criminal proceedings if they refuse to give evidence, even in circumstances where they fear for their life:

One of the UK’s most senior police officers has called for new laws that would compel the public to give information to the police about gun crime - whether they want to or not.

In an interview with the Guardian, Bernard Hogan-Howe, the chief constable of Merseyside police and a contender to be next commissioner of the Met, said it was clear that more and more young people were getting involved in gun crime and that they were being protected by a wall of silence.

He said the only way to address this was to adopt laws similar to those in Australia “where people have a duty to report information about gun crime to the police”. He also believes the laws should extend to victims of gun crime who survive being shot but refuse to make a complaint because of fears of reprisals.

“The challenge is: people who survive do not want to complain and the best witness is quite often the victim who can help provide a description and motive. By refusing to help it can put the investigation on to the back foot.”

Now you’ll forgive me if I’ve got this wrong, but I’ve always had the impression that the role of the police is to protect the public from crime, not put members at risk in order to improve their clear up rates and secure convictions, but evidently Hogan-Howe doesn’t see things in quite the same way that I do, hence this absolutely staggering suggestion - testify or go to prison.

Aside from the very obvious civil liberties issues that raises - frankly there is the stench of Star Chamber justice about the whole suggestion - I can see one rather obvious practical problem here.

What Hogan-Howe is suggesting is that we take people who’s testimony could put a criminal in prison for a very long time but who refuse to testify for fear of reprisals, into prison with other criminals, some of whom could quite possibly be associates of the individual against whom the witness/victim is asked to give evidence.

It should be obvious, even by now, where this is heading, especially where the shooting in question was related to gang activity and/or organised crime - putting a witness in prison for refusing to testify stands a very good chance of resulting in the police finding themselves with a dead witness on their hands, if by mischance or oversight they are imprison alongside an associate of the criminal against whom they’re being ordered to testify.

Hogan-Howe, so the Guardian suggests, is a contender for the position of commission of the Metropolitan Police, when this next comes open. On the evidence of his comments to the Guardian, I would suggest that he should be considered to be a contender for early retirement instead, such is is apparent disregard for the most basic and fundamental of all police duties.

If that were not a frightening enough prospect to begin with, then a lead from this article by Henry Porter led to an Act of Parliament that passed into law in 2004 that already has the effect of potentially treating victims of domestic violence as criminals.

Here’s the relevant passage:

But the guilt by association - or proximity - which he suggests echoes new measures in the Domestic Violence, Crime and Victims Act under which a person may be charged for simply being in a household when a serious crime is committed and failing to report it.

What? Surely not?

So far as I was aware until today, the only Acts of Parliament containing provisions of this general nature deal with terrorism, however on further investigation of the Act referred to by Porter, I discovered this (please forgive the length of the extract - all will be explained in due course):

Causing or allowing the death of a child or vulnerable adult

5 The offence

(1) A person (”D”) is guilty of an offence if-

(a) a child or vulnerable adult (”V”) dies as a result of the unlawful act of a person who-

(i) was a member of the same household as V, and

(ii) had frequent contact with him,

(b) D was such a person at the time of that act,

(c) at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and

(d) either D was the person whose act caused V’s death or-

(i) D was, or ought to have been, aware of the risk mentioned in paragraph (c),

(ii) D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and

(iii) the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.

(2) The prosecution does not have to prove whether it is the first alternative in subsection (1)(d) or the second (sub-paragraphs (i) to (iii)) that applies.

(3) If D was not the mother or father of V-

(a) D may not be charged with an offence under this section if he was under the age of 16 at the time of the act that caused V’s death;

(b) for the purposes of subsection (1)(d)(ii) D could not have been expected to take any such step as is referred to there before attaining that age.

(4) For the purposes of this section-

(a) a person is to be regarded as a “member” of a particular household, even if he does not live in that household, if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it;

(b) where V lived in different households at different times, “the same household as V” refers to the household in which V was living at the time of the act that caused V’s death.

(5) For the purposes of this section an “unlawful” act is one that-

(a) constitutes an offence, or

(b) would constitute an offence but for being the act of-

(i) a person under the age of ten, or

(ii) a person entitled to rely on a defence of insanity.

Paragraph (b) does not apply to an act of D.

(6) In this section-

“act” includes a course of conduct and also includes omission;

“child” means a person under the age of 16;

“serious” harm means harm that amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861 (c. 100);

“vulnerable adult” means a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise.

(7) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years or to a fine, or to both.

6 Evidence and procedure: England and Wales

(1) Subsections (2) to (4) apply where a person (”the defendant”) is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death (”the section 5 offence”).

(2) Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c. 33) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant’s failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty-

(a) of murder or manslaughter, or

(b) of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter,

even if there would otherwise be no case for him to answer in relation to that offence.

(3) The charge of murder or manslaughter is not to be dismissed under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (unless the section 5 offence is dismissed).

(4) At the defendant’s trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).

(5) An offence under section 5 is an offence of homicide for the purposes of the following enactments-

sections 24 and 25 of the Magistrates’ Courts Act 1980 (c. 43) (mode of trial of child or young person for indictable offence);

section 51A of the Crime and Disorder Act 1998 (sending cases to the Crown Court: children and young persons);

section 8 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (power and duty to remit young offenders to youth courts for sentence).

This horrific piece of legislation was put in place to deal with a difficult situation, one in which a child or vulnerable adult is killed in the family home as a result of an unlawful act in circumstances in which is it impossible or near impossible to ascertain definitively which member(s) of the family is/are directly responsible for the actions which cause their death.

The ‘classic’ scenario is therefore that in which a child dies of injuries inflicted by a parent or step-parent, resulting in the arrest of both parents, who then either refuse to testify again each other or, as likely, plead not guilty and claim that the responsibility for the child’s death rests with the other.

Now, if we ignore - for the sake of simplicity - the question of other individuals over the age of sixteen who live in or visit the house on a regular basis, which these provisions also cover, and focus only on the simplest possible scenario, that of two parents (or parent and step-parent) plus dead child, then that scenario presents us with two possibilities - either both parents were party of the abuse of the child at various times, irrespective of whose actions actually resulted in the child’s death, or only one of the parents (generally male) was an abuser, while the other (generally female) was themselves a victim and subject to abuse by their partner.

What this law does is introduce a catch-all offence of causing or allowing the death of a child or vulnerable adult that operates on the basis that even if an individual (an abused partner) took no part in the abuse that resulted in the death of the child (or vulnerable) they can still be held criminally liable for causing/allowing their death to take place by failing to act to prevent it if a jury decides that they might reasonable have foreseen that the child might die as a result of the actions of their partner, an offence for which the only permitted defences are that the child’s death could not have been forseen, that it would have been unreasonable for them to take the actions necessary to prevent the child’s death or insanity - and the Act pulls another interesting and largely unnoticed rabbit of the hat on that by altering the manner in which pleas of insanity are dealt with, across the board, so that these are now decided on solely by a judge and not be a jury, as was previously the case. So yet again, another long-standing element of criminal justice practice and procedure relating to juries has been done away quietly and without anyone noticing.

So far as the law is written, the question of whether an individual charged with this offence was themselves a victim of the abuser whose actions actually caused the death of the child is entirely immaterial, but for the question of whether it was reasonable for them to have acted to try and prevent the child’s death. The upshot of this, one would very strongly suspect from the kind of public attitudes and prejudices that surround such cases, is that a parent face with such a charge would have to try an convince a highly unsympathetic jury that their life would have been at risk has they attempted to take action to prevent the child’s death and that nothing short of such an argument would result in an acquittal - and even that might not be enough for some jurors who would take the view that a parent would, and should, put the safety of their child ahead of their own.

Throw into the mix the fact that these provisions cover anyone over the age of sixteen living in the household in which the child dies, or visiting it and the child on a regular basis - which would draw an older sibling of the child into the ‘circle of liability’ even if that sibling no longer lived at home and even if they had left home because they were themselves abused by the parent/step-parent who caused the child’s death and had left home because of it, and you have a veritable smorgasbord of possibilities for a blatant miscarriage of justice tied to an offence that carries a maximum sentence of fourteen years imprisonment.

Under this law, it would be perfectly possible for the 18 year old sister of a child, who was killed by their father, to be sent to prison for anything up to fourteen years for failing to take action to prevent their sibling’s death in circumstances in which the 18 year old no longer lived in the family home - simply visited their sibling on a regular basis - was themselves a victim of abuse by the same parent and was not even present in the house at the time the actions resulting in the death of their sibling took place.

Does that sound much like rebalancing justice in favour of victims to you?

To add insult to injury, the provisions of section 6 of the Act are as nasty a piece of legislative legerdemain as I have had the misfortune to see in a very, very long time.

What section 6 does is as follows.

First, it prevents judges from throwing out the charge of murder or manslaughter in cases where a parent is charged with both the murder or manslaughter of their child and with the section 5 offence of causing or allowing the death of their child at the conclusion of the prosecution’s evidence, even if the judge is of the opinion that the prosecution has failed to provide sufficient evidence to establish that the parent has a case to answer for murder/manslaughter.

Second, it expressly permits a judge/jury to make inferences of guilt based on the refusal of the defendent in such a case to take the stand and give evidence or answer a specific question put to them by the prosecution in relation to the offence of causing or allowing the death of their child and apply those same inferences to the question of whether they may guilty of the murder/manslaughter of their child.

Only after the defence has presented its evidence/testimony, if any, is the trial judge and/or permitted to consider whether there the defendent has a case to answer for murder/manslaughter.

In short, in such cases, the defence is compelled to present a case to the court irrespective of how thin or insubstantial the prosecution’s case for murder/manslaughter may be, specifically to provide the defendant with with the opportunity to incriminate themselves in the eyes of the jury by refusing to take the stand entirely or answering specific questions in relation to the charge of causing or allowing the death of their child.

The effect of this is to make a complete mockery of the right to silence and turn it into a catch-22. Should the defendant refuse to give evidence or answer questions that might cause them to incriminate themselves for the offence of causing or allowing the death of their child, that refusal can be used by the court to infer that they are guilty of the child’s murder/manslaughter. Find yourself charged with both offences and you damned no matter which way you turn.

This is not only already on the statute books - and has been there for getting on for three years, but so far as one can tell it passed into law without comment from even Liberty, who appear not to have noticed even the changes made to handling of insanity pleas by the courts, even though these changes apply across the board and not just to this specific offence.

Women’s Aid did notice and their briefing on the Act includes the following, very pertinent note:

Women’s Aid recommended that a victim of domestic violence should not be regarded as having caused or allowed a child or vulnerable adult to be killed unless there is clear evidence that this person actively contributed to the injury or killing of a child or a vulnerable adult. This was rejected.

Consequently, we are left to good offices of the judiciary and the common law (again), as it applies to the question of what constitutes steps that a victim of domestic violence could reasonably have taken to prevent the death of a child at the hands of their own abuser, to prevent his appalling piece of legislation turning victims of domestic violence into criminals in the most horrific circumstances one could possibly imagine.

One can easily come to hate a government that passes such appalling and incompetently-framed legislation of a kind that satisfies none of the principles of justice and all of the desire of the tabloid press for a witch-hunt in such cases.

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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.

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Any one who believes that the civil liberties objections to the introduction of identity cards and the near unchecked growth of the database state and the surveillence society are ‘shockingly feeble‘ or a very middle-class disorder would do well to take the time to read both the Information Commissioner’s Office’s ‘Issues Paper: Protecting Children’s Personal Information’ and the Foundation for Information Policy Research’s report on which it is based, Children’s Databases – Safety and Privacy before writing off such concerns.

Towards the end of the Victorian era, a number of loosely related pseudosciences underwent a surge in popularity, the best known of which were those of physiognomy and phrenology. Both purported, falsely, to enable their practioners to make judgments and even predictions about the character of individuals based solely on certain physical characteristics, either the outer appearance in general, but particularly the face, in the case of physignomy, or the shape of the head in phrenology. Both drew their popularity, in part, from false attributions that were used to suggest that these pseudosciences had been validated by what were, at the time, some of the newest and most modern (and fashionable) advances in science; Darwin’s Theory of Evolution by Means of Natural Selection and the emerging social science of Psychology and both found their way into, amongst other things, the developing field of criminology, where it was suggested that they could be used not only to identify criminals but also to predict which individuals would, and would not, possess crimial traits or tendancies.

Both were, of course, complete and utter rubbish.

One concern is what we might call ‘e-discrimination’. In the past, it has been well documented that children who were black, or from poor neighbourhoods or travelling families, suffered disproportionate police attention because of the expectation that they would be more likely to offend. The expectation could easily turn into a self-fulfilling prophecy. A system that attempts to predict which children will become delinquent, by totting up negative indicators from health, school and other records, runs the serious risk of recreating the same problems – especially as the information, analysis and professional opinions it contains will be made available to many of the public-sector workers who come into contact with the child. A perfectly law-abiding youngster from a difficult home background, who has perhaps struggled to overcome learning and health difficulties, may find at every turn that teachers expect less, and that police attention is more likely. As the causes of this discrimination are online, the youngster cannot mitigate them simply by dressing neatly and being polite. The data and algorithms used as a basis for discrimination might not be accessible to the victim (whether practically or at all) and thus a victim of unjustified discrimination might end up with no recourse. This raises serious data protection concerns relating to the appropriateness of collecting, processing and retaining the data.

Children’s Databases - Safety and Privacy, pp2

And…

Nor is the criminal-justice community happy. Britain’s most eminent criminologist, Professor David Farrington FBA (whose work has been used extensively to justify the children’s database program) sounds a warning note:

“Caution is, however, required. In particular, any notion that better screening can enable policy makers to identify young children destined to join the 5 per cent of offenders responsible for 50-60 per cent of crime is fanciful. Even if there were no ethical objections to putting “potential delinquent” labels round the necks of young children, there would continue to be statistical barriers. Research into the continuity of anti-social behaviour shows substantial flows out of – as well as in to – the pool of children who develop chronic conduct problems. This demonstrates the dangers of assuming that anti-social five-year-olds are the criminals or drug abusers of tomorrow, as well as for highlighting the undoubted opportunities that exist for prevention.”

Children’s Databases - Safety and Privacy, pp3

Now, perhaps, do you understand why civil libertarians are so concerned about these developments?

This is not paranoia speaking, but experience.

Given the capability to monitor almost every aspect of a citizen’s life, the state will ultimately find a way to do just that no matter how much it promises not to at the time that the monitoring systems are constructed. All it takes is time.

Justifications can be found, maybe even manufactured. Safeguards can be rolled back and then dispensed with. The state’s use of surveillence, monitoring and profiling will expand to meet its technical capabilities; after all if it has those capabilities, why not use them to their fullest extent.
When the collection of DNA samples was first introduced in the 1990’s, the Conservative government of the day imposed strict regulations, which required the Police to destroy any samples and profiles obtained in the course of an investigation that were found to have no relevence to the case.

The Police disregarded the law and retained those profiles.

By the time this came to light, the government had changed and New Labour was in power. How did they respond to the revelation that the Police had disregarded the law in order to compile a DNA database containing profiles individuals to which they had no legal right?

They changed the law not only to permit the retention of DNA profiles but applied these changes retrospectively to legitimise what the Police had already done.

That’s not speculation, that actually happened within the lifespan of this present government.

How then can we trust a future government to abide by commitments given now as to how these systems will, and will not be used?

We can’t. In fact due to the doctrine of parliamentary sovereignty and the principle that no parliament may bind a successor we cannot build in any safeguards against the future use, and abuse, of these systems by the state.

Physiognomy, or rather its modern equivaltent, profiling, appears to be back with a vengence.

(hat tip: Not Saussure)

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It’s not often I have anything positive to say about the Lib Dems, but just for today I’ll make an exception in the case of their proposed ‘Freedom Bill’ or ‘Great Repeal Bill’, which they also called it.

Okay, so its pretty much a gimmick with little real prospect of going anywhere other than the Lib Dems website, but at least the list of illiberal laws they want to get rid of is pretty good one to be going on with, and with a bit of luck it should spark off a bit more debate on the subject of personal liberty.

1. Restrictions on protests in Parliament Square - Sections 132 to 138; Serious Organised Crime and Police Act 2005

No complaints with this one at all.

2. Identity Cards - Identity Cards Act 2006

Nor this one.

3. Extradition to the US - Part 2, Extradition Act 2003

Fine, again, although would have been better to qualify this as ‘Fast Track Extradition to the US’ - it’s not the we object to extraditions to the US outright, we’d just prefer them to follow a fair and equitable judicial process.

4. Conditions on public assemblies - Section 57, Clause 123, Anti-Social Behaviour Act 2003

Removal of more curbs on the right to peaceful protest? Yep, good one.

5. Criminalising trespass -Sections 128 to 131, Serious Organised Crime and Police Act 2005

And again, no real problems with one either.

6. Control orders - Section 1, Prevention of Terrorism Act 2005

Do we want to get rid of indefinite house arrest without trial? Yeah…

7. DNA retention - Sections 78-84, Criminal Justice and Police Act 2001, Sections 9-10, Criminal Justice Act 2003

Nice to see S78-84 of the 2001 Act get a mention - that’s the Act we passed to cover the Old Bill’s arse after it was found that they’d been illegally retaining DNA samples for years.

8. Public interest defence for whistleblowing, Official Secrets Act 1989

Ah, yes - the Ponting Bill. See, its not just Labour that passes shitty illiberal legislation.

9. Right to silence, Sections 34-39, Public Order Act 1994 - England and Wales

And another Tory Act makes the top ten. Yeah, lets have the right to silence back and not the ‘you sort of have the right to silence but if you don’t cough we’ll string you up anyway’.

10. Hearsay evidence, Sections 114-136, Criminal Justice Act 2003

And another good one to finish on.

Okay, so there are a few omissions from the list that need to be added;

Blasphemy - for starters.

Something to tone down our berserker libel laws which are so pernicious that even Americans come here to sue.

The section in the Regulation of Investigatory Powers Act that deals with data encryption keys that the govenment haven’t enacted due to their inability to figure out how to make it work.

The Inquiries Act - for obvious reasons.

The Emergency Powers provisions in the Civil Contingencies Act - anything that allows the suspension of the Courts and Habeas Corpus is a bad idea.

And given time, I’m sure that I’ll think of plenty more to be going with, especially anything that provides for the creation of a centralised database of personal information that’s not required for the purpose of criminal justice, licencing or tax/benefits.

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Every so often one finds a politician making a comment or statement in which something causes you to pause for a second and say to yourself, ‘just what, exactly, are they actually saying here?’

Such a statement can be found right at the beginning of Tony Blair’s recent attempt to sell ID cards to the readers of the Telegraph, which he opened with the following statement:

On any list of public concerns, illegal immigration, crime, terrorism and identity fraud would figure towards the top. In each, identity abuse is a crucial component.

All of which looks straightforward enough and nothing more than the usual govenrmental rhetoric of the day, until one looks a bit more closely and notice that he refers specifically to ‘identity abuse‘. What a curious turn of phrase - not identity theft or identity fraud, which one might expect, but identity abuse. What, one wonders, is it that he’s actually referring to in using that specific phrase and how, exactly and in what context, does one abuse identity?

Looking at Blair’s list of public ‘concerns’ (and disregarding the reference to identity fraud as a tautology) each of the three remaining issues; illegal immigration, crime and terrorism are certainly fields in which the fraudulant use of identity may feature. When one could say with certainty that it is a crucial component is somewhat more open to question.

One can certainly enter the UK illegally and subsist in UK society without the need to make use of a fradulent identity if one is prepared to avoid all normal ports of entry and make ones living in the ‘black economy’ - indentity is a factor in illegal immigration only if one seeks to seeks to enter the country by legal channels, albeit on the back of having provided false information, seeks to avail oneself of public services or employment opportunities, which require you to interact with the state or, of course, in seeking to evade capture and deportation but it does not follow that questions of identity will arise in all instances of illegal immigration.
The same can be said of crime. There are crimes in which identity is a factor and use of a false identity central to the crime itself, but many more in which is no particualr relevance at all, except in the context of evading the attentions of the police. And when one comes to consider the question of terrorism, the question one has to pose is that of which is actually the more important, the concealment of the identity of a putative terrorist or the concealment of their intent, preparations and activities?

False identities may, for example, help to facilitate activities that support and sustain terrorism, such as money laundering, but even there its questionable as to the extent to which such activities rely on the fraudulent use of personal identity as opposed to, for example, the fraudlent use of a business identity such as a ‘financial shell’ to conceal the nature of the transactions not the identity of those carrying out the transactions.

It is also the case, particularly in relation to illegal immigration and terrorismm where the putative terrorist is not a UK citizen, that while the individual(s) in question may have supplied a false identity to the UK authorities, the documentation provided in support of their claim to a particular identity may well be entirely genuine as a consequence of the primary fraud having been undertaken elsewhere, as happens where ‘false’ (as in innaccurate) but otherwise legitimately produced identity documents are obtained by way of the bribery of public officials.

For each of Blair’s non-tautological exemplers, the use of false or fradulent indentities may be a factor or they may not - none is entirely contingent on identity fraud in order to function noe, necessarily, sufficiently contingent on it to merit referencing it as a crucial component of such activities.

Can we infer, from any of this, precisely what Blair may have meant when he referred specifically to identity abuse? I think we can.

In referring to identity abuse, Blair is referring not simply or exclusively to the fraudulent use of identity but more globally to any situation in which an individual seeks to conceal their ‘true’ identity from the state irrespective of their reason or purpose in doing so. What this suggests, by direct inference, is the existance of a fundamental belief on Blair’s part that the state has an absolute and overarching right to know the full identity of each of its citizens and of any individual within its borders at all times and in all circumstances.

This, as should be obvious, is a fundamental inversion of the relationship between the state and its citizens; one in which the state ceases to derive its existance and authority from a social contract in which the citizen voluntarily cedes certain privileges and authorities to the states (such as monopoly on the use of force/violence within its bounds) in return for state acting to preserve the citizen’s rights, freedoms and liberties and affording the citizen a measure of security from external and internal threat and becomes, instead, a discrete entity in its own right with its own inalienable rights and entitlements outside of any social contract and derived from its very existance and from its ‘ownership’ of monopoly on the use of force/violence, which it may exercise irrespective of the wishes of its citizenry.

The former condition, in which the state is defined and bound by a social contract, is a hallmark of democracy, the latter of a feudal monarchy or totalitarian regime in which the state is exclusive tool of the ruling elite and not a servant of the people.

None of this should come as any particular surprise, as this view of state as an entity distinct from its citizenry has been a consistant sub-text of much of government policy in recent years and, indeed, animates the entire ‘rights -vs- responsibilities’ debate the the present government has sought to initiate and sustain on each and every occasion upon which events have conspired to afford them the opportunity.

In this 2005 article from the Guardian, Blair deploys what has been, for some time, one of his favourite canards, that of seeking to recast the parameters of the debate in terms of conflicting ‘liberties’ in which the state is portrayed as defending that which, in his opinion, is the most important.

But this is not a debate between those who value liberty and those who do not. It is an argument about the types of liberties that need to be protected given the changing nature of the crimes that violate them. And it is an attempt to protect the most fundamental liberty of all - freedom from harm by others.

In that same article, in which he defends the introduction of anti-social behaviour orders, Blair incorporates a reference to the supposed ‘balancing’ of citizens’ rights and responsbilities…

However, it wasn’t just a question of matching legal rights with legal responsibilities. It was about changing the legal processes by which such rights and responsibilities are determined.

This being a more or less direct reference to a programme of change first set out by Blair in 2002, in the following manner:

With these new opportunities come responsibility. The street crime initiative, for example, has been one of the most successful partnerships between government and the police in living memory. But the truth is people don’t feel more secure and they know the system is not yet working as it should. It has become inceasingly clear what the problem with the system is:

· A nineteenth-century criminal justice system trying to solve twenty-first-century crimes;

· Too little joined-up working between police, CPS and other agencies;

· Too little focus on the hard core of persistent offenders who commit more than half the crime;

· Court procedures that are cumbersome;

· Justice weighted towards the criminal and in need of rebalancing towards the victim;

· Police not freed up and given the flexibility to focus on the crime and antisocial behaviour;

· Punishment that often does not fit the severity of the crime.

So this autumn we will focus on tackling these problems. We are pursuing radical reform of the Criminal Justice System, tackling anti-social behaviour and restoring social cohesion to fragmented communities.

What makes these articles both interesting and revealing is, first, that Blair consciously recasts the duty of the state to afford its citizen’s a measure of security in terms of its being both a right and a fundamental liberty, rather than a contractual obligation from which the state derives, in part, its legitimacy, and second, in setting out the framework for what he calls ‘reponsibilities’, Blair set out a programme ciouched exclusively in terms of defining and augmenting the power of the state to enforce those ‘responsibilities’ on its citizenry, which, by extension, recasts these reponsibilities in the form of their being the citizen’s duties to the state and not the responsibilities of citizens towards each other, this being a particular nasty fiction promulgated by Blair on the back of complete misreading of Isaiah Berlin’s ‘Two Concepts of Liberty’.* [see endnote]
In doing so, Blair is implicitly overturning the fundamental basis of the social contract, which far from being an arrangement between citizen and state entered into voluntarily and for the mutual benefit of both parties, has now become a coercive arrangement under which the state no longer derives legitimacy by means of preserving the rights and securing the liberties of its citizens and affording them a measure of security necessary to facilitate their unfettered enjoyment of both but rather offers protection to its subjects in return for the performance of certain duties of benefit to the state and for which the state will apply sanctions (and exercise its monopoly over the use of force/violence) should its subject seek to demur.

Britain may well possess all the trappings and outward signs of a democracy, but these do not serve the purpose for which they are intend, which is to periodically effect the renewal of the social contract and afford the state its legitimacy, rather they serve only to apply a thin veneer of respectability to what is, otherwise, little more than a large-scale protection racket, as can be seen most clearly, here, in his Telegraph article:

It was also very clear from last week’s arguments about surveillance and the DNA database that the public, when anyone bothers to ask them, are overwhelmingly behind CCTV being used to catch or deter hooligans, or DNA being used to track down those who have committed horrific crimes. And that’s what surveys suggest, too, about their position on ID cards. 

ID cards, a DNA database, CCTV and the rapidly developing ‘database state’ being, of course, the price that Blair seeks to exact in return for the state’s protection.

Endnote.

By way of irony, Blair wrote to Berlin shortly before the latter’s death in 1997 in an effort to debate with Berlin both his ‘Two Concepts of Liberty’ and more generally the way forward for ‘the left’ following the demise of Soviet-style state ’socialism’, and in his letter made the following observations.

The brief discussion in the interview of the relationship between your two concepts of liberty is, I think, illuminating. The limitations of negative liberty are what have motivated generations of people to work for positive liberty, whatever its depradations [sic] in the Soviet model. That determination to go beyond laissez-faire continues to motivate people today. And it is in that context that I would be interested in your views on the future of the Left.

And

As you say, the origins of the Left lie in opposition to arbitrary authority, intolerance and hierarchy. The values remain as strong as ever, but no longer have a ready made vehicle to take them forward. 

Berlin was, sadly, too ill to reply and died shortly after receiving Blair’s letter, which was prompted by a reprint in Prospect of an interview given by Berlin to Stephen Lukes soem five years previous - a fact that Prospect neglected to mention at the time.

One cannot help but wonder, in the circumstances, quite waht Berlin might have made of Blair, both then and now, when it has become entirely apparent both that Blair has long since abandoned the values of opposition to arbitrary authority, intolerance and hierarchy that he professed, at the time, to be as strong as ever having sat for ten years at the apex of the British political hierarchy and become, in that time, the very epitome of arbitrary authority, and that Blair has entirely vindicated Berlin’s critique of ‘positive liberty’ in which he argued that it politically dangerous because it afforded the political elite a justification for curtailing the ‘negative liberties’ of citizen’s ‘for their own good’ by conducting himself in just such a fashion.

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Does anyone know whether idiocy is a transmissable illness, because it seems to be catching in a big way in some circles.

Flag-burning law plan criticised

Human rights groups have opposed a plan by police chiefs to make flag-burning by protesters a new criminal offence.

No-o-o-o Shit!

The Liberal Democrats and Liberty said new legislation was unnecessary because police had powers to tackle incitement.

Since when did that stop the Police asking for more powers and more legislation. They’re absolutely fucking swimming in new laws and new things to arrest people for and now they put on another fucking Oliver Twist act and head off to the Home Office, cap in hand, to say: ‘Please Dr Demento, can we have some more…?

I’ve got a better idea, here. Why not just stick with the laws you’ve already fucking got and try enforcing those for a bit and see how they go before trying to stick your noses back in the

Scotland Yard has drawn up proposals to submit to the Attorney General because of a belief the UK has become a soft touch in dealing with extremists.

So hang on, the Police want new laws because of a ‘belief’ that the UK has become soft touch - whose belief would that happen to be? Mad Mel’s?

The plans, backed by Labour MP Shahid Malik, would also ban protesters from hiding their faces from police.

Oh boy, this is now getting fucking surreal. They want to ban protestors from hiding their faces from police?

Anything else you’d like while we’re on, lads?

You want everyone to have their national insurance number tattooed onto their foreheads and required to wear a placard round their necks with the name, address and telephone number on it? Or should we all start submitting DNA samples to the police before we’re allowed to go on a protest march.

You ever get the feeling that is all done to a pissed-up senior copper falling asleep halfway through watching V for Vendetta only then to wake up just before the end and shit himself at the sight of all those people in Guy Fawkes masks - look guys, its a fucking movie… it’s not real okay.

How far does this proposed ban on masks go? Does it only apply to actual physicla masks or would using stage make-up also come under this. If I go out shopping in Birmingham and there’s a march on, do I stand a chance of getting nicked if I’ve taken my six year-old daughter to get her face painted?

But that would not include Muslim women wearing a veil.

Right, lads. We’re to the protest march… No you have all remembered your burkas?

Shami Chakrabarti, Liberty’s director, said: "We will have to look at the detail of these proposals but the police already have wide powers, especially for dealing with people wearing masks.

"I wonder how hard-working officers on the beat today will feel knowing their senior officers are spending so much time dreaming up unnecessary legislation."

Abso-fucking-lutely.

Criminalising flag-burning would be an unacceptable restriction of freedom of expression, said Liberal Democrat MP Evan Harris, a member of the parliamentary Joint Committee on Human Rights.

"The battle against terrorism and extremism is not a matter of yet more public order offences and it is vital that we preserve free speech where no crime is incited," he said.

Well, I’m glad someone’s realised that.

Public order

The plans have been drawn up by Scotland Yard and submitted to the Attorney General Lord Goldsmith, by Britain’s most senior Muslim police chief, Assistant Commissioner Tarique Ghaffur.

Mr Ghaffur, responsible for public order in the capital, said he was concerned the UK had come to be seen at home and abroad as soft on extremist demonstrators.

As opposed to be seen at home and abroad as country on a slow descent into becoming a police state and governed by bunch of utterly illiberal freedom-hating toss-pots.

Just what the fuck is all this supposed to achieve? What? Are you thinking

He said police wanted "a change in the law on the burning of flags - to make that illegal".

Why? For the sake of appearances?

While you’re on, is there anything else you’d like criminalised? Like walking on the cracks in the pavement, perhaps?

Mr Malik, MP for Dewsbury, said burning a flag was clearly an incitement to violence practised by a small number of "thugs" who get to the front of demonstrations.

"They hijack what are very legitimate and peaceful protests.

"Not only do they spoil it, but they have the potential to turn it into something much more sinister."

Ah, poor dears. Fancy having your protest spoiled by some nasty old bastard with a flag and box of fucking matches.

What is the thinking here… that somewhere a would-be terrorist cell might meet up and decide they’d better cancel the Jihad because the government have banned flag-burning.

It’s a piece of fucking cloth, for fuck’s sake. Look, if it bothers you that much, why not just the DTI to change safely laws so that all flags have to made of flame retardant material - it would make about the same amount of fucking sense.

But Massoud Shedjareh, of the Islamic Human Rights’ Commission, said whether it was incitement or not depended on the circumstances, but police already had powers to deal with it.

A Home Office spokeswoman said she was unaware police thought existing powers were inadequate but ministers were ready to listen to any suggestions from officers.

Tell you what… How about you don’t listen to this suggestion and tell the police to fuck off and do their job for a change…

Seriously, if anyone’s actually stupid enought to vote this shit into law then there’s only one appropriate response…

Anyone know where I can get Guy Fawkes masks in bulk?

Last word on this goes to Bill Hicks, who captures the whole subject wonderfully…

Did you watch the flag burning thing? Wasn’t that great man? Boy everybody showed their true colours then didn’t they?….Scary… People just flipped, they reacted like The Supreme Court approved of flag burning, know what I mean?

" Does that mean we have to burn our flags?.. They said that we ha-"… NO NO NO NO NO NO, they didn’t say that. They said that if someone wanted to burn a flag, he perhaps doesn’t need to go to jail for a year…Pretty harsh on their part huh?

"They said we should bur-"…. They didn’t say that, they didn’t say that, they didn’t say that

"Does that mean I have to go and -"….NO NO NO NO NO NO NO… Listen, read , think, calm down, relax, SHUT THE FUCK UP

"Well I don’t get it..I don’t wanna burn my flag"….THEN DOOOOOOOOOOON’T.

People snapped, they were like "Hey buddy, my dad died for that flag"

"Really?…I bought mine…They sell ‘em in K-Mart…"

"yeah..He died in Korea for that flag"

"Wow, what a coincidence. Mine was made in Korea… the world is THAT big man…"

No-one, and I repeat NO-ONE has ever died for a flag. A flag is a piece of cloth, they might have died for freedom, which, by the way, is the freedom to….Burn the.. fucking flag you see??..Burning the flag doesn’t make freedom go away, it’s kinda like Free-dom ok?..ok.

And they’ve had 4 cases in this country’s 200 year history, so it’s not that big an issue. One of the hotter smokescreens they’ve put down the pipe. I don’t wanna burn a flag, but what business is it of mine if you do?

Is it my business if someone wants to..Is it?…NO

Is it my business what other people read or watch on TV? NO IT’S NOT…THANK YOU

You see, when we talk these things through, it becomes a little clearer doesn’t it? That’s called logic and it’ll help us all evolve and get on the fucking spaceships and get outta here. 

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…then you should watch Keith Olbermann’s comment on Bush and the Military Commission Act...

(hat tip - Chicken Yoghurt)

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I did wonder when this particular chicken would start coming home to roost…

Cabinet split over new rights for gays

· Blair backs Ruth Kelly in church row
· Faith schools seek equality opt-out

The cabinet is in open warfare over new gay rights legislation after Tony Blair and Ruth Kelly, the Communities Secretary, who is a devout Catholic, blocked the plans following protests from religious organisations.

Alan Johnson, the Education Secretary, was so angry with the move that he wrote a letter to Kelly three weeks ago, telling her that the new rights should not be watered down.

The battle between what is being dubbed the government’s ‘Catholic tendency’ and their more liberal colleagues centres on proposals to stop schools, companies and other agencies refusing services to people purely because of their sexuality.

The very first thing to say here is a hearty ‘well done, keep it up, Alan!… and whatever you do, don’t back down on this!’

Anyone who’s the slightest bit surprised at this turn of events really hasn’t been paying too much attention as much the same exercise in last-minute backsliding accompanied the introduction of regulations outlawing discrimination on grounds of sexuality in employment, in which religious organisations, including ‘faith schools’ were handed an exemption at the last minute and after public consultation had concluded, ensuring that as few people as possible would notice the government pandering to religious bigotry.

One can see the same pattern of deception in the passage of the recent Racial and Religious Hatred Act 2006, where throughout the consultation stages the government let it be known that a repeal of the common law offences of blasphemy and blaspemous libel was on the cards, only to quietly let that slip away unnoticed once - again - public consultations were over.

So am I in the slightest bit surprised at this?

No, of course not. We’ve done it before and it would be naive to expect things to be different on this occasion, although what does need to be appeciated here is that the mere fact that legislation fall under the purview of Ruth Kelly is nowhere near as significant as some appear to think - she was safely cloistered away as Financial Secretary to the Treasury at the time that the Sexual Orientation Regulations 2003 were quietly spiked and her direct involvement in things - and public assumptions about her personal beliefs as a Roman Catholic and member of Opus Dei ((remember, she steadfastly refuses to comment on her actual beliefs) has only served to put this issue under the spotlight it deserves, this time around. If you’re really looking for the character stroking the white Persian cat on this one, you’re better off thinking in terms of the guy who, according to his former press enforcer, ‘doesn’t do god’.

I’ve already covered much of the background to this issue back in June, so to save time this link will take you back to the earlier article and introduce you to a couple of the Christian pressure groups who’re campaining on this issue, the Lawyers’ Christian Fellowship and Christian Concern For Our Nation, who as you’ll see from the earlier piece share many things including a policy officer, Andrea Minichiello Williams.

What this does give me the chance to do is pick apart a gloriously specious piece of pseudo-logic that lies at the heart of this particular campaign, and indeed at the heart of many similar religious-inspired campaigns covering everything from abortion to Jerry Springer: The Opera, this being the idea that this is all about protecting ‘religious liberty’.

The CCFN website provides a couple of first class examples of this kind of tendentious thinking

Philip Johnston’s article on the Sexual Orientation Regulations (2nd Oct) makes a perceptive point. Irrespective of sexual orientation or religious viewpoint, the Government should not have the power to force people to act against their conscience, provided this does not infringe the legitimate rights of others or the laws and customs of the country. The current proposals for the Regulations would infringe the right of Christians and Jews to act in accordance with the doctrinal teaching of their respective faiths which says that the practice of sex outside heterosexual marriage is wrong.

Further, to allow the executive to use secondary legislation, not subject to full Parliamentary scrutiny, to pass such a law is dangerous. Who will be next in finding that their morals, beliefs or lifestyle, are no longer acceptable to the Government?

The Government announced last week that there would be a 6 month delay in implementing the Regulations: we hope that this is recognition that, in their current form, the proposals are unworkable. The Government and the Women and Equality Unit of the DTI (the originators of the law) must ensure that the Regulations protect the basic right to freedom of conscience.We do not think that anyone who reflects carefully on the SORs could oppose a suggested amendment to the Regulations which states ‘Nothing in these Regulations will force anyone to promote, facilitate, encourage or assist the practice of a sexual orientation in a manner which is contrary to the strongly held religious convictions of the person’. We hope the Government will agree and act accordingly.

John Scriven, Chairman, Lawyers’ Christian Fellowship
The Venerable Michael Lawson, Archdeacon of Hampstead
Dr Philip Giddings, Vice Chair of House of Laity of General Synod
Yaqub Masih, Secretary General, UK Asian Christians
Colin Dye, Senior Minister, Kensington Temple
Reverend John Noble, Chairman of the National Charismatic Leaders Conference

(To contact signatories on this letter call Andrea Williams 0771 2591154. Partnership House, 157 Waterloo Road, London SE1 8XN)

(Letter to the Daily Telegraph - 13 October 2006

And…

The conclusion is NOW IS THE TIME FOR CHRISTIANS TO MAKE IT CLEAR TO THE GOVERNMENT THAT THE LAW MUST PROTECT THE RIGHT OF CHURCHES, CHRISTIAN ORGANISATIONS, AND INDIVIDUAL CHRISTIANS TO ADHERE TO THE BIBLE’S TEACHING ABOUT HOMOSEXUALITY.

We also believe it is important to remember why many Christians see the SORs as a very significant threat to our freedom to live as Christians: if the SORs are not changed from the wording currently suggested by the Government in the consultation document, Christians will not have the freedom to act in accordance with the Bible’s teaching that the only rightful sexual relationship is between a man and a woman in a monogamous marriage. Without an amendment to the current proposals for the SORs, any Christian, church or Christian organisation who provide goods, services, facilities, education or premises, will be acting illegally if they refuse to provide such things on the grounds that such provision would promote, enable or encourage homosexual sex. IT IS CRUCIAL THAT OUR FREEDOM OF CONSICENCE AND FREEDOM TO ACT ACCORDING TO THE BIBLE IS PROTECTED IN LAW BY AN AMMENDMENT TO THE SORs.

(Their capitals, not mine, by the way)

There are a several points worth picking up here, the first of which lies in the stated contention that "the Government should not have the power to force people to act against their conscience, provided this does not infringe the legitimate rights of others or the laws and customs of the country".

The general scope of the government’s powers is both a separate debate and somewhat immaterial to the matter at hand but inasmuch as governments are constrained in legislating on such matters, those constraints are set out in Article 9 of the European Convention on Human Rights as enacted in UK law by the Human Rights Act 1998 as follows:

ARTICLE 9

FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The right to Freedom of thought, conscience and religion is a qualified right; one in which people are entitled to believe in whatever or whomever they like, whether that happens to be God, Allah, Krishna, Buddha or the Flying Spaghetti Monster.

However, when it comes to putting such beliefs into practice and acting upon them, the state reserves the right to legislate and impose restrictions in the interests of the common good. An extreme example of this one could argue is the belief held by some Islamic fundamentalists that blowing themselves and a bunch of other innocent people up on a tube train amounts to a  religious martyrdom that guarantees them a  place in paradise and 72 oh-so-willing virgins - one cannot legislate away such a belief however much one considers it to be abhorrent, however one governments can, and do, put in place legislation that aims to prevent such beliefs being translated in actions.

A more moderate example of the state legislating to restrict certain religious practices is one with which the majority of Christians can have no particular complaint as it lies in Britain’s marriage laws and, specifically, in the offence of bigamy. Britain, in common with US and other European countries does not recognise bigamous/polygamous marriages and imposes legal sanctions if such are entered into in this country, even though such practices are permitted by certain religions and religious sects such as Islam and the Mormon Church. In fact, if one researches the history of the constitutional separation of church and state in the US one finds that the precise point at which the US Supreme Court uneqivocally asserted the authority of the state to legislate, where necessary, in respect of religious practices turns out to be a case brought by the Moirmon Church in the 19th Century in which it attempted to defend its ‘right’ to practice polygamy within the state of Utah.

The core argument put forward in the letter to the Telegraph includes an important proviso - provided this does not infringe the legitimate rights of others - but then fails entirely to acknowledge that this situation does entail a conflict between religious belief and the legitimate rights of others, specifically the rights of the gay community to equal treatment in society in line with provisions for equal treatment accorded to other groups; women, ethnic minorities and people with a disability - were the authors of this letter less blinkered by their own prejudices they would recognise that this proviso has the effect of nullifying their entire argument.

The second article that I’ve quoted here states both that, "the law must protect the right of churches, Christain organisations and individual Christians to adhere to the Bible’s teaching about homosexuality’  and that ‘if the SORs are not changed from the wording currently suggested by the Government in the consultation document, Christians will not have the freedom to act in accordance with the Bible’s teaching that the only rightful sexual relationship is between a man and a woman in a monogamous marriage.’

To begin with, if one researches the subject properly one find that not only are there very few references to homosexual behaviour in the Bible - no more than 10-15 in the entire text - but that all such references are both unclear and open to interpretation.

For example the presumption that the ’sin’ for which the Caananite town of Sodom was destroyed was the practice of homosexuality amongst its population - hence the term ’sodomy’ for anal intercourse - does not appear in Christian theological literature until the 11th Century AD while elsewhere in the Bible the ’sin’ of the Sodomites is cast in very different terms as being, alternately, adultery, excessive pride and gluttony, being inhospitable towards strangers, being ungodly, unprincipled and lawless or just generally being hedonistic and sexually immoral.

Analysis of the original source texts of the Bible - in either Hebrew in the case of the Old Testement or Greek for the New Testement, shows that in every instance in which the modern Bible refers to homosexuality, the precise terms from which such references are derived are unclear and open to different interpretations such that the precise intent of the author cannot be verified with absolute certainty. In most cases a more accurate translation of the original text would place the Biblical injunctions against homosexual behaviour in the context either of temple prostitution and/or paedophilia and not against homosexuality in general and one has to remember that the idea of that individuals have a sexual orientation is a very recent ‘invention’ dating back only to the 19th Century - the authors of these passages would have had no concrete concept of homosexuality as a defined ‘lifestyle’ int he modern sense of the term as such a concept would not exist for at least another 17-1800 years: much more in the case of passages from the Old Testement.

All one can say for certain is that the modern Bible reflects the prejudices and beliefs of later translators, which in turn negates the concept of the text containing a literal and absolute truth.

Equally, but for a single passage in Leviticus that advocates that homosexuals should be put to death, nowhere in the Bible does it state how Christians should conduct themselves in regards to the gay community, other that in regards to the generic injunction to proselytize and spread the Christian faith. Even if one accepts the idea that references to homosexual conduct in the Bible do refer to the generality of homosexuality it would seem that the only thing that the Bible requires of Christians under such an interpretation is that they refrain from such conduct themselves; nowhere does it state that homosexuals should be shunned, subjected to prejudice and bigotry or otherwise treated any differently by Christians than anyone else, even the most devout believer.

(And in the context of the Bed & Breakfast argument being put forward by those seeking a watering down of the new sexual orientation regulations one might note that in Matthew 10:14-15 implies that one of the sins of Sodom and Gomorrah was a lack of hospitality…

[14] And whosoever shall not receive you, nor hear your words, when ye depart out of that house or city, shake off the dust of your feet.
[15] Verily I say unto you, It shall be more tolerable for the land of Sodom and Gomorrha in the day of judgment, than for that city.)

To act according to the Bible, if as a Christian one accepts that it does contain express injunctions against homosexuality, requires only that one does not practice homosexuality oneself and, as such, the Sexual Orientation Regulations do not require Christians to act contrary to Biblical teachings or impinge on their religious freedom - with or without these regulations they are still entirely free to NOT practice homosexuality and that is all the the Bible appears to require of them.

This idea that simply by renting a gay couple a room for the night or allowing a gay organisations to hold a meeting in a Church Hall is someone promoting, facilitating, encouraging or otherwise assisting homosexual behaviour is hypocritical nonsense and an errant apologia for irrational prejudice. One only has to recall that merely treating a homosexual as an ordinary human being or acknowledging the existance of gay couples and gay relationships without expressing overblown ‘moral’ disapproval is sufficient to be considered to be ‘promoting’ homosexuality to appreciate fully just how narrow-minded a constituency we’re dealing with here.

And that’s the real crux of this issue.

What groups like CCFN (and Christian Voice for that matter) are seeking is both to preserve certain undue and outdated privileges accorded to the Christian faith - in the case the privilege of being able to engage in discriminatory behaviours that are otherwise denied to the wider population by law - and generally to impose their beliefs, values and attitudes on others by seeking to bend the law to those same values and beliefs.

Such attitudes and practices are perhaps less apparent in this this matter but are plainly obvious when one looks at other campaigns conducted by such groups, particulaly those relating to abortion and censorship, as in the case of JS:TO.

The simple fact is that if, as a Christian, you believe homosexuality to be sinful then you have the perfect and inalienable right to not engage in homosexual behaviours, much as you have the right not to have a abortion if you disagree with that and the right, also, not to watch a film, TV programme or play or listen to piece of music if it is likely to offend against your personal beliefs and sensibilities…

And in permitting you a free and unfettered right not to do any or all of those things, society recognises and preserves your basic freedom of the thought, conscience and religion.

Such rights do not, however, extend to restricting other who do not share your beliefs from engaging in such activities providing, of course, that such activities are within the law - which they all are.

In the letter to the Telegraph, the signatories put forward the view that…

We do not think that anyone who reflects carefully on the SORs could oppose a suggested amendment to the Regulations which states ‘Nothing in these Regulations will force anyone to promote, facilitate, encourage or assist the practice of a sexual orientation in a manner which is contrary to the strongly held religious convictions of the person’.

Well having reflected carefully on the SORs I can think of a sound, rational and practical objection to such an amendment and one that Parliament needs to consider most carefully.

How, in legal terms and under extant evidentiary rules, is a court of law dealing with an alleged case of discrimimation on ground of sexuality to adequately determine whether the defendant in such a case was genuinely motivated by strongly held religious convictions as opposed to irrational homophobia?

That, in practical terms, in the crucial question - what is the legal test to which a defence predicated on a claim of exemption to the regulations on religious grounds will be subjected and how will that test be assessed.

A court cannot simply accept such an assertion by a defendant without some corroboration, so what corroborating evidence would such a defendant have to provide?

A record of their attendance at a place of worship…?

But then, does the mere fact that one does not attend a church, mosque or other religious establishment on the regular basis prove that an individual does not have strongly held religious convictions? Of course not.

What about a testemonial from a Vicar, Priest or Imam, etc…?

But how reliable  would such a testemonial be, given that the person giving the testemonial may be motivated by their own beliefs and convictions as much if not more than any particular knowledge of the religious convictions of the defendant? Might a cleric who, themselves, is prejudiced towards homosexuality not provide such a testemonial simply to make a political statement about the nature of these regulations…?

It’s not inconceivable.

Ownership of a religious text perhaps..?

But, what does that prove? Nothing. It could be a recent purchase, a family Bible or just one from the Gideons that the defendant has nicked from a hotel room as a souvenir.

What about a scriptural test, perhaps..?

Again, does the ability to quote chapter and verse from a religious text prove that an individual holds strong religious convictions?

They might just as easily have ‘crammed’ for such a test having not touched a Bible for years without holding any really belief in the contents of the text itself.

How about psychological profiling?

Is that really appropriate and could is really distinguish between a genuine believer and homophobe feigning religious convictions to get themselves out fo trouble?

A defence predicated on religious convictions can only be predicated on evidence that is, at best, hearsay and therefore unreliable in which case these regulations become, by design, completely unworkable…

…a fact that I would suspect the signatories to this letter are well aware.

More on this issue from:

Antonia Bance, Jo Salmon, Comrade Johnny, Harry Perkins, and Labour Humanists who’ve noticed the deafening silience thus from the the Christian Socialist contingent.

Update:

Wongablog has also joined the fray with a fairly scathing (and very readable) piece

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