Citizens and the state: the crisis of liberty
The first plenary session in London, entitled ‘Citizens and the state: the crisis of liberty’
Citizens and the State: the Crisis of Liberty
Georgina Henry (chair): Thanks very much Shami and good morning everyone. I’m Georgina Henry, I look after comment at the Guardian both in the paper and on the web. The Guardian’s really thrilled to be a media sponsor of this wonderful day – very interesting day – and thank you very much for coming to this first plenary on the citizen and state.
The reason for this particular session, to sort of set up the day, is that we are really at a turning point in public life where there is an enormous change going on in the way that the state organises itself and I think the fact that so many people are here today is because citizens are waking up to this.
We’ve got a fantastic panel for you, so I will go straight on to introduce them in the order in which they will speak. They will all speak for about 4 or 5 minutes and that’s all, so we have lots of time for you to question them.
On my far right here, Dominic Grieve, who’s been Member of Parliament for Beaconsfield since 1997. A distinguished lawyer and QC before entering parliament, he has been Shadow Attorney General since 2003. He was unexpectedly appointed Shadow Secretary last summer, following David Davis’s resignation to fight a by-election over the issue of 42 days’ detention. As a passionate supporter of civil liberties and a strong defender of the Human Rights Act, many commentators wondered whether he would survive in that in role for long. They were right to wonder: he lasted seven months before being moved in January this year to shadow the Justice Secretary. “Conservatives have not always been on the right side of the angels regarding human rights and social justice,” he once said, and today he will tell us if they still… if that’s where they are now.
Helena Kennedy is one of Britain’s leading human rights lawyers who has been involved in some of the most prominent and seminal cases of the past 30 years. Originally a strong supporter of New Labour, she was appointed a life peer in 1997. The honeymoon didn’t last and by 2001 she was rebelling against the Anti-Terrorism, Crime and Security Bill, and since then she’s consistently voted against the Labour government’s attempts to extend state powers and curb civil liberties through a series of bills on criminal justice, counter-terrorism, control orders and ID cards. And one of her most power recent speeches in the house was over the proposed 42 days’ detention, “You cannot preserve liberty by reducing it,” she said.
Sir David Varney, on my left, is the Prime Minister’s adviser on public service transformation. Campaigners like NO2ID would describe him – he would disagree – as one of the architects of the database state. But in the Varney Review he did for the Treasury, published in December 2006, he argued his aim was to make public service delivery more accessible, convenient and efficient for citizens. “The case for identity management was compelling,” the report says, citing an earlier report by Lord Carter which concluding there should be a “single source of truth” about each citizen. Before joining the civil service, Sir David worked at Shell for 28 years.
And finally on the panel, Sir Ken Macdonald recent stepped down after five years as Director of Public Prosecutions – the first leading defence lawyer to have been appointed to that post. In his final lecture as DPP he warned that, “while technology has brought the state enormous powers of access to information, we need to take very great care not to fall into a way of life that freedom’s back is broken by the relentless pressure of a security state.” Since stepping down, he has been an outspoken critic of the communications database proposed by the government to track phone calls, emails, texts and internet use. “This database would be an unimaginable hellhouse of personal, private information,” he has said, “no government of any colour is to be trusted with such a road map to our souls.”
So, Dominic Grieve would you like to go first?
Dominic Grieve: Well, thank you very much, and thank you for the opportunity of being here today at what is clearly, as we’ve seen in the build up, a very important event. The road to hell is paved with good intentions and I think that if we need to start with an overview about what’s going so wrong in the field of civil liberties, we have to take a long look at ourselves, at how we have succeeded – and forgive my saying this but – collectively in creating this state monster that is threatening to gobble freedom up.
Can I just take an example? Bit away from the main theme, and that was the community nurse down in Bristol. The one who you remember said she asked a patient if she could pray for her, and the consequence of that was that she was suspended for seven-and-a-half weeks while somebody considered this issue, before coming to the rather commonplace conclusion that if you’re dealing with inter-personal relationships you need to be quite sensitive to the person you’re speaking to. Now, that is, I suggest to you, in large measure the origin of the disaster that we are visiting upon ourselves. Because, under pressure from media, individuals, electorate, politicians have been ratcheting along a road of greater regulation in the mad and deluded belief that by doing it we all end up safer, better protected, better able to relate to each other. Whereas what in fact is going to be the end product is going to be a state and society where we are vastly regulated, where it makes no difference to our security and where individuals feel disempowered and demoralised because the things which come naturally to them in terms of their relations with others are constantly fettered at every turn.
The idea that the criminal or the extremist, be it the BNP or mad Islamist, is in some way going to be deterred by these structures is laughable. But the trouble is that we as politicians seem so often to lack the courage to just come forward and say, none of this will work, you have to accept that society and life carries risk, death is an inevitability for us all, and whilst it is the duty of the state to do its best to moderate and prevent what is wrong, nevertheless there are finite limits on what we should be doing, because the moment you go beyond it you start creating that monster.
And that, for me, as a Conservative politician coming in in 1997 and watching with increasing astonishment and horror what we have been creating for ourselves in the last 10 years, seems to me to be the source of the problem. And I say this at the outset of this discussion because we will in the course of the discussion have lots to say on 42 days and data sharing and DNA databases and ID cards. But actually, we have to get behind all that to understand the drivers that are forcing us down this crazed road, uniquely in Western society – I mean, I don’t think there is any other European country, even the United States, that has gone complete hell-for-leather in this fashion – and which is transforming us into this really rather unpleasant place. Shami mentioned Binyam Mohamed, I mean, I have to say the whole episode fills me with utmost shame. Here we are, a country which outlawed torture in the middle of the 17th century, and yet we appear pretty clearly to have colluded with it in the course of the last few years for issues of state expediency. And so the rally…
…And so I think the rallying call for today before we move on to the discussion is to try, I would suggest, to keep this point in mind, that all this has been done incrementally, as Shami said, the warming up on the pan. Because people have said, oh well in this case it will help this, or it will help that. We’ve got to change the philosophy, because unless we change the philosophy this is going to continue. Now there was a challenge posed to me a moment ago, so I will just try to answer it, which is that Conservatives can get things wrong and almost certainly they can, there is authoritarianism in Conservative tradition just as much as in the tradition of other political parties, but the one thing that I have to say keeps me on the straight and narrow – and I actually think helps us – is that when we are about to do something that is authoritarian and silly, somewhere in the back of our consciences as Conservatives, somebody says, “your grandfather wouldn’t have approved.” [laughter] And it works quite well. So what we need to do is to ally that spirit with the modernity and the social justice that many of you have come to this meeting fired with and try to see how we can find a way forward which means that governments are no longer inclined down this road of constantly appealing to every knee-jerk reaction of the electorate in trying to strive for a totally mythical state of absolute security that can never exist and will destroy the quality of our lives if we let it continue. Thank you.
Georgina Henry (chair): Helena.
Helena Kennedy: Well, I want to start by just saying that I became involved in doing cases around civil liberties in the ’70s when I was a young lawyer. And one of the things that I have learned, having seen law in the courts and then having seen law being made as a member of the House of Lords, is the way in which we have seen something very different happen, I think, over the last 20 years, which is the politicization of criminal justice, of issues like liberty. That in fact we have been seeing a sort of Dutch auction between the political parties as to who can be tougher. And so I do want to make it very clear that while we may all be very cross with this particular government, if you look historically back to the period when I was first practising in the courts – and it was not Labour who were in government – there were pretty awful things happening then in relation to liberty, too.
So we have to take a view as to why this has been happening. And things have not always been great about liberty – we mustn’t imagine that there was a golden age, however much Dominic’s grandfather might be his conscience. The reality is, liberty is never given to people, people have always had to fight for liberty, and liberty is an accretion of battles in order for people to claim what should rightfully be theirs. And so when you want to talk about liberty, you have to talk about power. Who has power? What happens when people have power? And what the common law in this country has taught us is that actually you have to be very sceptical about power, because once people have it the temptation to abuse it is very, very great.
I don’t know who it was who said it but someone said that power can turn even the gentlest of souls into a Nero. Well let me tell you, we have managed to see some Neros in our contemporary government. Because what happens – I always say there is something in the drinking water at the Home Office… [laughter & clapping] People who seem perfectly decent, who don’t have staring eyes, who don’t seem mad, go in there and suddenly they are overwhelmed with the need to reduce liberty. And we saw it from the very beginning of… Labour in government. But in terms of the Dutch auction, it began of course before, and let’s not forget Michael Howard, let’s not forget Anne Widdecombe, let’s not forgot some of the people who were in that office prior to the ones who followed. And so what has happened in recent times is that this business of showing who can be tougher becomes one of the ways of winning the Daily Mail or populist approval for government. And I’m afraid that Labour was very susceptible to it, it came into government saying we have to prove that, like the Conservatives, we can run the economy and be as tough with money and show that we can be liberal marketeers like the next guy, and by God did they, too, and now we are paying the price. And they, too, wanted to show that they could be… that the defence of the nation was safe in their hands and they could go to war like the next guy, and by God did they prove it! And they, too, wanted to show that they could be tough on crime, and unfortunately very often this business of being tough on crime involves erosions of liberty.
And the trade-off is always sold to you, is always sold to the citizen as being a trade-off that will only involve the liberties of other folk, almost invariably people whose skin colour is different from ours – but not always. The trade-off is always about, “we’re going to do this to deal with criminals, to deal with immigrants, to deal with bogus asylum seekers, to deal with terrorists,” and the idea is that rest of us are all to feel safe. And in writing a blank cheque for government to look after us, we actually are signing away something very precious because liberty is indivisible, the trade-off is always a trade-off of something that belongs to us too.
I just wanted to say that one of the shocking things for me was, before 9/11 – this is not all about terrorism and what’s happened as a result of the fear created by terrorism – when I went into the House of Lords, one of the first things I fell out with government over was the attempt[s] to reduce trial by jury, one of the very precious and important things within our system. And if anything, if I have learned anything being a lawyer in the courts, it is that my point of entry into understanding civil liberties and why they matter, or understanding human rights and why matter, is the pain of my clients, the number of times I have represented people who were wrongly convicted based on abuse of power.
And so be very clear that we are here trying to deal with abuse of power. And perfectly decent people of course don’t realise that they are actually doing it. They, too, are like the frogs that go into the water and the heat is turned up, they don’t realise that they are becoming authoritarian, they think they are the good guys. And so when you say to ministers and government, “do you realise what is happening,” they will often say no, because they have not been able to look collectively at the accretion that has taken place, of erosions and what they are actually going to mean.
Now, I am very concerned about number of things. One is there is a false dichotomy that’s created between civil liberties, that great long historic thing that we have built up by battling as ordinary people, and we seem to have lost our collective memories about all of this, because it was about having to struggle for them. And people of course think it’s… Tony Blair was the great man for saying, you know, it is all old-fashioned stuff, everything had to be new-new-new, and we shouldn’t have 19th century systems to deal with 21st century society, but in fact many of these things are as true today as they ever were. When I started practising, it was young Afro- Caribbeans who knew what civil liberties meant because they were being arrested under the SUS laws. Do you remember SUS laws? Where you could be arrested for doing nothing, on the say-so of a police officer who would say he saw your hand going out to a car door handle? Or your hand going out to go into a woman’s handbag and you were arrested, being a suspected person.
The Irish suffered all of this, because they felt that even being Irish during the Irish troubles, even to speak aloud with an Irish accent would draw down ignominy, or fear that they might be arrested, or suspicion fall upon them. The people who usually understood about civil liberties were the Jews within our midst, because they knew that power is abused and that people will be scapegoated and it had been so much part of their historic experience. But that collective memory is being lost, and we stopped telling the stories of why liberty has to be protected for all of us.
The false dichotomy I am concerned about is the between on the one hand, civil liberties, and on the other, human rights. Human rights – modern human rights – are an evolution of civil liberties which were basically about liberty being in the hands of citizens, but human rights actually developing that to say, “these rights actually have to be there for people because they are human, and not just gifted to you because you are British.” And so I do want us not to be beguiled by the idea that somehow civil liberties have to be protected but the Human Rights Act not, because really we are talking about, as Shami was saying, something that comes as a piece and to be guarded by us all.
I wanted to finally say that yes, Shami’s right, that liberty is not about something that’s modern – and I would hate the idea that it was seen as being the ‘new’ as in ‘New Labour’ – but there is something about the new challenges that a new society presents to us, and so we do have to have careful discussions about the extent to which surveillance of any kind is something that people are prepared to trade, and what level of it. And I particularly am very concerned about the whole business of there being an incredible database in which our souls are sold in order to tell us that it’s about our own protection and security.
Once you start having to give information to the police, where the police say to you, “Where are you going? Why are you here? What’s your name? What is your address?” And you are required to do it, and there is no reason that the police need to give to you as to why they are asking those questions, there is a transfer, a transfer of power is taking place. You see, under the common law we have always said that the state has to prove things, that there’s a presumption of innocence, that the state has to prove its case in the courts, that if the state turns up at your door you say to them, “Where’s your warrant? Why are you wanting to search my home?” That if you’re stopped in the street you can say, “Why are you stopping me?” But we are doing away with all of that, and once you do away with all of that, what you are saying is that you are changing the nature of that relationship, the paradigm of the relationship between the citizen and the state. And I want us to remember that the state is here at our behest and we are not here at the behest of the state.
Now, this is one glorious day in which all of you have come here caring about this and joining with all the rganisations that deal with aspects of this, but there is something that we can produce out of today and I see this as a window of opportunity. There is going to be an election next year. And in that window of opportunity between now and then, there are a number of things I hope we can see happening. One is, I would like us to actually put a brake on the erosions that the government is currently… has in place and intends to proceed with, to put a brake on those things, like inquests that will be in secret, like the continuation of the kind of database that we have heard talked about. I want us to see, also, commitments on manifestos of political parties that they are going to do something about taking… returning some of that liberty to us that has been taken away.
But the other thing that I hope will come out of today, is I want us to make a decision that we will prepare a document that each one of us as citizens will be able to go to those who will be standing in our constituencies and to say, “Where do you stand on the following things: on a DNA database where even our children – a quarter of it is the children in this country. Where do you stand on ID cards? Where do you stand on jury trial? Where do you stand on habeas corpus?” And I want those questions asked at every single person standing in the constituency and it to be made clear to them that your vote will depend on the way that they answer those questions.
So, I hope that today, that it won’t just be a joyous day of us coming together and on the one hand celebrating liberty which is meaningful, but also decrying the things that have happened and learning from each other. I want something concrete to come out of today and I hope you will have ideas about how that can be done. Thank you.
Georgina Henry (chair): David, talk to us about databases and information sharing and… [amusement]
Helena Kennedy: Poor man!
David Varney: I was pleased when Shami said it was a celebration of dissent, because this will certainly try your patience.
I was asked to look at the delivery of public services, which is changing in almost all of the major countries, which are looking to see whether they can modernise public services. And that often involves providing, in our system, services down individual stove pipes, so if you think about somebody who’s getting a pension, they would deal with the pension agency, they would deal with housing benefit, typically, and with council tax benefit. And that was a long process where they were required to deal with each of those bodies separately. And I tried to address in my report, “How can we make that an easier transaction for the citizen, more enjoyable for the staff and more effective for the taxpayer?”
I am not a champion of a great single database – actually, technically, I think one single database is unlikely to be used as efficiently. Most of us think, when you think about a database, we think about what you can put on a computer. When you think about the number of aspects, I am… I think it will have all the disadvantages of corroding public liberties and very little to offer in terms of managerial efficiency, in managing the complex problems that many of our services face. What the services need to do is collect information. If we talk about… I suppose one of the services we could think about is DVLA: renewing car tax online.
How many people have renewed car tax online this year?
[some audience members raise their hands]
How many people have gone to a Post Office to renew it?
[again, hands go up]
OK, you provide the same information, but what’s interesting with the online service is that the MOT and insurance is now checked and it’s a service which is more customer-friendly. So we’re seeing bits of the state needing to be modernised in terms of service delivery, partly in order to be more effective in delivering those services, also partly to respond to the new series of reports that there have been on public tragedies.
I mean, if you look at the Soham murders, you look at Victoria Climbié, you look at Baby P, the one common feature is the failure of public services to share information about the people they were dealing with. And that’s in the provision of service. Now, when I talk about trying to bring services together, I am saying that the sort of information I think we as a society need to share is name, national insurance number, date of birth and address. And I think there needs to be big discussion about whether that’s the right information to share, but I believe that the public have a right to know what information is being held by public services, what use it is put to and what are the safeguards for protecting the integrity of that information.
And that is a challenge which is going to come back to us. We are also here today talking about the state, but I think we also need to look a bit outside the state. I mean, how do these databases come about also in the society as a whole? And I chose the Guardian – it seemed to me, as they were sponsoring the event, we should at least pay… look at what they do [Georgina laughs] in terms of collecting information. And so this is if you…[audience laughter] I think it is only fair! [more laughter] My civil liberties may be affected fairly quickly. [laughs] This is if you want to use Public magazine [holds up a paper form], and it asks for your name, your address, the company you work for, it asks about which sector you are in, it asks about what your area of responsibility is, how much budget spend you’ve got, and then it says at the end, “do you want to receive Public magazine?” So that’s all fairly straight forward.
Georgina Henry (chair): Yes, well we can’t lock you up if you decide not to answer it or… [clapping]
David Varney: But it does raise the issue, without being defensive, as how these databases come about, because they exist outside the state. In much smaller print is a statement that says, “if you specifically do not wish your details to be passed on please tick here.” So this is the opt-out model of sharing data.
I am arguing that for most data I think it should be an opt-in. And what’s interesting is that we need… that process of information management, I think, is a challenge which we will face not just in the public sector but in the private sector, too. I decided about 2 years ago that one of the things I would do is I would get one of the internet agencies that monitors your credit standing to monitor my credit standing. The thing that amazed me was at the end of the first month they reported back to me on what was known in the internet about me, and the first thing they got was my credit card debit balance. Not the details, but what the balance was – the details, thank God, it kept to itself. But what amazed me was how much information is around in the internet, and I think we need a consistency policy line both in the public and private sector, because it would be mad if we imposed constraints on the public sector, and then in the private sector we just turned a blind eye. So I think that’s part of the challenge. Thank you.
Georgina Henry (chair): Ken.
Sir Ken Macdonald: Well, Helena has raised the question about what’s in the water in the Home Office. Let me tell you something which is probably very obvious to all of you. When your every day begins with security briefings and threat assessments – and believe me, I’ve been there – when you feel responsible for people’s safety, it is very easy to fall into a way of thinking that places security above absolutely everything else. It’s a simple psychology to slip into, you start to develop a form of protective zeal. It’s re-enforcing and it’s very comforting when you are doing those jobs. You begin to believe that you have to do your best to abolish risk altogether and that you can legislate it away. That you can create a society where people are always safe. But as Dominic has said, the idea of total security is really nothing more than a paranoid fantasy which would destroy everything that makes living worthwhile. And it is, I think, for citizens to make plain to their government that they understand this. We as citizens have to make this clear, that we are prepared consciously as adults to accept some element of risk in order to be free.
Now, Jack Straw, writing in the Guardian this week, has declared that Britain is not a police state, and there is nothing like a statement of the bleeding obvious to lubricate an article in a newspaper, and I may have been guilty of that myself in recent days, but I want to concentrate on one particular threat which I perceive.
There was another story in the Guardian last week, a front page story about a paper written by Sir David Omand, who was Security and Intelligence Coordinator in the Cabinet Office for some years, and I know and admire David Omand. He produced a very thoughtful paper for IPPR on, amongst other things, communications data surveillance, and Alan Travis wrote extensively on this last week. This is a thoughtful paper which I think gives a glimpse of the scale of ambition in some parts of Whitehall, and he maps out a future that we would do very well to examine and consider with very great care.
Actually, I don’t believe there is unanimity about any of this yet in government and not even in security services, I think there are arguments and disputes going on, and I am not sure the position of the main opposition party is entirely clear yet. But essentially what is proposed is that we might move away from a system in which only those suspected of involvement in, or association with, crime can be subjected to intrusive inspection and examination, to a world in which people suspected of nothing, the wholly innocent, may be dealt with by the state of precisely the same way. So that everybody’s communications data, everybody’s phone records, everybody’s text messages, everybody’s internet use, airline bookings, financial records, biometric data – all of it – may be intergrated by the state.
As David Omand says, and I quote, “such sources have always been accessible to traditional law enforcement seeking evidence against the named suspect, already justified by reasonable suspicion of having committed a crime. However,” he goes on, “the application of modern data mining and processing techniques does involve examination of the innocent as well as the suspect to identify patterns of interest for further investigation. The realm of intelligence operations, ” he says, “is of course a zone to which normal ethical rules we might hope to govern private conduct cannot apply. Finding out other people’s secrets is going to mean breaking everyday moral rules.” And he concludes, “so public trust in the essential reasonableness of UK police, security and intelligence agency activity will continue to be essential if we are to move into that world.”
Now, what the paper completely fails to address is how that precondition, that essential public trust, could possibly survive a system under which the security services were empowered by law routinely to trawl through the private communications data of vast numbers of citizens suspected of no crime, simply in order, as Sir David puts it, “to identify patterns of interest for further investigation.”
How would the public regard their security services in that world? Of course, such a world would change the relationship between the state and its citizens in the most fundamental and, I believe, dangerous ways. In all probability it would tend to recast all of us as subservient and unworthy of autonomy. It would destroy accountability and it would destroy trust.
This is for one very simple reason and it is because to abolish the distinction between suspects and those suspected of nothing, to place them entirely the same category in the eyes of the state, is a clear hallmark of authoritarianism. Now, none of this is to argue against the rights of suspects – these are absolutely sacrosanct. But it is to stand against any government that might understand no distinction at all, so that everyone, each one of us, becomes suspect. [Unknown panel speaker: hear, hear]
Now the threat that all of this could represent is only exacerbated, it’s only underlined and highlighted by any idea that all this private personal material might in future be held on a giant, central database accessible by the government and its agencies, and it is for these reasons that I have said before that we should take very great care indeed to imagine the world we’re creating before we build it. That we might end up otherwise living with something that we can’t bear.
Georgina Henry (chair): Thanks very much, there is lots there to chew over. So, we are now going to move to questions from the floor. Because we are filming this and recording this for everybody else round the country – God, now when you say that it sounds so suspicious, doesn’t it! [audience laughs] But anyway – can you please stand and identify yourself and… [laughs]
Helena Kennedy: [interjecting] …or not, if you don’t want to?
Georgina Henry (chair): …or not if you don’t want to but, you know, it’s… we are all friends here. Anyway, but if I can also point the, because it takes a bit of time for the cameras and the mics to get you, if I could see a couple of hands go up and give you orders. [laughter] Control Orders.
Right, so we’ll take the first question here from the lady in red. Next, from the gentleman in the middle 3 rows back in the middle. Cameras, are you following me? And then a third one down here. We’ll take… we’ll take one to get the panel going and then that will be the order and then we’ll come back for some more.
So, go ahead.
Margie Baker (audience): My name is Margie Baker, I work with an organisation called Women’s International League for Peace and Freedom. I found the… both… Shami’s wonderful presentation, she’s always great. And the other comments, very interesting. And I’m thinking about her assessment of modern liberty and also thinking about liberty as… and the current obsession, if I can put it, with security. Well we all want security, but I think intertwined and defined with this, and this has to do not only domestically but with the little adventures this country has been taking into other parts of the world. How do we define security? What is security? What does it mean us to? Is it check points, is it ID cards, is police, is it guns? Or is it things like housing, jobs, food, clean water and the things that we really need? If people have jobs, if people have education, then they don’t have time to be so-called “terrorists”.
Georgina Henry (chair): Thank you and the next one?
Leszek Jażdżewski (audience): Hi, my name is Leszek Jażdżewski, I came here from… [microphone is suddenly audible through hall PA] Oh, OK, now I’m audible, alright. So, my name is Leszek Jażdżewski, I am Editor in Chief of Liberté magazine. I came here all the way from Poland to see how the country that liberty was born [in] is doing right now and [audience laughs] yeah, because Britain was always ahead of its time, right? So you invented liberty, industrialisation and where it is looking, what it is now. And, OK, my question relates to… I came from the country that was very secure for many years under Communist rule. All the people that had different opinions were very secure… with accommodation and food [audience and panel laugh, clap]. So country of the great security and, well, my question is actually, the thing is that we are the very wrong audience for this conference because, you think about it, that you are against the government who is trying to impose some regulations and that is what it was in my country as well, but we are also tackling with the public, the majority of the public, that might have [a] different opinion. So my question will be related to, how are you going to convince all this, not Guardians readers, who are actually here, how are you going to convince The Sun readers and Daily Mail readers that you actually… they should be on your side? [applause]
And just to finish with the very short quote of Benjamin Franklin, I think could be a motto of this conference. That those who give up their very personal and very basic liberties for the sake of a little bit of security and safety, they deserve neither the liberty nor safety. Thank you. [applause]
Georgina Henry (chair): I will ask Dominic Grieve to answer that question. Are you uncomfortable just… [that] your party is just sitting talking to Guardian readers? How are you going to reach The Sun readers with your great concern for human rights and civil liberties?
And meanwhile can the cameras go to the next question.
Dominic Grieve: Well, I think the two questions, interestingly, were linked because, you see, I think the answer to the first question is not about security, it is what is quality of life and well-being? And those two things are not necessarily the same. I can enjoy a tremendous quality of life and a sense of well-being if go mountaineering, which I occasionally do, and expose myself to risk when I’m doing it – it actually makes me feel alive and I am prepared to right to take the risk when I’m doing it. Clearly, there are some things where quality of life and security go clearly together, but I think one has to keep in mind that quality of life and security are not necessarily one and the same thing.
And so, turning to the second question, that’s the way you argue with your Sun reader because he is a person of strong views, but he is also, I have to say, a person of common sense, and he wants a life which is rich and beneficial to him. He is fed up with rules which appear to obstruct him and he is fed up with what he sees as a lot of can’t, at times, which is preached to him. But that doesn’t mean to say that he’s not concerned about freedom, and one of the great challenges for us, particularly in the context of the European Convention on Human Rights, is translating that in a way that makes it relevant to him so that he sees, or she sees, that it is something which is defining and important to them, and not something which is being handed out to some other, because that is how you get a cohesive society. When people start saying that the rights which are given to people whom they may actually dislike quite a lot are very important to them, because it defines their status and their standing.
Georgina Henry (chair): Can I just follow that up, though. Chris Grayling, the new Home Secretary, gave a speech this week in which he said the Conservative party policy would be about fewer rights, more wrongs, i.e. the emphasis needs to shift back to crime, away from civil liberties. Is that not going against what you’ve just said?
Dominic Grieve: [smiling] No, I don’t think it is at all. [audience laughs] I have to say that I wasn’t completely clear about what “fewer rights, more wrongs” meant. But I think carrying out an analysis of this, I think what he was talking about was the language of common sense, that until we get that language clear, then my view is that selling civil liberties and particularly structured civil liberties to people would be very much harder. If we want to win this battle, the relevance to The Sun reader or, for that matter any other person you may wish to identify in that category, has got to be made, otherwise all we’re going to be doing is talking amongst ourselves.
Georgina Henry (chair): Ken just wants to come in on this.
Ken Macdonald: I just wanted to make an observation about this, particularly strands of opinion, because one of the interesting things that has happened in recently years has been the extent to which the issues we’re considering today have cut across some traditional lines. I mean, a personal observation I would make, is that on couple of occasions when I have made interventions in the area of liberties, I have had approving responses in particular from two newspapers, the Guardian and the Daily Mail, and often on the same day. Now, the reality is, that the approach that some organisations that might have been distrusted by a group like this in previous years, and I’m thinking particularly of the Daily Mail and Daily Telegraph, have taken quite an interesting line on some of these issues. They were highly sceptical about 42 days, opposed it, in fact; they’re highly sceptical about the rhetoric around the War on Terror and they are, to a greater or larger extent concerned about issues of torture.
So I think the situation, so far as where opinion is falling in these issues, is far more complex that it would have been 15 or 20 years ago, and that’s of course an extremely encouraging sign. I think the position of the Conservative party, although we might have issues here and there around the edges, is very different from where it would have been 15 or 20 years ago. I heard Roger Smith, the Director of Justice, recently saying [that] we shouldn’t be too pessimistic about where we are at the moment, there are interesting alliances developing, some interesting opinions forming in places we might have not expected in the past to have found them, there are some interesting resistances developing. So I’m not too gloomy about where we are, none of which is to say, of course, that we should be complacent.
Georgina Henry (chair): Can I just take that third question, otherwise we’re going to… have you got the mic? Who was it? Ah. [audience amused]
Elizabeth Forbes (audience): [amused] I’m here, I’m not going away. My name is Elizabeth Forbes, and I wanted to ask, or I’m wondering why there has been no mention of the role of the police in the erosion of our liberties to date. I’m a local councillor and I work quite closely with the police locally with the Safer Neighbourhood team, and I just wondered for example, to be specific, what was the role of the police in the prohibition on photographing the police? Was it their idea or the government’s idea? Because effectively that’s stopped the press photographing demonstrations from now on.
Georgina Henry (chair): We’ll take a question from… we are having questions sent in from the various places watching this online or with their own conventions and they’re going to be given us by the man sitting there [points]. So, do you want to just give another couple?
Staff member (reading emailed and videolinked questions): Are we on?
Georgina Henry (chair): Can we hear you?
Staff member (reading emailed and videolinked questions): No? There we are. Yeah, excellent. So, I’ll take two question – or direct two questions that I’ve received over the internet, and one is from Hannah, and that is this question: “Internment in Northern Ireland was said to be the best recruiting sergeant the IRA ever had, so why are the government using this method, detention without charge and no access to a jury trial, now? Have they not learned the lessons – have they not learned any lessons from the past? That’s from Hannah. And the second question, sadly, is anonymous, but it is this: “Drawing public attention to the assault on liberty is critical, but what is to be done, and how do we do it?” [amusement]
Georgina Henry (chair): Thank you. Which of those do you want to answer? Do you want to answer the internment…
Helena Kennedy: I want to come in on a number of things. One is that I… on the internment thing in Northern Ireland, there’s a real fantasy that laws in relation to terrorism can be vacuum sealed and somehow they will only relate to terrorism and that they can be for as long as the terrorist threat exists. And the reality is, as we learned doing Irish trials, as I did, and watching carefully what’s happened over the last 30 years, is that you can’t vacuum seal law like that. And what happens is that it seeps into the culture of policing, for example, and when one analysed it one saw that the same police forces that were responsible for the miscarriages of justice on the Irish cases were also at the same time responsible for miscarriages of justice in other areas of crime, because there had been an erosion of standards around interrogation and so on, and so you got false confessions and so forth.
So, you cannot vacuum seal terrorism law and it affects the cultures of policing. The second thing is that we also saw standards being lowered on the right to silence and jury trial in the Diplock courts, which in turn have fed into attitudes to those things in the system as a whole. We now… the right to silence has been eroded in relation to all crime and that followed within five years of that change taking place, first of all in Northern Ireland, only in relation to terrorism. And the other thing that is very interesting is, these attacks on jury trial have very much been motored by people involved in the criminal justice system in Northern Ireland who say, “well, we did away with jury trial to deal with terrorism in the Diplock courts, it worked perfectly well for us.
Why are you guys still insisting on it, for example, in terrorism trials here now?” And there is an argument being made amongst judges that we shouldn’t have jury trials for terrorism cases here. And I see this is as being pernicious and I actually think it is one of the things that people just don’t appreciate in terms of erosion. The other thing about cross currents, I think something is happening in the zeitgeist. I do not think this is just about Guardian readers concerned about liberty. I actually… as I travel up and down the country and speak to people in all sorts of public kinds of meetings, there is a general feeling that the state is taking too much power to itself and interfering in people’s lives in a way that they don’t like.
One last thing. And my… and if you were to say to The Sun reader – I am convinced of this – what is an ID card going to mean for you? And for me, an ID card means an internal passport. Do we really want an internal passport, where at every checkout it becomes almost like the border police? You see, I don’t have any objection to an improvement on the information that’s in my passport for when I travel between countries, what I have an objection to is the idea of being asked on the street to prove who I am, and I think we should all object to that.
Georgina Henry (chair): I would like some specific questions on data, I think would be interesting whilst we’ve got Sir David Varney on the panel. But in the meantime, so who’s got a very specific question about… right… here in the front? And… here.
Anonymous audience member: You have ignored this lady’s question.
Georgina Henry (chair): No, hang on, I’m coming on, I am just trying to get people to the next person, because I was going to ask Ken Macdonald in the meantime to answer very specifically, d’you know, the police question? [directed at Ken] Do you know the answer to that?
Ken Macdonald: I don’t know who… I don’t know, I mean, that’s after my time, I don’t know where that came from.
Helena Kennedy: We don’t know the answer. I mean, the truth is we don’t know the answer to your question of “was it the police who refused to have police officers photographed”. Where the energy came from I don’t know – I strongly suspect senior policing people, ACPO or whoever, made the argument for that to the Home Office, and the Home Office is very, very much susceptible to taking the views of the police. But, where… how it happened, I don’t know, you would have to ask somebody involved at the Home Office.
Ken Macdonald: And it doesn’t really matter where it came from, because, you know, all sorts of organisations and individuals put ideas up to government, it is for government to surpress and get rid of rubbish, so it is the government’s responsibility if it enacts legislation of that kind. If a policeman comes up with that idea, the government should say, “it’s a silly idea.”
Georgina Henry (chair): OK, next question? Yes? Thank you.
John Morrison (audience): My name is John Morrison, I am a journalist. One of the things that distinguishes me possibly from other people in this room, I have actually lived in a police state, I worked in the Soviet Union for several years. Now, one of the things about a police state, is that its citizens do not have the free right to travel abroad and that’s one of the things I always noticed when I was there – I could travel, the people around me couldn’t.
What is going to happen in this country, in a few years time if the Labour Government continues, is that you will face a choice – everyone in this room will face a choice between signing up to the supposedly non-compulsory ID database, or you will lose your right to travel abroad. My passport runs out in 2017, after that date if I sign this pledge from NO2ID and refuse to give my details to the Home Office, I will not be allowed to travel beyond Dover. If you don’t believe me, look at the secondary legislation which was out for consultation which finished earlier this month. It is there in black and white: a passport will be a designated document, you will not get one without signing up to the ID database. So I just wanted to make sure that everyone in this room was aware of that. And it is very relevant…
I am not a lawyer but I would like to know if the right to travel abroad is generally considered a common law right?
Dominic Grieve: It is a right enshrined in the Magna Carta, oddly enough. There are all sorts of rights in Magna Carta don’t… are not really there, but that is one of them.
Georgina Henry (chair): I am looking for more questions. Gosh, it’s so difficult to see at the … where haven’t I been? There’s a lady 1-2-3-4 rows up…there. And then two further rows back there is somebody else with his hand up. Shall we take two more questions from this side?
Penny Faust (audience): My name is Penny Faust. I’d like to ask Sir David Varney, if he believes that only 4 items of information are necessary for the database, why are we being asked for 53? [applause]
Georgina Henry (chair): Just one second… just… take the next question, it’s the gentleman just further up. Where is the mic? On the same side.
John Stratford (audience): John Stratford. Isn’t it time that this country had a written constitution… [applause] to enshrine our rights and liberties and prevent them being destroyed by transitory politicians, particularly when our rotten political system creates a government which a majority of 65 in parliament when only 22% of the electorate have voted for it? [applause]
Georgina Henry (chair): [at David] Could you answer the question about 4 items versus 53 to travel?
David Varney: I was talking about information which I think is required for service delivery. If more information than the 4 items I have identified is required, then I believe we need the service organisation seeking that information needs [sic] to get the consent of the citizen to provide it.
But can I just add so… I think the 52 comes out of the security side of the house, of… and you will have to ask them because I certainly don’t know why they need that amount of information. But I do think we need… if I was asked how do we take it further forward, one of the things is we’ve got to face up to the issues which are involved in daily life. The gentleman down there was talking about what do you need to travel. Well, I happen to be of an age where I have a Freedom pass – that’s a convenient way of me travelling round the city. I have to show this whenever I want to take advantage of the particular entitlement.
In my report, I worked out that on average a citizen has to reveal their identity and prove their identity to the state 11 times a year. Actually, if you look at that it’s the average number, but of course if you’re a vulnerable party of society, economically not very successful, maybe in… with housing difficulties, number of dependencies, maybe health problems, you probably do that many, many times more, whereas if you hardly… don’t touch the state then you don’t have a problem of proving your identity.
And most of us will be packing in our pockets forms of identity which other people, not the state, but which other people use, whether it’s a credit card, whether it’s a mobile phone – and in many, even countries with written constitutions, having increasing amount of electronic information which is available. It’s also quite striking to me – we talked about The Sun readers – one of the things that strikes me is, if you look at Facebook and Twitter, which… those sorts of sites, people will say the most amazing things about what they’re prepared to share with other people. Some of which I might not… well, you have a choice, but they’ve made that choice, and there is a growing sector of information which is publicly becoming available from those sorts of sites.
So I think we need a big debate about what is… what is… what are the issues of, in terms of liberties which [are…] these sites pose, and then what is our response to it. I was struck by Helena’s point which was that so far the only recommendation for taking something further forward, which is to create a list of questions to use the democratic process to get this issue on the table. The other thing is if, excuse me, if you say how do we get to the Sun readers, is the internet – it’s one of the great advantages of it, and Obama’s shown that, is the way in which you can communicate and raise collective pressure in unorthodox and quite forceful ways.
Georgina Henry (chair): Just before… we will come back to the written constitution question in a moment. Just pick up on the data point…
Ken Macdonald: That is all fine, and of course we live in a world where we give all sorts of information about ourselves to all sorts of people, and we may choose to carry a free bus pass, we may choose to carry a library card, we may choose to carry an Oyster card – I’ve got most those myself apart from the free bus pass, but… [laughter] But we have to be very careful that this common or garden observation that we live in a world where lots of data is stored somehow acts as a counter-balance to the threat that is represented by the government using by compulsion means behind our backs to find out information about us and then potentially to use it against us. Now, these are two different categories and I would say that David is guilty of a serious category error here. We are concerned with what the government is potentially planning to acquire for itself in terms of power to access all of that material against each one of you, whether any of you are suspected of crime or not, and even if you are not. Now that’s the threat we are here considering, I think, not whether people are carrying bus passes or library cards.
David Varney: I think my point, Ken, is that I agree that’s what we are considering. But actually, the fact that information exists and is available means that all sorts of people can get access to it. The people who got access to my credit card debit balance were not an organ of the state, they were using devices on the internet presumably which can trawl data and collect it.
Helena Kennedy: But David… I really… you are here whether you like it or not representing the Prime Minister’s Office, and so we can’t miss this opportunity of actually… he might not see is that way, but we’re seeing it that way for the moment because you have direct access to him in the way that most people here and listening haven’t. So, what we want you to tell us is this: David Omand [laughter] David Omand has pointed out in his report that we are moving into a situation where we are all suspects now, and that idea that it is not just those who are suspected of crime, but the ordinary citizen who will be trawled for information, is about changing the paradigm, changing the relationship between the citizen and the state. Does that, is that a source of concern to you?
David Varney: Yes, I think in the same way that when you address me as though I had some access, you know, to the Prime Minister of course. I think, as I’ve said in what I said about the service delivery, I think it is important to modernise service delivery, but not in a way which undermines liberties.
Helena Kennedy: So how, what are you going to do. Reassure us, what are you going to do to stop us all becoming suspects?
David Varney: Well, in the same way that you have expressed your dissent from David’s point of view, I will tell David exactly the same thing. In the end we’ve got to come together and create a voice which has strength and persuasion, and addresses the arguments that we… and the things that we value and we want to protect. I’m perfectly clear, I’ve got the highest possible regard for David, but I think you can take this security position to a point where it ceases to be effective, ceases to attract public support and undermines the very things we are seeking to defend.
Ken Macdonald: You only have to imagine, just imagine where the security services are positioning themselves here. If they go down this road, what is going to be the view of the average citizen towards the security services and their remit? And David Omand talks about a generally beneficial attitude that people have the security services by and large, in spite of current controversies – and we don’t know where that will end – but a general feeling on the part of people on the part of people that, you know, they do what has to be done. Now that may be shared in this room or not but it’s probably a broad view in the country. What’s the view of them going to be if they become the kind of mega snooper into everybody’s private life? What are people going to think about the security service and secret intelligence service in that world? And what is their relationship with the state that controls those organs going to be in that world? This is, you know, to put it in marketing terms, if in no other, extraordinarily bad positioning for these people.
Georgina Henry (chair): Dominic, very quickly I want to take a few more questions.
Dominic Grieve: Ken earlier sort of put down a bit of a challenge about what the Conservative party’s position was on these proposals, and it seems to me that the clear distinction is between providing a system where the security services or the police may be able to obtain information on named individuals who may be under suspicion and under investigation, and providing a system which allows data mining on the perfectly innocent individuals in order to try to establish patterns which might lead to further investigation. So I do actually think it is possible to have an ethical debate which identifies where the dividing line is and then it must be the task of politicians to ensure that that dividing line is not crossed.
Helena Kennedy: Can I just tell you that I asked…
Georgina Henry (chair): [interjecting] Helena, I really want…
Helena Kennedy: …I just wanted to [laughs], on DNA, I asked that every… if they were putting through law that said that people’s DNA should be kept even if they were not convicted or even if they just volunteered their DNA, I said why haven’t all of the cabinet volunteered their DNA and there was no takers! [applause]
Georgina Henry (chair): Just to remind everyone, I mean, this is just the start of the day, there’s masses of time to develop this in all the sessions. I am going to take 4 last quick questions, and by that I mean quick, not statements. Pardon? [audience member asks inaudible question] Yes, they can come back in their final remarks, OK? That’s not forgotten, I promise you. OK, one here… this man, yes. Two, the man in the grey. Three, who I asked you before [audience makes noises of complaint] and, oh, sorry, sorry, I am going all the wrong… Okay. Right. This man here, two rows back, and then we’ve got… OK, I’m going to take 5 questions and then we’ve got a question from wherever. Where is it? From today. From one of the regions who are looking at this. Yes. Okay, so starting over here. Very quick, please.
Peter Wilson (audience): My name is Peter Wilson, I am student. I was very interested about all the crime points and suspicion and things like that, with regard to civil liberties. However, I am also very concerned about climate change and issues like that, so I was wondering, does the panel recognise there is a fundamental tension, or at least a potential tension, between civil liberties, individual civil liberties and climate change and combating environmental issues.
Georgina Henry (chair): Oh my God, that is a huge question [she laughs]…
Peter Wilson (audience): …I’d be interested in what the legislative response was, as well…
Georgina Henry (chair): …thank you very much. Next.
Simon Copsy (audience): My name is Simon Copsy, I’m a concerned citizen. This is perhaps a question particularly for Dominic Grieve. Given that one of the things that we want to achieve from this is for this legislation that has occurred over the last few years to be repealed, what chance is there if, say, for example the Conservative party got into power at the next election? Because my experience is that most governments tends to find that the power that they inherit is actually rather useful to hang on to.
Georgina Henry (chair): Thanks very much. Her, the lady… up… the lady. The lady up, right, with her hand up there. Behind you. Yep, that’s right.
Lindsey Cook (audience): Thank you very much. My name is Lindsey Cook, I’m here for myself although I worked for Charter88 for five years in the 1990s.
Thanks for asking me because I think I am going to spontaneously combust if somebody uses the word citizen one more time. [mild applause] We are not citizens, we are subjects, and that is the root of the problem. The state does not belong to me, it belongs to this curious concept called the Crown in parliament, and it’s that curious concept which allows governments of any political persuasion basically to do pretty much what the hell they like.
Georgina Henry (chair): [interjecting] Thank you very much…
Lindsey Cook (audience): We need a new constitutional settlement in this country.
Georgina Henry (chair): Thank you very much. This one.
Rahman Batacharia (audience): My name Rahman Batacharia, I have lived in this country 42 and half years. My first question will be when we called about the terrorist, who are the greater terrorist than the empires, those that have been creating havoc all over the world. Second question…
Georgina Henry (chair): [interjecting] One question only, though, really, sir. Sorry, only one question only, I think.
Rahman Batacharia (audience): I’ll just one more. [audience laughs, claps] One more would be… one more…
Georgina Henry (chair): [in a amused but despairing voice] Some chair I am. I am only the chair, don’t worry about me.
Rahman Batacharia (audience): My identity… I have been in this country 42 and half years. And citizen of British… the UK for 50 years. My identity was used by Labour Party conference in 2008 and I was barred from my [inaudible] was confiscated because I have two birthdays. One is actual birthday and one is my Calcutta university birthday.
Georgina Henry (chair): Thank you very much, thank you. Last question. Have you got a mic there, a mic at the front here? Just final question here and then we’ll have a very quick wrap up. No, no, no – here. Sorry.
Staff member (reading emailed and videolinked questions): I have received a question relating to data sharing and I would like to just put it into context and to ask Dominic and David directly, whether they approve of taking all the data that’s currently allowed to be collected by the government under the identity register and under the EU border scheme and then sharing that with every government department, across the government? And if they don’t agree with that, are they going to tell the current government and parliament to go against section 152 of the Coroners and Justice bill, which is currently going through Parliament at the moment?
Georgina Henry (chair): Good question, thank you. Now, panel, sorry, you’ve got one minute to answer any one of those questions!
Dominic Greave: Well, it’s entirely true that governments… parties in opposition say that they are going to do things and then they get into government and wonderful permanent officials come along and say, oh that’s very brave, minister. But just to make the position quite clear: we are going to get rid of identity cards! It’s going. Finished. Done. And on top of that, we will also, we were going to review the DNA database. It’s got to be a database of those who have been convicted of criminal offences. There are other perfectly good models in the United Kingdom we can look at on that.
Georgina Henry (chair): [quietly] Scotland.
Dominic Greave: [pointing to Georgina] Scotland. Thank you. And finally, we are going to look at repealing lots of legislation. I would like to have a repeal bill in the first year of a Conservative government and there’s always sorts of things I want to chuck into it, including so much of the criminal justice legislation I spent hours looking at in committee which we’ve introduced, has never been used and is complete redundant.
Georgina Henry (chair): Helena.
Helena Kennedy: Well, some of you might not have heard what Rahman was saying, which was that he was barred from the Labour Party conference because his date of birth is registered as being the date he was born, but he was also born in Calcutta so therefore his date of birth is the date when he was registered. Because of that difference he was… and the computer had the 2 different dates, he was not… he was chucked out of the conference. That is going to happen up and down the country, day in, day out. [applause]
Georgina Henry (chair): David.
David Varney: I don’t believe in a generalised freedom to share all information. I think the information that should… that is to be shared should be subject to definition by the bit of government that wants to do it. It should be clear, be understood by people providing that information and there should be management scheme to protect the integrity of the information while it is held.
Georgina Henry (chair): Right…
David Varney: No chocolate [inaudible] …
Georgina Henry (chair): Finally, citizens? Or written constitutions? Or climate change?
Ken Macdonald: Yeah, yeah. I think we should have a written constitution. I agree we should be citizens and not subjects, which I find personally an offensive term, and I think as empowered citizens we should be controlling our own government.
Georgina Henry (chair): Thanks very much to a very good panel and very good discussion. You can carry on discussing it either on Liberty Central, which is the Guardian’s civil liberties site, or the convention website for the next month. Phil Booth from NO2ID is now just going to give you a very short statement, I think?
Phil Booth (NO2ID): Thank you very much indeed, good morning. I had a call from Cardiff, they were not mentioned earlier on – hello Cardiff and hello Manchester – who didn’t get online straight away, but you are with us now, obviously. In the minute I have got, I am going to ask you to do something. Not only that, I am going to ask you to get others to do it as well. It is important, it is urgent, and it is something that only you can do.
We have been warning for years about the stated intention of government to overrun barriers to information sharing within the public sector, and now they are poised to slip something under the statute books that is absolutely extraordinary, and the reverse of the Data Protection Act. A power that will allow any ministers by order to alter any act, to cancel confidentiality, to ignore consent and to use any information gathered for one purpose for any other.
This single clause is a grave threat – or as grave a threat to privacy as the entire ID scheme, in NO2ID’s estimation – compared to the threat to life presented by the register, and anything recorded about you anywhere could be accessible to any official body. That is your information, your family’s information, taken for one purpose, arbitrarily used without your consent or maybe even knowledge for any other purpose.
Clause 152 of the Coroners and Justice Bill must be stopped. We can do it together, but only if we act now. Please, when you go home tonight, or tomorrow – or Monday at the latest, but keep on going – write and tell your MP. If you haven’t done this before, you can do it very easily over the internet by going to a website called WriteToThem.com, and tell them just simply that you refuse your consent to remit anyone the arbitrary power to share your information under any information sharing order. It is imperative that your MP understands that you have refused consent. Please also ask that he or she votes to have Clause 152 removed completely from the [Coroners and] Justice Bill and make sure you tell your representative that you refuse your consent to this. Thank you for your attention. You will hear lots of stuff today but please, do remember: Clause 152.
With thanks to Gillian Croft and Natalie Bracken for transcription and Stefan Pause for editing.