Home Surveillance Secretary Jacqui Smith spoke to the Intellect Trade Association on 16 December 2008:
Today I’d like to address one of the most pressing questions we face as a modern society – how we secure our rights and liberties as individuals, at the same time as ensuring the wider protection of all in our society against terrorism, crime and disorder.
Balancing these individual and collective rights has always been a key responsibility of government.
Well, we all have individual rights. Any inteference with these rights must be ‘necessary’ and ‘proportionate’ if it is to be lawful (and ‘balanced’), and the state is obliged to protect our rights, from itself and from individuals. We have the right to life, and that is why the state is obliged to protect our lives. In protecting our rights, the state might decide to intefere with our rights, but its interferences must be ‘necessary’ and ‘proportionate’. In this sense, there are no ‘collective’ rights – there is a collection of individuals and their rights.
Her speech is the usual fatuous guff.
Jacqui does not believe we live in a surveillance society, “not for one moment” – OK, 16% of the country does not – on the other hand, 79% does. Later she talks of common sense – clearly in this particular case she disagrees with common sense. I wonder how she would define a surveillance society. Clearly we haven’t gone far enough!
As usual, Jacqui conflates all kinds of surveillance and databases and does not distinguish between them (e.g. in terms of targetted as opposed to mass surveillance), nor does she mention of the lack of choice in terms of public sector systems as opposed to private sector systems, nor does she bother to mention how effective, necessary and proportionate (or otherwise) her examples are:
retailers, banks, and insurance companies delivering more personalised and efficient services
nurseries using online webcams to reassure parents that their children are in good hands
sat nav technology making people’s everyday lives easier, whether it’s working out the route of a journey or accessing information from your mobile phone
strengthening the frontline against crime, with handheld computers and mobile fingerprint devices meaning the police can spend more time out of the station
In the space of a century, we have moved from setting up the first fingerprint branch in Scotland Yard in 1901 to the regular use of DNA today to extend and backdate the ability to investigate crime.
covert surveillance powers
She also conflates all sorts of types of crimes.
And of course, in what passes for Jacqui’s brain, (in)famous cases, such as the murderer of Rhys Jones, of the legitimate use of targetted surveillance prove the case for mass surveillance. She also uses anecdotal cases, such as “a trip to Tower Hamlets”, where by her account (there is no citation) covert CCTV stopped some serious anti-social behaviour. Jacqui, can I just ask you to read this one thing:
NO-ONE REASONABLE SAYS ALL CCTV IS BAD.
Jacqui presumes she has the authority to “set out some basic tests … for some of our key policies”. She does not – it is for Parliament to legislate the tests. We already have two fundamental tests: that of necessity and proportionality. She glosses over these.
Jacqui suggests the toughest test of all is “the test of common sense”. She doesn’t talk about this in the sense of the legal ‘man on the Clapham Omnibus’ but in the more populist sense: i.e. the measure might not be approved by a jury but will resonate with the public. But Parliament and the Government have a duty to protect our rights from ourselves as well as from the state – that is to say, even if 99% of people think CCTV in their home bathrooms is an excellent idea, our government should resist deploying it. And common sense is not and should not be a test in legal terms.
She talks of appropriate safeguards, such as those “built into how the National Identity Scheme operates” – it does not operate at present, there is no National Identity Register yet.
Jacqui asks if the Government is “being as transparent as possible”. Er… no.
And “how do we [meaning the Government, not the people] provide individual citizens with the right [in the Government's eyes, not the people's] level of choice and control?”
One good thing: Jacqui claims they are to consult on changes to RIPA and making it more clear what it should (and should not) be used for.
Jacqui mentions S & Marper and claims that “there are few areas where the balance between rights and protections comes into such stark relief as on DNA”. Once again she highlights an infamous case where DNA evidence helped convict the murderer of Sally Anne Bowman:
I have real sympathy for all those with concerns that any move could undermine a system that helped trap Sally Ann’s killer. And I want to reassure Sally Ann’s father that I will not let that happen.
Another serious case:
In May 2002, Kensley Larrier was arrested for the possession of an offensive weapon. His DNA was taken and loaded to the DNA database, although the proceedings were then discontinued. Two years later, DNA from a rape investigation was speculatively searched against the database and matched his sample. This was the only evidence in the case, and when found guilty Larrier received a 5 year custodial sentence and was entered on the sex offenders register for life.
These cases and others tell me that the DNA database is crucial to public protection. It not only helps to lead to the guilty. It helps to prove innocence and to rule people out as suspects.
Later there is a really useless gesture:
But for others, including children, I am convinced that we need to be more flexible in our approach.
The DNA of children under 10 – the age of criminal responsibility – should no longer be held on the database. There are around 70 such cases, and we will take immediate steps to take them off.
And something where you think, “no kidding!”:
There’s a big difference between a 12 year old having their DNA taken for a minor misdemeanour and a 17 year old convicted of a violent offence
That’s what the ECtHR’s ruling on S & Marper was about: that the current system makes no distinction between innocents, suspects, and convicted; that there is no distinction in terms of why the person is on the database; that there are no time limits depending on the seriousness of the offence (presuming there is one, he might have been a mere volunteer).
So a second good thing: Jacqui claims they will consult on,
bringing greater flexibility and fairness into the system by stepping down some individuals over time – a differentiated approach, possibly based on age, or on risk, or on the nature of the offences involved”, not only in terms of DNA but also in terms of “retention arrangements for samples.
But as David Mery writes, it was the Association of Police Chief Officers that decided on the current retention rules.
And so I will continue to put safeguards and openness, a sense of proportion and above all common sense, at the heart of everything we do.
That is just plain annoying because it is manifestly untrue.