Archive for September 2007
McNulty’s Genie (or the power of quasi-ecumenical debate)
(Note: The following post is the last in a series about an interview given by Lord Justice Sedley to the BBC’s Today programme on September 5, 2007. The post is unlikely to make much sense unless you listen first to that interview. Alternatively, you may wish to read my transcription of the interview. You may also wish to look at the rest of the posts in the series:
1 Introductory Comments
2 The Confusion of Powers
3 Lord Justice Sedley’s (and John Humphrys’) ‘Common Sense’
Central to the fate of the universal DNA database is a political modus operandi which I’ve not yet really explained, but which requires elucidation if one is to acquire a better understanding of Lord Justice Sedley’s, and especially of Tony McNulty’s role in the BBC Today interview of September 5, 2007. This modus operandi might be described as an ‘ecumenical’ mode of policymaking, or rather, as a ‘quasi-ecumenical’ mode: I borrow the term that, in the context of Christian religion, refers to the inclusion of different (Christian) groups under one roof. New Labour works very hard to seem to be inclusive of different people’s views. But I want to argue that, more often than not, New Labour’s apparent ecumenism actually works to suppress truly heterodox perspectives by generating relatively controlled simulacra of debate in the media, and/or in policy reviews and other apparently consultative exercises.
* * *
Broadly speaking, it can be suggested that a political party that wants to introduce an unpopular policy—or a policy that contradicts some of the most fundamental values of a country’s democracy—has four options.
The first option is to promote a national debate that is won (or lost) by way of the force of real argument. This is almost never the New Labour way of doing things when it comes to politically sensitive issues. To be sure, sociologists would rightly argue that in mass cultures, a ‘national debate’ is not actually feasible, if by this one means a debate that engages with all the different perspectives, or a debate that can arrive by way of ‘honest argument’ at any simple or unambiguous ‘national truth’. There are so many people, and there are such vast social distances, that any debate will necessarily under- or misrepresent at least some perspectives. In any case, any ‘debate’ will have to occur by proxy, i.e. by way of representatives that speak for others. This is one of the reasons why the media of mass communication play such a useful, but also such a potentially nefarious role in modern cultures: some political correspondents routinely assign themselves the role of being the (unelected) representatives of ‘the public’, or of ‘what the public wants’; unfortunately, this subtle displacement is seldom understood to be just that (a displacement, or indeed, a replacement of the own voice) by some audiences
The second option is simply to introduce the policy (or take the political action), and batten down the hatches: deny any controversy or wrongdoing, impose the unpopular policy even as you deny it, and send in the police to repress dissent if and when it happens. That is what happened with Margaret Thatcher’s poll tax, and what has happened with George W’s and Tony Blair’s Iraqi adventure. The political costs—not to speak of the humanitarian costs for Iraq—have been clear for all to see: despite having no real opposition, New Labour might well have lost the 2005 election if Tony Blair hadn’t promised to step down as prime minister.
The third option is more astute, and involves a variety of what can be described mock exercises in public consultation. Faced with the vast, complex, and potentially contradictory nature of the society, politicians may, indeed must resort to a variety of methods of obtaining ‘feedback’ from their constituents. One way of doing so is to canvas people by door-stepping or a variety of similarly informal means such as chats with friends, fellow politicians, or people who attend official meetings/gatherings. Another is to take note of the views of real or self-proclaimed ‘opinion makers’, or indeed to generate and/or participate in debates such as the one on the Today programme. Yet another is to use quasi-academic methods: polls, focus groups, and now the so-called ‘citizen’s juries’.
It may seem—and indeed New Labour would like us to believe—that especially the latter means of consultation are truly ecumenical, democratic, and indeed ‘scientific’ in the sense of being disinterested and objective accounts of what ‘the public really wants’. In fact, the mentioned methods are always shaped subtly and not-so-subtly by the interests of whomever asks the questions or otherwise guides the consultation process. So it is with New Labour, whose politicians have almost routinely used these and other methods to shamelessly legitimate their own interests in one policy ‘review’ after another. Three recent examples are New Labour’s consultation over the future of nuclear power; its consultation over the future of genetically modified (GM) crops; and its review of ‘skills’ in the UK’s various levels of education (1). I suggest that the current review of the Police and Criminal Evidence Act, which McNulty refers to repeatedly in the interview, is yet another example.
If and when such consultations do show a real diversity or difference in views—and this most certainly can happen—then politicians like McNulty can always either ignore the outcome of a particular consultation exercise, or ‘reinterpret’ their results so as to suit the own ends. As long as key members of the political establishment and crucially, key journalists either accept such machinations or fail to speak up against them, then the political party’s version of the outcome of consultation can be represented as being as good as the allegedly ecumenical ‘way forward’.
There is, however, a fourth option, and this is arguably the one that New Labour usually prefers. This option is, from the political party’s perspective, the safest one in that it guarantees, or appears to guarantee, a desired outcome. It involves the combination of elements of the second and third options: a de facto practice is quietly introduced that makes a certain policy seem inevitable by the time that debate is allowed, organised by, or indeed forced upon the government. It is this that I refer to as the ‘quasi-ecumenical’ mode of governance.
* * *
My account of this mode may sound overly cynical, or even conspiratorial. But I would argue that it has become New Labour’s everyday way of doing politics in the UK.
The introduction of a universal DNA database is a case in point. The police have been quietly building up the world’s largest database of DNA samples, taking and keeping samples from anyone they could. By the time a debate began to take place, so many samples had been collected that, as might be expected from a statistical point of view, the police had used the samples to catch some criminals who might otherwise have escaped conviction. The scene was thus set for someone to come along, and say ‘hey, this is actually too good a system to give up’, or ‘we can’t possibly go back on this now’ or better yet, ‘the genie is out of the bottle’. This is arguably the role played by, or given to, Lord Justice Sedley. And it is Tony McNulty’s words that I quote when I use the metaphor of the genie: after denying, rather obliquely, that the current status quo is ‘indefensible’ (Sedley’s term), he goes on to say that ‘I think Sir Stephen and Richard are right in saying you can’t go back this genie is out of the bottle…‘ This tactic (option two, above) is seconded by another (option three) which involves the ruse of debate, and consultation. As McNulty puts it, ‘… it [a universal DNA sample] is a very, very powerful tool, and there’s a huge debate needed about where we go from where we are now, will the up to universality [unclear], and again, like Richard, I welcome the debate it is much needed.’
Note that, contrary to what McNulty says in the quote above, Richard Thomas has not said that you ‘can’t go back’, and indeed that neither he nor Sedley have used the metaphor of the ‘genie in the bottle’. But no matter; the trick is to introduce the controversial practice by the back door; deny (obliquely) any criticism if and when found out; announce a review which seems to be ‘ecumenical’ but actually helps to introduce your policy; and as you do so, pick up any positive comments made by critics and twist them a little bit to make the critics seem to support your own views.
As McNulty says to Humphrys, ‘I think your your your point all be it about universality but about the stigma is important, this is not about a DNA database of everyone who’s ever committed a crime and been guilty, it’s a DNA database of anyone who’s… encountered the criminal justice system, and other samples that are lifted from crime scenes, so there’s about four million individuals and it is a hugely powerful tool, ah and and and Sir Stephen almost made the point himself, there are those who, because of that interaction with the system are on, are on the database for something fairly innocuous, who those very individuals have been on a cold case analysis basis been convicted of very serious crimes going way back because of the DNA samples from them’.
And again: ‘The point that we’re looking at in the Review of the legislation, PACE [unclear] and the sort of overarching legislation for these matters is looking at that and all other points about biometrics in general but specifically DNA. So the points about retention, who should be on and who should be off, when you encounter the criminal justice system should you go straight on all those points will be part of that review, and I think it is a very welcome and serious debate.’
When John Humphrys presses him on the current status quo, there is more of the same:
John Humphrys: So you accept that there are huge civil liberties…
Tony McNulty: Oh I do absolutely, absolutely, I…
John Humphrys (interrupting): in that case you must be outraged that there are people on that database who should not be on it today, why are they still there?
Tony McNulty: Well it depends that’s exactly why we’re looking at it through the PACE review now, are there those on it who shouldn’t be on it, are those who do encounter the criminal justice system but are subsequently not found guilty of any ah crime, is there still some value for the wider public of them being on for a very limited period, I do take Richard’s point too about those involved in very serious crime can and should be on there uh indefinitely, I think people accept that.
* * *
It might be argued that I have not really proven that McNulty/New Labour are in favour of the database, or that the review is a sham from the point of view of its ecumenism. But consider the following questions: if New Labour doesn’t agree with—indeed, is not behind—the proposal for a universal DNA database, then why has it allowed the police to take and keep the DNA samples of anyone whom, in McNulty’s delicate expression, ‘encounters’ the criminal justice system (witnesses, people proven innocent by courts, children younger than 10, and so forth)?
Second, if the review is really a consultative exercise, why would McNulty be proposing, as his review of the Police and Criminal Evidence Act does, to extend the DNA sampling to minor offences, and to even set up so-called ‘STHF’s’ (‘Short Term Holding Facilities’) for this purpose in shopping malls and other city centre locations?
If this is still not regarded as sufficient evidence, then perhaps one might wish to ask a third, and rather more contextual question: would a government that wants to introduce a national ID card really balk at the introduction of a universal DNA database?
In case the reader is not familiar with the national identity card proposal, New Labour’s proposed ID card will not be the kind of ID card that many if not most countries around the world require as a matter of course. No, New Labour is proposing to introduce the father of all ID cards which will include all the items listed here. I will analyse this list in another post; here it suffices to explain that the list includes not just biometric information, but the information contained in any document that the government of the day might wish to attach to the ID by digital means. In short, if anything has been written or otherwise registered about a person in any context, and the government decides that it should be included in her/his ID card, then that card will record it and will make it instantly available to anyone who has access to the card’s information—the list could include all manner of commercial transactions, medical records (which are themselves about to become part of a national database), and of course, the use of data systems of any and all manner of political and cultural institutions. It is worrisome enough to consider what might happen to this information if and when a government—New Labour or otherwise—wishes to suppress any political group’s dissent to its policies. But in a context where both the current and the previous governments have shown again and again that they will give way to the demands of the US and of large private corporations (the scandal over the bribery and corruption charges against BAE is only the latest example), one has to assume that this information might be used and abused not just by the police, but by private corporations and foreign governments. Consider for example, that the EU is currently handing over a lot of sensitive information to the US when any European resident travels to the US. And of course, that is not even to begin to consider what might happen to the information if it reaches fraudsters: one does not have to be a security expert to know that the best way to ensure that there can be a total ‘identity theft’ is to put all the relevant information in one place.
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The following were some of the words pronounced by Tony Blair on May 2, 1997, when New Labour took over from the Conservatives: ‘And it will be a government that seeks to restore trust in politics in this country. That cleans it up, that decentralizes it, that gives people hope once again that politics is and always should be about the service of the public. And it shall be a government, too, that gives this country strength and confidence in leadership both at home and abroad, particularly in respect of Europe.’[…] It shall be a government rooted in strong values, the values of justice and progress and community, the values that have guided me all my political life. But a government ready with the courage to embrace the new ideas necessary to make those values live again for today’s world — a government of practical measures in pursuit of noble causes. That is our objective for the people of Britain.(2)’
And the following is part of the statement made by Gordon Brown upon arriving at 10 Downing Street on June 27, 2007:
‘As I have travelled round the country, and as I have listened I have learnt from the British people – and as Prime Minister I will continue to listen and learn from the British people – I have heard the need for change, change in our NHS, change in our schools, change with affordable housing, change to build trust in Government, change to protect and extend the British way of life. And this need for change cannot be met by the old politics.(3)’
Commenting on the recent, and well publicized visit by Margaret Thatcher to 10 Downing Street (see Steve Bell’s cartoon here), the following is the rather apt description offered by Simon Hoggart, one of the Guardian’s columnists: ‘I’m sure I’m not the only person to think of the end of [George Orwell’s] Animal Farm, when the pigs, now walking on two legs, have moved in with the humans. The other animals gaze through the windows at their masters: “The creatures outside looked from pig to man, and from man to pig…but already it was too late to say which was which.“(4)’
References
1) Where nuclear energy is concerned, see for example, http://www.guardian.co.uk/uk_news/story/0,,2173016,00.html and http://www.greenpeace.org.uk/blog/nuclear/the-consultation-stitch-up-20070920.) See also http://www.foe.co.uk/resource/press_releases/government_gm_consultation_21072006.html for a critique of the government’s consultation over GM crops. For a critique of the policy regarding the teaching of skills in universities, see my own post on ‘The UWE Experiment’.
2) see http://www.number10.gov.uk/output/Page8073.asp, accessed September 23, 2007.
3) see http://www.number-10.gov.uk/output/Page12155.asp, accessed September 23, 2007.
4) see http://politics.guardian.co.uk/columnist/story/0,,2169811,00.html, accessed September 23, 2007.
Lord Justice Sedley’s (and John Humphrys’) ‘Common Sense’
Note: this is the third in a series of posts about Lord Justice Sedley’s BBC Interview:
Lord Justice Sedley’s BBC Interview:
1 Introductory Comments
2 The Confusion of Powers
3 Lord Justice Sedley’s (and John Humphrys’) ‘Common Sense’
4 McNulty’s Genie (or the power of quasi-ecumenical debate)
Metaphors are commonly regarded as being little more than literary devices, as ways of embellishing one’s writing. But philosophers of language have long known that everyday metaphors are also something akin to fundamental cognitive frames, i.e. ‘ways of knowing’, if not ways of worldmaking that subtly shape how people begin to imagine and relate to whatever their metaphors represent.
(Note: The following post refers to the interview given by Lord Justice Sedley to the BBC’s Today programme on September 5, 2007. The post is unlikely to make much sense unless you listen first to that interview. Alternatively, you may wish to read my transcription of the interview)
During the BBC interview, Lord Justice Stephen Sedley uses a very simple directional metaphor, in fact a metaphor of dualistic directionality. This metaphor is meant to both describe, and moralize what he sees as two options with respect to the universal DNA database: ‘going forwards’ or ‘going backwards’. When queried by the BBC journalist Danny Shaw about what should be done about the DNA database he says, ‘Well you’ve certainly got to go in one direction or another from where we are now. [Coughs] To go backwards would be to wipe from the database the DNA of everybody who has not been convicted’(emphasis added). A few sentences later he says ‘So going backwards would be a disaster. Going forwards has very serious but I think, um, manageable implications’(emphases added again).
Sedley’s use of this metaphor sets what might well be described as two metaphorical traps for the journalists and the listeners of the Today programme. The first involves accepting that the question regarding a universal DNA database is best described in terms of the simple dualism established by the metaphor: there are only two choices, ‘going forwards’ or ‘going backwards’. As an alternative, Sedley might well have used, for example, a financial metaphor: ‘when deciding how to deal with this situation, we must take several different factors into account’. Alternatively, he might have appealed to a metaphor drawn from biology: ‘When confronted with this inequity, it is tempting to give in to our baser instincts and to decide to add everyone to the DNA database…’. These examples hopefully illustrate how profoundly one’s choice of metaphors can shape how something is explained, and by implication, how it might be interpreted.
The second trap involves Sedley’s (and indeed the wider culture’s) moralization of the two directions. In Sedley’s case, the moralization is actually quite explicit: backwards is bad (a ‘disaster’) and forwards is, by implication, ‘good’; not a, but the way (forward).
So long as the radio audiences (and of course the journalists themselves) accept either one of these aspects—that the decision involves some kind of a journey or road on which it is only possible to go backwards or forwards, and that backwards is bad (or ‘ridiculous’ as Sedley puts it), then they have begun to be manipulated by Sedley’s common sense.
* * *
A word about common sense. The anthropologist Clifford Geertz once described common sense as a ‘large realm of the given and undeniable, a catalogue of in-the-grain-of-nature realities so peremptory as to force themselves upon any mind sufficiently unclouded to receive them.(1)’ Geertz was critical of the commonsensicality of common sense. He suggested that, far from being the kind of immediate or absolute ‘lived wisdom’ that it is reputed to be, common sense is best regarded as a ‘cultural system’—one that can and should be questioned.
In some contexts—most notably those involving physical scientific investigation—common sense has long been suspect. Scientists have always known that if common sense were no more (and no less) than common sense, then the Sun would still be spinning around the Earth, and Christopher Columbus and the rest of his mates would still be screaming as they fall endlessly from the edge of that tabula that the planet was supposed to be. (Actually, in those days it was probably not regarded as an endless fall; presumably one fell to hell, but we need not concern ourselves with this question here.)
The problem with common sense—a problem that pertains to us all—is that thanks in no small part to metaphors such as the one that Sedley employs, common sense seems to be not just a matter of the ‘obvious’, but also of the unquestionable. Whether he set out to do so or not, this is precisely the effect that Sedley achieved—at least with his BBC interviewers. ‘Going backwards’ (or ‘wiping’ the DNA database) is ‘ridiculous’ because some day someone might be convicted thanks to a DNA sample that has been prudently stored in that universal DNA database [Update: this is a perfect example of the consequentialist ethic that has long characterised New Labour's politics). As he puts it, ‘I’ve come across cases myself in which, uh, serial rapists have finally been caught only because their DNA was obtained following their arrest. Ah, they were acquitted by jurors who they managed to hoodwink…ah, subsequently, because their DNA was now on record, were able to be identified as the perpetrators of a number of earlier rapes.’
If this is so obviously and unquestionably the ‘way forward’, then perhaps we should contemplate any number of similarly extreme measures. Why not tag everyone electronically in case that they commit a crime in the future? Or why not have everyone report to the STHF’s—‘Short Term Holding Facilities’—that Tony McNulty wants to introduce to the UK’s shopping malls and city centres, say, twice a week? Surely it would be safest to make sure that anyone who has not yet been proven innocent—and even those that have been proven innocent—remain tagged just in case they commit a crime in the future, or just in case they are shown to have committed a crime in the past?
This reference to the burden of proof unmasks the real implication of Sedley’s, and indeed New Labour’s, proposal: in effect, New Labour is taking steps to invert the current burden of proof—innocent until proven guilty—such that in future everyone will be guilty until proven innocent. And that is precisely one of the features that characterises totalitarian regimes. In a police state, you remain guilty, or at any rate a suspect, until the day you are buried, or disappeared.
* * *
Of course, anyone can use this or that metaphor until the cows come home and it won’t make an iota of difference unless other people accept and start to echo the cognitive frame that is established by any given metaphor, or better yet, by a certain web of metaphors and their associated discourse(s).
This is exactly what begins to happen during the BBC interview. Variations of Sedley’s directional metaphor and its morality appear and reappear throughout the interview until the metaphor is given a final—and arguably decisive—fillip by John Humphrys. Consider the following excerpts:
Richard Thomas: ‘I think we have to think very long and very hard before going down the road of a universal DNA database’ (emphasis added). And later, ‘I think we have got ourselves into a situation where we have to move in different directions, that’s not to say we have to go all the way to having a universal DNA database…’ It is true that Thomas is modifying and making more complex the metaphor, not least by attempting to associate the ‘move’ to a potentially more negative vertical sense of directionality: go down the road of universal DNA database. He also suggests the possibility of moving in different directions.
Humphrys then asks Thomas, ‘But what’s a half-way house?’ This slightly different metaphor of journey arguably continues to reproduce the sense that, if nothing else, there is one road, and one road only that has to be taken, even if only half way to what implicitly becomes the ‘end’ of a full universal DNA database.
McNulty also uses the directional metaphor of journey, though admittedly, he weakens the frame of dual directionality. In one statement, he says, ‘…there’s a huge debate needed about where we go from where we are now, will the up to universality [unclear], and again, like Richard, I welcome the debate it is much needed.’ Then again, McNulty is, and must be at pains to differentiate his message from Sedley’s; otherwise, he’d arguably be letting the cat of the New Labour bag.
In the end it is Humphrys that really gives Sedley’s metaphor a good hard push. He responds to McNulty by saying: ‘So you can’t go back [chuckles] so obviously therefore … logic demands that you have to go forward.’
Several questions come to mind here: why does Humphrys chuckle? Also, why does he return not just to the metaphor of directionality, but implicitly, to Sedley’s moralization of that metaphor (going forward is not only ‘good’ but ‘logical’)? Indeed, how, when, and why does the common sense of Sedley’s position become a matter of ‘logic’, or of a ‘logical demand’?
* * *
Lest there be a misunderstanding: the point is not to argue that the use of certain common sense metaphors is enough, in and of itself, to secure the acquiescence of any or all listeners. Nor is it possible to communicate without metaphors, or even, without some appeal to common sense; on the contrary, we must agree with all those scholars who say that every word is, in itself, both the beginning and the end of a metaphorical process. To be sure, any form of rationality is always part of something akin to a cultural system; one that can never be entirely ‘rational’, and which is always held together at least in part by a ‘common sense’.
What this post is suggesting is firstly that Radio 4’s listeners deserved a rather better form of justification than they got from Sedley, i.e. one less based on an appeal to crudely orientational , and crudely moralising metaphors. It is also suggesting that if this appeal was reproduced by John Humphrys—and it clearly was—then on this level of analysis, too (see EcoLogics’ previous post for another level), the BBC has aided and abetted the ideological process that is being led by New Labour, and championed by Sedley.
Will New Labour succeed? The dilemma for Gordon Brown and his associates is that if the tabloidization of justice—and that is at least part of what all this is about—thrives by creating ever deeper discursive divides between ‘us’ (the ‘law abiding citizens’) and ‘them’ (the criminals), then a universal DNA database makes ‘all of us’ at one and the same time ‘one of them’: if Sedley prevails, we will all be treated, in principle if not in practice, as criminals-in-the-making. Now that’s good common sense, isn’t it?
In the next post, a last piece titled ‘McNulty’s Genie’, in which we will analyse the manner in which New Labour strives to give the impression that its policies are the result of broad consultation.
References
1) in C. Geertz (1985) ‘Common sense as a cultural system’, in Local Knowledge, New York: Basic Books, p. 73
Lord Justice Stephen Sedley’s BBC Interview: The Confusion of Powers
Lord Justice Stephen Sedley chose a particularly strategic place and time to present his views about a universal DNA database.
Note: The following post refers to the interview given by Lord Justice Sedley to the BBC’s Today programme on September 5, 2007. The post is unlikely to make much sense unless you listen first to that interview. Alternatively, you may wish to read my transcription of the interview. Please also note that this post is the second in a series:
1 Introductory Comments
2 The Confusion of Powers (present post)
3 Lord Justice Sedley’s (and John Humphrys’) ‘Common Sense’
4 McNulty’s Genie (or the power of quasi-ecumenical debate)
An analysis of more recent coverage of the DNA database is available at The BBC and New Labour’s DNA Database.
For readers unfamiliar with the UK’s media institutions: the Today programme is broadcast on the BBC’s Radio 4 station Monday to Saturday from 6am to 9am. There is a news bulletin every half hour, with ‘in-depth’ news items in between each bulletin. According to the BBC’s own 2006/2007 annual report, Radio 4 had an average 15-minute weekly reach to adults aged 15+ of 18.7% or 9.3 million people (1). In 2006, the Today programme itself had approximately five and a half million listeners over its three hours (2); the number of listeners peaked between 7.30 and 8am.
This is, of course, a large audience. But the true significance of Sedley’s choice—if indeed it was his choice—lies not so much in the quantity of listeners, but in the people that reportedly tune in to the Today programme, and in the regard that they have for the programme’s ability to ‘set political agendas’(3). The BBC describes the Today programme as ‘the nation’s premier morning news programme’(4), and John Humphrys, its famous presenter, has recently gone so far as to say that it is the single most important programme that the BBC produces from the point of view of its impact and influence on the national debate (5). Whether this is true or not, it seems clear that listening to the programme is de rigueur for the UK’s political, economic and cultural establishment.
The slot between 8.10 and 8.25 is usually reserved for an in-depth interview with what the programme editors regard as the most important social, political or economic figures of the day. It was this slot that was requested by—or perhaps given to—Lord Justice Sedley. The interviews in this slot are typically prefaced by an introductory comment by the programme’s leading presenter (one of two in each programme). The interview itself may then adopt one of several different modalities: a live interview in studio; a live interview that is conducted remotely (away from the studio); an in-depth analysis by a specialist journalist followed by an interview with a relevant individual or group; or a pre-recorded interview that is broadcast at 8.10. Sedley chose the last and the safest of these options; instead of running the risk of being subjected to the vicissitudes of real time questioning, he opted for the ‘controlled conditions’ of a pre-recorded interview. This presumably would have allowed him to re-record any unclear or awkwardly phrased statements before they were broadcast.
While some interviews are structured as one-on-one sessions for the duration of the slot (usually between 10 and 15 minutes), others are followed by the intervention of commentators whose role is ostensibly to debate what the initial interviewee has just said. In the case of the Sedley interview, the editors of the Today programme chose two people who, on the face of it, should have been in a good position to comment on Sedley’s intervention: Tony McNulty is the UK’s Minister of State for Security, Counter-Terrorism, Crime and Policing, and so directly responsible for the government’s policymaking vis-à-vis the DNA database. As I reported in another post, McNulty signed off a review of the UK’s criminal evidence procedures which supported the extension of DNA sampling for all real or alleged offences, however minor. For his part, Richard Thomas is the UK’s ‘Information Commissioner’. He heads the Information Commissioner’s Office (ICO), which is ‘sponsored’ by the Department of Justice, and which describes itself as ‘the UK’s independent public body set up to promote access to official information and protect personal information by promoting good practice, ruling on eligible complaints, providing information to individuals and organisations, and taking appropriate action when the law is broken.’(6)
The interviews in the Today programme are usually structured on the basis of an adversarial logic: the advocates of opposing views are juxtaposed and frequently encouraged to enter not just into debate, but to do so in an antagonistic manner. John Humphrys is perhaps the presenter who is most strongly identified with this tradition; the BBC’s profile describes him as a ‘tough and tenacious’ interviewer(7), and indeed during one interview Humphrys famously interrupted a former Tory minister 32 times.
* * *
The BBC’s editorial guidelines suggest that the BBC is committed to impartiality. According to the BBC, this means that, amongst other things, the corporation seeks to provide ‘a properly balanced service consisting of a wide range of subject matter and views broadcast over an appropriate time scale across all our output’; to ‘reflect a wide range of opinion and explore a range and conflict of views so that no significant strand of thought is knowingly unreflected or under represented’; to ‘produce content about any subject, at any point on the spectrum of debate as long as there are good editorial reasons for doing so’; to ‘explore or report on a specific aspect of an issue or provide an opportunity for a single view to be expressed, but in doing so we do not misrepresent opposing views. They may also require a right of reply’. The Corporation aims to ‘ensure [that] we avoid bias or an imbalance of views on controversial subjects’. Indeed, the BBC goes so far as to say that its ‘journalists and presenters, including those in news and current affairs, may provide professional judgments but may not express personal opinions on matters of public policy or political or industrial controversy’ and ‘[o]ur audiences should not be able to tell from BBC programmes or other BBC output the personal views of our journalists and presenters on such matters’(8).
These guidelines reflect the BBC’s commitment to what might be described as a traditional discourse on the nature of journalism. A good journalist, or rather the news that s/he produces, is accurate, balanced, includes where appropriate a diversity of views, and does so in a manner that is not prejudiced by any bias, or by the personal views of the journalist.
While this discourse has been comprehensively critiqued by a number of scholars (see for example, Stuart Allan’s News Culture), there is still much to be said for it; we have only to consider the alternative posed by Fox News (9) to realise how vitally important it is to try to produce impartial, or something like impartial accounts, in news reporting.
The problem is that editorial guidelines such as the BBC’s are of course no guarantee of impartiality—for the BBC, or for any other news organisation. On the one hand, and staying within the logic of the guidelines, journalism is always susceptible to external manipulation, to mistakes or bias incurred thanks to the pressures of time or the limitations of space, and indeed to ‘internal’ manipulation by ‘biased’ journalists. From a more critical perspective, the guidelines are based on relatively naïve understandings of the nature of the production, dissemination, and social reception of knowledge by way of the media of mass communication. Modern societies and the issues that emerge in them tend to be so complex that there may well be far more perspectives than a journalist can ever know, understand, or report in any given case or subject. To be sure, the finite nature of a journalist’s, or indeed of a team of journalists’ knowledge means that s/he/they will necessarily bring to bear a certain perspective to whatever aspects they do manage to cover. Practical constraints to do with generic formulae, the amount of space or time available to produce a piece, the political and economic interests of the news organisations and their bureaucracies are not a matter of exception. On the contrary, they are the structural conditions under which, and with which journalists must work to produce news.
This post is not the place to engage in a detailed critique of journalistic conventions. It must suffice to suggest that, in practice, the aforementioned constraints force journalists to be selective, and thereby reductive with respect to the range and number of points of view that they represent. Those that they do choose will reflect, however indirectly, the ‘biases’ of their own knowledge and/or experience. Put differently, journalists’ representations will always exclude or misrepresent at least some views or perspectives.
Unfortunately, these ‘structural’ limitations are not necessarily evident to all listeners of the Today programme, and I fear they may not have been evident to a majority of the listeners during Sedley’s interview. I have undertaken to explain how and why this is the case in a series of articles in this blog; in this post I would like to focus on the way in which the selection and framing of the participants meant that, for a majority of listeners, the interview may well have worked not so much to scrutinize Lord Sedley’s proposal, but to legitimate his intervention.
In order to explain how this is the case, it is necessary to consider first some aspects of the legal and political context in which Sedley intervenes. In particular, the separation of powers, or rather, the absence of a separation of powers in the UK. While the courts in the UK are certainly independent, the court of final appeal is made up of Law Lords who sit in the upper house of parliament (the House of Lords). And of course, the prime minister, his cabinet and junior ministers form at once a part of the government and of the parliament (the legislative chamber). Plans are afoot to create a separate ‘supreme court’ in the UK, and this change is justified, at least officially, as a way of ensuring a certain separation of powers. Note, though, that no similar concern seems to exist vis-à-vis the possibility that there might be an analogous conflict of interest concerning the fusion of the executive and legislative branches.
Why is this relevant to the interview? The interview’s overall structuring reflects what is actually a fusion, or rather, a confusion of powers in the UK. Strictly speaking, it ought to be Jacqui Smith, the Home Office Secretary, or Tony McNulty, her Minister of State for Security, Counter-Terrorism, Crime and Policing, who propose a universal DNA database. Had s/he done so—and of course neither did—we might well have expected that the Today programme would have devoted the initial part of the interview to an interrogation of the secretary or her minister. That interrogation might then have been followed up by critical analyses by MPs, judges, or other relevant figures. Alternatively, the interview might have been structured from beginning to end (as per the adversarial logic I mentioned earlier) as a debate between Tony McNulty and John Humphrys, or a three-way debate between these two and, say, Richard Thomas.
But of course, it was the judge that proposed the extension of the controversial methods of policing, and so the editors were confronted with—I am assuming they themselves did not create—a situation in which there was, in effect, a role reversal. Sedley co-opted, however momentarily, the role, if not of the Home Office or of the police per se, then certainly of policing. In effect, he abandoned his role as an arbiter of justice to make a plea for a particular form of policing.
Even if one is critical of the idea of the separation of powers—and certainly the Bush administration has provided us with a lesson on the limitations of the Baron de Montesquieu’s three-way model—Sedley’s intervention raises any number of questions about his capacity to deal with DNA evidence in an impartial manner. If the case of the McCanns teaches us anything, it is that one police officer’s ‘absolute’ conviction that a DNA sample proves something is a forensic specialist’s caution that DNA, on its own, proves nothing (10). Can a judge who has declared so openly that DNA is the only ‘way forward’ really be trusted to remain impartial in any future case whose outcome hinges on contested DNA evidence?
Whether one thinks so or not, this entire aspect of Lord Justice Sedley’s intervention was overlooked by the journalist (Danny Shaw), by John Humphrys, and by the Today programme’s editors. This needn’t have been the case, unless the editors themselves asked Sedley to give the interview ‘out of the blue’—a possibility which would raise significant questions about the editors’ impartiality. Assuming that it was Sedley who approached the BBC, then the Today editors might , for example, have prefaced the Sedley interview with an in-depth analysis by the BBC’s legal correspondent about the extraordinary nature of his intervention from a judicial point of view. Why was a judge taking such a strong position in regard to matters concerning policing, and what were the implications of his intervention for criminal justice in a parliamentary democracy? What would happen if, say, judges routinely came out to recommend the use of new-generation tasers to apprehend criminals, or indeed to recommend the privatization of jails?
Instead, the journalists on the Today programme chose to probe the judge on alternatives to his proposal for a universal DNA sample, and on the practicality of obtaining DNA samples from people visiting the country ‘over the weekend’. While these two aspects are certainly not unimportant, the absence of any analysis of the nature and legitimacy of the judge’s intervention qua intervention constitutes the programme’s second-most glaring omission.
What, then, is the most glaring omission? The interview’s structure clearly positions McNulty, the Minister of State for Policing, as a kind of commentator on someone else’s proposal. Even when Humphrys gently asks McNulty if he ‘broadly’ agrees with Sedley’s proposal—note that Humphrys hesitates when he formulates the question—McNulty answers in a manner that arguably conceals his true role and interest in the matter. As I explained in my post about the Gattacaization of the UK’s criminal justice system, McNulty is one of the New Labour figures who is either championing, or at the very least, endorsing the backdoor institution of a universal DNA database. The reader might well argue that I have not really presented any direct evidence for this; but it is well within the power of McNulty, Jacqui Smith, and indeed Gordon Brown himself to order the police to stop collecting DNA samples from people who have not been convicted of any crime. In the absence of such an order, we have to assume that all three are complicit in what Sedley himself describes as an ‘indefensible’ state of affairs: collecting DNA samples from a growing number of people who have either not been convicted of any crime, or whom are not even suspected of any crime.
This fundamental point is glossed over by the programme’s positioning of McNulty as a kind of commentator on Sedley’s proposal. McNulty himself does nothing to clearly correct this impression: when asked if he agrees with Sedley’s proposal, he says ‘Oh there is, there is a logic to what Sir Stephen is saying and I’ve said that myself in the past that, ah there is a real logic and cohesion to the point that says well put everybody on it. But I think he probably does underestimate the practicalities, logistics, and huge civil liberties and ethics issues around that…’. This, and several other of McNulty’s answers, arguably work to position McNulty as a demi-sceptic, somebody who can ‘see a certain logic’ in the proposal, but who thinks that there are ‘huge’ practical, logistical, civil liberties and ethics (sic) ‘issues’ (note the order in which these are stated). If these ‘issues’ are really that ‘huge’, why hasn’t McNulty—or indeed the rest of the New Labour government—stopped the police from collecting the samples of witnesses and suspects who have been acquitted of wrongdoing, or who never were charged or even suspected in the first place?
Again, this is a matter that Humphrys could easily have probed. In his first question to McNulty, he might well have begun by saying, ‘Tony McNulty, you have commenced a review of the Police and Criminal Evidence Act (PACE) which proposes to take DNA samples from individuals suspected of committing any offences, including so-called ‘minor’ offences such as speeding on the highways. Your department is even proposing to set up special facilities in shopping malls and other city centre sites where the DNA samples might be taken from alleged offenders. Why aren’t you the person that is proposing the universal DNA database? Surely that’s your role, and not Lord Justice Sedley’s?’
The only interviewee who is left to critique the proposed extension—and indeed the overall frame of the BBC interview—is the UK’s ‘Information Commissioner’, Richard Thomas. He ought to have been well positioned to do so; this is his official role, and indeed Thomas has warned repeatedly about the UK sleepwalking into a ‘surveillance society’(11). Instead, and most regrettably, by the time that Thomas himself is interviewed (after Sedley), he is caught up in, and appears unable to stop the discursive pincer movement that the programme editors’ have generated, inadvertently or not, by way of their selection and presentation of the participants’ views. Even before he’s started speaking, Thomas must extricate himself from a rhetorical trap—a trap of ‘common sense’—that Sedley has laid for him and anyone else who might oppose the universal DNA database: if, as Sedley argues, the current situation is ‘indefensible’, and if the only way ‘forward’ is to create a universal DNA database, then by implication anyone who opposes Sedley is either defending the ‘indefensible’, or going ‘backward’.
Instead of beginning by questioning how and why Sedley has intervened in this matter in the first place, Thomas begins by agreeing that the current situation is indeed ‘indefensible’(and so it is). Thomas is probably at once adopting the codes of politeness (finding ‘common ground’) and trying to reinforce the one aspect of Sedley’s intervention that he agrees with. Unfortunately, the rest of his intervention is rather weak. Thomas not only fails to comment on the fact that it is a judge that has called for more draconian forms of policing, but does little more than call for tighter rules on the retention of DNA samples, and for a wider debate on the subject. Indeed, it is John Humphrys who reminds Thomas of some of the more controversial issues associated with the database (e.g. including children in the database).
There is another aspect that Thomas also fails to address: as the Government’s leading expert on data protection, he must know that New Labour is not just ‘broadly’ in favour of a universal DNA database. However, he chooses not to confront McNulty, or indeed the Today show, on this aspect. True, when Thomas is questioned, McNulty himself has not yet been interviewed (this too, raises questions about the BBC’s editorial decisions: why wasn’t the person with the most critical role the last one to speak? Or why wasn’t Thomas allowed to comment on McNulty’s intervention?) But this does not entirely explain the relatively weak character of Thomas’ intervention. Is this his first time on the Today programme? Or could it be that his comments reflect the peculiarly disempowered position that he inhabits as ‘Information Commissioner’? (He is, on the one hand, supposed to be a kind of watchdog or ombudsman. But he is of course appointed by the government of the day, and indeed his office is ‘sponsored’ by the Justice Department.) In what looks to be a kind of Freudian slip, or at least an apparent contradiction, one of the pages on the ICO website suggests that ‘The ICO is the UK’s independent public body set up to promote access to official information and protect official information.’(12) This raises the question: does the ICO seek to promote access to, or to protect official information? Here too, one has to wonder whether the ‘fusion’ of powers in the UK is not better described as a confusion of powers.
* * *
This very brief analysis is meant to begin to reveal the extent to which, far from being the kind of ‘impartial’ and ‘balanced’ account that it is supposed to be, the Today’s interview of Lord Justice Sedley might well be described as a form of dissimulation — in the sociological sense of the term. As noted by John B. Thompson in Ideology and Modern Culture, dissimulation is one modus operandi of ideology which works to establish or sustain relations of domination by concealing, denying, obscuring or representing them in ways that deflect attention away from them (13).
Let me be very clear: I am not saying that John Humphrys did not ask some good questions. On the contrary, he did ask some tough questions, and the interview did succeed in providing significant insights into the discourse of Lord Justice Sedley. However timidly, Danny Shaw did also confront Lord Justice Sedley with the absurdity —or rather, the impracticality today— of his proposal.
Nor am I saying that the Today interview was partial or biased in any simple way. No, what is at stake is a rather more ‘structural’ form of ‘bias’, one that has to do with the way in which the entire interview positioned —read, framed— the different participants vis-à-vis Sedley’s intervention, vis-à-vis each other, and vis-à-vis McNulty’s and New Labour’s interest in introducing a universal DNA database. In effect, the Today editors structured the entire interview in a manner that failed to reveal and scrutinize the politics that underpinned Sedley’s and McNulty’s interventions.
It might be argued that, if my analysis is valid, then the editors are not at fault insofar as they have been the victims of a maneuver hatched, if not by Lord Justice Sedley himself, then by New Labour politicians. But that is like saying that journalists cannot help it if they are lied to. In a society where journalists know all too well that they are the continually the objects of spin and of efforts by politicians to control their interpretations, it is the journalists’ duty to stop and think, as a matter of course, about the kinds of issues that I have raised. If they don’t get it right the first time, that’s fair enough. But if they don’t, then nothing bars them from revisiting the subject a second, third or fourth time. Why not invite McNulty back for an interview in which the above matters are discussed? And as part of that, why not make public—very public—the contents of that PACE review?
By way of a postscript, a question for the ICO: is there not an unacceptable conflict of interest in the fact that one of the ICO’s non-executive directors is, has been, or might in future once again become a non-executive director of the Forensic Science Service Ltd, the private-public company that describes itself as a world leader in the development of DNA databases? See http://www.forensic.gov.uk/forensic_t/i3/index.htm, and also http://www.shareholderexecutive.gov.uk/performance/fss.asp (accessed September 14, 2007) where David Clarke remains listed as a non-executive director.
On Tuesday: “Lord Justice Sedley’s (and John Humphrys’) ‘Common Sense’”
References
1) As per the BBC Annual Reports and Accounts 2006/2007 (Executive Report), p.41. http://www.bbc.co.uk/annualreport/, accessed September 12, 2007. According to this same document, ‘average weekly reach for radio is measured by the number of people aged 15+ who tune to a radio station within at least one quarter-hour period over the course of a week. Radio listeners only need to have listened to the station for at least five minutes within that quarter-hour (RAJAR)’. (RAJAR is the Radio Joint Audience Research and describes itself as the official body in charge of measuring radio audiences in the UK.)
2) as per Julia Day, ‘Today bears brunt as Radio 4 slumps’, http://media.guardian.co.uk/rajars/story/0,,1836176,00.html, accessed September 12, 2007.
3) In 2005, Broadcast magazine suggested that MPs voted the Today programme as the most influential programme in setting the political agendas. See ‘BBC News Tops MPs’ Survey’ at http://news.bbc.co.uk/newswatch/ukfs/hi/newsid_4440000/newsid_4444700/4444751.stm, accessed September 12, 2007.
4) BBC Annual Report and Accounts 2006/2007, p. 41.
5) ‘In terms of its impact and its influence on the national debate, the trust in which it is held by its huge audience, the Today programme is easily the most important programme that the BBC does.’ In ‘John Humphrys: On the threat to ‘Today’’ in Independent Online, September 3, 2007, http://news.independent.co.uk/media/article2919835.ece. Accessed September 12, 2007.
6) ICO website, http://www.ico.gov.uk/about_us.aspx, accessed September 13, 2007.
7) http://www.bbc.co.uk/radio4/today/about/meet/pres.shtml?humphrys, accessed September 13, 2007.
8)BBC Editorial Guidelines on Impartiality. http://www.bbc.co.uk/guidelines/editorialguidelines/edguide/impariality/, accessed September 13, 2007.
9) see for example http://en.wikipedia.org/wiki/Fox_News_Channel_controversies, accessed September 14, 2007.
10) ‘DNA expert in McCann case offer’, http://news.bbc.co.uk/1/hi/uk/6992372.stm, accessed September 14, 2007.
11) ‘Britain is Surveillance Society’, http://news.bbc.co.uk/1/hi/uk/6108496.stm, accessed September 12, 2007.
12) http://www.ico.gov.uk/about_us/who_we_are.aspx, accessed September 12, 2007.
13) Cambridge: Polity Press, 1990, p. 62.
Lord Justice Sedley’s BBC Interview: Introductory Comments
Note: The following post refers to the interview given by Lord Justice Sedley to the BBC’s Today programme on September 5, 2007. Before reading this post, you may wish to listen to that interview; alternatively, you may wish to read my transcription of the interview.
My first post about the Gattacaization of criminal justice in the UK drew a comparison between the near-future society described in Gattaca (the film produced by Andrew Niccol in 1997), and the kind of society that New Labour is arguably trying to institute by way of the back-door introduction of universal DNA sampling. Like many other people in the UK, I was concerned that New Labour is creating a de facto universal DNA database by taking and then keeping DNA samples from everyone that, in the delicate expression of one of its ministers, encounters the criminal justice system. This includes not only suspects who may later be acquitted, but even the witnesses of crimes, and children: as noted by John Humphrys in the interview itself, there are some 24,000 children on the DNA database. (An article in the Guardian reported that in fact the database had 883,888 records of children between 10-17 years old).
Then, on September 5, something extraordinary happened: Sir Stephen Sedley, a judge in the UK’s appeals court, gave an interview on the BBC’s Radio 4 Today programme, and effectively crossed the line that nominally separates the different powers (executive, judiciary, legislative) to become the most important advocate yet of New Labour’s hitherto unacknowledged plans to introduce a universal DNA database.
My first thought when I read about the news, which were first broadcast in the BBC interview but which were then reported in other media, was that this was a very clever attempt to flush the government out of its DNA lair. By calling for a universal DNA database, Lord Justice Sedley might well force the government to come clean about its intentions; ministers would have to agree or disagree with him, and so a proper debate might well begin that would let people know about the government’s true intentions.
This may yet be one of the consequences of the interview, and of its subsequent coverage. However, when I took advantage of the BBC’s ‘Listen Again’ function (I missed the original broadcast), transcribed and began to analyse the interview, it became apparent that my first assessment was almost certainly an instance of wishful thinking. The arguments deployed by Sedley, his choice of metaphors, and crucially, the frame produced by the discussion that followed between John Humphrys (the BBC Today presenter), Richard Thomas (the UK’s Information Commissioner), and Tony McNulty (Minister of State for Security, Counter-Terrorism, Crime and Policing), were arguably the most misleading defence mounted thus far of the idea of a universal DNA database.
Unfortunately, someone not familiar with the background and the rhetorical strategies of the different participants, or indeed with the characteristic media discourse of the Today programme, might come away thinking that this was an enlightening and above all ‘unbiased’ interview. Indeed, it might well have seemed that the BBC more than fulfilled its social function as the ‘fourth estate’ by giving Sedley a chance to broadcast his views, and by then having a thorough debate about the issues that the views raised.
Over the following week, I intend to use my expertise in anthropology, linguistics and sociology to explain why this was not the case. I will analyse several aspects of the interview in a series of posts whose subjects will range from the role of common sense in everyday life, to the choice of linguistic structures employed by the different participants. As part of the above, I will offer an analysis of the characteristic ways in which the Today programme framed the debate. One of the objectives of this blog is to show the complex ways in which media institutions such as the BBC’s Today programme affect the ecology of our everyday politics, and so I will be particularly interested in investigating the role of the programme’s format and of the journalists’ ways of conducting the interview.
Note: the following is a list of the posts that make up this series:
Lord Justice Sedley’s BBC Interview:
1 Introductory Comments
2 The Confusion of Powers
3 Lord Justice Sedley’s (and John Humphrys’) ‘Common Sense’
4 McNulty’s Genie (or the power of quasi-ecumenical debate)
Lord Justice Stephen Sedley’s Proposal for a Universal DNA Database in the UK–The BBC Interview
The following interview took place on Wednesday, September 5, 2007, on the BBC’s Radio 4 Today programme. The portion of the interview transcribed below had a duration of approximately 12 minutes, and was broadcast at around 8.10am in the morning—the slot reserved for the most important interviews on the Today programme.
The following transcription tries to give some sense of what linguisticians refer to as the ‘prosodic’ features of the interview, and includes ‘hesitation phenomena’ (em, uh, ah’s etc. as well as repetitions ‘and and…’). While every effort has been made to be as accurate as possible, the following transcript is no substitute for the interview itself, which you can access directly by way of the BBC Radio 4 Website at
http://www.bbc.co.uk/radio4/today/listenagain/listenagain_20070905.shtml
Over the next days this blog will analyse several aspects of this interview. The analyses will take the form of separate posts which refer to the interview. However, EcoLogics will also add the different posts as sections with subtitles to the end of this post in case someone wishes to read all of the analyses in one place. The first analysis will appear on Wednesday September 12 after 12 GMT.
Here, then, is the transcript.
* * *
John Humphrys [the Today anchor]: The chances of your DNA being registered on the government’s database are pretty high whether you’ve done anything wrong or not. Even if you’re a child, there are more than 4 million samples on it including 24,000 children who’ve never been convicted of anything. Well now a senior appeals court judge Lord Justice Sedley has said that he wants it to go further, much further: everyone should be on it he says, including foreigners visiting this country. There’s about a hundred million foreign visits every year. Seems Ed [unclear] that he was talking to our home affairs correspondent, Danny Shaw.
Lord Justice Sedley [a senior UK Appeals Court Judge]: I think the starting point is that where we are at the moment is indefensible. We have a situation where, if you happen to have been in the hands of the police, your DNA is permanently on record, and if you haven’t, it isn’t. There are a few exceptions to that, but that is broadly the picture. That means that people who have been arrested but acquitted, some of them because they’re innocent, some of them because they’re just lucky, all stay on the database. It means that where there’s ethnic profiling going on, disproportionate number of members of ethnic minorities get onto the em database. And it also means that a great many people who are walking the streets and whose DNA would show them to be guilty of crimes, uh, go free.
Danny Shaw [BBC Home Affairs Correspondent]: That’s the starting point, a lot of people would say well the answer to that is to be more careful about whose samples we take, and give people the opportunity, or introduce ah new rules which would mean that the samples come off after a period of time.
Lord Justice Sedley: Well you’ve certainly got to go in one direction or another from where we are now. [Coughs] To go backwards would be to wipe from the database the DNA of everybody who has not been convicted. That would be ridiculous…I’ve come across cases myself in which, uh, serial rapists have finally been caught only because their DNA was obtained following their arrest. Ah, they were acquitted by jurors who they managed to hoodwink…ah, subsequently, because their DNA was now on record, were able to be identified as the perpetrators of a number of earlier rapes. So going backwards would be a disaster. Going forwards has very serious but I think, um, manageable implications. It means that everybody, guilty or innocent, should expect their DNA to be on file for the absolutely rigorously restricted purpose of crime detection and prevention.
Danny Shaw: What about those who say, well it will be useful obviously for the police to have 60 million samples on there but…
Lord Justice Sedley (interrupting): …more than 60 million…
Dany Shaw: …more than 60 million?
Lord Justice Sedley: I think visitors to this country would have to expect to hand in their DNA too.
Danny Shaw: Every visitor to the country?
Lord Justice Sedley: Yes.
Danny Shaw: Even someone who’s here for a weekend?
Lord Justice Sedley: Yup.
Danny Shaw: How would that work?
Lord Justice Sedley: Well it would work [chuckles] it would work because, on entry, ah people would be expected to give their DNA, simple, a simple process in the course of passing through passport control. Yeah otherwise limiting the, the database… if you’re going to have a database like this it has to be universal, which is the only reason why I mention visitors to this country. Otherwise you’ve got um a category that, that slips through the net.
Danny Shaw: Some would, would see this as another example of our country moving towards a police state.
Lord Justice Sedley: Yes they would, and that’s a perfectly legitimate concern. It’s um, got to be balanced against the real needs of crime detection. But it is an authoritarian measure, to the extent that it demands that people part with some further measure of their autonomy and privacy. And it’s got to be justified, it’s got to be proportionate to a real pressing social need. The European Convention of Human Rights says so, and I would be the first to defend that.
John Humphrys: Well that was Stephen Sedley and with me now in the studio is the Home Office minister Tony McNulty and the Information Commissioner, ah Richard Thomas. Ah, do you as the man whose job it is to protect us in terms of data protection, ah Mr Thomas, do you have any worries about this?
Richard Thomas: I think we have to think very long and very hard before going down the road of a universal DNA database. Lord Justice Sedley is right to start a debate on this matter, he’s right to highlight some of the unfairnesses and illogicality of the present arrangements. The Criminal Justice Act of 2003 which set in place the present arrangements got almost no parliamentary or public debate at all. There are some risks involved. This approach can be very intrusive. It raises really fundamental questions about how much the state or the police know about each of us. There are risks of errors and mistakes. This will be a massive database, the risks of mix ups of human error coming in, the seriousness of the consequences, people say DNA is infallible but if you get the knock on the door, say we’ve found your DNA, in effect, you have to start proving your innocence. So that raises fundamental questions about the criminal justice system. And then there are the practicalities. It’s not just the millions of people coming through Heathrow or Gatwick every day and how we actually get their DNA, we have to have addresses, we have to record our own population and UK visitors how do we keep track of people to match the DNA to individuals so there are some immense practical issues as well as the civil liberties and the data protection issues.
John Humphrys: But it isn’t working at the moment is it, because we have many innocent people, that is to say people who’ve never been convicted of anything on the database. Now we don’t even know how many we have, do we?
Richard Thomas: I certainly think we need a debate, we know there’s around 4 million samples on the database and we know that a significant proportion of those are people who have not been convicted of any offence, they’ve been arrested.
John Humphrys: But we don’t know exactly how many…
Richard Thomas: Not exactly, I don’t know the exact figures, perhaps the Home Office know the exact figures but we know for example that there are disproportionate figures there, it’s about 9% of all white males, there’s 40% of Black males, and I think ah, that raises questions about the nature of policing and so on. So my position really is that the data protection legislation is hugely important brings home the importance of a framework for deciding what is acceptable and what is not acceptable…
John Humphrys: (interrupting) But if you remove as it were any stigma from being on the database which you would if we were all on it, (Richard Thomas is heard speaking in the background) then, do d’you not remove that problem?
Richard Thomas: Well I think we’ve got to have the debate and I think the existing arrangements as Lord Justice Sedley has said and he’s used the word ‘indefensible’ and I think we have got ourselves into a situation where we have to move in different directions, that’s not to say we have to go all the way to having a universal DNA database…
John Humphrys (interrupting): But what’s a half-way house?
Richard Thomas: Well there may be eh tighter rules ah as I think one of the police officers interviewed earlier on this programme said, tighter rules for example on retention, tighter rules on…
John Humphrys (interrupting): You mean you have to get rid of them after a certain period…
Richard Thomas: Exactly…(John Humphrys’s voice is heard interrupting for a moment) and how how long they’re kept for, tighter rules on exactly who is there, I don’t think anyone would argue that those convicted of serious crimes should be there forever. But maybe for lesser matters, lesser periods…
John Humphrys (interrupting): But the idea that the child who happens to have been, I don’t know a 12 year-old who happens to have been brought in as a witness, had his [sic] sample taken, I mean it’s ridiculous that he [sic] should stay on it…
Richard Thomas (interrupting): And and there have been many em outcries particularly in relation to young people, and uh parents have taken strong exception to their children being on the database so there are, you know, I think a debate is needed, a much, much wider debate than pre ah preceded the existing arrangements.
John Humphrys: Right, Tony McNulty, do you do you accept first of all that the present system is indefensible?
Tony McNulty: I don’t I don’t accept it’s indefensible, I do accept that point that says… we do need to look at and review the existing system, the oversight, the scrutiny, the retention, and all those points which we’re doing in the ah review of the Police and Criminal ah Evidence Act at the moment as Tony Lake the ACPO the Associated Chief Police Officer’s League was saying earlier, so reviewing where we’re at in terms of oversight I think is exactly right, I think Sir Stephen and Richard are right in saying you can’t go back this genie is out of the bottle, and it is a very, very powerful tool, and there’s a huge debate needed about where we go from where we are now, will the up to universality [unclear], and again, like Richard, I welcome the debate it is much needed.
John Humphrys: So you can’t go back [chuckles] so obviously therefore … logic demands that you have to go forward.
Tony McNulty: I think your your your point all be it about universality but about the stigma is important, this is not about a DNA database of everyone who’s ever committed a crime and been guilty, it’s a DNA database of anyone who’s… encountered the criminal justice system, and other samples that are lifted from crime scenes, so there’s about four million individuals and it is a hugely powerful tool, ah and and and Sir Stephen almost made the point himself, there are those who, because of that interaction with the system are on, are on the database for something fairly innocuous, who those very individuals have been on a cold case analysis basis been convicted of very serious crimes going way back because of the DNA samples from them…
John Humphrys (interrupting): But that is an extreme case and you can’t use extreme cases to justify…
Tony McNulty (interrupting): No you can’t I accept that, but but there have been ah ah ah a huge number ah of cold cases reviewed, analysed and taken through to success because of the DNA database that in itself isn’t justification I accept, the police are making something like three and a half thousand hits a month on the database, and bear in mind too…
John Humphrys (interrupting): three and a half thousand extra names go on to the data base every month…
Tony McNulty (interrupting): No (John Humphrys’s voice is heard behind Tony McNulty’s) three and a half thousand hits from the database.
John Humphrys: Aah!
Tony McNulty: In the course of…
John Humphrys (interrupting): because the number of people arrested every day is about 5000 isn’t it?
Tony McNulty: It is, it is…
John Humphrys: But that’s…
Tony McNulty: But that’s not 5000 brand new people who then go on the…
John Humphrys (interrupting): No, no I appreciate that but nonetheless it’s still a very large number of people being added to that database every day.
Tony McNulty: The point that we’re looking at in the Review of the legislation, PACE [unclear] and the sort of overarching legislation for these matters is looking at that and all other points about biometrics in general but specifically DNA. So the points about retention, who should be on and who should be off, when you encounter the criminal justice system should you go straight on all those points will be part of that review, and I think it is a very welcome and serious debate.
John Humphrys: But in which direction are you leaning as we speak, I mean are you bro… let’s put it this way are you broadly sympathetic to what Sir Stephen has said?
Tony McNulty: I think we’re broadly, broadly sympathetic to the thrust of what he says, there’s no government ah plans to go to ah a compulsory database now or in the foreseeable future but there’s sort of…
John Humphrys (interrupting): That doesn’t mean it won’t happen…It means there are no plans at the moment.
Tony McNulty: No one never says never…
John Humphrys (interrupting): Alright.
Tony McNulty: …in these contexts I think that’s fair, but the notion that, em, a refined or or the existing system of any encounter with the criminal justice system you go on as a matter of course, but with perhaps retention, ah time limits (John Humphrys’s voice is heard in the background) and all those sorts of things and that sort of expansion in that way is roughly where we are now.
John Humphrys: Well yeah but you could argue couldn’t you that the only fair way of doing it if fairness is one of the important criteria um there are people on on it who ought not to be on because they are innocent of any crime and there have been mistakes made perhaps and in that case you could argue that the only fair way of doing it is to have all the samples…
Tony McNulty: Oh there is, there is a logic to what Sir Stephen is saying and I’ve said that myself in the past that, ah there is a real logic and cohesion to the point that says well put everybody on it. But I think he probably does underestimate the practicalities, logistics, and huge civil liberties and ethics issues around that…
John Humphrys (interrupting): So you accept that there are huge civil liberties…
Tony McNulty: Oh I do absolutely, absolutely, I…
John Humphrys (interrupting): in that case you must be outraged that there are people on that database who should not be on it today, why are they still there?
Tony McNulty: Well it depends that’s exactly why we’re looking at it through the PACE review now, are there those on it who shouldn’t be on it, are those who do encounter the criminal justice system but are subsequently not found guilty of any ah crime, is there still some value for the wider public of them being on for a very limited period, I do take Richard’s point too about those involved in very serious crime can and should be on there uh indefinitely, I think people accept that.
John Humphrys: So when are we going to have ah, a ruling as it were…
Tony McNulty (interrupting): This review on on the PACE legislation I think is due next February, so it’s it’s it’s not a million miles away.
[Interview ends roughly one minute later after John Humphrys asks Tony McNulty if a story in the Daily Mail (about police being able to issue tickets on PDAs like traffic wardens do) is true]
Lord Justice Sedley’s BBC Interview: Introductory Comments
My first post about the Gattacaization of criminal justice in the UK drew a comparison between the near-future society described in Gattaca (the film produced by Andrew Niccol in 1997), and the kind of society that New Labour is arguably trying to institute by way of the back-door introduction of universal DNA sampling. Like many other people in the UK, I was concerned that New Labour is creating a de facto universal DNA database by taking and then keeping DNA samples from everyone that, in the delicate expression of one of its ministers, encounters the criminal justice system. This includes not only suspects who may later be acquitted, but even the witnesses of crimes, and children: as noted by John Humphrys in the interview itself, there are some 24,000 children on the DNA database. (An article in the Guardian reported that there were in fact 883,888 records of children between 10-17 years old.)
Then, on September 5, something extraordinary happened: Sir Stephen Sedley, a judge in the UK’s appeals court, gave an interview on the BBC’s Radio 4 Today programme, and effectively crossed the line that nominally separates the different powers (executive, judiciary, legislative) to become the most important advocate yet of New Labour’s hitherto unacknowledged plans to introduce a universal DNA database.
My first impression when I read about the news, which were broadcast in the above BBC interview but which were then reported in other media, was that this was a very clever attempt to flush the government out of its DNA lair. By calling for a universal DNA database, Lord Justice Sedley might well force the government to come clean about its intentions; ministers would have to agree or disagree with him, and so a proper debate might well begin that would let people know about the government’s true intentions.
This may yet be one of the consequences of the interview, and of its subsequent coverage. However, when I took advantage of the BBC’s ‘Listen Again’ function (I missed the original broadcast), and then transcribed and began to analyse the interview, it became apparent that my first assessment was almost certainly an instance of wishful thinking. The arguments deployed by Sedley, his choice of metaphors, and crucially, the frame produced by the discussion that followed between John Humphrys (the BBC Today presenter), Richard Thomas (the UK’s Information Commissioner), and Tony McNulty (Minister of State for Security, Counter-Terrorism, Crime and Policing), were arguably the most misleading defence mounted thus far of the idea of a universal DNA database.
Unfortunately, someone not familiar with the background and the rhetorical strategies of the different participants, or indeed with the characteristic media discourse of the Today programme, might come away thinking that this was an enlightening and above all ‘unbiased’ interview. Indeed, it might well have seemed that the BBC more than fulfilled its social function as the ‘fourth estate’ by giving Sedley a chance to broadcast his views, and by then having a thorough debate about the issues that the views raised.
Over the following week, I intend to use my expertise in anthropology, linguistics and sociology to explain why this was not the case. I will analyse several aspects of the interview in a series of posts whose subjects will range from the role of common sense in everyday life, to the choice of linguistic structures employed by the different participants. As part of the above, I will offer an analysis of the characteristic ways in which the Today programme framed the debate. One of the objectives of this blog is to show the complex ways in which media institutions such as the BBC’s Today programme affect the ecology of our everyday politics, and so I will be particularly interested in investigating the role of the programme’s format and of the journalists’ ways of conducting the interview.
I hope to publish the next post on this subject this coming weekend.
The Confusion of Powers
Lord Justice Stephen Sedley chose a particularly strategic place and time to present his views about a universal DNA database.
(Note: The following post refers to the interview given by Lord Justice Sedley to the BBC’s Today programme on September 5, 2007. The post is unlikely to make much sense unless you listen first to that interview. Alternatively, you may wish to read my transcription of the interview. I should also note that this is a very long post — my apologies if you’d like shorter entries, this particular one had a lot of ground to cover, but the next ones should be shorter!)
For readers unfamiliar with the UK’s media institutions: the Today programme is broadcast on the BBC’s Radio 4 station Monday to Saturday from 6am to 9am. There is a news bulletin every half hour, with ‘in-depth’ news items in between each bulletin. According to the BBC’s own 2006/2007 annual report, Radio 4 had an average 15-minute weekly reach to adults aged 15+ of 18.7% or 9.3 million people (1). In 2006, the Today programme itself had approximately five and a half million listeners over its three hours (2); the number of listeners peaked between 7.30 and 8am.
This is, of course, a large audience. But the true significance of Sedley’s choice—if indeed it was his choice—lies not so much in the quantity of listeners, but in the people that reportedly tune in to the Today programme, and in the regard that they have for the programme’s ability to ‘set political agendas’(3). The BBC describes the Today programme as ‘the nation’s premier morning news programme’(4), and John Humphrys, its famous presenter, has recently gone so far as to say that it is the single most important programme that the BBC produces from the point of view of its impact and influence on the national debate (5). Whether this is true or not, it seems clear that listening to the programme is de rigueur for the UK’s political, economic and cultural establishment.
The slot between 8.10 and 8.25 is usually reserved for an in-depth interview with what the programme editors regard as the most important social, political or economic figures of the day. It was this slot that was requested by—or perhaps given to—Lord Justice Sedley. The interviews in this slot are prefaced by an introductory comment by the programme’s leading presenter (one of two in each programme). The interview itself may then adopt one of several different modalities, e.g. a live interview in studio; a live interview that is conducted remotely (away from the studio); an in-depth analysis by a specialist journalist followed by an interview with a relevant individual or group; or a pre-recorded interview that is broadcast at 8.10. Sedley chose the last and the safest of these options; instead of running the risk of being subjected to the vicissitudes of real time questioning, he opted for the ‘controlled conditions’ of a pre-recorded interview. This presumably would have allowed him to re-record any unclear or awkwardly phrased statements before they were broadcast.
While some interviews are structured as one-on-one sessions for the duration of the slot (usually between 10 and 15 minutes), others are followed by the intervention of commentators whose role is ostensibly to debate what the initial interviewee has just said. In the case of the Sedley interview, the editors of the Today programme chose two people who, on the face of it, should have been in a good position to comment on Sedley’s intervention: Tony McNulty is the UK’s Minister of State for Security, Counter-Terrorism, Crime and Policing, and so directly responsible for the government’s policymaking vis-à-vis the DNA database. As I reported in another post, McNulty signed off a review of the UK’s criminal evidence procedures which supported the extension of DNA sampling for all real or alleged offences, however minor. For his part, Richard Thomas is the UK’s ‘Information Commissioner’. He heads the Information Commissioner’s Office (ICO), which is ‘sponsored’ by the Department of Justice, and which describes itself as ‘the UK’s independent public body set up to promote access to official information and protect personal information by promoting good practice, ruling on eligible complaints, providing information to individuals and organisations, and taking appropriate action when the law is broken.’(6)
The interviews in the Today programme are usually structured on the basis of an adversarial logic: the advocates of opposing views are juxtaposed and frequently encouraged to enter not just into debate, but to do so in an antagonistic manner. John Humphrys is perhaps the presenter who is most strongly identified with this tradition; the BBC’s profile describes him as a ‘tough and tenacious’ interviewer(7), and indeed during one interview Humphrys famously interrupted a former Tory minister 32 times.
* * *
The BBC’s editorial guidelines suggest that the BBC is committed to impartiality. According to the BBC, this means that, amongst other things, the corporation seeks to provide ‘a properly balanced service consisting of a wide range of subject matter and views broadcast over an appropriate time scale across all our output’; to ‘reflect a wide range of opinion and explore a range and conflict of views so that no significant strand of thought is knowingly unreflected or under represented’; to ‘produce content about any subject, at any point on the spectrum of debate as long as there are good editorial reasons for doing so’; to ‘explore or report on a specific aspect of an issue or provide an opportunity for a single view to be expressed, but in doing so we do not misrepresent opposing views. They may also require a right of reply’. The Corporation aims to ‘ensure [that] we avoid bias or an imbalance of views on controversial subjects’. Indeed, the BBC goes so far as to say that its ‘journalists and presenters, including those in news and current affairs, may provide professional judgments but may not express personal opinions on matters of public policy or political or industrial controversy’ and ‘[o]ur audiences should not be able to tell from BBC programmes or other BBC output the personal views of our journalists and presenters on such matters’(8).
These guidelines reflect the BBC’s commitment to what might be described as a traditional discourse on the nature of journalism. A good journalist, or rather the news that s/he produces, is accurate, balanced, includes where appropriate a diversity of views, and does so in a manner that is not prejudiced by any bias, or by the personal views of the journalist.
While this discourse has been comprehensively critiqued by a number of scholars, I should perhaps say from the outset that there is still much to be said for it; we have only to consider the alternative posed by Fox News (9) to realise how vitally important it is to try to produce impartial, or something like impartial accounts in news reporting.
The problem is that editorial guidelines such as the BBC’s are of course no guarantee of impartiality—for the BBC, or for any other news organisation. On the one hand, and staying within the logic of the guidelines, journalism is always susceptible to external manipulation, to mistakes or bias incurred thanks to the pressures of time or the limitations of space, and indeed to ‘internal’ manipulation by ‘biased’ journalists. From a more critical perspective, the guidelines are based on relatively naïve understandings of the nature of the production, dissemination, and social reception of knowledge by way of the media of mass communication. Modern societies and the issues that emerge in them tend to be so complex that there may well be far more perspectives than a journalist can ever know, understand, or report in any given case or subject. To be sure, the finite nature of a journalist’s, or indeed of a team of journalists’ knowledge means that s/he/they will necessarily bring to bear a certain perspective and not another to whatever aspects they do manage to cover. Last but not least, practical constraints to do with generic formulae, the amount of space or time available to produce a piece, the political and economic interests of the news organisations and their bureaucracies are not a matter of exception. On the contrary, they are the structural conditions under which, and with which journalists must work to produce news.
This post is not the place to engage in a detailed critique of journalistic conventions. It must suffice to suggest that, in practice, the above mentioned constraints force journalists to be selective, and thereby reductive with respect to the range and number of points of view that they represent. Those that they do choose will reflect, however indirectly, the ‘biases’ of their own knowledge and/or experience. Put differently, journalists’ representations will always exclude or misrepresent at least some views or perspectives.
Unfortunately, these ‘structural’ limitations are not necessarily evident to all listeners of the Today programme, and I fear they may not have been evident to a majority of the listeners during Sedley’s interview. I have undertaken to explain how and why this is the case in a series of articles in this blog; in this post I would like to focus on the way in which the selection and framing of the participants meant that, for a majority of listeners, the interview may well have worked not so much to scrutinize Lord Sedley’s proposal, but to legitimate his intervention.
In order to explain how this is the case, it is necessary to consider first some aspects of the legal and political context in which Sedley intervenes. In particular, the separation of powers, or rather, the absence of a separation of powers in the UK. While the courts in the UK are certainly independent, the court of final appeal is made up of Law Lords who sit in the upper house of parliament (the House of Lords). And of course, the prime minister, his cabinet and junior ministers form at once a part of the government and of the parliament (the legislative chamber). Plans are afoot to create a separate ‘supreme court’ in the UK, and this change is justified, at least officially, as a way of ensuring a certain separation of powers. Note, though, that no similar concern seems to exist vis-à-vis the possibility that there might be an analogous conflict of interest concerning the fusion of the executive and legislative branches.
Why is this relevant to the interview? The interview’s overall structuring reflects what is actually a fusion, or rather, a confusion of powers in the UK. Strictly speaking, it ought to be Jacqui Smith, the Home Office Secretary, or Tony McNulty, her Minister of State for Security, Counter-Terrorism, Crime and Policing, who propose a universal DNA database. Had s/he done so—and of course neither did—we might well have expected that the Today programme would have devoted the initial part of the interview to an interrogation of the secretary or her minister. That interrogation might then have been followed up by critical analyses by MPs, judges, or other relevant figures. Alternatively, the interview might have been structured from beginning to end (as per the adversarial logic I mentioned earlier) as a debate between Tony McNulty and John Humphrys, or a three-way debate between these two and, say, Richard Thomas.
In the end, it was the judge that proposed the extension of the controversial methods of policing, and so the editors were confronted with—I am assuming they themselves did not create—a situation in which there was, in effect, a role reversal. Sedley co-opted, however momentarily, the role, if not of the Home Office or of the police per se, then certainly of policing. In effect, he abandoned his role as an arbiter of justice to make a plea for a particular form of policing.
Even if one is critical of the idea of the separation of powers—and certainly the Bush administration has provided us with a lesson on the limitations of the Baron de Montesquieu’s three-way model—Sedley’s intervention raises any number of questions about his capacity to deal with DNA evidence in an impartial manner. If the case of the McCanns teaches us anything, it is that one police officer’s ‘absolute’ conviction that a DNA sample proves something is a forensic specialist’s caution that DNA, on its own, proves nothing (10). Can a judge who has declared so openly that DNA is the only ‘way forward’ really be trusted to remain impartial in any future case whose outcome hinges on contested DNA evidence?
Whether one thinks so or not, this entire aspect of Lord Justice Sedley’s intervention was overlooked by the journalist (Danny Shaw), by John Humphrys, and by the Today programme’s editors. This needn’t have been the case, unless the editors themselves asked Sedley to give the interview ‘out of the blue’—a possibility which would raise significant questions about the editors’ impartiality. Assuming that it was Sedley who approached the BBC, then the Today editors might , for example, have prefaced the Sedley interview with an in-depth analysis by the BBC’s legal correspondent about the extraordinary nature of his intervention from a judicial point of view. Why was a judge taking such a strong position in regard to matters concerning policing, and what were the implications of his intervention for criminal justice in a parliamentary democracy? What would happen if, say, judges routinely came out to recommend the use of new-generation tasers to apprehend criminals, or indeed to recommend the privatization of jails?
Instead, the journalists on the Today programme chose to probe the judge on alternatives to his proposal for a universal DNA sample, and on the practicality of obtaining DNA samples from people visiting the country ‘over the weekend’. While these two aspects are certainly not unimportant, the absence of any analysis of the nature and legitimacy of the judge’s intervention qua intervention constitutes the programme’s second-most glaring omission.
What, then, is the most glaring omission? The interview’s structure clearly positions McNulty, the Minister of State for Policing, as a kind of commentator on someone else’s proposal. Even when Humphrys gently asks McNulty if he ‘broadly’ agrees with Sedley’s proposal—note that Humphrys hesitates when he formulates the question—McNulty answers in a manner that arguably conceals his true role and interest in the matter. As I explained in my post about the Gattacaization of the UK’s criminal justice system, McNulty is one of the New Labour figures who is either championing, or at the very least, endorsing the backdoor institution of a universal DNA database. The reader might well argue that I have not really presented any direct evidence for this; but it is well within the power of McNulty, Jacqui Smith, and indeed Gordon Brown himself to order the police to stop collecting DNA samples from people who have not been convicted of any crime. In the absence of such an order, we have to assume that all three are complicit in what Sedley himself describes as an ‘indefensible’ state of affairs: collecting DNA samples from a growing number of people who have either not been convicted of any crime, or whom are not even suspected of any crime.
This fundamental point is glossed over by the programme’s positioning of McNulty as a kind of commentator on Sedley’s proposal. McNulty himself does nothing to clearly correct this impression: when asked if he agrees with Sedley’s proposal, he says ‘Oh there is, there is a logic to what Sir Stephen is saying and I’ve said that myself in the past that, ah there is a real logic and cohesion to the point that says well put everybody on it. But I think he probably does underestimate the practicalities, logistics, and huge civil liberties and ethics issues around that…’. This, and several other of McNulty’s answers, arguably work to position McNulty as a demi-sceptic, somebody who can ‘see a certain logic’ in the proposal, but who thinks that there are ‘huge’ practical, logistical, civil liberties and ethics (sic) ‘issues’ (note the order in which these are stated). If these ‘issues’ are really that ‘huge’, why hasn’t McNulty—or indeed the rest of the New Labour government—stopped the police from collecting the samples of witnesses and suspects who have been acquitted of wrongdoing, or who never were charged or even suspected in the first place?
Again, this is a matter that Humphrys could easily have probed. In his first question to McNulty, he might well have begun by saying, ‘Tony McNulty, you have commenced a review of the Police and Criminal Evidence Act (PACE) which proposes to take DNA samples from individuals suspected of committing any offences, including so-called ‘minor’ offences such as speeding on the highways. Your department is even proposing to set up special facilities in shopping malls and other city centre sites where the DNA samples might be taken from alleged offenders. Why aren’t you the person that is proposing the universal DNA database? Surely that’s your role, and not Lord Justice Sedley’s?’
The only interviewee who is left to critique the proposed extension—and indeed the overall frame of the BBC interview—is the UK’s ‘Information Commissioner’, Richard Thomas. He ought to have been well positioned to do so; this is his official role, and indeed Thomas has warned repeatedly about the UK sleepwalking into a ‘surveillance society’(11). Instead, and most regrettably, by the time that Thomas himself is interviewed (after Sedley), he is caught up in, and appears unable to stop the discursive pincer movement that the programme editors’ have generated, inadvertently or not, by way of their selection and presentation of the participants’ views. Even before he’s started speaking, Thomas must extricate himself from a rhetorical trap—a trap of ‘common sense’—that Sedley has laid for him and anyone else who might oppose the universal DNA database: if, as Sedley argues, the current situation is ‘indefensible’, and if the only way ‘forward’ is to create a universal DNA database, then by implication anyone who opposes Sedley is either defending the ‘indefensible’, or going ‘backward’.
Instead of beginning by questioning how and why Sedley has intervened in this matter in the first place, Thomas begins by agreeing that the current situation is indeed ‘indefensible’(and so it is). Thomas is probably at once adopting the codes of politeness (finding ‘common ground’) and trying to reinforce the one aspect of Sedley’s intervention that he agrees with. Unfortunately, the rest of his intervention is rather weak. Thomas not only fails to comment on the fact that it is a judge that has called for more draconian forms of policing, but does little more than call for tighter rules on the retention of DNA samples, and for a wider debate on the subject. Indeed, it is John Humphrys who reminds Thomas of some of the more controversial issues associated with the database (e.g. including children in the database).
There is another aspect that Thomas also fails to address: as the Government’s leading expert on data protection, he must know that New Labour is not just ‘broadly’ in favour of a universal DNA database. However, he chooses not to confront McNulty, or indeed the Today show, on this aspect. True, when Thomas is questioned, McNulty himself has not yet been interviewed (this too, raises questions about the BBC’s editorial decisions: why wasn’t the person with the most critical role the last one to speak? Or why wasn’t Thomas allowed to comment on McNulty’s intervention?) But this does not entirely explain the relatively weak character of Thomas’ intervention. Is this his first time on the Today programme? Or could it be that his comments reflect the peculiarly disempowered position that he inhabits as ‘Information Commissioner’? (He is, on the one hand, supposed to be a kind of watchdog or ombudsman. But he is of course appointed by the government of the day, and indeed his office is ‘sponsored’ by the Justice Department.) In what looks to be a kind of Freudian slip, or at least an apparent contradiction, one of the pages on the ICO website suggests that ‘The ICO is the UK’s independent public body set up to promote access to official information and protect official information.’(12) This raises the question: does the ICO seek to promote access to, or to protect official information? Here too, one has to wonder whether the ‘fusion’ of powers in the UK is not better described as a confusion of powers.
* * *
This very brief analysis is meant to begin to reveal the extent to which, far from being the kind of ‘impartial’ and ‘balanced’ account that it is supposed to be, the Today’s interview of Lord Justice Sedley might well be described as a form of dissimulation — in the sociological sense of the term. As noted by John B. Thompson in Ideology and Modern Culture, dissimulation is one modus operandi of ideology which works to establish or sustain relations of domination by concealing, denying, obscuring or representing them in ways that deflect attention away from them (13).
Let me be very clear: I am not saying that John Humphrys did not ask some good questions. On the contrary, he did ask some tough questions, and the interview did succeed in providing significant insights into the discourse of Lord Justice Sedley. However timidly, Danny Shaw did also confront Lord Justice Sedley with the absurdity —or rather, the impracticality today— of his proposal.
Nor am I saying that the Today interview was partial or biased in any simple way. No, what is at stake is a rather more ‘structural’ form of ‘bias’, one that has to do with the way in which the entire interview positioned —read, framed— the different participants vis-à-vis Sedley’s intervention, vis-à-vis each other, and vis-à-vis McNulty’s and New Labour’s interest in introducing a universal DNA database. In effect, the Today editors structured the entire interview in a manner that failed to reveal and scrutinize the politics that underpinned Sedley’s and McNulty’s interventions.
It might be argued that, if my analysis is valid, then the editors are not at fault insofar as they have been the victims of a maneuver hatched, if not by Lord Justice Sedley himself, then by New Labour politicians. But that is like saying that journalists cannot help it if they are lied to. In a society where journalists know all too well that they are the continually the objects of spin and of efforts by politicians to control their interpretations, it is the journalists’ duty to stop and think, as a matter of course, about the kinds of issues that I have raised. If they don’t get it right the first time, that’s fair enough. But if they don’t, then nothing bars them from revisiting the subject a second, third or fourth time. Why not invite McNulty back for an interview in which the above matters are discussed? And as part of that, why not make public—very public—the contents of that PACE review?
By way of a postscript, a question for the ICO: is there not an unacceptable conflict of interest in the fact that one of the ICO’s non-executive directors is, has been, or might in future once again become a non-executive director of the Forensic Science Service Ltd, the private-public company that describes itself as a world leader in the development of DNA databases? See http://www.forensic.gov.uk/forensic_t/i3/index.htm, and also http://www.shareholderexecutive.gov.uk/performance/fss.asp (accessed September 14, 2007) where David Clarke remains listed as a non-executive director.
On Tuesday: “Lord Justice Sedley’s (and John Humphrys’) ‘Common Sense’”
References
1) As per the BBC Annual Reports and Accounts 2006/2007 (Executive Report), p.41. http://www.bbc.co.uk/annualreport/, accessed September 12, 2007. According to this same document, ‘average weekly reach for radio is measured by the number of people aged 15+ who tune to a radio station within at least one quarter-hour period over the course of a week. Radio listeners only need to have listened to the station for at least five minutes within that quarter-hour (RAJAR)’. (RAJAR is the Radio Joint Audience Research and describes itself as the official body in charge of measuring radio audiences in the UK.)
2) as per Julia Day, ‘Today bears brunt as Radio 4 slumps’, http://media.guardian.co.uk/rajars/story/0,,1836176,00.html, accessed September 12, 2007.
3) In 2005, Broadcast magazine suggested that MPs voted the Today programme as the most influential programme in setting the political agendas. See ‘BBC News Tops MPs’ Survey’ at http://news.bbc.co.uk/newswatch/ukfs/hi/newsid_4440000/newsid_4444700/4444751.stm, accessed September 12, 2007.
4) BBC Annual Report and Accounts 2006/2007, p. 41.
5) ‘In terms of its impact and its influence on the national debate, the trust in which it is held by its huge audience, the Today programme is easily the most important programme that the BBC does.’ In ‘John Humphrys: On the threat to ‘Today’’ in Independent Online, September 3, 2007, http://news.independent.co.uk/media/article2919835.ece. Accessed September 12, 2007.
6) ICO website, http://www.ico.gov.uk/about_us.aspx, accessed September 13, 2007.
7) http://www.bbc.co.uk/radio4/today/about/meet/pres.shtml?humphrys, accessed September 13, 2007.
8)BBC Editorial Guidelines on Impartiality. http://www.bbc.co.uk/guidelines/editorialguidelines/edguide/impariality/, accessed September 13, 2007.
9) see for example http://en.wikipedia.org/wiki/Fox_News_Channel_controversies, accessed September 14, 2007.
10) ‘DNA expert in McCann case offer’, http://news.bbc.co.uk/1/hi/uk/6992372.stm, accessed September 14, 2007.
11) ‘Britain is Surveillance Society’, http://news.bbc.co.uk/1/hi/uk/6108496.stm, accessed September 12, 2007.
12) http://www.ico.gov.uk/about_us/who_we_are.aspx, accessed September 12, 2007.
13) Cambridge: Polity Press, 1990, p. 62.
Sedley’s (and Humphrys’) ‘Common Sense’
Metaphors are commonly regarded as being little more than literary devices, as ways of embellishing one’s writing. But philosophers of language have long known that everyday metaphors are also something akin to fundamental cognitive frames, i.e. ‘ways of knowing’, if not ways of worldmaking that subtly shape how people begin to imagine and relate to whatever their metaphors represent.
During the BBC interview, Lord Justice Stephen Sedley uses a very simple directional metaphor, in fact a metaphor of dualistic directionality. This metaphor is meant to both describe, and moralize what he sees as two options with respect to the universal DNA database: ‘going forwards’ or ‘going backwards’. When queried by the BBC journalist Danny Shaw about what should be done about the DNA database he says, ‘Well you’ve certainly got to go in one direction or another from where we are now. [Coughs] To go backwards would be to wipe from the database the DNA of everybody who has not been convicted’(emphasis added). A few sentences later he says ‘So going backwards would be a disaster. Going forwards has very serious but I think, um, manageable implications’(emphases added again).
Sedley’s use of this metaphor sets what might well be described as two metaphorical traps for the journalists and the listeners of the Today programme. The first involves accepting that the question regarding a universal DNA database is best described in terms of the simple dualism established by the metaphor: there are only two choices, ‘going forwards’ or ‘going backwards’. As an alternative, Sedley might well have used, for example, a financial metaphor: ‘when deciding how to deal with this situation, we must take several different factors into account’. Alternatively, he might have appealed to a metaphor drawn from biology: ‘When confronted with this inequity, it is tempting to give in to our baser instincts and to decide to add everyone to the DNA database…’. These examples hopefully illustrate how profoundly one’s choice of metaphors can shape how something is explained, and by implication, how it might be interpreted.
The second trap involves Sedley’s (and indeed the wider culture’s) moralization of the two directions. In Sedley’s case, the moralization is actually quite explicit: backwards is bad (a ‘disaster’) and forwards is, by implication, ‘good’; not a, but the way (forward).
So long as the radio audiences (and of course the journalists themselves) accept either one of these aspects—that the decision involves some kind of a journey or road on which it is only possible to go backwards or forwards, and that backwards is bad (or ‘ridiculous’ as Sedley puts it), then they have begun to be manipulated by Sedley’s common sense.
* * *
A word about common sense. The anthropologist Clifford Geertz once described common sense as a ‘large realm of the given and undeniable, a catalogue of in-the-grain-of-nature realities so peremptory as to force themselves upon any mind sufficiently unclouded to receive them.(1)’ Geertz was critical of the commonsensicality of common sense. He suggested that, far from being the kind of immediate or absolute ‘lived wisdom’ that it is reputed to be, common sense is best regarded as a ‘cultural system’—one that can and should be questioned.
In some contexts—most notably those involving physical scientific investigation—common sense has long been suspect. Scientists have always known that if common sense were no more (and no less) than common sense, then the Sun would still be spinning around the Earth, and Christopher Columbus and the rest of his mates would still be screaming as they fall endlessly from the edge of that tabula that the planet was supposed to be. (Actually, in those days I don’t think it was supposed to be an endless fall.)
The problem with common sense—a problem that pertains to us all—is that thanks in no small part to metaphors such as the one that Sedley employs, it seems to be not just a matter of the ‘obvious’, but also of the unquestionable. What worries me is the possibility that this is precisely the effect that Sedley sought to achieve. ‘Going backwards’ (or ‘wiping’ the DNA database) is ‘ridiculous’ because some day someone might be convicted thanks to a DNA sample that has been prudently stored in that universal DNA database. As he puts it, ‘I’ve come across cases myself in which, uh, serial rapists have finally been caught only because their DNA was obtained following their arrest. Ah, they were acquitted by jurors who they managed to hoodwink…ah, subsequently, because their DNA was now on record, were able to be identified as the perpetrators of a number of earlier rapes.’
If this is so obviously and unquestionably the ‘way forward’, then perhaps we should contemplate any number of similarly extreme measures. Why not tag everyone electronically in case that they commit a crime in the future? Or why not have everyone report to the STHF’s—‘Short Term Holding Facilities’—that Tony McNulty wants to introduce to the UK’s shopping malls and city centres, say, twice a week? Surely it would be safest to make sure that anyone who has not yet been proven innocent—and even those that have been proven innocent—remain tagged just in case they commit a crime in the future, or just in case they are shown to have committed a crime in the past?
My reference to the burden of proof unmasks, I think, the real implication of Sedley’s, and indeed New Labour’s, proposal: in effect, New Labour is taking steps to invert the current burden of proof—innocent until proven guilty—such that in future everyone will be guilty until proven innocent. And that is precisely one of the features that characterizes totalitarian regimes. In a police state, you remain guilty, or at any rate a suspect, until the day you are buried, or disappeared.
* * *
Of course, anyone can use this or that metaphor until the cows come home and it won’t make an iota of difference unless other people accept and start to echo the cognitive frame that is established by any given metaphor, or better yet, by a certain web of metaphors and their associated discourse(s).
But I suggest that that is exactly what begins to happen during the BBC interview. Variations of Sedley’s directional metaphor and its morality appear and reappear throughout the interview until the metaphor is given a final—and I would argue decisive—fillip by John Humphrys. Consider the following excerpts:
Richard Thomas: ‘I think we have to think very long and very hard before going down the road of a universal DNA database’ (emphasis added). And later, ‘I think we have got ourselves into a situation where we have to move in different directions, that’s not to say we have to go all the way to having a universal DNA database…’ It is true that Thomas is modifying and making more complex the metaphor, not least by attempting to associate the ‘move’ to a potentially more negative vertical sense of directionality: go down the road of universal DNA database. He also suggests the possibility of moving in different directions.
Humphrys then asks Thomas, ‘But what’s a half-way house?’ This slightly different metaphor of journey arguably continues to reproduce the sense that, if nothing else, there is one road, and one road only that has to be taken, even if only half way to what implicitly becomes the ‘end’ of a full universal DNA database.
McNulty also uses the directional metaphor of journey, though admittedly, he weakens the frame of dual directionality. In one statement, he says, ‘…there’s a huge debate needed about where we go from where we are now, will the up to universality [unclear], and again, like Richard, I welcome the debate it is much needed.’ Then again, McNulty is, and must be at pains to differentiate his message from Sedley’s; otherwise, he’d arguably be letting the cat of the New Labour bag.
In the end it is Humphrys that really gives Sedley’s metaphor a good hard push. He responds to McNulty by saying: ‘So you can’t go back [chuckles] so obviously therefore … logic demands that you have to go forward.’
Several questions come to mind here: why does Humphrys chuckle? Also, why does he return not just to the metaphor of directionality, but implicitly, to Sedley’s moralization of that metaphor (going forward is not only ‘good’ but ‘logical’)? Indeed, how, when, and why does the common sense of Sedley’s position become a matter of ‘logic’, or of a ‘logical demand’?
* * *
Lest there be a misunderstanding: I am not saying that the use of certain common sense metaphors is enough, in and of itself, to secure the acquiescence of any or all listeners. Nor am I saying that it is possible to communicate without metaphors, or even, without some appeal to common sense; on the contrary, I agree with all those scholars who say that every word is, in itself, both the beginning and the end of a metaphorical process. I also agree with those who argue that any form of rationality is always part of something akin to a cultural system; one that can never be entirely ‘rational’, and which is always held together at least in part by a ‘common sense’.
What I am saying is firstly that Radio 4’s listeners deserved a rather better form of justification than they got from Sedley, i.e. one less based on an appeal to crudely orientational , and crudely moralised metaphors. I am also saying that if this appeal was reproduced by John Humphrys—and I think that it was—then on this level of analysis too (see my previous post for another level), the BBC has aided and abetted the ideological process that is being led by New Labour, and championed by Sedley.
Will New Labour succeed? The dilemma for Gordon Brown and his associates is that if the tabloidization of justice—and that is at least part of what all this is about—thrives by creating ever deeper discursive divides between ‘us’ (the ‘law abiding citizens’) and ‘them’ (the criminals), then a universal DNA database makes ‘all of us’ at one and the same time ‘one of them’: if Sedley prevails, we will all be treated, in principle if not in practice, as criminals-in-the-making. Now that’s good common sense, isn’t it?
References
1) in C. Geertz (1985) ‘Common sense as a cultural system’, in Local Knowledge, New York: Basic Books, p. 73
McNulty’s Genie, or the Power of (Quasi-Ecumenical) Agreement
Central to the fate of the universal DNA database is a political modus operandi which I’ve not yet really explained, but which requires elucidation if one is to acquire a better understanding of Lord Justice Sedley’s, and especially Tony McNulty’s role in the BBC Today interview of September 5, 2007. This modus operandi might be described as an ‘ecumenical’ mode of policymaking, or rather, as a ‘quasi-ecumenical’ mode: I borrow the term that, in the context of Christian religion, refers to the inclusion of different (Christian) groups under one roof. New Labour works very hard to seem to be inclusive of different people’s views. But I want to argue that, more often than not, New Labour’s apparent ecumenism actually works to suppress truly heterodox perspectives by generating relatively controlled simulacra of debate in the media, and/or in policy reviews and other apparently consultative exercises.
* * *
Broadly speaking, it can be suggested that a political party that wants to introduce an unpopular policy—or a policy that contradicts some of the most fundamental values of a country’s democracy—has four options.
The first option is to promote a national debate that is won (or lost) by way of the force of real argument. This is almost never the New Labour way of doing things when it comes to politically sensitive issues. To be sure, sociologists would rightly argue that in mass cultures, a ‘national debate’ is not actually feasible, if by this one means a debate that engages with all the different perspectives, or a debate that can arrive by way of ‘honest argument’ at any simple or unambiguous ‘national truth’. There are so many people, and there are such vast social distances, that any debate will necessarily under- or misrepresent at least some perspectives. In any case, any ‘debate’ will have to occur by proxy, i.e. by way of representatives that speak for others. This is one of the reasons why the media of mass communication play such a useful, but also such a potentially nefarious role in modern cultures. For example, some political correspondents routinely assign themselves the role of being the (unelected) representatives of ‘the public’, or of ‘what the public wants’.
The second option is simply to introduce the policy (or take the political action), and batten down the hatches: deny any controversy or wrongdoing, do the wrongdoing even as you deny it, and send in the police to repress dissent if and when it happens. That is what happened with Margaret Thatcher’s poll tax, and what has happened with George W’s and Tony’s Iraqi adventure. The political costs—not to speak of the humanitarian costs for Iraq—have been clear for all to see: despite having no real opposition, New Labour might well have lost the next election if Tony Blair had remained as prime minister.
The third option is more astute, and involves what might well be described as phoney consultation exercises. Faced with the vast, complex, and potentially contradictory nature of the society, politicians may, indeed must resort to a variety of methods of obtaining ‘feedback’ from their constituents. One way of doing so is to canvas people by door-stepping or a variety of similarly informal means such as chats with friends, fellow politicians, or people who attend official meetings/gatherings. Another is to take note of the views of real or self-proclaimed ‘opinion makers’, or indeed to generate and/or participate in debates such as the one on the Today programme. Yet another is to use quasi-academic methods: polls, focus groups, and now the so-called ‘citizen’s juries’.
It may seem—and indeed New Labour would like us to believe—that especially the latter means of consultation are truly ecumenical, democratic, and indeed ‘scientific’ in the sense of being disinterested and objective accounts of what ‘the public really wants’. In fact, the mentioned methods are always shaped subtly and not-so-subtly by the interests of whomever asks the questions or otherwise guides the consultation process. So it is with New Labour, whose politicians have almost routinely used these and other methods to shamelessly legitimate their own interests in one policy ‘review’ after another. Three recent examples are New Labour’s consultation over the future of nuclear power; its consultation over the future of genetically modified (GM) crops; and its review of ‘skills’ in the UK’s various levels of education (1). I suggest that the current review of the Police and Criminal Evidence Act, which McNulty refers to repeatedly in the interview, is yet another example.
If and when such consultations do show a real diversity or difference in views—and this can admittedly happen—then politicians like McNulty can always either ignore the outcome of the consultation exercises, or ‘reinterpret’ their results so as to suit the own ends. As long as key members of the political establishment and crucially, key journalists either accept such machinations or fail to speak up against them, then the political party’s version of the outcome of consultation can be represented as being as good as the allegedly ecumenical ‘way forward’.
There is, however, a fourth option, and this is arguably the one that New Labour usually prefers. This option is, from the political party’s perspective, the ‘safest’ one in that it guarantees, or appears to guarantee, a desired outcome. It involves the combination of elements of the second and third options: a de facto practice is quietly introduced that makes a certain policy seem inevitable by the time that debate is allowed, organised by, or indeed forced upon the government. It is this that I refer to as the ‘quasi-ecumenical’ mode of governance.
* * *
My account of this mode may sound overly cynical, or even conspiratorial. But I would argue that it has become New Labour’s everyday way of doing politics in the UK.
The introduction of a universal DNA database is a case in point. The police have been quietly building up the world’s largest database of DNA samples, taking and keeping samples from anyone they could. By the time a debate began to take place, so many samples had been collected that, as might be expected from a statistical point of view, the police had used the samples to catch some criminals who might otherwise have escaped conviction. The scene was thus set for someone to come along, and say ‘hey, this is actually too good a system to give up’, or ‘we can’t possibly go back on this now’ or better yet, ‘the genie is out of the bottle’. This is arguably the role played by, or given to, Lord Justice Sedley. And it is Tony McNulty’s words that I quote when I use the metaphor of the genie: after denying, rather obliquely, that the current status quo is ‘indefensible’ (Sedley’s term), he goes on to say that ‘I think Sir Stephen and Richard are right in saying you can’t go back this genie is out of the bottle…‘ This tactic (option two, above) is seconded by another (option three) which involves the ruse of debate, and consultation. As McNulty puts it, ‘… it [a universal DNA sample] is a very, very powerful tool, and there’s a huge debate needed about where we go from where we are now, will the up to universality [unclear], and again, like Richard, I welcome the debate it is much needed.’
Note that, contrary to what McNulty says in the quote above, Richard Thomas has not said that you ‘can’t go back’, and indeed that neither he nor Sedley have used the metaphor of the ‘genie in the bottle’. But no matter; the trick is to introduce the controversial practice by the backdoor; deny (obliquely) any criticism if and when found out; announce a review which seems to be ‘ecumenical’ but actually helps to introduce your policy; and as you do so, pick up any positive comments made by critics and twist them a little bit to make the critics seem to support your own views.
As McNulty says to Humphrys, ‘I think your your your point all be it about universality but about the stigma is important, this is not about a DNA database of everyone who’s ever committed a crime and been guilty, it’s a DNA database of anyone who’s… encountered the criminal justice system, and other samples that are lifted from crime scenes, so there’s about four million individuals and it is a hugely powerful tool, ah and and and Sir Stephen almost made the point himself, there are those who, because of that interaction with the system are on, are on the database for something fairly innocuous, who those very individuals have been on a cold case analysis basis been convicted of very serious crimes going way back because of the DNA samples from them’.
And again: ‘The point that we’re looking at in the Review of the legislation, PACE [unclear] and the sort of overarching legislation for these matters is looking at that and all other points about biometrics in general but specifically DNA. So the points about retention, who should be on and who should be off, when you encounter the criminal justice system should you go straight on all those points will be part of that review, and I think it is a very welcome and serious debate.’
When John Humphrys presses him on the current status quo, there is more of the same:
John Humphrys: So you accept that there are huge civil liberties…
Tony McNulty: Oh I do absolutely, absolutely, I…
John Humphrys (interrupting): in that case you must be outraged that there are people on that database who should not be on it today, why are they still there?
Tony McNulty: Well it depends that’s exactly why we’re looking at it through the PACE review now, are there those on it who shouldn’t be on it, are those who do encounter the criminal justice system but are subsequently not found guilty of any ah crime, is there still some value for the wider public of them being on for a very limited period, I do take Richard’s point too about those involved in very serious crime can and should be on there uh indefinitely, I think people accept that.
* * *
It might be argued that I have not really proven that McNulty/New Labour are in favour of the database, or that the review is a sham from the point of view of its ecumenism. But consider the following questions: if New Labour doesn’t agree with—indeed, is not behind—the proposal for a universal DNA database, then why has it allowed the police to take and keep the DNA samples of anyone whom, in McNulty’s delicate expression, ‘encounters’ the criminal justice system (witnesses, people proven innocent by courts, children younger than 10, and so forth)?
Second, if the review is really a consultative exercise, why would McNulty be proposing, as his review of the Police and Criminal Evidence Act does, to extend the DNA sampling to minor offences, and to even set up so-called ‘STHF’s’ (‘Short Term Holding Facilities’) for this purpose in shopping malls and other city centre locations?
If this is still not regarded as sufficient evidence, then perhaps one might wish to ask a third, and rather more contextual question: would a government that wants to introduce a national ID card really balk at the introduction of a universal DNA database?
In case the reader is not familiar with the national identity card proposal, New Labour’s proposed ID card will not be the kind of ID card that many if not most countries around the world require as a matter of course. No, New Labour is proposing to introduce the father of all ID cards which will include all the items listed here. I will analyse this list in another post; here it suffices to explain that the list includes not just biometric information, but the information contained in any document that the government of the day might wish to attach to the ID by digital means. In short, if anything has been written or otherwise registered about a person in any context, and the government decides that it should be included in her/his ID card, then that card will record it and will make it instantly available to anyone who has access to the card’s information—the list could include all manner of commercial transactions, medical records (which are themselves about to become part of a national database), and of course, the use of data systems of any and all manner of political and cultural institutions. It is worrisome enough to consider what might happen to this information if and when a government—New Labour or otherwise—wishes to suppress any political group’s dissent to its policies. But in a context where both the current and the previous governments have shown again and again that they will give way to the demands of the US and of large private corporations (the scandal over the bribery and corruption charges against BAE is only the latest example), one has to assume that this information might be used and abused not just by the police, but by private corporations and foreign governments who are likely to gain access to some if not all of the data. Consider for example, that the EU is currently handing over a lot of sensitive information to the US when any European resident travels to the US. And of course, that is not even to begin to consider what might happen to the information if it reaches fraudsters: one does not have to be a security expert to know that the best way to ensure that there can be a total ‘identity theft’ is to put all the relevant information in one place.
* * *
The following were some of the words pronounced by Tony Blair on May 2, 1997, when New Labour took over from the Conservatives: ‘And it will be a government that seeks to restore trust in politics in this country. That cleans it up, that decentralizes it, that gives people hope once again that politics is and always should be about the service of the public. And it shall be a government, too, that gives this country strength and confidence in leadership both at home and abroad, particularly in respect of Europe.’[…] It shall be a government rooted in strong values, the values of justice and progress and community, the values that have guided me all my political life. But a government ready with the courage to embrace the new ideas necessary to make those values live again for today’s world — a government of practical measures in pursuit of noble causes. That is our objective for the people of Britain.(2)’
And the following is part of the statement made by Gordon Brown upon arriving at 10 Downing Street on June 27, 2007:
‘As I have travelled round the country, and as I have listened I have learnt from the British people – and as Prime Minister I will continue to listen and learn from the British people – I have heard the need for change, change in our NHS, change in our schools, change with affordable housing, change to build trust in Government, change to protect and extend the British way of life. And this need for change cannot be met by the old politics.(3)’
Commenting on the recent, and well publicized visit by Margaret Thatcher to 10 Downing Street (see Steve Bell’s cartoon here), the following is the rather apt description offered by Simon Hoggart, one of the Guardian’s columnists: ‘I’m sure I’m not the only person to think of the end of [George Orwell’s] Animal Farm, when the pigs, now walking on two legs, have moved in with the humans. The other animals gaze through the windows at their masters: “The creatures outside looked from pig to man, and from man to pig…but already it was too late to say which was which.“(4)’
References
1) Where nuclear energy is concerned, see for example, http://www.guardian.co.uk/uk_news/story/0,,2173016,00.html and http://www.greenpeace.org.uk/blog/nuclear/the-consultation-stitch-up-20070920.) See also http://www.foe.co.uk/resource/press_releases/government_gm_consultation_21072006.html for a critique of the government’s consultation over GM crops. For a critique of the policy regarding the teaching of skills in universities, see my own post on ‘The UWE Experiment’.
2) see http://www.number10.gov.uk/output/Page8073.asp, accessed September 23, 2007.
3) see http://www.number-10.gov.uk/output/Page12155.asp, accessed September 23, 2007.
4) see http://politics.guardian.co.uk/columnist/story/0,,2169811,00.html, accessed September 23, 2007.
Living with Panopticism
When this blog published its first post (‘Speaking Out’, August 15, 2007), it used the example of the life of Martin Niemöller in pre-WWII Germany to say something about the circumstances of people who, like this blogger, live in the UK in 2007. As explained towards the end of that post, there was no intention to suggest that Britain in 2007 was the same as Germany in 1937 (the year that Niemöller was arrested by the Gestapo). The article did, however, wish to repeat Niemöller’s warning that authoritarianism and totalitarianism only seem to affect ‘others’ in the early days. The post was also written to remind those familiar with Niemöller’s poem that Niemöller himself continued to be a defender of fascism even after he had been sent to a concentration camp. As the article noted, one can be complicit with an authoritarian or totalitarian regime despite being a fierce critic of some of its aspects.
We will return to this last point below. Here it should also be reiterated that the social context that the first post had in mind was that of the UK, and not of Germany in the early 21st century. The reasoning was that, after all, it is the UK that can now imprison people for 28 days without charge, and it is Gordon Brown’s government that is trying to extend this period to 56 days. EcoLogics is not naïve about the extent of the erosion of civil liberties across much of Europe, but it did seem clear that the New Labour, along with the Bush administration, was on the cutting edge, if one can call it that, of what another post described as the ‘Gattacaization’ of society.
But then on August 20th, news about an event in Germany forced this blogger to revise this assessment. As reported by the Guardian, Andrej Holm, a lecturer specializing in the sociology of urban gentrification, was one of several people arrested in Berlin in early August on suspicion of associating with a terrorist group:
‘The federal prosecutor’s office arrested Mr Holm on August 1 under paragraph 129a of the anti-terrorism law, citing the repeated use of words such as “gentrification” and “inequality” in his academic papers, terms similar to those used by the urban activist organisation “militante gruppe” (mg). According to the prosecution report the frequency of the overlap between words used by Mr Holm and the group was “striking, and not to be explained through a coincidence”.’(1)
A letter of protest signed by leading academics and sent to the Federal Prosecutor noted the absurd nature of this and other justifications used to arrest the different people:
‘One of the justifications, which the construct of the Federal Prosecutor is based on, is the fact that three of the seven accused are social scientists who are said to be intellectually capable to “author the sophisticated texts of the ‘militante gruppe’”. The political scientist Matthias B., holding a PhD, is a suspect because “as associate of a research institute he has access to libraries which he may use inconspicuously in order to do the research necessary to draft texts of the ‘militante gruppe’”. One of the four imprisoned, Dr. Andrej Holm, is alleged “to have been active in the resistance mounted by the extreme left-wing scene against the 2007 World Economic Summit in Heiligendamm” (G8), and to have met with one of the other suspects “in a conspiratorial manner”. One of the other accused individuals is deemed to be a “terrorist” because an address list was found with him, including the name of Dr. Andrej Holm.’(2)
It may be that this event is something like an aberrant exception in Germany. But even if it is, and indeed even if the police have further evidence which they have not made public(3), the fact that the Federal Prosecutor felt able to justify the detention in the manner that s/he did suggests that Germany too, is becoming a state in which even the flimsiest of ‘associations’—don’t even try to call it ‘evidence’—can be used to try to detain and silence someone. One might almost say that detention with such charges is as bad as detention without charge; except, of course, that that is precisely why detention should always be made with charges. It is only when charges are made public that one is able to begin to scrutinize the workings of the police and the judiciary.
* * *
Events such as these—and EcoLogics speaks in the plural because numerous other cases might be considered throughout the supposedly free world, the most recent of which involved an Indian doctor in Australia (4)—suggest that anybody who writes and publishes anything that is critical of the prevailing ideology has reason to be worried—very worried—about the kind of ‘evidence’ that might be concocted against them if a government decides to pursue them. The prosecutor’s reference to the use of libraries reminds this blogger of the Patriot Act, which is even allowing the US government to spy on the books taken out by people from public libraries. The public or private use of any other medium—including, of course, the internet—is fair game in societies that are arguably increasingly driven by a veritable proliferation of panoptical systems.
Panoptical systems (also known simply as ‘Panopticism’) involve a form of power embodied in a ‘principle of construction’ proposed in the late 18th century by Jeremy Bentham. Bentham, a philosopher and social reformer, proposed a radically new way of keeping persons of ‘any kind of description’ ‘under inspection’. The ‘Panopticon’, to be used in ‘prisons, houses of industry, work-houses, poor-houses, lazarettos, manufactories, hospitals, mad-houses and schools’, was to be a building in the form of a ring with a watchtower in its centre. The ring was to be divided into cells which extended across the entire width of the building; the cells were to have windows at either end. A guard, or as Bentham called him, an ‘inspector’ would be located in the tower, and would maintain the cells under surveillance. While the guard might not be able to watch all of the cells all the time, his eye should be attracted to any activity thanks to the backlighting of each cell. This principle would still apply at night thanks to the use of specially designed lamps with reflectors.
Bentham shows how carefully he had thought through the psychology of the design when he says that
‘To save the troublesome exertion of voice that might otherwise be necessary, and to prevent one prisoner from knowing that the inspector was occupied by another prisoner at a distance, a small tin tube might reach from each cell to the inspector’s lodge, passing across the area, and so in at the side of the correspondent window of the lodge. By means of this implement, the slightest whisper of the one might be heard by the other, especially if he had proper notice to apply his ear to the tube.’(5)
Key to the idea of the Panopticon was the use of an asymmetrical form of visibility—observing without being observed, but also (not) observing whilst being thought to observe. As noted famously by Michel Foucault, the effect of the Panopticon was
‘to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So to arrange things that the surveillance is permanent in its effects, even if it is discontinuous in its action; that the perfection of power should tend to render its actual exercise unnecessary; that this architectural apparatus should be a machine for creating and sustaining a power relation independent of the person who exercises it; in short, that the inmates should be caught up in a power situation of which they are themselves the bearers. To achieve this, it is at once too much and too little that the prisoner should be constantly observed by an inspector: too little, for what matters is that he knows himself to be observed; too much, because he has no need in fact of being so. In view of this, Bentham laid down the principle that power should be visible and unverifiable. Visible: the inmate will constantly have before his eyes the tall outline of the central tower from which he is spied upon. Unverifiable: the inmate must never know whether he is being looked at at any one moment; but he must be sure that he may always be so.’(6)
* * *
Even if Bentham’s proposed jail was never actually realised, a strong case can be made that those who live in the UK and perhaps now also in Germany must contend with a form of societal organisation that reproduces many aspects of the logic described by Foucault. The use in Britain and Europe of CCTV cameras, apparently in every street corner, restaurant, shop and institution; the ubiquitous news about yet another state database (DNA, internet use, etc.) to be used ostensibly to track criminality or terrorists, and of course the efforts to track mobile phones might all be conceived as examples of panopticism in our own times.
In the absence of an actual jail or building such as the one proposed by Bentham, panopticism depends on a mixture of ubiquotous surveillance systems, and the occasional ‘pedagogic moment’, for example, well-publicised detentions such as Andrej Holm’s. The detentions work to encourage the population to assume that they too, might be observed. This process is extraordinarily insidious in so far as it leads individuals or groups to engage in self-censorship, and/or in the policing of others.
Imagine, for example, that someone you know asks to use your PC to access the internet. You don’t think twice about lending your PC until the person lets you know that s/he has visited sites that you realise might make you a special target of surveillance. At that point you understand that the person, or rather the political order that governs the society, has put you in the unacceptable position of having to choose between respecting the person’s freedom of speech, or asking her/him to stop using your computer in order to protect your own freedom of speech.
If you choose the latter stance then you become a kind of censor, and in one sense at least, a de facto agent of the very regime you might otherwise critique. But if you choose the former, then you allow the person to potentially create the circumstances whereby you yourself might be framed and censored. To be sure, merely by raising the matter you also risk being branded as being paranoid. Everyone is being watched, the person might say, so best not to worry about it.
When confronted with this logic, one is reminded of the story of George Orwell, whom many would regard as the theorist of social paranoia, par excellence. But today it emerged that Orwell was himself being watched by the British police and intelligence services. Amongst many other comments found in the documents released by the UK’s National Archives at Kew is the following gem, written by a policeman who spied on Orwell in the 1940s: ‘This man [Orwell] has advanced communist views… He dresses in a bohemian fashion both at his office and in his leisure hours’(7).
The 1940s might seem like a long time ago. But note the bald title with which the National Archive has presented the archives: ‘Communists and Suspected Communists’[8]. Upon reading this archive, we have to ask, ‘Who is being spied upon today?’ A better question might be, ‘Will the title of future archives be “Terrorists and Suspected Terrorists”?’ And what if any asinine attitudes will be revealed about today’s surveillance operations?
References
(1) Kate Connolly. ‘Protests over terror arrest of German academic’. In Guardian Unlimited, August 20, 2007. http://www.guardian.co.uk/germany/article/0,,2152984,00.html, accessed September 4, 2007.
(2) Open Letter to the Federal Prosecutor. http://einstellung.so36.net/en/pm/78, accessed September 4, 2007.
(3) A suggestion made by several bigoted responses to the comment offered by Richard Sennett and Saskia Sassen in ‘The war on shapeless terror’, August 21, 2007, Guardian Unlimited, http://commentisfree.guardian.co.uk/richard_sennett_and_saskia_sassen/2007/08/the_war_on_shapeless_terror.html, accessed September 4, 2007.
(4) See ‘Cleared doctor leaves Australia’ in BBC News, 29 July 2007, http://news.bbc.co.uk/1/hi/world/asia-pacific/6920344.stm, accessed September 4, 2007.
(5) J. Bentham, ‘Panopticon; or the Inspection-House’ in The Panopticon Writings, Ed. By Miran Bozovic (London, 1995), and reproduced in http://www.cartome.org/panopticon2.htm, accessed September 4, 2007.
(6) emphasis added. Discipline & Punish: The Birth of the Prison (NY: Vintage Books 1995) p. 196. For a longer quotation, see http://www.cartome.org/foucault.htm, accessed September 4, 2007.
(7) Cahal Milmo, ‘Big brother: How M15 kept watch on Orwell’ in Independent Online, September 4, 2007, http://arts.independent.co.uk/books/features/article2924398.ece.
[8] http://www.nationalarchives.gov.uk/releases/2007/september/communists.htm?homepage=releases, accessed September 4, 2007.
