WikiLeaks and the liberal mind

Transparency is not the only liberal value.

The release by WikiLeaks of US government cables is a sheer triumph for transparency.

Transparency in diplomatic and governmental matters is important, for behind the cloak of secrecy and plausible deniability can lie malice, selfishness and incompetence. Open access to reliable information enables us to participate effectively in a democratic society: in particular, voters can get beyond the self-serving spin of politicians and media outlets. In the wise words of Louis Brandeis, one of the greatest jurists in American history, sunlight is the best disinfectant.

But transparency is not the only liberal value. There are others, and these are important, too.

For example, there is the value of legitimacy: those who wield power in the public interest should normally have some democratic mandate or accountability.

However, no one has voted for WikiLeaks, nor does it have any form of democratic supervision. Indeed, it is accountable to no one at all. One may think that this is a good thing: that with such absolute autonomy WikiLeaks can do things that it otherwise might not be able to do. One could even take comfort that WikiLeaks represents the "good guys" and is "doing the right thing".

Be that as it may: one must remember that such self-assumed moral authority is conceptually indistinguishable from the vigilante. If transparency is important, then so is accountability.

Another liberal value is legality: the belief that actions – especially those that affect others – should have a basis in law. The Guardian and New York Times quite rightly have taken the newsroom of the News of the World to task because of the alleged unlawful and criminal conduct of reporters and investigators in gaining unauthorised access to mobile telephone voice messages.

But legality is not just for tabloid newspapers: it (presumably) applies also to broadsheets. Transparency may well be trumping legality in this particular instance, but this does not negate that legality is also important in a liberal society.

A third liberal value is privacy: the belief that, in certain human affairs, private space is required. Here, it is important that people retain the ability to conduct some communications strictly on the basis of confidentiality. If there is no such assurance of confidentiality, there may be no flow of useful information. For example, even the Guardian and its journalists do not publicly disclose their internal legal advice.

In dealing with those who can provide useful information about illiberal and perhaps dangerous regimes sometimes such an assurance of confidentiality can be crucial. Privacy will be less important than transparency in most cases, but such a presumption cannot be an absolute rule.

The disclosure of diplomatic cables appears so far to have been a good thing, and no obvious harm has yet been caused. WikiLeaks has come out of this exercise rather well, notwithstanding the off-putting moral certainty of some of its supporters and their eccentric tendency to un-evidenced conspiracy stories.

Nonetheless, WikiLeaks remains a powerful but undemocratic and unaccountable entity that shows a general disregard for both the rule of law and the practical need for certain communications and data to be confidential. So, from a liberal perspective, there is a great deal to commend WikiLeaks, but there is also a lot that should cause a liberal to be concerned.

David Allen Green is a lawyer and writer. He is legal correspondent of the New Statesman and was shortlisted for the George Orwell Prize in 2010.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Testing migrant children’s teeth for their age is not only immoral – it doesn’t work

Ministers have flirted with this idea for over a decade. It’s bad policy, as well as poor ethics.

This week, the Home Office finally ruled out the use of x-rays to establish the age of childhood migrants.

It’s welcome news, but this story predates the dispersal of the Calais “Jungle” camp. 

For over ten years, ministers in Conservative and Labour governments have flirted with these tests. And it’s been up to us – the practitioners who’d be expected to administer them – to pick holes in a policy that’s a great way of securing headlines, but simply cannot deliver on the claims made by its cheerleaders.

It goes without saying dentists are health professionals, not border guards. But our objections run deeper than that. And it’s worth revisiting the arguments, just in case future governments start grasping for silver bullets.

It’s ineffective

We can talk about philosophy later, but let’s start with a pretty fundamental objection: dental x-rays are simply not a reliable way of establishing age.

No two mouths are alike. I’ll add my own to that list, as I still sport two of my baby teeth.

Children and young people mature at different rates, so the level of accuracy in these tests changes with time. And these x-rays can estimate age in younger children much more accurately than in adolescents. So as children mature at different rates, the potential margin of error gets ever larger with age.

For example, the third molars, commonly known as wisdom teeth – the last permanent teeth to develop – can form any time between the ages of 16 and 23, and a small proportion of individuals never develop third molars at all (I’ll have to pop my name to that list too).

A 2010 study of 300 young people aged between 11 and 25, whose age was determined based on dental x-rays, showed this method of testing consistently over- or under-estimated age, with a two-year average difference between dental and known age.

So if you are searching for a litmus test that will tell you whether a subject is 17 or 19 years old you won’t find it here.

It’s inappropriate

A few MPs and pundits have found it hard to acknowledge the codes health practitioners sign up to, which make this test a no go.

We must always act in the best interest of our patients when providing a medical procedure. And it is beyond question that the process of radiography is a medical procedure that should be carried out only for medical purposes, and where the patient stands to benefit.

Now many people might not consider this test an invasive procedure. However, x-rays do carry a small risk of possible long-term physical impact, and current best practice in this area dictates that exposure to radiation should be kept as low as reasonably possible over a lifetime. They should be carried out sparingly and where there is a well-defined potential clinical benefit, which must always outweigh the potential clinical harm.

As taking x-rays to determine the age of an individual carries no clinical benefit, it frankly isn’t appropriate to expose a patient to the potential clinical harm it can cause.

It’s unethical

Our lawmakers cannot simply dispense with fundamentals like consent to show they are “taking action”.

It is a legal principle that before practitioners carry out any medical procedure, the recipient – or someone who can consent on their behalf – must be given a full understanding of the nature of the procedure, its significance, impact and potential consequences before signing up to it.

For the children arriving from Calais, this would be a difficult task without English as a first language. Consent may also be required from a suitable adult. Yes, these children may be unaccompanied, but it does not mean the need for valid consent and protecting the child’s best interests can simply be ignored.

The letter of the law might be inconvenient, but it is a requirement that can only be compromised where the urgency and necessity of the circumstances demand rapid action in a patient’s best interests. And even in these circumstances the validity of treatment has sometimes ended up being challenged in the courts.

Given that taking x-rays in order to determine age is not medically justifiable in the first place, the urgency justification really doesn’t come into play. And that means dental colleagues – in the absence of valid consent – could find themselves performing an act that constitutes a criminal battery.


In the past, ministers have debated whether there is a credible “public interest” case that might override these little legal or philosophical objections. But these practical and ethical concerns can’t really be separated.

But why bother constructing a case for a test that frankly isn’t much cop? Dentists can only hope the latest message from the Home Office marks the beginning of a consensus, which draws a line under a decade of wishful thinking.

Judith Husband, Chair of the British Dental Association’s Education, Ethics and the Dental Team Working Group.