Compare and Contrast

The Lords: The People's House?

There are two principle bodies that are generally acknowledged as having a significant amount of control over the legislation by which we are governed but lack any real democratic legitimacy. One is wholly appointed, rather than elected, the other, for the time being, largely so. I refer, of course, to that venerable constitutional anomaly, the House of Lords, and around two hundred miles away, our lords and masters in the European Commission. I would argue that the Skoda minds of the British Civil Service, especially in cases of secondary legislation can have an unhealthy influence beyond their remit, but for now I will stick to the two more conventional pantomime villains. Both have made the news today, in the case of the former for very sensibly doing nothing, and in the latter for getting slapped down when it tried to do something it shouldn't.

First the good news. As trailed by Ian Dale on Tuesday,
David Maclean's Freedom of Information (Amendment) Bill seems to have run into the buffers yesterday. It has fallen foul of a twelve day time limit for finding a peer to sponsor it through the Lords, and now seems unlikely, for timetable reasons to make further progress. Confirmation finally came via the BBC, who I suppose can't be blamed for taking so long to report what is, in effect, a story of nothing happening. Tom McNally, leader of the Lib Dem Lords is quoted as saying:

"It seems very likely that this squalid little bill will no longer become law. We are happy that this bill will not become law.

"It speaks volumes that no member of the House of Lords was prepared to support this legislation.

"It could be revived any time during this session but there is simply no parliamentary time.

"The government would have to extend its already extraordinary generosity to this bill to the point where it would become a government bill."

Source: BBC News

Government sources suggest that even they are now sensitive to this fact and, as much as they may still at heart want the bill, have signalled that no such generosity will be forthcoming.

I've got nasty images of some trumped up FOI disclosure hitting the headlines to apply CPR to this one, but, for now, I'll settle for keeping the hundred plus MPs who were prepared to vote in favour of this bill, bringing the institution they represent into disrepute, on my watch list. It's rare any Parliamentary chamber can claim to have entirely clean hands over the fate of a piece of legislation, but to a Lord and Lady the upper chamber can on this occasion. For all their anachronistic nature, they've once again put the people first. I'm going to put this one on the back burner now, but the campaign banner stays for now. After all, the EU Constitution has been stabbed with more steely knives than this bill as we know the beast is far from killed.

Which neatly takes over the water to Brussels and, erm, more good news, but only because the European Court of Justice has stepped in to stop the European Commission making 24 carat gold plated prats of themselves. The European Commission were very upset that under British Health and Safety law:

...every employer must ensure, "so far as is reasonably practicable", the health, safety and welfare at work of all his employees.

Source: EU Observer

This was obviously an anathema to a body for whom reason and practicality are unwelcome, alien concepts like referenda and democracy, so naturally they hauled the British Government in front of the ECJ.

The ECJ, probably being intelligent enough to realise how ridiculous this would, once again, make the EU look, threw out the case, regardless of how much they may sympathised with the desire for more opportunities for nit picking micromanagement, thereby saving the Commission from heaping more contempt upon themselves.

The commission apparently:

...saw the British phrase as "opening doors for employers to escape their responsibilities" if they could prove that extra safety measures would have been disproportionate in terms of costs, time or trouble when balanced against relevant risk.

Source: EU Observer

You could almost cry. There must be somewhere, buried in a dark recess of the Berlaymont, someone in the Commission with enough residual brain function to understand the connection between statements like this and the prevalence of what they like to write off as 'Euromyths' (Usually proposals that were so stupid, that though considered, couldn't quite garner enough support to try and push through the legislation, so where quietly shelved for another day).

The Berlaymont: Heart of the Beast

The Commission, as well as much of the rest of the European infrastructure, seems to feel that they operate under a different system of reality from the rest of us mere mortals. As with so many slightly reasonable sounding statements from the Commission, all you have to do is consider the underlying logic to realise what kind of cloud cuckoo land these people live in.

To rephrase, without changing the meaning of the Commission statement above, what it is saying is that there is "no safety measure which can be considered disproportionate in terms of time, cost or trouble, if there is any risk whatsoever". It says exactly the same thing, but doesn't sound so reasonable anymore does it? But that's exactly how the Commission appear to see things.

It doesn't even begin to sound reasonable. Every day, for example we weigh up risk versus time and trouble every time we cross a road; when we opt for many kinds of investment we weigh risks against the financial rewards. To expect companies not to do some of the same calculations is preposterous. To do so is to ask them either to reduce risk to zero, which is not remotely possible, or in the alternative to spend an infinite amount of time, trouble or money to mitigate the ever diminishing but never disappearing risk. The weak position of the Commission is that they accept some risk is "unforeseeable". This does not help at all; not all potential risk that it is unreasonable to guard against is unforeseeable, it is just infinitely improbable.

This latest battle in the Commission's endless war on common sense is far from over, as they are going back to discuss the matter with the "social partners". Even the "social partner-in-chief" in the UK, the TUC, don't seem to want to associate themselves with this nonsense, and according to EU Observer, "British trade unions have poured scorn on the EU executive's general approach".

REACH: More Moronism

Another example of this lack of rational thought came back to haunt the land of common sense a few days ago, with the coming into force of the REACH chemicals directorate. Many will remember the Communications VP, Margot Wallström's blog contribution a few months ago, praising the then proposed directive, where she proudly announced:

"What does it change? REACH will reverse the burden of proof. Instead of the public authorities trying to prove that a chemical is dangerous, the producer will have to prove that it is not dangerous or that we can manage the risks"

Margot Wallström, EU Vice President
Source: Margot's Blog

Ok, not all negatives are impossible to prove beyond reasonable doubt, but this one effectively is. There is simply no way to 'prove that it is not dangerous', absence of evidence of danger is not evidence of absence, no matter how many tests fail to show such danger. What was the issue anyway? There was a day when the companies producing did behave recklessly but that was yesterday. The risks of litigation under existing law, along with the potential damage to the companies' image is more than enough to ensure a responsible attitude to safety. When exactly was the last case of the reckless use of a chemical known to be harmful anyway, that directives like REACH would have prevented? My guess that you'd be looking back to the Seventies, which I suppose is pretty much where the EU is still rooted.

I guess that the truth behind REACH lies in the combination of a lack of centralised, well paid job opportunities for the scions of the European elite to mismanage the process, the EU's aversion to efficient operational systems that demonstrate the failures of the ones it sponsors, and its unbreakable, but very damaging addiction to the precautionary principle.

The interesting consequence is for those, and I suspect there are many, who are members of both general environmental organisations like Greenpeace, who support REACH, and any of one of the varied hues of animal rights bodies, who are presumably against the increase in animal testing REACH will inevitably entail. It's really no longer intellectually consistent to be a member of both, but judging by the general coherence of the arguments by both types of body I suspect I won't hear too many membership cards being torn up. At heart, it's bashing business that's the real goal of these refugees many from the discredited hard left.

One and a Half Down

Some good news, but the
FOI bill isn't dead yet

There was good news on several of the blogs I read this morning. I can't remember which one came up first so it's a hat tip to a lot of the people listed on the leftok...schoolboy error....right of this blog. It concerned an article in the Oxford Mail which announced that the Internet stalker, who has concerned so many of late, has been apprehended. Hopefully the convoluted systems by which we try to deal with people with problems like this will be able to give her the help she needs while giving those affected by her actions the reassurance they deserve.

So that's one of the inaugural entries on my campaign slide show gone, and it's good, for all the right reasons, to see the back of it.

Further possible good news comes via Iain Dale's Diary who reports a Lib Dem MP who claims that Lord Trefgarne, the only member of the House of Lords who was prepared to walk into the chamber wearing a sign saying 'Kick Me', by supporting the Freedom of Information (Amendment) Act has withdrawn his sponsorship of the bill.

I can't get too excited thus far, as this bill has had more than its fair share of Lazarus moments through the apparently miraculous intervention of the Speaker and the house authorities with the tacit consent of the government. That said, It's almost beer time on a Friday, so I'm going to be optimistic and hope that, if not dead, it's gasping for air as the Lords begin to strangle it.

So it's sorry, with well earned disrespect to David Maclean, it looks like whatever you wanted covering up will be out in the open one day soon. Any guesses about which backbench MP is going to get hit with the most FOI requests in the coming month?

Once again the Lords look like coming through for the rights and liberties of the people. Not one of them seems to wish to associate themselves with such an insidious bill, while the commons had plenty of self-centered s**ts ready to slither into the Aye lobby. I've got no brief for the ironically named 'house of peers', most of whom will have led lives I cannot even begin to understand; nor can I condone the fact they still carry some political authority, but that said, they do seem to have an appreciation of the responsibilities that come with political power that their brethren in the elected chamber could learn a lot from.

The campaign banner on this one must, sadly, stay for now. After all a campaign slide show with a single slide wouldn't be too exciting. I must go and find something new to get outraged about. Or perhaps not, they seem to come along of their own accord often enough.

The Second Front

MacLean's bill is in trouble, but the backup plan is already rolling

The blatant self-interest in David Maclean's Freedom of Information (Amendment) bill was what first really got me interested in the attacks on the public right to know, so much so that I'd almost forgotten about some of the other attempts to restrict the FOI act's use.

In fact for some time the government has been looking at changes to the scope of the legislation based, allegedly on the number of vexatious requests and the costs of fulfilling them. The principle they are looking at is to factor in more realistic costs of official's time in responding to the requests. This seems to have been floating around even longer than the Maclean bill, but I initially took less offence at these proposals. I suppose that I spend enough time factoring costs like these into proposals I put out it seems reasonable enough and certainly there does seem to have been some abuses of the system, most of which could be described as FOI spam. As with other types of spam, FOI spam seems to be divisible into the malicious, where the sheer number of the requests seems designed to jam up the operation of the system, and the frankly daft (some examples have included questions about the number of hot, single police officers in some county or another).

The problem is, once you realise that there are ulterior motives behind attempts to limit the use of the act in one way, you can begin to see that even sensible sounding changes may have a similar underlying agenda. It becomes all too easy to see how these changes could be used almost at will to deny requests whenever the government saw fit, highlighted on many blogs and on the BBC. Knowing the way some of these things work, and the way real costs of employees time can add up, it would become very easy to block any request on the grounds of cost.

I doubt that there is a simple way to make the changes to the costing model without shattering any faith in the integrity of the system. Surely, what should be tried first is a basic filing fee, perhaps just £20-£50, with exemptions for certain key organisations such as professional bodies, and organisations like Citizen's Advice Bureaux (if these still exist??) that may be acting on behalf of individuals who may find even this relatively small charge impossible to bear. That alone should be enough to deal with most of the spam. After that would be up to the government to make a real case for further restrictions which, with the silly headline grabbing stories out of the way, they might actually find quite difficult.

Of course a few frivolous claims will still go in but, just like some of the characters who can scrape together the deposit to stand in an election, most will just add a bit of colour to the grey processes of goverment without causing any real harm. I would love to know the type of questions the late Screaming Lord Such would have asked of our lords and masters.

The Truth Will Out...

Another Self-Serving Shit

...if only when it gets leaked. The claim that the proposed amendments to the Freedom of Information (FOI) act, removing both Houses of Parliament from its scope, are purely to protect communications between our esteemed parliamentarians and humble constituents lie in tatters tonight. At the same time the the reason that there has been such strong support from the government front bench, despite their officially neutral position has become crystal clear.

According to a leaked letter from Trade Secretary, Alastair Darling, to the Lord Chancellor, the BBC tells us that:

'The Trade Secretary is concerned that it [the Freedom of Information Act] does not sufficiently protect advice from officials to ministers.'

Naturally he does not go on to explain the dangers such releases, even they passed the public interest test, could pose. He does not discuss the prospect of his colleagues spending some of the retirement in substandard government provided accommodation with addresses beginning 'HMP' rather whatever grace and favour prestige homes they can cling on to. Instead he opines that the fact that the is, in his mind...

"a discernible trend within the Information Tribunal that decisions on the public interest test have not been falling in the government's favour in key cases"

...that this is...

"placing good government at risk"

...because...

"If we are to live under constant threat of publication, this will prevent MPs from expressing their views frankly when writing to a minister. We need urgent advice on what the position is."

So this is what it is all about, it is not about protecting communications from the man in the street coming into the public domain. It is about preventing the man in the street knowing what the people we pay to represent us are saying to each other.

It's not the battered wives or public spirited informants whose identities and information need protecting, what needs hiding away is the type of thing the BBC highlights:

In March, Treasury documents were released under the Freedom of Information Act which showed officials warned of the effects of abolishing dividend tax credits, saying it "would make a big hole in pensions scheme finances".

Anyway, frankly, if this is the kind 'good government' that the FOI act threatens, I'm more than happy to give the alternative a go.

They've Gone and Done It

Soon to be no longer a public body as far as the FOI act is concerned

The image of parliament took another dent today as a valiant rearguard action to talk out the Freedom of Information (Amendment) Bill today failed and it passed its report stage and third reading.

In a naked act of self-interest, MPs decided to bring to an end the equal treatment of parliament under the FOI Act after just two years. Two years in which not a single case could be pointed to in which the work of parliament was damaged by the increased openness, unless you count some temporary embarrassment over MPs expenses. Cases were raised by the proponents of the bill, however not one was shown to have arisen because of the FOI act, or that could not have been dealt with under the data protection act.

The worst performance was undoubtedly during the third reading where only David Maclean, whose private members' bill this is, spoke in favour of the bill. He failed to address any of many points raised against the bill, preferring to concentrate on the fact there had been unanimity when it was considered in committee. This being a private members' bill of course Mr Maclean was entitled to, and did, appoint whichever 'politically reliable' members the committee he saw fit with no necessity for balance. Their 'detailed scrutiny' apparently was wrapped up in an hour.

I'm starting to tot up the numbers on who votes how on decisions that impact on the transparency and effectiveness of democracy in this country, or impinge on real civil liberties (as opposed to those concerned with non-senisical freedoms under the human rights act). Just like the league table after the first games of the season the figures are not a very interesting read at the moment. It's safe to say though, for using the very valuable opportunity of getting the chance to introduce a private members' bill to advance such a self-serving cause, it's safe to say on my scoring system Maclean is rock-bottom of the table and will need to play out of his skin for the rest of the season to avoid the wooden spoon.

Another dishonorable mention goes to Bridget Prentice, Parliamentary Under-Secretary at the Ministry of Justice, who stretched the definition of 'neutral' in describing the government's stance on the bill far beyond breaking point. I guess you could say the shadow front bench's performance this time was an improvement on the last time the bill was debated, in that they cowered in the trenches rather than give the same kind of neutral support as the government, as they did previously. At least John Redwood, as a senior figure, did stand up and argue against the bill.

Update: I have just learned via Conservative Home that Shadow Solicitor General Jonathan Djanogly did speak out to give the Conservative position:

"Let me say from the outset that the Conservative Party remains neutral on this bill."

I probably had my head down the toilet at the time. I won't comment further, not knowing if there was anything else in tone or substance that indicated the same tacit approval as the government gave. At the end of the day Maclean is one of theirs though and it's hard to believe some pressure could not have been brought to bear.

A valiant effort by the same team as at the last debate who all deserve the greatest of credit. Sadly, for me, they were dominated by Lib Dems (with honourable contributions from both government and Conservative benches), but sadly fell a few minutes short, thanks to some manipulation from the chair, of the 2:30PM deadline when this piece of legislation would have been consigned to the dustbin where it belongs.

As so often these days, it will be up to the unelected peers to try and put a spanner in the works. As we've seen over all manner of subjects, including the most odious of the lot, ID cards, I have every confidence they will try to do the right thing, where our elected representatives have failed us so badly.

(Semi)official Endorsement for Secrecy Bill

According to the BBC the PLP Committee is attempting to shepherd the NuLab flock into the aye lobby on Friday to back the Freedom of Information (Amendment) bill on Friday.

Martin Salter from the committee makes the usual pathetic argument that the change is necessary to:

"'plug the dangerous and unintended consequence' of private correspondence between an MP and a constituent being released."

As usual no attempt is made to rebut the argument of the opponents of the bill, that the Data Protection Act means that there is nothing whatsoever to plug in this area.

While both government and opposition front benches remain officially neutral, it's almost impossible to infer anything other than qui tacit consentire videtur. They want the bill, but are too spineless to stand up and justify their support. It's a mistake in my opinion, as they are now pretty clearly associated with the sentiment of the bill anyway.

What about their respective sheep? In the absence of any real rebuttal of the counterarguments, I can/would only like to think one of two things. Either they have been too lazy to try to understand the nature of the protection the DPA offers, or somehow try and imagine there is some infitesimily small chance of an infitesimily small hole in the existing legislation that they can't quite envisage. To the first group I would say that they are in the wrong job (see www.chilternhundreds.com); to the second I would say that science teaches that there are many theoretical situations where there are infitesimily small chances of a myriad strange things happening, but we don't, for example see the 'Palace of Westminster, Spontaneous Appearance of African Elephants (Prohibition Of) Bill' mentioned in Hansard for the time being.

It will be unusual to be cheering on the likes of Simon Hughes but he and his LibDem colleague Norman Baker's work, along with principled support from other MPs of other parties, to block this bill and maintain both openness and the appearance of openness, is to be applauded.

The Freedom of Information (About everyone but us) Bill Returns

David MacLean MP's objectionable private members' Freedom of Information (Amendment) bill returns to centre stage on Friday for it's delayed report stage. The ease with which time seems to find time in parliament's timetable can only be interpreted as de facto government support, and sadly the limited utterances from the opposition front bench suggests that they aren't exactly set against it. The argument that it's a matter for the house to decide is irrelevant the tone from the front benches is easily picked up by the public at large.

For those who haven't encountered this gem of a bill it's supposed purpose is to prevent Freedom of Information (FOI) Act requests forcing the disclosure of privileged communications between a Member of Parliament and his/her constituents or communications with third parties on the behalf of the constituent. It's mechanism for achieving this perfectly reasonable goal is to, uniquely among public bodies, remove both houses of Parliament from the scope of the Freedom of Information Act.

As it happens, should the bill pass into law, nothing whatsoever will change. House authorities, including the speaker himself, have committed themselves to continue to publish information in areas such as travel expenses that have already been subject to FOI requests. On the other side it is abundantly clear that the existing provisions of the Data Protection Act (DPA) already provides all the legal framework needed to protect the privacy of parliamentarian's communications. Even if there was a potential loophole in the protection offered by the DPA, something which I doubt, working in spheres often impacted by its provisions, it could be closed with amendments of narrower scope. It is not, for example, possible to use a FOI request to get hold of our medical records from the NHS. For this we will probably have to wait for the first security hole in the NHS computerised patient record which will, doubtlessly within weeks of the system's eventual launch, have all our medical secrets available to anyone with an Internet connection.

Despite the limited impact the amendments they nonetheless offend on several levels.

Firstly there's the contrast with the last time I recall MPs voting on matters that ultimately concerned the terms and conditions of their employment. We were told that they had 'no choice' about voting through a huge top up to their pensions pool because not to do so would have required amending the law which simply wasn't practical. I've got a suspicion that, should the parties hammer out a deal on state funding for their operations, then as with the FOI (Amendment) bill, time will be found in Westminster's busy calendar to get the legislation through.

There are also the questions raised by the fact that the DPA already performs the functions of the proposed amendments, if you accept the functions of the amendments are those publicly stated. I don't go in for conspiracy theories but it's easy to wonder if the FOI requests that worry Mr MacLean and his supporters are the ones that haven't been made yet. At a more trivial level I suppose the DPA would allow for statistical abstracts of communications to be made available under the FOI. Frankly I don't think it's a bad thing if this brought some honesty to the lazy rhetoric about their '...bulging mail bags...etc' during debates on a particular subject, with some bulging mail bags being shown to contain just a couple of letters. You could take this to the extreme of revealing the existence or non-existence of a single letter, however the Information Commissioner appears to have rubbished the idea that there is a usable loophole here.

Finally there is simply the image that bills like this present of Parliament. I think one of the most attractive features of the UK system of government is the relatively limited special privileges that our representatives award themselves. There are a few archaic boons associated with the status of the Palace of Westminster, a sensibly minimalistic concept of Parliamentary Privilege and a generally reasonable approach to remuneration and expenses, but I don't find, at the moment, anything that would offend a reasonable person greatly. We have seen, in limited numbers, our representatives as defendants in the courts of law, and seem able to contemplate prosecutions at the heart of government. The fact that this happens is a sign of a healthy attitude to such eventualities and our MPs don't rush through legislation to 'grant immunity in order to protect the dignity of....etc.' in the continental style is admirable. We've taken steps in the right direction in recent years, from televising of proceedings to the FOI act itself and it's sad to see regressive steps like the one proposed that separate Parliament from the rest of public life, or worse still doors for corruption like state party funding being opened.

As a Conservative voter by instinct I'm slightly disappointed to see Team Cameron at best having the inability to quietly have their former whip kick his bill into the long grass, or at worst giving tacit support to it. It is true that there are more positive signs, such as ideas on MP's pay, though here I would like to see an approach more akin to Amendment XXVII to the US constitution, to ensure that the matter isn't simply handed over to some tame quango simply to disclaim responsibility, and to ensure that the whatever is done that the remit does not stop at basic salary. Overall the effect, as with so many other areas of policy is to take the shine off what would otherwise be a very clear, consistent and appealing message.