link to briefings documents at magnacartaplus.org
 

Magna Carta Plus News

back to magnacartaplus.org index page
orientation to the news at MagnaCartaPlus.org

short briefing dcuments at MagnaCartaPlus.org

This page provides occasional items, linked to the original articles, as we attempt to keep up with the rapidly changing situation on civil liberties.
Archive of old news service:
2002 - 2004

1st Jan to 9th Sept 2005

Google
 
Web magnacartaplus.org

Bowland Dairy Farms, the EU and the rule of law

I’ve been meaning to cover this story for ages, because it suggests that the rule of law in the EU can be brushed aside by the European Commission, who have ignored a ruling of the European Court of Justice.

Tim Worstall reported on the case of Bowland Dairy Farms here and here, citing Christopher Booker’s story in the Telegraph.

In summary, Bowland Dairy Farms, an £8million per year business selling curd cheese to five EU countries, was visited on June 12th 2006 by officials from the European Commission’s Food and Veterinary Office (FVO). After a 90 minute look through the farm’s paperwork, they claimed that the milk in the curd cheese broke EU regulations on anti-biotic residues and issued a “rapid alert notice” that the farm’s products were unsafe.

The UK’s Food Standards Authority (FSA) subsequently did an inspection and disagreed, and allowed production to resume. However the FVO insisted the milk did not comply with EU rules, to which the FSA responded that the FVO inspectors were confused over which type of milk was being used. The FSA made a statement to all EU members that there was no evidence of contaminated milk being used and that the cheese was perfectly safe to use. The Commission appended its own negative comments to this statement and maintained the ban.

Bowland Dairy Farms took the FVO to the European Court of Justice (ECJ), the highest court in the EU and supposedly the ultimate arbiter of EU law. On Sept 8th, after considering the case the ECJ found completely in Bowland Dairy Farms’ favour, and ordered the Commission to withdraw its statement about the farm and the ban. The Commission refused twice, and the ECJ ordered the Commission to stand aside on September 12th. The Commission tried to append a statement to the court order saying they’d merely lost on a technicality, and the judge order this to be removed.

On September 27th, the FVO reinspected the farm and found little wrong. However, in October the Commission asked its standing committee to approve a ban preventing Bowland Dairy Farms from any further trading, without the court orders or any evidence being presented to the committee. The committee duly voted for the ban. An EU-wide directive was issued preventing anyone from placing curd cheese manufactured by Bowland on the market and apparently has the force of law. Bowland Dairy Farms are no more.

The scary thing about this is that the actions of the European Commission in doing this were clearly illegal — they had been ordered by what is supposed to be the highest court in the EU to lift the ban and they refused and instead pursued it with more vigour. Surely this means that the rule of law has been brushed aside in this case? And if so, what’s to stop the rule of law being brushed aside in other cases?

British Government launches new FoI consultation

Posted by James Hammerton @ 7:15 pm on 30 March, 2007.
Categories British politics, accountability, freedom of information.
Edit This Permalink to this article

Regarding the British government’s plans to neuter the Freedom of Information Act revise the way the cost of processing a freedom of information request is calculated, the Register reports that the government has launched a second consultation on the matter:

The DCA has now launched a supplementary consultation, asking for views on the plans and for alternative suggestions of how it could balance openness and the need to keep costs to the public purse down.

“It is entirely right a reasonable amount of money and time is spent dealing with requests for information,” said information rights minister Baroness Catherine Ashton. “But public money is limited and it is the government’s responsibility to ensure it is not unduly diverted from supporting the delivery of frontline services.

“We would like to hear all views and ensure people have the opportunity to comment fully, so we have today published a supplementary paper on the consultation, inviting further comments,” she said.

The consultation seeks alternatives to the government’s proposals. “Do you consider that the draft regulations would succeed in dealing with the problem? If not do you have any other suggestions for dealing with disproportionately burdensome requests?” it asks.

The move was welcomed by the Campaign for Freedom of Information, which had opposed the proposed changes. “This raises the strong possibility that the government will eventually decide to leave the current arrangements untouched,” said Maurice Frankel, the campaign’s director. “If it does decide to make any changes they are likely to be far more limited than the highly damaging restrictions which had been proposed.”

The deadline for submissions to the consultation is June 21st.

Freedom of information roundup — UK act to be completely gutted

Posted by James Hammerton @ 10:17 pm on 27 February, 2007.
Categories accountability, freedom of information.
Edit This Permalink to this article

I’ve been meaning to catchup on a number of freedom of information related stories, and finally I’ve got the chance:

  • Firstly, back in September, the Register reports that Privacy International published a survey showing that 70 countries have now enacted freedom of information laws, over half of which were adopted within the last 10 years:

    Almost 70 countries have now adopted freedom of information (FOI) laws, according to civil liberties group Privacy International. Over half of those have been adopted in the last 10 years, according to a survey just published.

    “The previous two years have been an exciting time for those promoting and using the right of access to information,” said the report’s author, David Banisar, in its foreword. “Countries on every continent have adopted laws. Others have amended and improved their laws. International rights and duties through the UN and other international bodies have emerged. Innovation has flourished.”

    The report found that FOI laws are used across the world to ensure that governments are open and accountable. It also found, though, specific instances where the laws have been used for very specific ends beneficial to citizens.

    In India, the report found, FOI laws are used to gather data on food vendors to find out which vendors are not providing government-subsidised food to the poor. The food distribution system has changed as a result.

    However, not all is rosy with this picture:

    The report also found some significant problems with FOI laws across the world.

    “There is much work to be done to reach truly transparent government,” said the report. “The culture of secrecy remains strong in many countries. Many of the laws are not adequate and promote access in name only. In some countries, the laws lie dormant due to a failure to implement them properly or a lack of demand. In others, the exemptions and fees are abused by governments. New laws promoting secrecy in the global war on terror have undercut access.”

    The report itself can be found here.

  • This blog reported earlier on plans to change the basis on which the cost of processing FoI requests is calculated that would hobble Britain’s FoI Act. Draft regulations implementing these changes have been published and a consultation is open on them (and has been since 14th December) until the 8th March. A debate of these draft proposals in Parliament took place recently and is covered here by UK Liberty.

    It is worth noting that the draft regulations will be introduced to Parliament via the negative resolution procedure (see page 5 of the consultation document), which means that the regulations will be enacted unless one of the Houses of Parliament votes against it — there need not be a vote in favour and if a vote isn’t called, the regulations pass.

  • There is also a private member’s bill going through Parliament, introduced by Tory Party Whip, David MacLean that would exempt both Houses of Parliament plus all correspondence between MPs and public authorities from the Freedom of Information Act’s provisions.

Between them, it seems the government and the Tory party are about to gut Britain’s Freedom of Information Act to the point of making it useless. Other articles about the government’s attacks include this from the Times and this from the First Post . UK Liberty commented on the private member’s bill here.

Personal data to be shared across govt departments

According to the BBC:

A giant database of people’s personal details could be created at Whitehall under government plans which ministers say will help improve public services.

Tony Blair is expected to unveil the proposal in Downing Street on Monday.

Strict regulations currently prevent one part of government sharing personal information it holds with another.

Ministers argue the data-sharing rules are “overzealous” but the Conservatives say relaxing them would be “an excuse for bureaucrats to snoop”.

So-called citizens’ panels will gauge public reaction to relaxing privacy procedures so people do not have to repeat personal information to different public bodies - particularly at times of stress such as a family death.

Officials think current rules are an obstacle to improving public services.

But such data-sharing is controversial. As well as criticism from the Conservatives, the information commissioner - the data watchdog - has warned Britain may be “sleepwalking into a surveillance society”.

What this means is that any information you give to e.g. the inland revenue will be on the same databases used by e.g. the department for work and pensions, or the DVLA or the passport office. Thus information you give to government bodies will be accessible by thousands of civil servants across different bodies, simply for the convenience of the government.

The government is thus demanding more and more information about you and to use it as it sees fit, at the same time is it tries to further restrict your weakly enshrined right to know about what the government is doing.

Primer on the attacks on British liberty

David Mery, who commented on an earlier post, has produced a useful primer on the attacks on liberty in the UK.

Legislative and Regulatory Reform Act 2006

Posted by James Hammerton @ 1:09 pm on 24 November, 2006.
Categories political liberties, democracy and the rule of law, British politics, accountability.
Edit This Permalink to this article

The Abolition of Parliament Legislative and Regulatory Reform Bill was passed by Parliament back in October and is now the Legislative and Regulatory Reform Act 2006(LRR Act).

The Save Parliament weblog has responded with a post suggesting that, whilst they still had concerns, the final approved Act was much improved on the Bill and far less dangerous. Thus they argue it no longer deserved the Abolition of Parliament Bill label that various critics, myself included, had been using:

“(David Howarth) described the Bill in its earlier stages as the abolition of Parliament Bill,but now it is not. It has been filleted, dissected, deconstructed and reconstructed. It is now a better Bill because … lame-brained arguments … have been abandoned by the Government. … At that time, it was a thoroughly bad Bill that did things that were way beyond its stated scope. Now, it has been brought back under control.”

As he points out, the Bill is vastly better than it was when it was first proposed, and we have you to thank for that. This Bill was not just fixed by MPs discussing in Parliament, it was fixed by you, the general public, applying pressure to your representatives, and raising the profile of this Bill so that it could not be ignored. You should all be very pleased that we got as much fixed as we did.

So does this mean we need not worry about the LRR Act any longer? A hint that all might not be well can be seen in one of the comments, from someone called Dave Gould, on Save Parliament’s weblog:

I shall be getting my MP to write to David Howarth to find out why he thinks it’s now “under control”.

It still looks like ANY amendments/revoking of our constitution can be make by secondary legislation with the small proviso that it has to be passed by a committee of hand-picked Labour MPs first.

The argument that constitutional changes eg abolishing elections can be blocked in a judicial review is dubious at best. And who is going to fund these judicial reviews?

The crucial question then is what does the LRR Act (which has Royal Assent now) actually say? The following is an overview of the main points of the LRR Act as it relates to legislative power:

  • Section 1 sets out a broad power for Ministers to make any provision they consider would serve the purpose of removing or reducing a burden or reducing the overall burdens of any person affected by a piece of legislation. A burden means any of the following:
    • A financial cost,
    • An administrative inconvenience,
    • An obstactle to efficiency, productivity or profitability,
    • A sanction, criminal or otherwise, which affects the carrying out of a lawful activity.

    On the face of it, this is a very broad power. E.g. could abolishing jury trial in favour trial by judge, be considered as a measure to reduce burdens (both financial and administrative) on jurors and those running the courts? However there are “safeguards” to consider…

  • Section 3 sets out pre-conditions that the Minister must consider satisfied before making orders under the Act. These are:
    • that the policy objective cannot be achieved without legislation,
    • that the effect of the provision he makes is proportionate to the policy objective,
    • that the provision strikes a fair balance between the public interest and the interests of anyone adversely affected by it,
    • the provision does not remove any necessary protection,
    • the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise,
    • the provision is not of constitutional significance.

    A key point to note about this is that all of these preconditions are a matter for the Minister’s judgement, thus he must consider that these preconditions are met. However, they do provide scope for opposition when the orders are scrutinised and any judicial review might be able to argue the preconditions were not met. The key question in considering the impact of section 3, is therefore how much scope for scrutiny and judicial review will there be?

  • Section 4 restricts the power to delegate legislative functions such that they can only be delegated to government ministers, people who have had legislative power delegated to them in prior legislation or office holders or bodies created by the orders. It also restricts such delegation of legislative powers such that they have to be exercised via statutory instrument if they are delegated or confered on ministers of the crown.

    Note that an order under this LRR Act can confer legislating powers on office holders or bodies created by the order itself, thus cutting Parliament out of the loop completely.

  • Section 5 prevents orders being used to create, abolish or vary taxes, however it explicitly allows their application to be varied. E.g. it would be possible to extend VAT to items not currently taxed this way for example.
  • Section 6 prevents criminal penalties of more than 2 years in jail or a fine of level 5 being imposed by an order.
  • Section 7 prevents powers authorising forcible entry from being enacted via the Act.
  • Section 8 protects the Human Rights Act (HRA) and part 1 of the LRR Act itself (all sections up to section 20). This brings the LRR Act into line with the Civil Contingencies Act (CCA) which has similar protections for the HRA and the CCA itself, and was not originally in the bill.
  • Sections 9, 10 and 11 prevent the LRR Act from being used to legislate in areas devolved to the Scottish, Northern Irish and Welsh assemblies.
  • Sections 12 to 18 set out the procedure to be followed. The Minister must first consult with various people he considers appropriate (big deal), and then lay out a draft order in both Houses of Parliament with an explanatory document and recommendation for which of the following procedures to following:
    • The negative procedure. Parliament has 40 days to object before the order is made, either by one House passing a resolution against it or for a committee of either House to recommend rejecting it, whereupon it will fall unless the same House rejects the recommendation. The committee can only report with its recommendation after 30 days and before 40 days have passed.
    • The affirmative procedure. Parliament has 40 days to approve the order in both Houses. A committee of either House can, after 30 days and before 40 days, recommend abandoning the order in which case a resolution rejecting the recommendation is required.
    • The super-affirmative procedure. Parliament has 60 days to approve the order, or recommend changes. The Minister can enact a revised order if Parliament approves, or the original order if Parliament approves.

    Note that the Minister can recommend a procedure but either House can insist on a more stringent procedure, e.g. if the Minister recommends the negative procedure, either House can insist on the affirmative procedure or the super-affirmative procedure. If he recommends the affirmative procedure they can insist on the super-affirmative procedure. 30 days are allowed for each House to change the procedure otherwise the Minister’s recommendation applies.

    Also, orders cannot be amended by Parliament, only accepted or rejected, and even the super-affirmative procedure keeps the government in control of what finally appears in a revised order.

Overall it seems to me that the Act is a mild improvement on the Bill, e.g. its legislative powers can’t be used to amend the foregoing powers and procedures, and the Human Rights Act is protected. The powers are drawn more tightly, but unfortunately are still framed to a large degree in terms of the judgement of the Ministers creating the orders. The level of scrutiny afforded to LRR Act orders is about the same as that in the original Bill, though House committees can report on such orders they’re likely to be controlled by the government and the timescales themselves will prevent adequate scrutiny. The ability to use LRR Act orders to cut Parliament out of the legislative loop is still there, if more difficult to use.

I see nothing to stop the abolition/curbing of jury trials being enacted via these orders, other than a vigilent Parliament (the European Convention on Human Rights applies to many countries that don’t have jury trial, thus the HRA isn’t going to stop that). By the time a judicial review comes into play it’s a fait accompli to be overturned only if the Minister is found to have acted outside his powers.

I think the LRR Act now deserves the label “Undermining and Sidelining of Parliament” Act. It should be repealed. If Parliament is having difficulties coping with the legislative load that’s an argument for cutting down on the amount of legislation pushed through it, not making it easier to push legislation through by reducing the opportunities for scrutiny and for amendments to be made.

Government plans to hobble FoI act

Posted by James Hammerton @ 7:07 pm on 22 October, 2006.
Categories British politics, accountability, freedom of information.
Edit This Permalink to this article

As reported here, here and here, the British government are planning to change the grounds on which freedom of information act requests can be refused.

Currently, if a request is going to cost £600 pounds or more, then the request can be refused, but this calculation does not factor in reading time, consultation time or consideration time, and the government wishes to add these factors in. Tim Worstall notes (3rd link above) that this will make it very easy for requests to be turned down:

Consultation time’ ? So, we have a committee meeting to discuss how to collate the information. There are plenty of civil servants who are on the salaried equivalent of £30 or £40 an hour. Ten of them in a meeting taking two hours: Ooops! sorry, no information for you!

This will eviscerate the Act. Which is the point, of course.

Inland Revenue cocks up, causing a bankruptcy but is not liable for its mistakes

Hat Tip: Tim Worstall

Another example of how unaccountable the various organs of the British state can be, in this case the Inland Revenue which is apparently immune from prosecution and therefore cannot be held liable for its mistakes. From this report in the Telegraph (emphasis mine):

Andrew Simmonds, QC, said that the Inland Revenue had been responsible for a 52-day “negligent” delay that had helped push a builder to the brink of bankruptcy.

However, he ruled that the tax office is immune to prosecution by individuals and businesses, unlike other public services such as hospitals and police forces. Neil Martin, 38, became the first person to sue the Inland Revenue, now known as Revenue & Customs, for alleged negligence or administrative incompetence.

The builder, from Barrow-in-Furness, Cumbria, said that his business had been plunged into a cash flow crisis after a delay in processing a crucial form.

Without the form, part of 1999 anti-fraud legislation called the Construction Industry Scheme, contractors could not pay their bills without subtracting tax at source, which caused a cash crisis for the company.

Mr Martin now faces personal bankruptcy after being left with a swingeing tax bill of £250,000 along with substantial legal costs.

So it seems that if the taxman screws up, the victim of said screw up pays the bill, end of story.

« Previous Page

email feedback@magnacartaplus.org

© magnacartaplus.org2008, 2007, 2006 [1 December]

variable words
prints as variable A4 pages (on my printer and set-up)

abstracts of documents on magnacartaplus.org UK Acts of Parliament click for news from magnacartaplus.org orientation to magnacartaplus.org orientation button links to other relevant sites links

Powered by WordPress