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This page provides occasional items, linked to the original articles, as we attempt to keep up with the rapidly changing situation on civil liberties.
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Did the British government rewrite the law to avoid contractual obligations with Railtrack?

Posted by James Hammerton @ 8:07 pm on 6 March, 2009.
Categories democracy and the rule of law, British politics.
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Tom Winsor, the former Rail Regulator recounts how the British government rewrote the law to avoid some contractual obligations:

Trying to legislate to annul an inconvenient contract binding on the State (or a state-owned bank) would do massive harm to Britain. What company in its right mind would place reliance on a contract with a Government that is prepared, after the contract has been signed, to use its legislative pen to strike out the clauses it later decides that it doesn’t like? If we go down this route we get close to the status of developing countries, such as as former Soviet republics, where foreign private companies need special protection against political interference in their contracts with host governments. Their technique is usually to set up enforcement of the contract in a neutral third country, with direct recourse against the foreign-held assets of the state in question. Is that really where the British Government wants to take us?

Unfortunately, the present Government has form. In 2001, the Government’s No1 hate figure then was Railtrack. Ministers decided it had to be taken out, and a cunning plan was devised in the Treasury to euthanase the company and get its assets for nothing. To do this, in the words of Mr Brown’s closest adviser then, Shriti (now Baroness) Vadera, they decided to “engineer the solution through insolvency”. If they could persuade the High Court that Railtrack was insolvent, the plan would work.

But Railtrack was not insolvent, because of indemnity clauses in franchise contracts between the State and the private railway companies. Those companies had separate contracts with Railtrack, under which they paid track access charges. If the politically independent Rail Regulator increased the sums the franchisees paid Railtrack, they had back-to-back contractual rights to get the extra money from the State. Very awkward.

Ministers knew that if they simply refused to pay, the franchisees would sue and win. And so the Government decided that it would neutralise these inconvenient contractual indemnities. Emergency legislation was drafted to enable ministers to order the regulator not to increase Railtrack’s income. The indemnities in the franchises would, therefore, never be triggered, and ministers would not have to pay out. Railtrack would be bust.

But hold on, the regulator might not acquiesce. The legislation would be extremely controversial. It couldn’t be passed quickly enough to stop him raising Railtrack’s charges before the door was bolted. Just before the Government revealed this supposed fait accompli to me, Shriti Vadera anxiously warned her colleagues that if I were to resist, “it could make the compensation claim huge”.

When I was told at the very last minute about their great scheme, I was struck not only by the fact that the Government was prepared to do this, but by the information that it had been cleared by both the Prime Minister and the Chancellor.

Despite these very improper threats, I told Railtrack I was prepared to use my powers and race the legislation to the finishing post. But Railtrack had given up, and didn’t fight back. The legislation was ready, but it wasn’t used. Railtrack regarded the threat of it as enough, and went quietly into that long dark night. Threatening companies with legislation to extinguish their contractual rights was obviously a desperately clever thing, and it was kept for the next time some enemy of the State with an inconvenient contract had to be dealt with.

On October 24, 2005, having repeatedly insisted that the independence of the economic regulator for the railways was sacrosanct, Alistair Darling tabled a Commons motion congratulating the Government on the legislative threats it had made to me. So now we know what he thinks of contracts that government later wishes it hadn’t signed. The damage caused by the Government’s handling of Railtrack was severe, and it took years for confidence to recover.

British civil servants misused RIPA to spy on public

Posted by James Hammerton @ 7:57 pm on .
Categories privacy and surveillance, British politics.
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The Guardian recently reported on the misuse of the Regulation of Investigatory Powers Act by civil servants:

Controversial surveillance powers employed to fight terrorism and combat crime have been misused by civil servants in undercover “spying” operations that breach official guidelines, the Guardian has learned.

Documents obtained under Freedom of Information show some government departments and agencies have used these powers incorrectly or without proper controls. They also show the official government watchdog set up to monitor the use of such clandestine techniques criticised the departments for their behaviour.

The watchdog twice threatened to inform Gordon Brown about the serious abuses of powers under the Regulation of Investigatory Powers Act (RIPA).

The watchdog highlighted how:

  • Officials at the Department for Environment, Food and Rural Affairs (Defra) did not have proper authorisation when they went undercover posing as anglers to glean information about imported fish;
  • A manager responsible for authorising surveillance at the NHS anti-fraud agency routinely gave officials “carte blanche” in surveillance operations;
  • Tracking devices were attached to vehicles in a bid to monitor the disposal of waste, after the Environment Agency received apparently incorrect advice from the Home Office
  • Potential prosecutions were jeopardised because those conducting the surveillance operations were not properly trained and had not followed procedures
  • A large array of public bodies are also using surveillance powers, including the Charity Commission, Royal Pharmaceutical Society and the BBC.

The Convention on Modern Liberty: a personal view, part two

In this article, I’ll provide an overview of what was said at the Surveillance in Scottish Society sessions of the Glasgow Convention on Modern Liberty.

Please note however that there were parallel sessions on democracy (in the morning) and the liberty of vulnerable groups (in the afternoon) which I cannot cover.

Also the article below is constructed from rather haphazard notes and already fuzzy memories, but I hope it will convey a decent overview of my experience.

(more…)

To British readers: Write to your MPs

Posted by James Hammerton @ 8:47 pm on 1 March, 2009.
Categories privacy and surveillance, British politics, the database state.
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Phil Booth, quoted by Guy Herbert on Samizdata.net

At the Convention on Modern Liberty, I launched NO2ID’s request that everyone at the convention – and around the UK – tells their MP right now that they refuse their consent to having their information shared under any “information sharing order”, a power currently being slipped onto the statute books in clause 152 of the coroners and justice bill .

Please tell yours too. It’s important, and urgent – and something that only YOU can do. If you never have before, now’s the time to write to your MP – in a letter, or via www.WriteToThem.com.

Jack Straw has been making noises that could signal a ‘compromise’, but the only acceptable action is to remove clause 152 entirely from the bill. It is not linked to any other clause, despite being sandwiched between other powers and so-called safeguards offered to the information commissioner. It cannot be improved, and Straw can’t be allowed to merely “dilute” it. Clause 152 just has to go.

It’s imperative that in coming days every MP hears from his or her constituents. Please tell them you refuse consent to having your information, taken for one purpose, arbitrarily used for any other purpose. And ask them to vote clause 152 off the bill.

I have already written to my MP making these points. I urge all those opposed to this measure to do so.

The Convention on Modern Liberty: a personal view, part one

Yesterday the Convention on Modern Liberty took place. I attended the Glasgow convention, organised jointly by NO2ID Scotland and the Institute for Advanced Studies (IAS).

In this article, I provide an overview of my experience attending the Glasgow convention. I shall delve into more detail about various topics later in followup articles.

The first thing I’d like to do is to congratulate both NO2ID Scotland, especially Dr Geraint Bevan, and the IAS, especially Professor Mike Nellis, for organising a highly successful event. There were over 100 people from all sorts of backgrounds attending, more than had originally been planned for. The video links from the London Convention worked very well and there was a wide range of speakers and topics covered in the Glasgow sessions. I was particularly impressed with the questions from the audience and subsequent discussions that accompanied the talks. Notably, most people stayed for the whole day, i.e. from 9.30am through to a slightly late 5.40pm finish. The atmosphere was positive and I think most people will have come away from the event knowing a lot more than they did before, knowing who to get in touch with about these issues, and also with some ideas to followup on for campaigning on these issues. I shall talk in a bit more detail about what was said at the Glasgow Convention in a followup article.

The impression I got of the London event was also positive. There were excellent speeches and talks from the likes of Shami Chakrabarti, Dominic Grieve, Chris Huhne and David Davis, and interesting, pertitinent questions from an audience numbering in the thousands, with £35 tickets having been sold out. Here, again the organisers deserve congratulations, most notably Henry Porter for kicking the whole thing off after David Davis’s resignation.

As a starting point for a general campaign on liberty, the Convention has at least succeeded in getting large numbers of people from different backgrounds who are concerned about the erosion of liberty to talk to each other and start thinking about what to do about it. The main question is whether it’ll amount to more than preaching to the converted. To an extent, on the day, the Convention was bound to involve only those who were concerned about or otherwise take an interest in the erosions of liberty because the audience is self selecting.

However the debates generated in the media in the run up to the Convention already involve a move beyond preaching to the converted. Also, some time was spent discussing ideas for what to do about the erosion of liberty, and various ideas have already been put forward. Examples of these ideas included Baroness Kennedy’s suggestion of a concerted campaign involving drawing up a list of civil liberties issues and asking where candidates at the next election stand; Chris Huhne’s Freedom Bill; one speaker’s suggestion that we should educate children about the importance of human rights; Phil Booth urging people to write to their MPs to tell them they refuse consent to data sharing under the Coroners and Justice Bill and Patrick Harvie’s suggestion of “liberty theatre” to try and make people aware of what liberty is, and how precious it is.

My overall impression is that, whilst the Convention has made a good start in getting people together/putting them in touch with each other, the question of what to do about the erosion of liberty has only begun to get a serious answer. This is not a criticism. It seems to me that it was only ever likely to make a start on this question in the first place, that it has done so with a broad range of people is a success. Also, there is clear intent to followup on the Convention, with suggestions for it becoming an annual event, plus people have exchanged contact details to start networking for followup events. My own view is that there is probably no particular magic bullet, but if everyone concerned with these issues can think of ways of getting the message out, ways of influencing both those in power and the general public to pay heed to liberty, and act upon their ideas, then the Convention stands a good chance of being the turning point that I hope it will be.

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