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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.
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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.

“Yes they ARE watching you” — increasing notice taken of big brother Britain

Posted by James Hammerton @ 11:19 pm on 23 November, 2006.
Categories privacy and surveillance, the database state.
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Increasingly the mainstream media are taking notice of the steady erosion of privacy that’s occurring in Britain, some of the latest examples are:

  • Iain Hollingshead, writing in the Telegraph:

    It’s not just the paranoid who are nervous. The sanguine figure of Parliament’s Information Commissioner, Richard Thomas, yesterday attacked the Government’s planned £224 million children’s register, which will contain the details of every child in Britain, saying it will not only devalue parents but “shatter” family privacy. The volume of personal information held on children has already reached unprecedented levels and is “set to increase dramatically”.

    Meanwhile, motorists now face the threat of being fingerprinted at the roadside. Yesterday 10 police forces across England and Wales started using handheld gadgets to check speeding motorists against a fingerprint database of 6.5 million crime suspects.

    If the scheme, which will be voluntary, becomes compulsory, the day may not be too far away when laws could be introduced that would mean criminal penalties for drivers who refuse to let their fingerprints be checked. That is, of course, assuming you haven’t already been hauled in for failing to produce your ID card on demand or supplying a sample to the police DNA database. I jest. Or do I?

    Earlier this month a report published by the human rights group Privacy International gave Britain a similar privacy ranking to Russia and China, placing us at the top of a European surveillance league. The fears voiced by the Information Commissioner that we have “sleepwalked into a surveillance society” seem to be confirmed.

    The full article is well worth reading for a primer as to just how much information is gathered about us during our daily lives. The Privacy International rankings referred to can be found here. More info on this report here.

  • Henry Porter writing in the Observer:

    The most shocking part of Britain’s frantic rush towards a fully fledged surveillance society is not so much the threat to personal liberty, although that is important; it is the lack of security in the systems that are confidently held up to be the solution to the problems of 21st-century crime and terrorism.

    While each of us is required to give more and more information about ourselves to the government’s various centralised databases, and submit to increasing surveillance in our daily lives, almost no one seems to consider the risk to us if these systems are breached.

    For some time now, I have been warning about the menace that these systems may come to represent in the hands of future governments, the nature of which we cannot know. But having spent the last few months making a film, Suspect Nation, with the director Neil Ferguson - about the growth of surveillance since 9/11 - I realise that the threat exists in the present. Both of us were astonished at the gaps in security that we found and the insouciance of government.

    Suspect Nation was shown on More 4 on Monday 20th November and has already appeared on YouTube. It will be shown again on More 4 at 7.05pm on Saturday the 25th November. It is well worth the hour’s viewing time.

Government plans to hobble FoI act

Posted by James Hammerton @ 7:07 pm on 22 October, 2006.
Categories British politics, accountability, freedom of information.
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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.

Gordon Brown grabs more power for the treasury

Hat tip: Spy Blog.

Gordon Brown has recently introduced a statutory instrument granting the Treasury sweeping powers ostensibly targetted at terrorist financing. Spy Blog’s comments indicate just how far reaching these powers are (emphasis mine):

However, the previous Orders referring to such resolutions specifically against the Taliban and Al Qaida, have been revoked by this Order, so this is, in fact a new, infinite General Power, which the NuLabour Government has grabbed for itself, without any debate about the details in Parliament.

Are they also intending to use it to “freeze the financial assets” of Northern Irish terrorists or so called animal rights extremists, since there is nothing whatsoever in this Order to prevent them from doing so ?

A worrying aspect of this Order is that according to Schedule 1 Evidence and Information the Treasury is only obliged to “take such steps as they consider appropriate”

The Treasury can “designate” anybody, and they are the only judges of what they consider to be terrorist activity or association, for which they do not have to gave any actual hard evidence.

By invoking this Order, the Treasury can demand any document or record from any British citzen or corporate person i.e. banks and financial institutions with subsidiaries in the UK, under a criminal penalty of up to 2 years in prison.

The Treasury can also hand this data over to any foreign Government.

There is also a secrecy provision, if they choose to only tell certain people or financial institutions, and not the general public about the freezing of assets, backed up by a criminal penalty of up to 2 years in prison.

There is a penalty of up to 7 years in prison for people who delliberately continue to allow funds transfers etc. in contravention of the Designation orders by the Treasury.

More over, as SpyBlog notes, section 7 of the order seems to provide a carte blanche to exempt the use of these powers from the restrictions of the Data Protection Act, the Common Law duty of confidentiality, and other protections of the privacy/confidentiality of financial data:

7. An action done under this Schedule is not to be treated as a breach of any restriction imposed by statute or otherwise.

For further details, see the original Spy Blog article and the order itself.

3 articles summarising Blair’s ongoing attack on British liberty

Articles in the mainstream media highlighting the attacks on civil liberties in Britain are becoming more common. Three recent articles that collectively summarise just how far this process has gone are as follows:

You can find much of the legislation documented on this site, e.g. a detailed summary of much of it can be found here, and the Abstracts link at the top of the page will tell you more.

Round up on ID cards and the National Identity Register

Posted by James Hammerton @ 6:29 pm on 7 October, 2006.
Categories privacy and surveillance, British politics, the database state.
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As promised in my previous article, here is my round up of developments related to the British government’s plans for an ID card with associated national identity register:

In summary, it seems that more and more problems with the scheme are being highlighted, but the government wishes to press on, whilst the opposition increases and hardens. The ID card and national identity register are but the most visible and intrusive of various schemes where the government wishes to capture, use and share data about the mass population, my next article will thus be round-up of more general developments in privacy and the use of personal data.

Freedom of speech in Britain roundup

Posted by James Hammerton @ 7:12 pm on 2 October, 2006.
Categories political liberties, freedom of speech, British politics.
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Sorry for the long gap in posting, things got busy there for me, and still are(!), but I think I’ve got a better handle on it all now and I hope to be able to post more frequently from now on. Anyway there’s been a lot going on, so I’m going to do a few “roundup” articles in order to catch up. This one focuses on freedom of speech in Britain.

Unfortunately, that’s all for now. However, roundups on other topics such as various recent developments on privacy and data sharing, and the latest state of play regarding the British govt’s ID cards plans are coming up.

Home Office proposes ASBO-style Organised Crime Prevention Orders

Posted by James Hammerton @ 8:28 pm on 19 July, 2006.
Categories democracy and the rule of law.
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Hat tip: Spy blog.

The Home Office has published a consultation document which proposes a new type of ASBO-style order to be imposed on individuals suspected of involvement in serious crime, called Organised Crime Prevention Orders (or alternatively Serious Crime Prevention Orders).

These orders would be imposed by a High Court judge, after a civil hearing. They could be imposed where it is shown, on balance of probabilities, that the subject:

Has acted in a way which facilitated or was likely to facilitate the commissioning of serious crime. (Chapter 3, page 30 of the consultation document)

Note that:

  • There’s no need to show the subject’s actions were either unlawful or did in fact facilitate the commissioning of serious crime. All that you need do is convince the judge that the subject’s actions could have facilitated serious crime.
  • The subject need not have been charged with or convicted of any offence.

The orders would impose conditions on the subject, breach of which would carry a maximum 5 year jail sentence, just like ASBOs, and the terms of an order would be those the court considers:

necessary and proportionate to prevent such harms in future (also from Ch. 3 page 30).

Examples from the document of possible conditions that could be imposed on an individual include:

  • Restrictions on an individual’s financial dealings, e.g. requiring them to use certain accounts or credit cards,
  • Restrictions on the amount of cash an individual is allowed to carry,
  • Compulsory purchase of their business or property, or requiring individuals to divest themselves of certain possessions the court believes have been used to facilitate the commission of serious crime.

Also, unlike ASBOs, the orders could be placed on businesses and other organisations (on the same basis as for individuals). With businesses, examples of possible conditions that could be imposed include (as well as some of the above powers, e.g, those relating to compulsory purchase of businesses and property):

  • Requirements to remove directors,
  • Powers for the court to direct how the business is conducted and structured,
  • Restricting a business’s activities in certain areas or who they do business with, or
  • Requirements to restructure the organisation.

The document proposes using these orders both as an adjunct to prosecution, and an alternative to prosecution where there is insufficient evidence to convict.

I emphasise that all of these things can be done without anyone being convicted of an offence or being proven (even on balance of probability) to have done anything unlawful or being proven (even on balance of probabilities) to have facilated serious crime — all that is required is that the judge be convinced that the individual or business concerned has acted in a manner that could have facilitated serious crime.

It seems to me this sort of power will provide ample opportunity for corrupt officials and unscrupulous businesses to fit people up in order to get hold of or destroy their businesses. After all if a prima facie case gets presented to a high court judge, the subject of the proceedings would essentially have to prove their innocence to prevent being landed with an OCPO.

Criminal records bureau falsely brands people as criminals and refuses to apologise

Posted by James Hammerton @ 3:34 pm on 11 June, 2006.
Categories privacy and surveillance, political liberties.
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So much for the “nothing to hide, nothing to fear argument”. It appears those who are innocent can get branded as criminals when the government performs background checks. The Criminal Records Bureau was recently found to have incorrectly labelled over a thousand people as criminals:

Nearly 1,500 innocent people have been wrongly branded as criminals by the Home Office, leading to them losing jobs or being barred from taking up courses, The Mail on Sunday can reveal.

In an extraordinary series of blunders, law-abiding citizens ranging from court ushers to teenage students have been labelled pornographers, thieves and violent robbers by the department’s Criminal Records Bureau.

The errors have led to people being refused jobs or university courses and even being threatened with the sack.

Victims have to suffer the indignity of going to their local police station to be fingerprinted in order to prove they are not criminals. And incredibly the Home Office initially refused to apologise for this latest fiasco - and instead blamed the victims for having similar names and dates of birth to convicted criminals. ‘’

In fact a later report from the BBC put the number of people falsely labelled as criminals at 2,700:

Some 2,700 people have been wrongly labelled as criminals by the Criminal Records Bureau (CRB), it has emerged.

The mistakes have led to some people being turned down for jobs.

The Home Office said the errors arose when personal details were similar to those of people with a conviction, but were “a tiny proportion of cases”.

It said 90% of disputes were resolved within 21 days and, while errors were regrettable, it would not apologise for its “caution”.

Education Secretary Alan Johnson told the BBC only 0.03% of the nine million “disclosures” the agency makes had been wrong, so the issue had to be put “into context”.

Emma Budd, from Maesteg, South Wales, lost out on a job she was offered by a children’s charity when she was incorrectly identified by the CRB as a convicted shoplifter.

She said: “Because they sent the CRB check to the employee and the employer at the same time, the job just went out the window.

“Then I had a letter of apology which said it wasn’t their fault.

Note the refusal of the CRB or the government to apologise for actions that have led to people losing jobs they’ve applied for.

Will this be the pattern when people’s lives are messed up due to incompetence in the administration of the national identity cards scheme?

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