We are 1 year on from the disastrously pointless AV referendum that, so far, has dampened the electoral reform movement (as expected) and allowed the public to choose to restrict it's own power over parliament, it's representative body. Now, in a cruel and ironic twist we're hearing many of the voices that stood against an AV referendum, are now willing to put the lives of critically ill babies and soldiers going out to Afghanistan in danger in a way they were certainly opposed to last year.
The reason is that a Referendum, constitutionally ambiguous as it is in this country, and so ill-used that the public do not know how to interact with one as standard, is a tool to get what you want while saying you want the opposite.
For example, Tory MPs are saying that they want a referendum...the implication is they think the public should have a say, democratically, in how we're governed. Sure, except these same MPs DON'T WANT REFORM. They hate the idea of a more democratic second chamber, and so are using the illusion of democracy to get what they want... no democracy for the Lords.
And then there is Ed Milliband, now supporting his party's manifesto pledge for Lords reform. 15 years after they won an election by a landslide with the promise of reforming the Lords (sans referendum), and did precious little to make it more democratic, they have finally found the balls to stick to a manifesto commitment. Good on them, it's just a shame that it's not out of principle for sticking to their manifesto, and more to do with the fact many Labour MPs and Lords don't want the reforms either.
Labour MPs and Tory MPs are all the same, they like the system they've got, they find it comfortable and amenable to their interests. Ed knows he's got a real internal fight on his hands, and that ultimately the best thing for his party is to just keep quiet and let the Tories destroy themselves. Hence the support for a referendum. He can stand proud saying he supports Lords reform and then, like with AV, do nothing to support that campaign.
Ed will, like with AV, help to deliver the opposite result to the one that he says he supports, and the result that will appease his party's members, by doing nothing and fading once more in to the background.
Like it or not the public showed that they don't know how to deal with referenda. We are not versed in it, we don't do it enough. The public did what they do at elections and swallowed media soundbites and biased party leaflets full with lies and misconceptions during the AV referendum (on both sides, though clearly more from the No campaign), and then topped it off by using it not as a vote on the issues, but on a vote against the Lib Dems. Since there are so little opportunities for the public to show their distaste in politicians it was a perfect proxy, they'd rather shoot themselves in the foot through ignorance and "sending a message". That is if they even turned up to give their opinion at all.
If we had a culture where referenda was more binding constitutionally, and it was regular and accessible enough that people knew that they needed to take the time to consider the full facts of the matter, the consequences of each result, then I might have a different opinion...but so far the evidence in the UK is that this kind of direct democracy is barely fit to be called "democratic" at all.
This isn't to say that I'm sitting here saying the public shouldn't have a say, this is a huge constitutional change and to omit the public from the process would be scandalous. People aren't as stupid as the public (as a group) can be, and there is no reason to seek active consultation. Citizens Jurys have been mooted before, and are a great idea to get people to engage, get informed and give important feedback on what needs to be done. Other more basic consultation models would also provide (hopefully) a consensus of ideas.
Let's do this reform right, all three parties over the last decade and a half have made it clear that voting for them is a vote to reform the House of Lords. Let's take that a start point, that the country is ready to evolve, and engage the public respectfully to find the best option to take forward. Then just do it. No more excuses, just do what we've already said we would do time and time again, and join the modern world of representative democracies.
Friday, 20 April 2012
Thursday, 19 April 2012
An update on the Brighton Declaration (ECtHR Reform)
So it is said that an agreement has now been reached at the Brighton Conference as to the nature of reforms going forward, and the word seems to be that it is good. Of course when both "sides" claim victory it is also worth looking at exactly who has won or loss.
For an analysis of the original text, severely detrimental to the accessibility of the European Court of Human Rights (ECtHR), read my post on the Brighton Declaration to reform the ECtHR from yesterday.
So what has changed? Reports are that the various issues that would hamper the court's ability to take on legitimate cases, have all been watered down in some way. No longer will it be part of the European Convention on Human Rights (ECHR) that judges must consider a state's desire to bend the rules as a priority, nor that cases involving advice from the ECtHR would mean the victim would be unable to take their case to the court.
It also retains the safeguard against denial of justice, regardless of level of damage, by retaining the right of those who deserve justice to seek it. Unfortunately it does sound like the timelimit for bringing a case has been reduced, but not to the lower levels that were put on the table.
So how is it then that Ken Clarke can say the following?(1)
In my view it is bluster, all for show. The Tories talked big leading in to this conference...the idea was that the ECtHR would be brought to heel and the UK would lead a revolution that saw nation's in greater control of interpretation of human rights law, indeed one blogger suggests this is the real reason for the changes, to pave the way to abandon the Human Rights Act (HRA) in favour of Bill of Rights(2) that would be less compatible with the ECHR.
The reality seems to be that Ken Clarke is actually putting forward a few half truths, or information without context, to sell a Tory win where there has in fact been a defeat. Take the following statements:
Since the reports are that the declaration doesn't restrict any individual from taking a case to the ECtHR than they can currently, there is nothing that this declaration will do to help reduce cases taken to Europe. It may be the case that national reforms to be more proactive in correcting human rights abuses may help reduce the incidence of appeals, but this was already agreed in previous conferences on the issue of ECtHR reform, not this one.
Given that the reports are that there are no changes to the admissibility of cases to the court, this opinion appears to be entirely unfounded. The only thing that will speed up the backlog is more resources, and more staff, to go through the initial stage of verifying the admissibility of individual cases. It would seem nothing in the declaration improves this.
Woolly language. "Substantial"? I suppose you can define a document that is longer than two sides of A4 as substantial. "significant step"? Most of the things included in the declaration do nothing but reiterate and slightly improve the decisions of previous conferences on ECtHR reform. A step has been made, perhaps...but a significant one?
The Prime Minister set out that he wanted to bring more power back to the UK, this declaration would seem to do nothing of the sort, with individuals just as free as they were to take cases to the ECtHR, and the ECtHR no less able to take those cases on if it see's that it must. That's a missed goal for sure.
This is already underway, part of reforms that the court has undertaken to prioritise important cases in ways that it never needed to while caseloads were smaller. This Brighton conference hasn't made this happen, and Ken Clarke is simply claiming credit for something that he and the Tories know is already happening, but perhaps the public does not.
Setting himself up for a win-win, Mr Clarke first acknowledges that the court is reforming and claims they can reduce the backlog significantly by 2015 without further interference(4). Then he states that he's "not wholly convinced" that these experts are telling the truth, meaning that if the court does reduce the backlog, doing so without needing any of the "reforms" set out in Brighton, he can claim in the run up to a General Election in 2015 that the Tories were the party that cleaned up the ECtHR.
Making sure the court operates efficiently is one thing, restricting access to the court in order to do so, in ways that could be argued as allowing national ideology to trump objective analysis of breaches, is quite another. The charge that this declaration was originally intended to threaten the independence of the court WAS true, before the declaration was amended, as it tied the court's hands by having to defer to judgements made *beneath* it.
Once the highest court in our legal system is duty bound to not hear cases based on the *opinions* of law makers at a national level, opinions that may differ nation to nation, it has indeed lost a part of it's independence.
Finally, this is not a quote from Ken Clarke, as far as I can tell, but it is a fact that has clearly been circulated to go along with his statement...
The unspoken content in this statement is precisely what has led me to write about this. If it is a reality that there are more cases than judges can deal with, how is the proper, fair and democratic solution to try and find a way of making a third of all LEGITIMATE appeals inadmissible? As time goes on, if (hopefully not) there are serious injustices that spring up from civil unrest in newer EU states, as more states are included under the jurisdiction of the ECtHR, this number could increase from 3,000, easily.
How can it be an answer that as more cases come to the court, that our efforts should be to restrict harder and stronger?
Those that have successfully started the reforms of the ECtHR, that are responsible for guiding the ongoing reform, already have the right idea... pools of reserve judges for periods of time where caseloads get too high, or more judges deployed in a different structure to operate more quickly to free up time for considering more serious cases. I say it's the right idea as they are taking the problem as "How do we ensure we can service as many cases as are admitted to the court every year", as opposed to Ken Clark and the Tories who see the problem as "How can we make it automatically impossible for more people with concerns about their human rights to have their case heard to maintain the current capacity".
The first stance, by the expert committee and those studying possible systematic reforms, is one of evolving the system to cope with the needs of providing justice to individuals in the EU. The second stance, by Mr Clarke, is of constraining the system more and more to restrict avenues of justice to cope with financial ease and the ideological desires of each member state. It is extremely welcome to hear that so many have stood up to pursue that first stance, rather than the destructive goals of the Tories and their original plans.
The reality after all this (largely) waste of time is that we didn't need to sit officials from all EU states in a room to do what is necessary to close more cases in the UK rather than in Strasbourg. How? By being better at not breaching people's rights, being more open to adapting practices to avoid breaching people's rights, and to stop giving rulings that are based on law that isn't compatible with the ECHR. Do this, and the ECtHR already has every power to strike out hearing applications as inadmissable on the basis of being "manifestly ill-founded"
References:
1. The Guardian, 19/04/2012
2. UK Constitutional Law Group Blog, 05/03/2012
3. Telegraph and Argus, 19/04/2012
4. Steering Committee For Human Rights - 27/01/2012
For an analysis of the original text, severely detrimental to the accessibility of the European Court of Human Rights (ECtHR), read my post on the Brighton Declaration to reform the ECtHR from yesterday.
So what has changed? Reports are that the various issues that would hamper the court's ability to take on legitimate cases, have all been watered down in some way. No longer will it be part of the European Convention on Human Rights (ECHR) that judges must consider a state's desire to bend the rules as a priority, nor that cases involving advice from the ECtHR would mean the victim would be unable to take their case to the court.
It also retains the safeguard against denial of justice, regardless of level of damage, by retaining the right of those who deserve justice to seek it. Unfortunately it does sound like the timelimit for bringing a case has been reduced, but not to the lower levels that were put on the table.
So how is it then that Ken Clarke can say the following?(1)
"These reforms represent a substantial package and are a significant step towards realising the goals that the prime minister set out in Strasbourg,"
In my view it is bluster, all for show. The Tories talked big leading in to this conference...the idea was that the ECtHR would be brought to heel and the UK would lead a revolution that saw nation's in greater control of interpretation of human rights law, indeed one blogger suggests this is the real reason for the changes, to pave the way to abandon the Human Rights Act (HRA) in favour of Bill of Rights(2) that would be less compatible with the ECHR.
The reality seems to be that Ken Clarke is actually putting forward a few half truths, or information without context, to sell a Tory win where there has in fact been a defeat. Take the following statements:
Ken Clarke has brushed aside judicial opposition to the UK's proposals for reforming the European Court of Human Rights, claiming that the "Brighton declaration" by 47 member countries would result in fewer cases being appealed to Strasbourg.
Since the reports are that the declaration doesn't restrict any individual from taking a case to the ECtHR than they can currently, there is nothing that this declaration will do to help reduce cases taken to Europe. It may be the case that national reforms to be more proactive in correcting human rights abuses may help reduce the incidence of appeals, but this was already agreed in previous conferences on the issue of ECtHR reform, not this one.
Dismissing criticism by the British judge Sir Nicolas Bratza – the court's president – the justice secretary insisted the declaration would speed up the process of tackling the backlog of more than 150,000 cases waiting to be heard.
Given that the reports are that there are no changes to the admissibility of cases to the court, this opinion appears to be entirely unfounded. The only thing that will speed up the backlog is more resources, and more staff, to go through the initial stage of verifying the admissibility of individual cases. It would seem nothing in the declaration improves this.
"These reforms represent a substantial package and are a significant step towards realising the goals that the prime minister set out in Strasbourg,"
Woolly language. "Substantial"? I suppose you can define a document that is longer than two sides of A4 as substantial. "significant step"? Most of the things included in the declaration do nothing but reiterate and slightly improve the decisions of previous conferences on ECtHR reform. A step has been made, perhaps...but a significant one?
The Prime Minister set out that he wanted to bring more power back to the UK, this declaration would seem to do nothing of the sort, with individuals just as free as they were to take cases to the ECtHR, and the ECtHR no less able to take those cases on if it see's that it must. That's a missed goal for sure.
"Those [cases] that [the court] considers should be allegations of serious violations or major points of interpretation of the convention and will be processed without the scandalous delays we are seeing at present.
This is already underway, part of reforms that the court has undertaken to prioritise important cases in ways that it never needed to while caseloads were smaller. This Brighton conference hasn't made this happen, and Ken Clarke is simply claiming credit for something that he and the Tories know is already happening, but perhaps the public does not.
[Sir Nicola Bratza] said the court already had the power to dismiss cases that had been properly considered by national courts and was using it to clear a backlog of 150,000 cases.
But Mr Clarke said: "I'm not wholly convinced of that. It might have taken place anyway, but it might have taken many, many years. I won't accuse him of complacency but I am a little less relaxed than Sir Nicolas about the progress being made before the Brighton declaration."(3)
Setting himself up for a win-win, Mr Clarke first acknowledges that the court is reforming and claims they can reduce the backlog significantly by 2015 without further interference(4). Then he states that he's "not wholly convinced" that these experts are telling the truth, meaning that if the court does reduce the backlog, doing so without needing any of the "reforms" set out in Brighton, he can claim in the run up to a General Election in 2015 that the Tories were the party that cleaned up the ECtHR.
"State parties have a duty to make sure the court operates efficiently. Trying to deal with that is not, in my opinion, threatening the independence of the court in the slightest."
Making sure the court operates efficiently is one thing, restricting access to the court in order to do so, in ways that could be argued as allowing national ideology to trump objective analysis of breaches, is quite another. The charge that this declaration was originally intended to threaten the independence of the court WAS true, before the declaration was amended, as it tied the court's hands by having to defer to judgements made *beneath* it.
Once the highest court in our legal system is duty bound to not hear cases based on the *opinions* of law makers at a national level, opinions that may differ nation to nation, it has indeed lost a part of it's independence.
Finally, this is not a quote from Ken Clarke, as far as I can tell, but it is a fact that has clearly been circulated to go along with his statement...
The Strasbourg-based court is still receiving 3,000 admissible cases every year, despite the fact it can only handle around 2,000.
The unspoken content in this statement is precisely what has led me to write about this. If it is a reality that there are more cases than judges can deal with, how is the proper, fair and democratic solution to try and find a way of making a third of all LEGITIMATE appeals inadmissible? As time goes on, if (hopefully not) there are serious injustices that spring up from civil unrest in newer EU states, as more states are included under the jurisdiction of the ECtHR, this number could increase from 3,000, easily.
How can it be an answer that as more cases come to the court, that our efforts should be to restrict harder and stronger?
Those that have successfully started the reforms of the ECtHR, that are responsible for guiding the ongoing reform, already have the right idea... pools of reserve judges for periods of time where caseloads get too high, or more judges deployed in a different structure to operate more quickly to free up time for considering more serious cases. I say it's the right idea as they are taking the problem as "How do we ensure we can service as many cases as are admitted to the court every year", as opposed to Ken Clark and the Tories who see the problem as "How can we make it automatically impossible for more people with concerns about their human rights to have their case heard to maintain the current capacity".
The first stance, by the expert committee and those studying possible systematic reforms, is one of evolving the system to cope with the needs of providing justice to individuals in the EU. The second stance, by Mr Clarke, is of constraining the system more and more to restrict avenues of justice to cope with financial ease and the ideological desires of each member state. It is extremely welcome to hear that so many have stood up to pursue that first stance, rather than the destructive goals of the Tories and their original plans.
The reality after all this (largely) waste of time is that we didn't need to sit officials from all EU states in a room to do what is necessary to close more cases in the UK rather than in Strasbourg. How? By being better at not breaching people's rights, being more open to adapting practices to avoid breaching people's rights, and to stop giving rulings that are based on law that isn't compatible with the ECHR. Do this, and the ECtHR already has every power to strike out hearing applications as inadmissable on the basis of being "manifestly ill-founded"
References:
1. The Guardian, 19/04/2012
2. UK Constitutional Law Group Blog, 05/03/2012
3. Telegraph and Argus, 19/04/2012
4. Steering Committee For Human Rights - 27/01/2012
The Brighton Declaration: watering down the European Court of Human Rights
UPDATE 18/04/2012: The latest draft of the "brighton declaration" is available here, and has already got rid of many of the problematic issues the original draft posed.
Unfortunately, in line with recent posts about the party I've supported all my political life, I had to endure the protestations of a Lib Dem today that it was a Good Thing&tm; to make it harder for individuals to apply to the European Court of Human Rights (ECtHR). It's a sad time, I feel, when a supposed liberal stands up for the limitation of accessibility to the "safeguard" court for our individual rights in the favour of both ease and financial simplicity. I hope sincerely that he is just deluding himself, and set out why I believe that to be so below.
This has all come about from news on what is called "The Brighton Declaration", a document aiming to set out changes to the ECtHR leaked earlier this year(1). While it is in the process of being debated at a conference right now, and will no doubt suffer some forms of amendment, there are some very fundemental changes it is attempting to make, all revolving around limiting the ability for the ECtHR to take cases on (or rather, strengthening rules that *require* the ECtHR to reject cases outright).
Alas the Lib Dem in question at the start of this blog post has failed to see how this change to the international court is something that allows states to restrict what goes from national to ECtHR court level, and how it is a shift of power against the individual.
Let's start with the rules as they stand. When it comes to what cases the ECtHR can take, it's all down in law...I reproduce the text here in full...
So, when can you *not* bring your case to the ECtHR? Outside of 6 months after your judgement that you're appealing is one. Trying to do it anonymously is another. More importantly if the ECtHR determines your case to be as near to being "the same" as a previous case, that the case is simply not relevant to human rights, or that your case has been brought despite there being no legal grounds, then it too will be inadmissible.
Within time, within law, and not materially the same as a previous case. These are the criteria that ECtHR workers have to assess all admissions with initially.
The Brighton Declaration changes this in several ways.
1. It tries to reduce the time limit to apply.
The logic here seems to be that there are too many cases to deal with, so we have to reduce the case load, and one way to do this is to try and increase the option of stating a case is inadmissible on grounds of time.
This to me seems entirely unethical, while the UK citizens involved in such cases may not have much to worry about in terms of getting a case together in less than 6 months, what about those countries where legal advice is harder to get, where legal advice is less used to the machinations of the ECtHR? Essentially the worrying aspect of the change to the time limit is that those who are most likely to be affected by it are those that actually need the time to get their case together.
2. It wishes to make it part of the Convention to consider 'subsidiarity', or the need for the smallest bodies to have power over their own affairs, and 'margin of appreciation', or the level to which a state can ignore interpretations of human rights law
This would fundamentally change the purpose of the Convention on human rights. The law as it stands is a codification of our rights against individuals and states that try to take those rights from us. By putting subsidiarity as a principle, and a margin of appreciation, in to the convention it places a great "But," on the end of that particular sentence. It says that these are your rights, kind of.
On this point, I'd like to sidetrack to my earlier discussions with this Lib Dem. His protestations against my view were largely due to his stance that "reality" dictates that these reforms are necessary to reduce workload WITHOUT causing legal uncertainty. I guess he's right, if you believe for a second that making it part of the Convention that the ECtHR mustn't interfere if the state is only *partly* wrong isn't itself a default state of legal uncertainty, and indeed increasing the scope with which judges can be legally uncertain on.
3. It intends to make it the case that a "local" justice body not investigating a case is no grounds for ensuring an application is admitted to the ECtHR
In 3. b) of Article 35 I pasted in above, a key thing is that the ECtHR acts on behalf of an individual that is being denied justice, for matters that may or may not be more "trivial". Of course determining if they're trivial or not is something that local bodies *should* be doing, and if they aren't going to then it is surely up to the ECtHR to protect that right?
The problem here is that the state could effectively deny access to the ECtHR through inadmission of a person's case at the lowest levels. This may not sound like a problem here in the UK, but what about other states?
4. It intends to create a situation whereby national courts can get "advice" from the ECtHR, and block the individual's claim from being able to then be taken to the ECtHR
Taking the step of denying access to the ECtHR further, it allows courts on *any* human rights issue to ask for an interpretation from the ECtHR. The idea here is that it is quicker for the ECtHR to provide non-binding advice than to take a case for full consideration, though this is surely a falsehood since the same level of facts would have to be considered before making such advice. The effect, however, is to mean a state can perform to block an individuals passage through to the ECtHR.
In simple terms the state could take advice, and apply that advice as they see fit. the margin of appreciation mentioned above means that it doesn't have to apply the advice in full, just that it takes it in to consideration. The individual then would have their application to have their case heard *automatically* rejected by the ECtHR unless there was severe reasons for the ECtHR to do otherwise.
It is here where the Brighton Declaration gets woolly, perhaps intentionally so. It's already said that the ECtHR has to take in to account that the state is doing what it can to solve the problem an individual is having, and that the ECtHR doesn't have the right to comment on what the state does as long as it is within a particular "range" of the ECtHR's views or Conventions wording.
For the ECtHR to then rule that a state's national court has "clearly erred" in it's judgement is extremely hard. After all, if the state has taken it's advice, and has made some form of changes, and the court has ruled with those changes in mind, how has it erred? You can still have an individual that feels their rights have been abused, but they now have no way to fight that. State bureaucracy - 1, individual power - nil!
Furthermore, does this even reduce the caseload for the ECtHR? Most of the load is people waiting to be assessed for admission, and those who feel wronged by the above process will still be able to apply. Time will still have to be spent working out if the court erred, or if interpretations are wrong, before the case is rejected or accepted. It may make it slightly quicker for the supervised law student assessing the cast out the case, but how much quicker?
Doesn't this do less to help the court with it's case load, and more to help the state with it's ability to make rulings and laws without interference from the ECtHR?
So what does it all really mean?
The Lib Dem that was discussing this with me claimed this was all in the name of making a ECtHR that can get through it's caseload, yet none of the above measures stop people from physically applying, the only thing that would stop that is if the state actually paid more attention to rectifying it's human rights abuses. It also seems to make little difference to the speed at which cases would be heard, the only thing that would do that would be to provide the court with more resources, and provide catalysts for reform of their processes.
So if we're not improving the processes, or at least only tinkering at the edges, but at the expense of freedom for individuals to have their cases heard...what are we actually doing that can be called "reform"? The court already acts autonomously to pay respect to the jurisdiction of nation states, and to give them some latitude, so why does this need codifying in law? The court already throws out cases (a lot of cases in fact) that don't meet the sensible criteria of Article 35, so why does it need any help in doing that by being forced to throw out cases that may have otherwise been legitimately seen?
Take this analogy...if we owned a company of a chain of stores, and we had many more customers over the years coming in with complaints...would we try to resolve those complaints faster, bringing in more staff to deal with them and process them...or would we listen to the shops in our chain that have caused the complaints and decide on the basis of their analysis of the complaint that we cannot take the complaint further? How far does this take our company, if our customers cannot trust us to take seriously their complaints?
The ECtHR needs reform, the people involved in it's running, and observing it, say as much. But what they need is to evolve, not to be fenced in. As the EU grows as a political body, so will the caseload, especially as more and more nations with questionable human rights records are added to the pot. We can ignore it for now, but the ECtHR needs to be able to deal more efficiently with applications, as we have to assume that it is spending no more than the time it needs on coming out with judgements. This comes quite simply down to resourcing that staffing need, since just giving the same small amount of staff more options to rubber stamp the case as "denied" doesn't stop that they're still getting all those cases to rubber stamp.
And finally, if the number of cases going through the court that are legitimate are too much then we need to have more judges available to assess the claims, if this causes "legal uncertainty" then the question that must be asked is "how do we improve legal certainty" not "how can we reduce the case load so that we can get that level of uncertainty down", it's incredibly counter-productive to upholding our rights to look at our cases as a burden rather than a duty.
It is telling then if we look at the views of the expert committee's on reform of the court(2), to decide why exactly the Brighton Declaration is worded as it is...
These reforms, limiting access to the ECtHR, wouldn't be in force before 2015, and yet the committee overlooking reform of the ECtHR say that 2015 should be a "all clear" mark for the court having made reforms already, slight in terms of the Convention and large in terms of internal process, that are going to clear the backlog of cases. The expert committee instead would rather focus on *the resources* the court has, and how they're organised.
Human rights groups are concerned(3) about the declaration and it's ability to limit the court's power to protect individuals, the expert committee overseeing reforms don't believe they're necessary to clear the backlog (in as much as the backlog will already be clear before they come in to force), and legal commentators have expressed similar concerns as the Human rights groups as well as further concerns about what it could mean for our own human rights laws here in the UK(4).
So...tell me again, is this really not (in significant part) about restricting the ability for individuals to get the protection that the Convention originally intended to give them?
References:
1. The draft Brighton Declaration on the Guardian
2. Evidence that even WITHOUT the Brighton Declaration, the backlog of cases will be cleared by 2015
3. Human rights bodies response to the Brighton Declaration (pdf)
4. What the Brighton Declaration currently means for the Human Rights Act, and paving the way for a Bill of Rights
Further reading:
An overview of the Brighton Declaration
Another view on the Brighton Declaration
How the ECtHR is already exercising autonomy in being less "interventionist"
Are the ECtHR admission processes transparent enough?
How the ECtHR works in processing cases
Brighton ECtHR reforms likely to be heavily watered down
Overview of where the Brighton Conference is to date (18th April)
Unfortunately, in line with recent posts about the party I've supported all my political life, I had to endure the protestations of a Lib Dem today that it was a Good Thing&tm; to make it harder for individuals to apply to the European Court of Human Rights (ECtHR). It's a sad time, I feel, when a supposed liberal stands up for the limitation of accessibility to the "safeguard" court for our individual rights in the favour of both ease and financial simplicity. I hope sincerely that he is just deluding himself, and set out why I believe that to be so below.
This has all come about from news on what is called "The Brighton Declaration", a document aiming to set out changes to the ECtHR leaked earlier this year(1). While it is in the process of being debated at a conference right now, and will no doubt suffer some forms of amendment, there are some very fundemental changes it is attempting to make, all revolving around limiting the ability for the ECtHR to take cases on (or rather, strengthening rules that *require* the ECtHR to reject cases outright).
Alas the Lib Dem in question at the start of this blog post has failed to see how this change to the international court is something that allows states to restrict what goes from national to ECtHR court level, and how it is a shift of power against the individual.
Let's start with the rules as they stand. When it comes to what cases the ECtHR can take, it's all down in law...I reproduce the text here in full...
1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
2. The Court shall not deal with any application submitted under Article 34 that
a. is anonymous; or
b. is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.
3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that :
a. the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or
b. the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.
4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.
So, when can you *not* bring your case to the ECtHR? Outside of 6 months after your judgement that you're appealing is one. Trying to do it anonymously is another. More importantly if the ECtHR determines your case to be as near to being "the same" as a previous case, that the case is simply not relevant to human rights, or that your case has been brought despite there being no legal grounds, then it too will be inadmissible.
Within time, within law, and not materially the same as a previous case. These are the criteria that ECtHR workers have to assess all admissions with initially.
The Brighton Declaration changes this in several ways.
1. It tries to reduce the time limit to apply.
The logic here seems to be that there are too many cases to deal with, so we have to reduce the case load, and one way to do this is to try and increase the option of stating a case is inadmissible on grounds of time.
This to me seems entirely unethical, while the UK citizens involved in such cases may not have much to worry about in terms of getting a case together in less than 6 months, what about those countries where legal advice is harder to get, where legal advice is less used to the machinations of the ECtHR? Essentially the worrying aspect of the change to the time limit is that those who are most likely to be affected by it are those that actually need the time to get their case together.
2. It wishes to make it part of the Convention to consider 'subsidiarity', or the need for the smallest bodies to have power over their own affairs, and 'margin of appreciation', or the level to which a state can ignore interpretations of human rights law
This would fundamentally change the purpose of the Convention on human rights. The law as it stands is a codification of our rights against individuals and states that try to take those rights from us. By putting subsidiarity as a principle, and a margin of appreciation, in to the convention it places a great "But," on the end of that particular sentence. It says that these are your rights, kind of.
On this point, I'd like to sidetrack to my earlier discussions with this Lib Dem. His protestations against my view were largely due to his stance that "reality" dictates that these reforms are necessary to reduce workload WITHOUT causing legal uncertainty. I guess he's right, if you believe for a second that making it part of the Convention that the ECtHR mustn't interfere if the state is only *partly* wrong isn't itself a default state of legal uncertainty, and indeed increasing the scope with which judges can be legally uncertain on.
3. It intends to make it the case that a "local" justice body not investigating a case is no grounds for ensuring an application is admitted to the ECtHR
In 3. b) of Article 35 I pasted in above, a key thing is that the ECtHR acts on behalf of an individual that is being denied justice, for matters that may or may not be more "trivial". Of course determining if they're trivial or not is something that local bodies *should* be doing, and if they aren't going to then it is surely up to the ECtHR to protect that right?
The problem here is that the state could effectively deny access to the ECtHR through inadmission of a person's case at the lowest levels. This may not sound like a problem here in the UK, but what about other states?
4. It intends to create a situation whereby national courts can get "advice" from the ECtHR, and block the individual's claim from being able to then be taken to the ECtHR
Taking the step of denying access to the ECtHR further, it allows courts on *any* human rights issue to ask for an interpretation from the ECtHR. The idea here is that it is quicker for the ECtHR to provide non-binding advice than to take a case for full consideration, though this is surely a falsehood since the same level of facts would have to be considered before making such advice. The effect, however, is to mean a state can perform to block an individuals passage through to the ECtHR.
In simple terms the state could take advice, and apply that advice as they see fit. the margin of appreciation mentioned above means that it doesn't have to apply the advice in full, just that it takes it in to consideration. The individual then would have their application to have their case heard *automatically* rejected by the ECtHR unless there was severe reasons for the ECtHR to do otherwise.
It is here where the Brighton Declaration gets woolly, perhaps intentionally so. It's already said that the ECtHR has to take in to account that the state is doing what it can to solve the problem an individual is having, and that the ECtHR doesn't have the right to comment on what the state does as long as it is within a particular "range" of the ECtHR's views or Conventions wording.
For the ECtHR to then rule that a state's national court has "clearly erred" in it's judgement is extremely hard. After all, if the state has taken it's advice, and has made some form of changes, and the court has ruled with those changes in mind, how has it erred? You can still have an individual that feels their rights have been abused, but they now have no way to fight that. State bureaucracy - 1, individual power - nil!
Furthermore, does this even reduce the caseload for the ECtHR? Most of the load is people waiting to be assessed for admission, and those who feel wronged by the above process will still be able to apply. Time will still have to be spent working out if the court erred, or if interpretations are wrong, before the case is rejected or accepted. It may make it slightly quicker for the supervised law student assessing the cast out the case, but how much quicker?
Doesn't this do less to help the court with it's case load, and more to help the state with it's ability to make rulings and laws without interference from the ECtHR?
So what does it all really mean?
The Lib Dem that was discussing this with me claimed this was all in the name of making a ECtHR that can get through it's caseload, yet none of the above measures stop people from physically applying, the only thing that would stop that is if the state actually paid more attention to rectifying it's human rights abuses. It also seems to make little difference to the speed at which cases would be heard, the only thing that would do that would be to provide the court with more resources, and provide catalysts for reform of their processes.
So if we're not improving the processes, or at least only tinkering at the edges, but at the expense of freedom for individuals to have their cases heard...what are we actually doing that can be called "reform"? The court already acts autonomously to pay respect to the jurisdiction of nation states, and to give them some latitude, so why does this need codifying in law? The court already throws out cases (a lot of cases in fact) that don't meet the sensible criteria of Article 35, so why does it need any help in doing that by being forced to throw out cases that may have otherwise been legitimately seen?
Take this analogy...if we owned a company of a chain of stores, and we had many more customers over the years coming in with complaints...would we try to resolve those complaints faster, bringing in more staff to deal with them and process them...or would we listen to the shops in our chain that have caused the complaints and decide on the basis of their analysis of the complaint that we cannot take the complaint further? How far does this take our company, if our customers cannot trust us to take seriously their complaints?
The ECtHR needs reform, the people involved in it's running, and observing it, say as much. But what they need is to evolve, not to be fenced in. As the EU grows as a political body, so will the caseload, especially as more and more nations with questionable human rights records are added to the pot. We can ignore it for now, but the ECtHR needs to be able to deal more efficiently with applications, as we have to assume that it is spending no more than the time it needs on coming out with judgements. This comes quite simply down to resourcing that staffing need, since just giving the same small amount of staff more options to rubber stamp the case as "denied" doesn't stop that they're still getting all those cases to rubber stamp.
And finally, if the number of cases going through the court that are legitimate are too much then we need to have more judges available to assess the claims, if this causes "legal uncertainty" then the question that must be asked is "how do we improve legal certainty" not "how can we reduce the case load so that we can get that level of uncertainty down", it's incredibly counter-productive to upholding our rights to look at our cases as a burden rather than a duty.
It is telling then if we look at the views of the expert committee's on reform of the court(2), to decide why exactly the Brighton Declaration is worded as it is...
It is also unlikely that any new filtering mechanism, given that its introduction would require entry into force of an amending protocol to the Convention (see further below), could come into effect or, at least, have yet had any great impact by the envisaged date of 2015 for resolution of the backlog. The CDDH has therefore decided to reflect these circumstances by shifting the emphasis of the present report from possible measures to increase the Court’s filtering capacity, to possible measures to increase the Court’s capacity to process applications generally.
These reforms, limiting access to the ECtHR, wouldn't be in force before 2015, and yet the committee overlooking reform of the ECtHR say that 2015 should be a "all clear" mark for the court having made reforms already, slight in terms of the Convention and large in terms of internal process, that are going to clear the backlog of cases. The expert committee instead would rather focus on *the resources* the court has, and how they're organised.
Human rights groups are concerned(3) about the declaration and it's ability to limit the court's power to protect individuals, the expert committee overseeing reforms don't believe they're necessary to clear the backlog (in as much as the backlog will already be clear before they come in to force), and legal commentators have expressed similar concerns as the Human rights groups as well as further concerns about what it could mean for our own human rights laws here in the UK(4).
So...tell me again, is this really not (in significant part) about restricting the ability for individuals to get the protection that the Convention originally intended to give them?
References:
1. The draft Brighton Declaration on the Guardian
2. Evidence that even WITHOUT the Brighton Declaration, the backlog of cases will be cleared by 2015
3. Human rights bodies response to the Brighton Declaration (pdf)
4. What the Brighton Declaration currently means for the Human Rights Act, and paving the way for a Bill of Rights
Further reading:
An overview of the Brighton Declaration
Another view on the Brighton Declaration
How the ECtHR is already exercising autonomy in being less "interventionist"
Are the ECtHR admission processes transparent enough?
How the ECtHR works in processing cases
Brighton ECtHR reforms likely to be heavily watered down
Overview of where the Brighton Conference is to date (18th April)
Tuesday, 17 April 2012
UKIP and Lib Dems, fighting for third?
UKIP can probably feel quite smug in themselves leading up to these local election times, seemingly surpassing the Lib Dems as the third most popular party in the UK at this time, with multiple polls over the course of a week putting them in that position. How much of this is down to recent events, the budget for example, and how much is down to the increased publicity in the build up to local elections, it seems a bit early to tell.
One thing that is very clear, is that this is not about the Lib Dems vs UKIP. While both parties clearly dislike each other, UKIP's (in my opinion) selfish libertarianism versus the Lib Dems more social liberalism don't gel well at all, this change in standings isn't because current Lib Dem supporters are moving to a different small party.
The history of polling, YouGov's being most regular, shows that as Lib Dem fortunes rise and fall by mere percent over the course of the past months, so too does Labour's. In fact the Labour vs Lib Dem polling has barely changed in over a year.
What has changed is the Tory numbers. For most of that last year they've polled in the mid to high 30s, but recently, certainly since the budget, they are residing more in the low 30s. If the Lib Dem vote has barely collapsed in the same period, and the Labour vote has done little in increasing beyond the small losses the Lib Dems are seeing, then where are the Tory votes going?
Surely it makes sense that it's going to our new third place party of the moment, UKIP?
If things remain the same going through the next few years then we're going to see the Lib Dems fighting to regain swing Labour supporters, while the Tories fight to regain swing UKIP supporters. I have said before I don't trust the Lib Dem machine, but actually things are set up to be kind to them.
I say this because the Tories are also going to have to fight Labour, to not do this would be negligent. This means that the Lib Dems can probably piggyback off of any government heightened defense or attack against the main opposition. What the Lib Dems aren't going to care about are UKIP, there is quite frankly not a single area where the Lib Dems are going to need to worry about UKIP taking a seat away from them.
By contrast, UKIP can drain votes away from the Tories, in the form of protest votes and from those that simply don't think that the Tories are being conservative enough. In the areas where the Lib Dems are really fighting marginals, they are fighting the Tories, who will not want to be losing seats to UKIP. In these areas they're going to have to simultaneously denounce their coalition partners without sounding like hypocrites and ungrateful, while not moving too far to the right as they'll also have to portray UKIP as too extreme for UK interests.
Even with boundary changes there is a lot of work that the Tories need to do in 2015. Fighting the Lib Dems does very little to help them, UKIP may cost them marginals that are no longer going to be so marginal if the Lib Dems are weak in those areas against Labour. I'd go as far as to say that if the Tories want power in 2015, coalition or otherwise, they'll need to support the Lib Dems in regaining voters.
Come 2015 I wonder how much the Tories are going to regret putting so much money to fighting AV, we predicted that it may come back to bite them, and I certainly won't be crying for them if they end up losing power, or having to endure worse coalition conditions, because of their anti-democratic stance in 2011.
Either way, while the partisan, nausea-inducing, guffawing at which party resides in which position of popularity may see UKIP goading Lib Dems right now, it's all just childish games that makes little difference to the extremely interesting political landscape that we could find ourselves in...where UKIP are going to care a whole lot less about the popularity of the Lib Dems, and vice versa.
One thing that is very clear, is that this is not about the Lib Dems vs UKIP. While both parties clearly dislike each other, UKIP's (in my opinion) selfish libertarianism versus the Lib Dems more social liberalism don't gel well at all, this change in standings isn't because current Lib Dem supporters are moving to a different small party.
The history of polling, YouGov's being most regular, shows that as Lib Dem fortunes rise and fall by mere percent over the course of the past months, so too does Labour's. In fact the Labour vs Lib Dem polling has barely changed in over a year.
What has changed is the Tory numbers. For most of that last year they've polled in the mid to high 30s, but recently, certainly since the budget, they are residing more in the low 30s. If the Lib Dem vote has barely collapsed in the same period, and the Labour vote has done little in increasing beyond the small losses the Lib Dems are seeing, then where are the Tory votes going?
Surely it makes sense that it's going to our new third place party of the moment, UKIP?
If things remain the same going through the next few years then we're going to see the Lib Dems fighting to regain swing Labour supporters, while the Tories fight to regain swing UKIP supporters. I have said before I don't trust the Lib Dem machine, but actually things are set up to be kind to them.
I say this because the Tories are also going to have to fight Labour, to not do this would be negligent. This means that the Lib Dems can probably piggyback off of any government heightened defense or attack against the main opposition. What the Lib Dems aren't going to care about are UKIP, there is quite frankly not a single area where the Lib Dems are going to need to worry about UKIP taking a seat away from them.
By contrast, UKIP can drain votes away from the Tories, in the form of protest votes and from those that simply don't think that the Tories are being conservative enough. In the areas where the Lib Dems are really fighting marginals, they are fighting the Tories, who will not want to be losing seats to UKIP. In these areas they're going to have to simultaneously denounce their coalition partners without sounding like hypocrites and ungrateful, while not moving too far to the right as they'll also have to portray UKIP as too extreme for UK interests.
Even with boundary changes there is a lot of work that the Tories need to do in 2015. Fighting the Lib Dems does very little to help them, UKIP may cost them marginals that are no longer going to be so marginal if the Lib Dems are weak in those areas against Labour. I'd go as far as to say that if the Tories want power in 2015, coalition or otherwise, they'll need to support the Lib Dems in regaining voters.
Come 2015 I wonder how much the Tories are going to regret putting so much money to fighting AV, we predicted that it may come back to bite them, and I certainly won't be crying for them if they end up losing power, or having to endure worse coalition conditions, because of their anti-democratic stance in 2011.
Either way, while the partisan, nausea-inducing, guffawing at which party resides in which position of popularity may see UKIP goading Lib Dems right now, it's all just childish games that makes little difference to the extremely interesting political landscape that we could find ourselves in...where UKIP are going to care a whole lot less about the popularity of the Lib Dems, and vice versa.
Friday, 6 April 2012
"32" die a week after 'failing' ESA tests: Context please?
A story emerged on April 4th in the Mirror that, on first glance, sounds horrible. 32 people a week die after failing test for new incapacity benefit they say. This is derived, perhaps incorrectly, from the figure of 1,100 given to them through a freedom of information request for the 8 month period of January to August 2011. That 1,100 is those who have died after being told that they have *some* claim to benefits for a year, but need to still try to find work.
ESA, how it breaks down...
First of all, before we go any further it might be useful to clarify some things. First, those applying for ESA, Employment and Support Allowance, the new benefit that is to take the place of Incapacity Benefit (IB), are new claimants. They are people that after 2008 (when the new ESA benefit was introduced, by Labour) were "healthy" and needed not to take this kind of benefit, and are now applying again.
When you have applied for ESA several things could happen. First you could have a change of circumstances and no longer complete your claim, second you could be given the full benefits that are due to your inability to work, third you could be denied any benefit as you are deemed to be "fit for work", or finally you could be placed on an interim group, the Work-Related Activity Group (WRAG). This final group is the controversial one, as it states that you get a smaller level of benefits in return for seeking employment in a suitable field.
It's suitability here that is key. Those in the WRAG grouping are not expected to just find work, otherwise they would be given Job Seekers Allowance while looking for any work, they are expected to work with advisors to find suitable work. The theory is that, for example, someone with a heart condition may be able to work in a job that is not physically taxing.
I am not going to discuss the ins and outs of whether the ESA assessment and subsequent process is failing in following this theory, but it's good to know what the purpose of it all is.
In April this year (2012) the conditions of ESA change, and those in the WRAG grouping will not get any more contribution-related benefits after 12 months of benefits. Those who have received 12 months of benefits on 30th of April 2012 will be cut off from that type of benefit, and will have to rely, if they can, on income-related ESA instead.
However, as yet, they have not. It's important to remember this when talking about the Mirror's FOI findings, both because there is no question of having no benefits (WRAG claimants would get more in benefits than someone on JSA, for example), but also because there could be a greater risk of a heightened mortality rate amongst this group of people when their circumstances change for the worst.
Do 32 people die a week after failing the ESA test?
32 people dying a week is over 1600 people a year. The Mirror's FOI request states 1,100 people that have been placed in the WRAG grouping (not failed, as such, just have conditions) died within 6 weeks of being placed in that group, over an 8 month period. Extrapolating it out, a crude measurement that doesn't take in to account seasonal variation, the figure is reached for 32 people dying. However these people have not "failed" any test, they've just been determined to be fit enough to consider work in certain areas with, as yet, no pressure to take a job that doesn't suit them.
Those that have failed the test are not tracked by those that provided the response to the FOI request, so actually we have little idea from the Mirror's article how many people are dying after truly failing the ESA tests.
Isn't this evidence that people are dying at work after being told their fit to work?
Those that are in the WRAG grouping don't necessarily have to, or do, find work within the first 6 weeks of being assessed. It is an assumption, backed up by no data I have been able to find, to make the sensational claim that people are dying because they are essentially being pushed in to work that they are not physically fit to do.
What we need, to be able to see if people are being pushed beyond their limits, is data about deaths that extend beyond those 6 weeks, and are specifically broken up in to those that find work through the WRAG program, and those who don't. Even with that data we would have to be cautious about reading too much in to deaths that are caused by the underlying problem but NOT exacerbated by the type of work they undertake.
But still, if they're dying they can't be fit for work, can they?
Why not? In the article the quote given on this issue is...
This to me seems to be common sense. If someone has a heart condition that leaves them vulnerable to dying, then the chances are that their death with be linked to that condition, a condition that led them to apply for ESA.
It does not mean, as the Mirror seems to want to allude to, that the person would have survived any longer if they were not deemed fit for work. It is entirely possible for someone to be quite unwell, with a poor prognosis, but for them to still be able to work.
There are wider questions of course about whether we should begrudge those with only years to live with cancer, or serious heart failure, the ability to try and enjoy the time they have left, but with that must also come arguments that are backed up by data that show by putting these people through the process that the WRAG dictates worsens their prognosis.
Isn't it still a huge number of people dying though?
1,100 people dying in a 9 month period is something that I'm sure anyone would describe as "too high", is it comparatively high though? By contrast some 5,300 people, almost 5 times as many, die when they receive full benefit support. To put this in to context we can look at some figures we do have.
Caveats: This is data that is up to date, but only dates from 2008 until February 2011. An assumption is being made by me that the numbers of claimants is the same from January 2011 to August 2011 as they would be in the same period in 2010. The reason for this is that within a margin of around 2-5% the figures of claimants has been consistent and very slowly growing since it has started.
Around 650-700 thousand people apply for ESA every year. Over 120 thousand make it on to the WRAG grouping, while around 50 thousand make it on to full benefits. The rest, up to 500 thousand, either stop their claim or are deemed to be "fit for work" (though the Mirror claims that many appeal and many of them are successful).
This means that around 1.3% of WRAG grouping claimants died a year, while 16% of those successful on their ESA claims died in a year.
By comparison the UK death rate is around 1%.
Does this mean the number of people dying is "normal"
Even taking the crude comparison that those on the WRAG group, who should be more ill or unhealthy than the general populace, are dying at a similar rate as a group as the average population, it doesn't mean this is normal or not.
The real questions are this: How did the same people fare in previous years? Is 32 people a week a number that has increased amongst the WRAG grouping, decreased, or is it stable? Without a trend to look at it's hard to immediately assess if recent news of changes (and clear change of protocol that is leaving many more claims unresolved for too long) has had an affect on mortality.
Even then, such analysis is too general. Really we would want to know how the deaths of these people compare to those in a similar demographic. Gender, age, obesity, smokers, drinking habits, etc... to know if this statistic is "shockingly high" as someone described it to me, we'd need to know what the rate of deaths is for those not assessed but share the same traits/lifestyles.
The simple fact is that we don't actually have enough data put in front of us, as far as I can tell, to say if these levels of deaths are bad or normal in the grand scheme of things.
So what does it tell us?
Nothing, unfortunately. It doesn't tell us if these numbers of deaths are larger than usual, either for the demographics of the people involved, or for the level of incapacity the government determines people to have over a period of time.
I believe this article by the Mirror is trying to make a claim that this government has done something to make it more likely for people to die, however conditions outside of the length of time that it takes for claims to be processed since the 2010 election have not changed. Slightly more people are making it on to the WRAG grouping, however this is actually because LESS people are being told they are fit for work. Changes to benefits that would affect those who have been on ESA don't come in until the end of this month so statistics about January to August 2011 are unaffected by them.
It seems cynical and based in political ideology that the Mirror would choose now to make these claims when there is every chance that the same numbers could have been leveled, in proportional terms, at the Labour party. Without the context of how these numbers of deaths compare, the statistic of 32 deaths a week is worthless. Worst of all it seems to conflate the issue of being fit for work with being "in good health", which are ultimately two things that don't necessarily have to align with each other.
ESA, how it breaks down...
First of all, before we go any further it might be useful to clarify some things. First, those applying for ESA, Employment and Support Allowance, the new benefit that is to take the place of Incapacity Benefit (IB), are new claimants. They are people that after 2008 (when the new ESA benefit was introduced, by Labour) were "healthy" and needed not to take this kind of benefit, and are now applying again.
When you have applied for ESA several things could happen. First you could have a change of circumstances and no longer complete your claim, second you could be given the full benefits that are due to your inability to work, third you could be denied any benefit as you are deemed to be "fit for work", or finally you could be placed on an interim group, the Work-Related Activity Group (WRAG). This final group is the controversial one, as it states that you get a smaller level of benefits in return for seeking employment in a suitable field.
It's suitability here that is key. Those in the WRAG grouping are not expected to just find work, otherwise they would be given Job Seekers Allowance while looking for any work, they are expected to work with advisors to find suitable work. The theory is that, for example, someone with a heart condition may be able to work in a job that is not physically taxing.
I am not going to discuss the ins and outs of whether the ESA assessment and subsequent process is failing in following this theory, but it's good to know what the purpose of it all is.
In April this year (2012) the conditions of ESA change, and those in the WRAG grouping will not get any more contribution-related benefits after 12 months of benefits. Those who have received 12 months of benefits on 30th of April 2012 will be cut off from that type of benefit, and will have to rely, if they can, on income-related ESA instead.
However, as yet, they have not. It's important to remember this when talking about the Mirror's FOI findings, both because there is no question of having no benefits (WRAG claimants would get more in benefits than someone on JSA, for example), but also because there could be a greater risk of a heightened mortality rate amongst this group of people when their circumstances change for the worst.
Do 32 people die a week after failing the ESA test?
32 people dying a week is over 1600 people a year. The Mirror's FOI request states 1,100 people that have been placed in the WRAG grouping (not failed, as such, just have conditions) died within 6 weeks of being placed in that group, over an 8 month period. Extrapolating it out, a crude measurement that doesn't take in to account seasonal variation, the figure is reached for 32 people dying. However these people have not "failed" any test, they've just been determined to be fit enough to consider work in certain areas with, as yet, no pressure to take a job that doesn't suit them.
Those that have failed the test are not tracked by those that provided the response to the FOI request, so actually we have little idea from the Mirror's article how many people are dying after truly failing the ESA tests.
Isn't this evidence that people are dying at work after being told their fit to work?
Those that are in the WRAG grouping don't necessarily have to, or do, find work within the first 6 weeks of being assessed. It is an assumption, backed up by no data I have been able to find, to make the sensational claim that people are dying because they are essentially being pushed in to work that they are not physically fit to do.
What we need, to be able to see if people are being pushed beyond their limits, is data about deaths that extend beyond those 6 weeks, and are specifically broken up in to those that find work through the WRAG program, and those who don't. Even with that data we would have to be cautious about reading too much in to deaths that are caused by the underlying problem but NOT exacerbated by the type of work they undertake.
But still, if they're dying they can't be fit for work, can they?
Why not? In the article the quote given on this issue is...
Citizens Advice told us it has found "a number of cases" of people dying soon after being found fit for work.
"There seems to be a clear link between the cause of death and the condition they were suffering from that led to the claim," said Katie Lane, head of welfare policy.
This to me seems to be common sense. If someone has a heart condition that leaves them vulnerable to dying, then the chances are that their death with be linked to that condition, a condition that led them to apply for ESA.
It does not mean, as the Mirror seems to want to allude to, that the person would have survived any longer if they were not deemed fit for work. It is entirely possible for someone to be quite unwell, with a poor prognosis, but for them to still be able to work.
There are wider questions of course about whether we should begrudge those with only years to live with cancer, or serious heart failure, the ability to try and enjoy the time they have left, but with that must also come arguments that are backed up by data that show by putting these people through the process that the WRAG dictates worsens their prognosis.
Isn't it still a huge number of people dying though?
1,100 people dying in a 9 month period is something that I'm sure anyone would describe as "too high", is it comparatively high though? By contrast some 5,300 people, almost 5 times as many, die when they receive full benefit support. To put this in to context we can look at some figures we do have.
Caveats: This is data that is up to date, but only dates from 2008 until February 2011. An assumption is being made by me that the numbers of claimants is the same from January 2011 to August 2011 as they would be in the same period in 2010. The reason for this is that within a margin of around 2-5% the figures of claimants has been consistent and very slowly growing since it has started.
Around 650-700 thousand people apply for ESA every year. Over 120 thousand make it on to the WRAG grouping, while around 50 thousand make it on to full benefits. The rest, up to 500 thousand, either stop their claim or are deemed to be "fit for work" (though the Mirror claims that many appeal and many of them are successful).
This means that around 1.3% of WRAG grouping claimants died a year, while 16% of those successful on their ESA claims died in a year.
By comparison the UK death rate is around 1%.
Does this mean the number of people dying is "normal"
Even taking the crude comparison that those on the WRAG group, who should be more ill or unhealthy than the general populace, are dying at a similar rate as a group as the average population, it doesn't mean this is normal or not.
The real questions are this: How did the same people fare in previous years? Is 32 people a week a number that has increased amongst the WRAG grouping, decreased, or is it stable? Without a trend to look at it's hard to immediately assess if recent news of changes (and clear change of protocol that is leaving many more claims unresolved for too long) has had an affect on mortality.
Even then, such analysis is too general. Really we would want to know how the deaths of these people compare to those in a similar demographic. Gender, age, obesity, smokers, drinking habits, etc... to know if this statistic is "shockingly high" as someone described it to me, we'd need to know what the rate of deaths is for those not assessed but share the same traits/lifestyles.
The simple fact is that we don't actually have enough data put in front of us, as far as I can tell, to say if these levels of deaths are bad or normal in the grand scheme of things.
So what does it tell us?
Nothing, unfortunately. It doesn't tell us if these numbers of deaths are larger than usual, either for the demographics of the people involved, or for the level of incapacity the government determines people to have over a period of time.
I believe this article by the Mirror is trying to make a claim that this government has done something to make it more likely for people to die, however conditions outside of the length of time that it takes for claims to be processed since the 2010 election have not changed. Slightly more people are making it on to the WRAG grouping, however this is actually because LESS people are being told they are fit for work. Changes to benefits that would affect those who have been on ESA don't come in until the end of this month so statistics about January to August 2011 are unaffected by them.
It seems cynical and based in political ideology that the Mirror would choose now to make these claims when there is every chance that the same numbers could have been leveled, in proportional terms, at the Labour party. Without the context of how these numbers of deaths compare, the statistic of 32 deaths a week is worthless. Worst of all it seems to conflate the issue of being fit for work with being "in good health", which are ultimately two things that don't necessarily have to align with each other.
Monday, 2 April 2012
Praise be, at least it's not centralised!
The Lib Dem leadership appear to be trying to pull the biggest bait and switch of the year on it's own members and supporters. While pointing the finger at those evil bogeymen, the Labour party, they want to extend laws on how much and how far authorities can spy on us.
The reasoning seems to be around a simple premise...it's all cool, because it's not centralised!
But just think for more than 1 second...what does that even matter? When we argued against the Labour plans it wasn't because we didn't care where our data was as long as it wasn't centralised, it's just that picking on the readily apparent issues of ease of access of a centralised system is a particularly easy win for making a case against intrusion in to our privacy.
The reality is this...if our data is not centralised, it is simple decentralised. Our data is still out there, instead of being in one data centre, it is in many data centres. Instead of being managed behind a single dedicated firewall, in a single physical secure location, it is in many locations...some not so heavily fire-walled, many very much not physically secure.
The problem, which I think we *thought* the Lib Dems got, is that having your data out there is a problem in itself, one that perhaps none of us take seriously enough. Funding and tech-supporting organisations to maintain these small decentralised areas doesn't solve that data problem, it exacerbates it.
This discussion is about liberty, it's about privacy, and it's about the real practicality of keeping those two things balanced while allowing authorities with the appropriate level of evidence the access to prove their case against criminals. It's not about logistics, and it belittles some of the most considered political people in this country for the Lib Dem leadership to try and simplify it down to that.
The reasoning seems to be around a simple premise...it's all cool, because it's not centralised!
But just think for more than 1 second...what does that even matter? When we argued against the Labour plans it wasn't because we didn't care where our data was as long as it wasn't centralised, it's just that picking on the readily apparent issues of ease of access of a centralised system is a particularly easy win for making a case against intrusion in to our privacy.
The reality is this...if our data is not centralised, it is simple decentralised. Our data is still out there, instead of being in one data centre, it is in many data centres. Instead of being managed behind a single dedicated firewall, in a single physical secure location, it is in many locations...some not so heavily fire-walled, many very much not physically secure.
The problem, which I think we *thought* the Lib Dems got, is that having your data out there is a problem in itself, one that perhaps none of us take seriously enough. Funding and tech-supporting organisations to maintain these small decentralised areas doesn't solve that data problem, it exacerbates it.
This discussion is about liberty, it's about privacy, and it's about the real practicality of keeping those two things balanced while allowing authorities with the appropriate level of evidence the access to prove their case against criminals. It's not about logistics, and it belittles some of the most considered political people in this country for the Lib Dem leadership to try and simplify it down to that.
Lib Dem surveillance law briefing: first thoughts
Thanks to Charlotte Gore we can see the briefing paper on new surveillance laws to be introduced that has been sent by the Lib Dems, confirming they will be performing a u-turn on their "scale back intrusion on civil liberties" mantra and instead go ahead and put those liberties at risk.
It's dressed up in other weasel language, but it ultimately accepts that they are going to support a collection of the level of data on our lives that, if compared to actually tracing our every footstep and conversation in "the real world" would have people outraged.
What is sad is that the coalition government pledged:
This is not rolling back state intrusion, the briefing itself shows it is INCREASING intrusion.
If the current level of intrusion isn't good enough to maintain capability, then the only way that capability is maintained is to increase the levels of intrusion. Pretty basic maths!
Unfortunately the Lib Dems have decided that to fight this they will, as they have so predictably on most other issues, point the finger at Labour and hope that those like myself will be so blinded by rage filled memories of the injustices Labour carried out, or attempted to, that we'll look the other way while they sneak something they know we wouldn't really agree to if we had the option not to.
The trouble is that it's self defeating on this issue. My support for the Lib Dems grew precisely because I didn't want to see laws go anywhere near what Labour put through. I don't want a RIPA that allows "investigative forces" to work out exactly where I am without any real authorisation. I don't want a law that states my entire family's internet can be shut off without any proof of guilt of wrong doing. I don't think we should live in a country where it is a legislative possibility that a state body could be responsible for censoring the content anyone publishes online.
Yet the Lib Dems have done nothing so far to actually roll these issues back, and now here they are making it easier for the police to spy on us, and easier for our daily lives to be trawled through...yet they have the audacity to think we're stupid and small minded enough that some ire over a centralised database in the past is going to over-ride much deeper feelings of anxiety of a surveillance state?
Just on that point, by the way, fuck this idea that a non-centralised database (or sets of databases) is any better. Sony, the type of company that would fall in to this new legislation as a non-UK body that has UK users communicating through it's network, couldn't secure their databases from amateur hackers, and didn't have the decency to ensure that our very private and sensitive information was obscured just in case they did anyway. If the Lib Dems give a real shit about protecting our data they will not force our data to be collected, anywhere.
The briefing further condescends us with an annecdotal example of a case that is, as far as I can see, completely irrelevant to the issue of surveillance and mass data collection...
So a guy was arrested for a physical crime, and his property was rightfully searched to gain evidence against him. In this search they found data on his devices that contained information (most likely actual email communications not deleted, and phone records not expunged). At what point did mass data storage matter here, with clear evidential links of the trading and passage of illegal material from one person to another, not found by monitoring the guy for months at the behest of the Home Secretary, but by chance because they had a right to seize and investigate the material on the computer.
If the Lib Dems are being honest then what was sent via this ring could not have been known, since it is supposedly impossible for police to access the CONTENT (i.e. the indecent child images and videos), only who sent who an email, and where they were when they did so. Talk about blowing up your own argument one way or another.
In the end, by pointing out the very tiny differenced between what Labour wanted to do, and what the Lib Dems are now clearly pushing forward to do, they have scored the worst own goal...they've shown that on the only metric that anyone really thought that they were standing out as different, on individual liberty, they are actually the same as Labour and the Tories.
What is the point of the Lib Dems going forward?
For a more coherent view on where we're going, try this excellent blog article.
It's dressed up in other weasel language, but it ultimately accepts that they are going to support a collection of the level of data on our lives that, if compared to actually tracing our every footstep and conversation in "the real world" would have people outraged.
What is sad is that the coalition government pledged:
The parties agree to implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour government and roll back state intrusion.
This is not rolling back state intrusion, the briefing itself shows it is INCREASING intrusion.
These changes have gradually eroded the range of communications data that was available to the police and the security services, and made it easier for criminals, terrorists and paedophiles to operate undetected.
The current proposals have one aim and one aim only: to maintain the capability of our law enforcement agencies to investigate and prosecute dangerous people.
If the current level of intrusion isn't good enough to maintain capability, then the only way that capability is maintained is to increase the levels of intrusion. Pretty basic maths!
Unfortunately the Lib Dems have decided that to fight this they will, as they have so predictably on most other issues, point the finger at Labour and hope that those like myself will be so blinded by rage filled memories of the injustices Labour carried out, or attempted to, that we'll look the other way while they sneak something they know we wouldn't really agree to if we had the option not to.
The trouble is that it's self defeating on this issue. My support for the Lib Dems grew precisely because I didn't want to see laws go anywhere near what Labour put through. I don't want a RIPA that allows "investigative forces" to work out exactly where I am without any real authorisation. I don't want a law that states my entire family's internet can be shut off without any proof of guilt of wrong doing. I don't think we should live in a country where it is a legislative possibility that a state body could be responsible for censoring the content anyone publishes online.
Yet the Lib Dems have done nothing so far to actually roll these issues back, and now here they are making it easier for the police to spy on us, and easier for our daily lives to be trawled through...yet they have the audacity to think we're stupid and small minded enough that some ire over a centralised database in the past is going to over-ride much deeper feelings of anxiety of a surveillance state?
Just on that point, by the way, fuck this idea that a non-centralised database (or sets of databases) is any better. Sony, the type of company that would fall in to this new legislation as a non-UK body that has UK users communicating through it's network, couldn't secure their databases from amateur hackers, and didn't have the decency to ensure that our very private and sensitive information was obscured just in case they did anyway. If the Lib Dems give a real shit about protecting our data they will not force our data to be collected, anywhere.
The briefing further condescends us with an annecdotal example of a case that is, as far as I can see, completely irrelevant to the issue of surveillance and mass data collection...
Is there an example of this data being used effectively to fight crime?
When Greater Manchester police arrested a man for raping a ten year old boy in June 2009 they seized his computer and phones which revealed that he was the ringleader of an international paedophile network that had been swapping indecent child images and videos. The phone and internet communications data gave police the vital information to identify the members of this group. GMP and 23 other police forces launched raids to arrest suspects as far afield as Ireland, Spain and Luxembourg. The ringleader received a minimum of 6 years imprisonment and an indeterminate life sentence for 23 charges including the rape. Seven British members of the network have been arrested and charged.
So a guy was arrested for a physical crime, and his property was rightfully searched to gain evidence against him. In this search they found data on his devices that contained information (most likely actual email communications not deleted, and phone records not expunged). At what point did mass data storage matter here, with clear evidential links of the trading and passage of illegal material from one person to another, not found by monitoring the guy for months at the behest of the Home Secretary, but by chance because they had a right to seize and investigate the material on the computer.
If the Lib Dems are being honest then what was sent via this ring could not have been known, since it is supposedly impossible for police to access the CONTENT (i.e. the indecent child images and videos), only who sent who an email, and where they were when they did so. Talk about blowing up your own argument one way or another.
In the end, by pointing out the very tiny differenced between what Labour wanted to do, and what the Lib Dems are now clearly pushing forward to do, they have scored the worst own goal...they've shown that on the only metric that anyone really thought that they were standing out as different, on individual liberty, they are actually the same as Labour and the Tories.
What is the point of the Lib Dems going forward?
For a more coherent view on where we're going, try this excellent blog article.
Sunday, 1 April 2012
Lib Dems: Playing politics wrong
Politics is a funny old game, it's unfortunate that it's a game that the Lib Dems seem to keep forgetting the rules of. What's worrying still is that they seem to be getting worse at playing it. No-one expected them to be amazing at playing with power, having not been in power for so long. Indeed it's an argument that no-one in the party really knows what it means to be in power, from the politicians to their long serving staff.
They did everything right* during the election. They struck out in a direction that felt unique, new, in tune with the people. They had an electable face running rings around the stuffy looking pair of old-hats, and life was sweet.
Then they got power.
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