Cookie law implementation watch

Here's a quick listing of some sites, and how they have implemented the cookie law...the good, the bad and the ugly...

Last updated: 28th May 2012. Tweet your examples to me!

The Good

The BBC



Why?
It gives clear information, clear routes to find out more and set preferences (a pain in the arse to implement for most small businesses, but actually very good for user-control), and an implied consent model that doesn't impact on their long term analytics and functionality (mainly due to the sheer number of page hits bbc.co.uk will receive).

Royal Bank of Scotland



Why?
Clear implied consent messaging, prominently placed. It's not amazing but it does the job, with settings easily accessible to disable cookies on site.

Barclays





Why?
Barclays actually takes this one step further. While their initial messaging could possibly be a little more prominent, the way of interacting to set your cookie options is very clear and user friendly.

Nectar




Why?
On the face of it, not a great implementation, opting for the less obvious "bottom toast" option for highlighting cookie options. However they save themselves well with what looks like a tool that others might be able to use that constantly stays on the page, showing the kind of cookies that are being used and quick access to turn them on or off

The Bad

Political party sites

Labour

Conservatives

Lib Dems


Why?
Yes, they've made an effort, a tiny little toaster pop up in the bottom right hand corner. But is it enough? In the case of the Lib Dems they follow the implicit consent model to the letter. Zero cookies on site before you continue usage, but with no options other than to change your browser preferences users are left slightly in the dark. The Tories do next best, though in reality the only cookies they seem to use are third party ones...and they let them through regardless. The presumption here seems to be they don't have to worry about third party cookies. They're wrong.

Either way, as with Labour, this messaging feels far from prominent and certainly not aimed at giving users of the site a clear choice or information.

Then you have Labour taking it to another level, setting every cookie under the sun on the presence that simply being on the site gives them permission. This is about the worst kind of implicit consent I can see. Yes they inform, yes they give links to how to cut the cookies out...but allowing all cookies all the time regardless of any user interaction seem, to me, to be stretching the advice of ICO very, very far.

Telegraph



Why?
Blink and you'll miss it. Instantly one of the better toaster pop ups hidden at the bottom of the page...it is large and black and shiny looking after all...it disappears after about 30 seconds, if that. No chance to see what it says if you missed it without going and deleting your cookies again. Quite simply someone could open this site amongst a flurry of tab opening and never see this message. Terrible.


Asda




Why?
At first glance Asda doesn't seem to implement anything to adhere to the law. Scroll to the bottom, however, and you'll see they do! Well, it might be up for debate on whether or not they actually can count as having implemented a consent mechanism here, actually...

The Sun



Why?
Marginally better than Asda, this tiny message at the bottom of the page on half faded out black is at least always nestled just out of natural view on the bottom of the window, but you don't have to scroll to see it. It's still a crappy implementation.

ITV



Why?
Like Asda, an afterthought, but at least styled better. What can I say, I don't believe that this method would stand up to any kind of scrutiny if someone took it to the ICO.

London Stock Exchange



Why?
On first inspection this may look like a good implementation, it asks an opt in question...but the reality is that it sets cookies (it tells you it sets analytical ones, not so much letting you know about the advertising based ones) and continues to use them even if you never use the message. Sure, this might be implied consent...but why have the explicit opt in message?!

The Ugly

ICO



Why?
It adheres exactly to the law, it is the shining example of how to follow the law...yet it is an ugly looking implementation that has already proved to ruin accurate analytical tracking through user indifference. It might be the right thing to do legally, but from a "business case" view, it is just a bit nasty.

All About Cookies



Why?
First I thought: "Good on them, making a statement". The prominent pop up really forces the issue in to the open. But then they still let google ads operate in the background, even when the cookie option is set to be restricted. Confusing much? Maybe they're just sticking two fingers up at the legislators while appearing to comply. *shrugs*

The Guardian




Why?
It's simple messaging, devoid of a clear opt out, instead relying on telling people that they can change their settings in their browsers. The only reason this doesn't make it in to the "bad" section is it's very clear way of showing what cookies there are on site, and what they are used for.

Doner



Why?
OK, so Ugly might be the wrong word given how cute they've tried to be (and how little most other ad agencies are bothering!)...but it kind of doesn't do what it's meant to. Like many other examples, a lack of actually letting people know what they're opting in to with a bar that is essentially just an annoyance urging you to press yes just to get it out of the way. It would be a perfect solution before ICO changed it's advice...except that it still sets an advertising cookie (or so it appears) from a third party so the information about cookies on the site is not really accurate.

HSBC



Why?
Barclays and RBS really showed how you can be responsible on this front, on sites where people take their privacy and security a little more seriously as standard. This messaging by HSBC is ok, but it really feels slapped on.

Church of England



Why?
Some are preferring this option (see below), most that do so choose this route to make a statement about how ridiculous this law is. However the messaging here, to click a button that doesn't exist. The impression here is that by closing the window you're accepting the cookies, yet with such a window you'd also expect to be able to NOT accept....very poor and muddled design.

The... Absent?

Facebook/Twitter/Google etc.

Why?
These sites may be the ones you interact with most on a daily basis. They aren't required to adhere to this law, since they are not "UK based" as far as I can tell. It makes a mockery of the law in itself that UK businesses are having to go out of their way to adhere while there isn't a more "global" agreement. Other top sites viewed in the UK also include Yahoo, MSN...again, all not covered by this law that is far too geographically based for a world wide web.

Number 10



Why? The website of the premier office in the land...and they're technically breaking the law. Sure, they have a link to cookies in a prominent place, but this is 2003 legislation, not 2011 that would require some form of consent!

Money Saving Expert



Why?
After a brief tweet earlier I came to understand that the Money Saving Expert team seem to believe that having a link to a page for Cookies on each page, at the bottom amongst other legal links, is enough to adhere to the law. I don't know if this is just oversight, or poor advice, but even under new ICO advice it'd be surprising if this stance would constitute the correct "context" within which it's reasonable to assume a user has given consent.

Just to reitterate how ICO put it, if you roll up someones sleeve in a doctor's surgery and they don't stop you, then you don't have to explicitly ask them if it's ok to take their blood pressure, you can take implied consent since it's clear (from the environment, reason for the visit, and the action) that they would know what you're doing and tell you if they weren't ok with it. Is simply being on a website enough knowledge of how they work to take implied consent? If the law makers believed that users were that clued up then they wouldn't have felt the need to make the law in the first place!

DMA/Assorted digital agencies



Why?
The DMA are just an example of really how hostile (or indifferent) those who actually directly interact with this law as part of their profession are to the Cookie law. Look, they have at least 2 or 3 mentions of the Cookie law on their site, yet no adherence! This is the same across many of the top digital agencies in the country. Telling.

Tesco/Sainsburys




Why?
Arguably the biggest businesses in the UK, certainly in retail terms...does this mean they care about giving people information about the cookies on their site? Not yet.

Independent/Daily Mail/Express, etc.




Why?
I'd expect it of the Daily Mail and Express, sticking it to those EU bastards that are probably only doing this to hit the mail's visitor stats and therefore ad revenue </conspiracy theories> but why can't the Independent get it's act in gear?

Confused



Why?
So there may be an implementation here on the way, but for now I thought I'd just highlight the above. Essential cookies? According to who? Certainly not the ICO who take the user's view that analytical tracking, A-B testing and CERTAINLY "allow us to reward some external websites for directing you to us", are not "essential" functions for your site!

Sky



Why?
Quite simply, if the BBC can do it, and the ITV can try and fail to do it, why can't Sky at least have a go at implementing a solution?

The Monarchy



Why?
One does not care about cookies, it seems.

Lloyds/Santander

Why?
I won't bother with screenshots, suffice to say that while other banking groups have pulled their finger out to varying degrees, these have not. You'd think that things like PPI and causing an economic global crisis might make them a little more keen to play ball.

The Law Society



Why?
They're the law society. The LAW....SOCIETY...OF LAW... and yet they don't yet follow the rules. Enough said?

Give prisoners the vote

Prisoners deserve a vote. I believe all of them deserve one, because it is something a civilised and democratic country should encourage. Prisoners that aren't able to vote are a dangerous thing to democracy, since the very existence of a means of stripping someone of their vote leaves the door open for politicians to abuse their position. While we may be a long way off Cameron being the sort of person to form a crack down on left-wing political activists to silence them and weaken their favoured parties, sharing that particular trait with much less democratic countries than our own is nothing to be proud of.

However I am also a realist, and I understand wholeheartedly that the public in their vengeful glory would rather punish a rapist or a murderer in any way possible, even if that includes the rather insignificant matter of them casting a vote. This is why I think it is absolutely right to support that any prisoner who's time of incarceration would be up within the life of the next parliament has the right to vote.

Think about it. If a person is in prison on the day of an election, yet then released the day after, as they have served their time and done their punishment...why is it correct for them to have not had a vote? They will spend every single day under a government, and under an MP, that they had no say over...how is this fair?

Arguably any prisoner who will, at some point, become a free person again...a clean slate to start from...deserves to have a say in how the country is run to help them, as any other member of the public, all the way in to the future...but it's much easier to make the case for the clear interaction that the next government will have on that soon-to-be ex-prisoner's life.

There's really so little to lose, and so much to gain, by doing this. We send a message that the powers that be are not able to silence us for short periods of time, if they ever wished to do so, we give people that are supposed to be rehabilitated and reintroduced in to society as productive members of society the franchise to feel a part of it, and yet we also placate those who simply can't reconcile that a single serious criminal voting for their favoured MP is not going to turn the tide of the country to a dystopian criminal nightmare.

It's time the government stopped digging their heels in here, and I hope the Lib Dems will help soften the ground over the next 6 months. A modern civilised society allows everyone to vote who has a stake in the country, and that includes prisoners...whether it makes you feel uneasy or not.

The Taxpayers' Alliance: Why the common person can't trust them

It should be fairly obvious to anyone that has had more than a passing understanding of The TaxPayers' Alliance that they are a "friendly" (not so friendly) front for right wing libertarian ideals.

What does this mean? Essentially they believe that the country would get on a whole lot better if the state did as little as possible, as simply as possible, and on this subject they center around taxation... i.e. people shouldn't really have to pay much of it at all.

They parade around making popular announcements about Petrol Tax and how it should be a lot lower, and it is enough to make some believe that they are interested in the common person on the street, fighting for the little guy against the big government.

They are not. They are greedy bastards headed by former Tories (that thought the Conservatives simply weren't friendly enough to the rich) and Tory sympathisers. They are supported at high levels by the kinds of people that want to see the rich in the country pay less. Their interests are in helping the wealthy get wealthier.

We can see this now fulling in their latest endeavor, the "2020 Tax Commission", named no doubt to fool people in to thinking this is a legitimate, unbiased, and measured set of proposals that are intended to be fair. They are not.

What are they proposing in their long report?

1) A single rate of tax at 30% for all incomes (essentially combining National Insurance and Income tax...while abolishing higher tax rates for higher earners).
2) A tax free allowance of 10k (as per current Lib Dem proposals).
3) A tiny cut in fuel tax of 5p (over 5 years)
4) Remove inheritance tax
5) Remove capital gains tax
6) Remove stamp duty tax
7) Remove stamp taxes on shares
8) Remove air passenger taxes

Well, how does that look for the common person? a 5p cut in fuel might be nice enough, in that it will stabilise prices over time (we certainly wouldn't feel it back in our wallets)...and a slight decrease on taxes for those under the 40 bracket might be favourable (though could be achieved less regressively through high tax allowance limits).

But inheritance tax? Capital gains? Stamp duty? Stamp on shares? Air passenger taxes? These are all taxes that fundamentally affect the rich more than they do the poor. By removing them we are encouraging those with wealth to pay less in to the pot...while at the same time lessening the amount of money everyone pays in* and encouraging more cuts!

If this got implemented, you know what, the TaxPayers' alliance might be right...it may just stimulate job creation, but only to replace the public sector jobs that have to be outsourced to privatised groups to make up the shortfall in funding. This isn't a proposal for a simpler tax system, it's a proposal for the outright destruction of public services in the UK!

*Now I say everyone pays in less, this isn't true. A household with a person earning £200k would be, on these plans, at least £25k better off, as their top tax rate is slashed by almost 50% from 45% plus National Insurance (after Tories cut the 50p tax rate despite public wishes) to just 30%. A two person pensioner household would, if earning enough to go above the personal allowance threshold, see their top tax rate increase by 50% by comparison. If you thought the "Granny Tax" outcries were loud when the balance of policies increased pensioner earnings, wait until anyone tries to pass this doozy through a budget!

The Taxpayers' Alliance, everyone, fighting for high flying businessmen, wealthy families, risky hedge fund market traders, high income earners and bonus receivers...and maybe those that would like fuel prices to steady on for a little while.

Why minimum pricing of alcohol makes no difference to binge drinking bar goers...

Just a quick one here, for future reference.

First of all, as the proposals currently stand, minimum pricing is set to 50p per unit in Scotland, and maybe 45p in the rest of UK/England. This equates to between £1 and £1.50 for a normal pint in a pub, £1.50 for an "alcopop", 50p for a small glass of wine, and £1 for a double spirit mixer.

Those who have been out any time in the last decade will understand how these prices are "dream prices" for the wallet, and well below the real cost of buying a drink in the UK.

Take the real cost of a pint, easily over £3 in the city, or a spirit and mixer, usually around £2.50. With drinks promotions frowned upon when it comes to licensing arrangements, choosing to go out is one that means you know that you're going to spend a certain amount of money.

And this is why minimum alcohol pricing doesn't matter. A bottle of vodka, even with minimum pricing, will cost around £14 if you're going for a bargain. This will, if you are intending to get absolutely drunk of a night out, provide you with the equivalent of 28 vodka mixers for around 23% of the price of doing it out in the bars.

If you have a budget of £10 for drinks, you might say you'll spend £5 out (two drinks) and spend enough time inside to share the bottle with 2 other people. 11 drinks of a night for £10.

What if minimum pricing went up? To maybe 60p? That bottle of Vodka would go up to ~£17. You still have £10 to spend individually, so what's the answer? Simple really, you know a drink will be £2.50 out, so you can get one before you dance, which means you can have more of that bottle of vodka (you'd buy more than one bottle this time, which in itself is a problem) and your total night drinks would be 11-12 drinks before you go out, and then another when you're at the bar/club.

you spend the same, you drink *more*, you still end up going out, the only difference is you go out for less time to mitigate the issue of expense. You know you have to spend more on pre-drinking, but it's still significantly cheaper than the bars, so you just spend more time on the pre-drinks in your home.

Of course as the minimum price goes up, the situation changes. 75p per unit pricing would mean that you would probably, if you wanted to go out and buy a drink out, only get 10 drinks in total... at £1 per unit you're really eating in to that margin, the Vodka would be £28 per bottle, you'd maybe only manage 8 drinks for your £10 that evening...and so on.

As it stands, if anything, the law is potentially going to fuel worse binge drinking...I believe the economics of current levels just stack up to creating enough of a squeeze on how expensive it all is to push people to drink the cheaper booze at home more.

The problem with minimum alcohol pricing

Scotland is set to introduce a 50p minimum price per unit cost on alcohol, it has been reported. It's also a move that some in England are using to suggest that our government should be follow suit sooner than later.

This is a policy that penalises being poor, without targeting the real problem groups when it comes to alcohol abuse.

Key Facts!

1. Minimum pricing will not affect the price of "premium" or "above standard" brands in the supermarket.
2. Minimum pricing will not have even a remote effect on the cost of alcohol in pubs and bars.
3. Minimum pricing will make cheap alcohol more expensive, creating a higher financial threshold for ability to consume alcohol, however responsibly.

These points are important in stressing how much this is a policy that is only targeting the poor. Point 1 shows that those who are more able to buy "nicer" alcohol, branded spirits, more premium blends of cider or ales, are not going to be affected. At a push it will make 16 pint bottles of Magners unable to be sold under £21, an increase of £3 in total on some recent supermarket deals, and making the individual bottle price at around £1.31 a pint, under half the price you would spend on the same drink in a pub or bar.

On that point, relating to point 2, it's clear that pubs and bars already charge so much that there is no chance of them being affected by such a law. Any rhetoric about this policy stopping binge drinking is complete nonsense. Buy one, get one free, double vodka and cokes will still be perfectly legal to sell at no less than £2.

Which leaves us at point 3, that those who can afford to go out bingeing won't have their alcohol drinking lives changed, those who drink "better quality" alcohol won't have their lives changed...so the only people that will see a change are those that don't have the funds to do either of those things but still wish to enjoy alcohol, however responsibly that may be.

So that's the "penalises the poor" aspect explained...but what about not targeting the real problem? Does it, as some suggest, strike the right balance between infringing on people's liberties and providing a good barrier to stop the main problem of alcohol abuse?

You may investigate these stats for yourselves, check out the history of Scottish Health Surveys, and English statistics

Let me illustrate the general trends with the 2010 figures from Scotland, which mimic previous years'.

The largest grouping of men that have tried alcohol, are those in a household in the top 20% of incomes in Scotland. The group of men that have most given up alcohol are those in households in the BOTTOM 20% of incomes in Scotland. Those who usually drink either more than the recommended number of units, or binge heavily on one day's drinking, come from households that are (you guessed it) in the top 20% of incomes.

This pattern is slightly different for women, with more women having tried alcohol from households with incomes in the second highest 20%, but otherwise mimics the men's statistics entirely.

In fact let me just put a couple of numbers here...less than half of men that reside in the bottom 60% of households in income terms will usually exceed the recommended advice on alcohol consumption. Men from the households in the top 20% of income? 60% of them usually exceed that advice.

Women are generally better as a whole, but while less than a third of women in the bottom 20% of household income will usually exceed government guidelines, almost half will usually exceed alcohol consumption guidelines from the top 20%.

To be even clearer, just so you see it's not just about household income. Male managers/professional workers that abuse alcohol... 52%. Male small business/routine workers? 46 or 45% And for women, 45% of managerial or professional workers abuse their booze, while only 33-36% of small business/routine workers do.

It's a statistic that has been prevalent in many studies. Before my last blog got destroyed by terrible web hosts (sob), I did a review of health statistics on young people (12-18yo) that showed the same trend you can see in Scotland and England... poor people drink less than rich people, not entirely unexpected given they have less money. More than that, poor people tend to abuse alcohol less than rich people, and where there is a subset of poor people that do abuse particularly excessively, they are a very small minority.

This minimum pricing law may be about raising revenues, it may be about increased tax takings from the increased revenues, it may even be a super cunning way of making sure cheap alcohol becomes less strong (as if the government would have that level of intelligence!). It has also been said that it's a way of encouraging people to go to the pubs...though how adding a relatively small price to cheap vodka will make people go out and more than double their spend in a bar or pub instead, is beyond any logic I can comprehend.

What it is not, even if it is intended, is a way of dealing fairly with the issue of alcohol abuse. When most alcohol abusers are rich or live in affluent households, and your policy does absolutely zero to affect, and therefore dissuade, them from creating a strain on our health services...you're not protecting the NHS, or people's health, you're just discriminating against those in society that have actually been on balance the most responsible, whether enforced through relative poverty or not.

This is illiberalism, and worse it's not even illiberalism that can be argued is going to go any way to dealing with the problem it was created to solve. It's control for the sake of looking in control, to prove popular with a set of busy-body voters that are actually the main cause of the problem themselves.

Edit, November 2012: So now the UK is going to put a consultation forward that includes plans for minimum pricing in the UK. Much, if not all, of what I have said above also applies to England.

Check the stats on alcohol use (pdf), in particular page 40-41. You'll see that as income levels fall frequency of alcohol consumption, and the quantity of alcohol consumption in one "session", falls...the one exception is men, where the economically inactive (retired, students?, carers, incapacitated) have an unusually high occurrence of drinking most days a week. This still isn't large, just larger than those who are similarly unemployed, and compared to the trends in other alcohol consumption stats.

We walk in to these kinds of policies because people believe it's necessary to fix prices so that the poor unemployed around the country are protected from themselves from drinking the devil's juice. The reality is that it's social discrimination without basis. This is the most hurtful kind of "compassion", where we tell the poor that alcohol consumption is only something they can do if they join the ranks of "normal" society and get a job and a wage. Then, of course, you can drink to your heart's (mal)content.

Online Safety Bill (1st draft) Review

There is a new bill out there, ready to be discussed and debated by Parliament, called the Online Safety Bill. This is the bill, that has received a lot of pre-release attention with news reports in the past few weeks, that Tory MP Clare Perry has been pushing for to change how ISPs operate...to "filter" out adult material as standard unless requested by the bill-payer.

There are a few things I want to make sure are absolutely clear before I go in to the detail of the Bill.

1) This bill is fundamentally flawed before it even begins as it presumes that by ISPs "filtering" out adult material, such as pornography, that it won't be able to be viewed by children. This is dangerously wrong, if it leads parents to believe that their kids are suddenly safe to roam the net without guidance then it is making the internet less, not more, safe. This is without even going in to the easy to find ways to circumnavigate ISP blocks on adult material.

2) This bill has not come about out of some altruistic and evidence based concern for the kids. It is a bill made by an MP who is presenting the findings of a report that is funded and pushed by Christian groups that aim to censor the web, not only from porn but from violence, bad language, and all the other nonsense that was present in the "video nasties" censorship culture of the 80s.

3) Absent from the debate so far, but hopefully will be interjected by those in the Lords and the Commons, is the issue of parental responsibility on this subject, with the assumption being that the state must intervene in order to "protect children". This is a terribly illiberal stance to take, and is the main reason I'm opposed to it.

So, on to the bill...

1 Duty to provide a service that excludes pornographic images

This section says that ISPs and Phone Networks will be legally mandated to ensure pornographic imagery is blocked, unless someone requests to be able to see pornographic images, and is verifiably aged 18+.

This is the meat of the bill. It doesn't tell ISPs how they should block content, only that they must legally provide a service that is 100% free of pornographic images outside of an age verified opt-in by the subscriber to the ISP.

From the get go this law is unworkable, as it is simply impossible for an ISP to be able to ensure that someone connected to the internet through their service won't be able to see porn without opting in. TOR networks, I2P...this is just scratching the surface on possible ways that people will be able to view porn through their ISP's connection without the ISP being able to do a thing about it.

As soon as the law comes in to effect, every ISP will be breaking the law simply by operating their service.

Taking the above issue aside, assuming that legislators will realise that it needs to create a caveat, what about the technical issues with such a law being adhered to in good faith by ISPs?

There is the issue of whether it is technologically possible to simply ban pornographic imagery. The bill only targets the images, yet images have no meta-data. Perhaps, if the ISP is lucky, the image may have content in it's name that is identifiable as pornographic in nature...but then this would block images that are not pornographic but have problem keywords in their name.

We have to, then, extrapolate this out. Since ISPs won't have the detail to be able to ban just the pronographic images, they'll be banning connections to domains that contain text and content that suggests imagery on the page is pornographic. It'll catch pornographic sites, sure, but it'll also catch Wikipedia, newspaper websites that report on pornography (such as this law), and other informational sites that don't actually contain pornographic imagery at all.

Sure, ISPs might in theory be able to be smarter with their filtering, excluding known sites like Wikipedia or the Daily Mail..however in practice they would not be able to, since to do so would open the possibility that a pornographic image is shown, even if it is for the purpose of commentary, debate or illustration.

The best ISPs will be able to hope for is page level detection of content on a case by case basis...as users browse sites the content of the page they visit will be intercepted, searched, and flagged as 'clean' or 'pornographic' on the basis of keywords in the page and the presence of images.

Yet even that last part, detecting presence of images within the code of the page, is unlikely to be a criteria since javascript insertion of images in to pages after their initial load would circumnavigate such checks.

Are we seriously going to ask ISPs to monitor our traffic usage in real time, to filter content (by blocking it's appearance) through this monitoring by running user-interaction scenarios to ensure that no content will be loaded in through secondary action? Does the government have any idea about how much this would cost to implement and run, and the effect it would have on the speed of our web browsing?

MPs and Lords may think that this is as simple as turning the Opt-Out system in to an Opt-In system, but they'd be wrong. My understanding is that right now an Opt-Out system is not required to filter all pornographic images, and is instead a filtering of known adult content on the web. Changing this to comply with a law that ensures web browsing "excludes pornographic images" is a whole different beast

2 Duty to provide a means of filtering online content

This section says that anything that can connect to the internet and receive data must have some kind of filtering element or software that can be used, at the point of purchase.

On we go to "ridiculous law" part 2, whereby MPs and Lords show how little they know about technology.

Thankfully not a law that also means the default for such filtering is "on", its still a ridiculous law. They talk about "electronic devices", defined by themselves as something that can connect to the internet and download something.

Modern TVs connects to the internet and downloads data...it will now need filtering software. Modern MP3 players, even without any graphical interface, can connect to the internet and download data...they will need "filtering software".

Right now you can buy internet connected coffee machines, fridges and garage doors. All of these "devices" would, by law, be required to have filtering technology built in to them.

Can you see how ridiculously vague this law is, and how many facets of modern manufacturing it will affect? The world is moving in to one where we have to increase the number of IP addresses (unique identifiers of a devices location on the internet) because of the sharp increase in internet connected devices that we will use in our homes, from TVs and Games Consoles, to lights and doors.

Once again there is little definition or structure here, while the implication is that the filtering would be for webpage traffic, the wording doesn't limit that. It would be easy to say that these devices would need filtering technology for any part that displays web-based content, sensible even since this part law isn't about stopping pornography from being able to be seen (section 1 does that), it's about limiting what individual devices can use that they download even if the ISP block is turned off (while on the move, for example, connecting to WiFi).

Yet this is why the section here shouldn't be here. If a parent is looking to view pornography, but set their kid's device to filter content, on a parental lock for example, then the reality is that the child will have every opportunity and ability to simply reset the phone to it's defaults and get around their parent's control.

But that's not all! The legislation talks about "point of purchase". This may well mean, for some, that manufacturers have to bundle in software to the box, if not in to the device, that allows for this filtering. But what of all the devices already out there? Does a firmware update that is up to the user to carry out constitute provision of a way to filter content?

What about devices that can't be updated in this way, via the internet (pre-filtered internet at that)? Does the manufacturer need to recall their devices so they can manually include the filtering provisions in the box or on the device? What about devices sold second hand? Should someone receive a 5 year old Nokia (for example) phone they bought of EBay, can they bring legal action against Nokia because the phone did not contain a way to filter the internet at that particular point of purchase?

It's insulting to the market that such an overarching and vague law would be placed here, with many manufacturers of devices and software doing everything that they can to provide parents with the tools to help, however futilely, to control what their children see on the web. If parents aren't happy with a company's products on an "online-safety" point of view, then there are other products out there that will make them happy.

Why we need legislation here is beyond me.

3 Duty to provide information about online safety

This section says that, despite already being legally mandated to block porn, ISPs must have some kind of online safety guidance that they can provide to customers.

ISPs will have to have a page on their website that says something, that hasn't been defined, about online safety. Whoop.

4 Reports

This section says that OFCOM will be responsible for reviewing how the law is being adhered to.

The government has been trying in various laws to make OFCOM responsible for regulation of the internet, and this bill is no different. OFCOM will have responsibility to assess how this law is going, the principle reason (given it's 3 year cycle of requirement to produce reports) likely to be to flag up changes in technology that need amendments making to this bill.

The final administrative bits of the bill states that the law would come in to effect 6 months after it's passing, a grace period for those affected to get their services and products compliant.

Conclusion:

Here we have a law that aims to make it damn hard for your kids to stumble upon a reference to porn on your internet-enabled toaster.

This bill is ridiculous, it puts unrealistic expectations on ISPs and product manufacturers, ignores the gaping holes in the ability for both to adhere to the law even if they do everything physically possible to try to comply. It is a placebo to the issue of child safety online, one that will only help lazy parents get even lazier about helping their kids understand how the web works.

As I said in point 2, this is the internet's "Video Nasties" moment, and so it's important that these first stages towards regulation of the web are opposed. This isn't the same issue as TV or video games, the internet is a virtual equivalent of walking out your front door and strolling around the city...it's time we treated it with the same realistic thinking and respect, and not as another medium for the state to filter and control.

What's really "chilling" about not releasing the NHS Risk Register?

EDIT: I have expanded this article from it's original

BBC and others are reporting that the Government is deciding to stick two fingers up to the Freedom of Information laws of the country, intended to ensure that governments and public bodies aren't able to do things without transparency and scrutiny, by not publishing the NHS Risk Register as they have been order to, thus creating a situation of lack of transparency and lack of proper scrutiny.

The reason given for the veto by "ministers", rumoured to be Andrew Lansley who seems to be unable to cope with his job as a public servant as he works tirelessly to go against what the public want rather than with it, is that it will have a "chilling effect" on civil servants. A Chilling Effect?

A chilling effect is the description used to suggest that through a law or action being in place, people will act differently than they would usually. If you put police on street corners, then they have a "chilling effect" on muggers in the area as they decide not to chance getting caught there and then. This is a "good" chilling effect, as it essentially stops people from doing what they shouldn't be doing (though there are bad effects that go with it, the balance is said to be "good").

Online, however, there are libel laws that greatly favour content owners and intellectual property owners, and the mere whiff of one of those owners bringing a case against you is enough to make you take down what you've written (or choose not to put it up in the first place). Rather than be proven guilty of anything, you are bullied in to an action you shouldn't have to do. This is a "bad" chilling effect, as it puts barriers up that ordinary people cannot fight, and concentrates power away from people that aren't necessarily doing anything wrong in to the hands that aren't necessarily doing anything right.

So...civil servants are going to have this "chilling effect" if we are all able to see the NHS Risk Register? How can that work, for a civil servant to be "chilled" from giving "frank" advice to Ministers? In theory, it can't, since the civil servants all work to a civil servant code (pdf) that states, very clearly...

You must:
provide information and advice, including advice to
Ministers, on the basis of the evidence, and accurately
present the options and facts;

and

You must not:
ignore inconvenient facts or relevant considerations
when providing advice or making decisions;

The code itself is not just a set of guidelines, it is a constitutional document of sorts, a contractual document. By not adhering to the "code" you are, in fact, breaching your contract as a civil servant.

Thus, the idea of civil servants having such a "chilling effect" begs a couple of questions. 1) Do ministers not understand the need for civil servants to be impartial, honest, and to act with integrity? 2) If they do understand, then is the government admitting that there must be a culture in the civil service of breaching the code in order to either a) help minister's causes or, worse, b) to further the agenda of the "civil service party"?

The fact that a "chilling effect" is the main reason for the NHS Risk Register publication being blocked, to me, brings up more worrying connotations about how civil servants act, and the fact that the civil service has (to my knowledge) not come out and quickly put a stop to the idea that their workforce would omit, skew or be dishonest about facts that they are asked to bring is thoroughly confusing.

The only other option is that the ministers in question are trying to use public ignorance to flout the laws that are there to keep the public informed...but they'd never be so brazenly dishonest, would they?

(Updated 09/05/2012):

Since I posted this there has been a lot of retweeting (Thanks @Glinner!) but also a further view on this issue from David Heath MP. He says, in defence of not fully releasing the NHS Risk Register (though not in defence of the veto used)...

The principle of not releasing the private advice of civil servants as part of the process of policy formation was recognised even when we were arguing over the original legislation line-by-line. Indeed, I remember trying to persuade ministers then to differentiate between the information on which policy was based — statistics, factual information and the like — which ought to be made available, and the opinions expressed by policy-makers disclosure of which might harm the process.

I fundamentally disagree with this view, though it may be naivity of the machinations of parliament and government on my part. For me the part a civil servant plays is black and white. They are there to provide information and advice for ministers and politicians that don't have the benefit of a long understanding of policy progressions and the realities of policy creation. At their core function civil servants are the glue that keeps successive parliaments moving along smoothly (in theory!).

However I once again ask, if the advice they give is not something they can back up with facts and figures, then shouldn't we know about this? If it is not ministers who come up with direction, but ultimately just take on the advice of a civil servant, how can we lay blame for failure in policies at the minister instead of at an unknown set of individuals giving poor advice?

I don't have a problem with civil servants being frank about their own experiences and views, and how they would colour their decision...more than anything else there is no way that we can ensure that such informal advice could be made transparent anyway...what I do balk at is the idea that actual official advice, the sort that would be formally recorded for an NHS Risk Register, for example, is not something we should see.

If we were talking here about companies, and business leaders, securing visits to ministers and giving them "advice", we'd want to know what influence those companies are having. We are tired of the practice of lobbying where companies get to operate under the radar in influencing our policy direction, and rightly so. Yet on the flip side we're meant to just accept that civil servants should be able to do the same?

I would argue that we need much greater accountability, and if poor decisions are being made through formal advice the public shouldn't be shielded away from how that advice came about. Who knows how many policy decisions are being based on bad statistics, or incomplete or questionably relevant studies? If ensuring FOI requests also shone a light on the advice given by the civil service, and results in civil servants no longer giving questionable advice...isn't this a good thing? If anything it would mean ministers would have to choose to operate on little advice, or to commission a more robust fact finding exercise, something I feel we sorely lack in policy decisions right now.

Publish the NHS Risk Register, let civil servants stop giving advice that they know would not stand up to public scrutiny, I don't see how our political system would be worse for it.

Elected Mayors... why limit ourselves?

It's been said that one of the reasons we must have elected mayors in Bristol is that it provides someone that people can vote for that has a "city level" programme of policies. The implication is that without an elected mayor, directly elected by the whole population of the council area, we couldn't achieve this.

That is patently false.

A lot of the reasons being given for the "benefits" of an elected mayor are not actually unique or even guaranteed by the use of such a "democratic" tool. More transparency, a city wide mandate, accountability...they're all just smoke and mirrors.

First of all, a Mayor is no more city-wide than the Leader of the Council. In fact I would go as far as to say they are LESS so. A Mayor has to consider how to get elected, the more candidate the more chance a prominent figure may get in, usually from one of the big three parties. Does this mean that they have to be "city-wide" in their scope? Of course not!

By tackling, for example, issues around anti-student feelings in Bristol, the in the Clifton, Cotham, Horfield and other such areas of the city, a Mayor could generate a serious amount of token support that may well help to guarantee an election, without that individual having any care for other less student oriented areas of the city. Indeed in Doncaster their mayor was elected precisely because he was a protest vote and struck a chord with a very specific set of politically motivated voters.

By contrast the Leader of the Council has to get the endorsement of a significant number of councilors from all around the city, councilors that are going to be concerned that the person they make leader has to be right for their area. By it's very process, albeit currently behind closed doors, the Leader has to have the confidence of half the city's councilors, who in turn had to gain the confidence of you, their voting public.

Seriously...how can the former be guaranteed, or even LIKELY, to be more city focused than a Leader of the Council?

That's not to say that the Leader role is perfect. Currently we elect local councilors to deal with our local issues, and we don't know what Leader we'll get on the council. This has been referred to as being a "stitch up" among other things, with the pretense that it's some kind of secret cabal that is trying to get a Leader in that the public simply don't want. That in itself is highly fantastical, but is born of the reality of the lack of transparency in our current system.

Now, let's see...there is a lack of transparency, so what could the solution be? Ah, of course, a new democratic construct that actually offers only a little transparency up front, to "tie you in" as an electorate, after which a democratic deficit in the processes mean that the individual can sit in office for 4 years finding it very easy to NOT do what they said they would do.

Analogy: If we built a house and it had no windows, what should we do? Knock some holes in the walls and put some windows in...or knock the whole house down and build a barn?

The system isn't right now, take the comparable national system. A Party Leader is selected in a transparent election process from their peers. This person has to publicly lay out their direction for the future, that forms the basis then of the manifesto that is put to the people, transparently, in an election. We elect MPs, these are local representatives who's primary purpose is to ensure that our local needs are being met on a national stage...but at the same time we know that if we vote for that Tory, Lib Dem or Labour MP that they come with the possibility of helping that manifesto happen.

This doesn't happen at local elections, we just elect local people on local issues. Some may think about who they want to run the council but this will be a strictly partisan thing since very little will be guaranteed about how the council will be run before the election is over. Why can't prospective leaders be put forward BEFORE each local election? Councilors could then pledge their initial support to individual leaders leaving the public in no doubt as to the direction the council would go in if they picked that councilor. And how would they know the direction? Because the leaders would have to put forward their manifesto for the city at the same time.

If this sounds a lot like the level of information and commitment to the city that you'd get from a Mayor, you'd be right, because functionally the roles are exactly the same...the only thing that differs right now are the processes. Do we need to knock down the house when a little renovation would solve our problems? It seems like (expensive) overkill! Just reform the processes, cheaply and easily.

From this you know that you'll have a leader that will have to cater to various specific parts of the city, and not concentrate on issues that only affect higher voting wards alone, because if they don't they will lose their position quickly, either through the councilors abandoning them or the voters sending a message through the change in their elected councilor next time around.

This leads on nicely to the next thing...accountability. Whoever tries to tell you that a person sitting in office for 4 years unable to be touched is more accountable than a Leader that knows a bad set of results for their party in every three years out of four could oust them, is a bloody liar.

But then the argument goes that it's better to have everyone choose directly rather than have their vote diluted through to a small core of individuals...yet it is that level of layers of democracy that gives us power. A councilor is much more in tune with keeping their voters happy in their small area than a mayor needs to be on a city wide level. A councilor is therefore much more able to be influenced and lobbied than a Mayor is. Likewise, that councilor is then a significant proportion of a Leader's support, and so they have a lot of lobbying power there too.

We have great connections with who runs our councils and how, if we wanted to exercise that power (and had more transparent information to do it on). You stick an elected mayor in there and we lose that power. Sure, we directly elect them, but then we have no sway over them until they decide they need to get us on board for their next term (if they want more than one go at the job). Worse, by economies of scale less individuals will find their voices are effective as more of their voices will fall in to groupings of populations that simply aren't necessary to listen to for the mayor to get re-elected anyway, and in geographies that make it harder for those individuals to spread any feeling of antipathy that could have an effect on policy direction.

So...

People will say that a Mayor will work for the whole of the city, but that is just an "ideal" situation, not guaranteed.
People will say that a Mayor will be more accountable, but depending on the politics of the city, and what the mayor does, that's not guaranteed
People will say the Mayor has a mandate, democratically and directly elected, but with a flawed voting system that can see a mayor with less than 50% of the vote winning, more people could *not* want their policies than want them
People will say that the Mayor won't need to be a career politician....but they are being largely delusional as to the realities of politics.
People will say it will help local governance grow versus national governance, yet the power that central parties gain by having a single Mayor to control through their party system doesn't allow that argument to hold any water.

The arguments for an elected mayor just don't make logical sense...they *sound* nice, and they *look* nice....who doesn't want MORE elections to directly say who we want to take a quasi-dictatorial role over our daily lives? It's gesture politics at it's worst, because not only does it not enhance anything that couldn't be enhanced on it's own, it actually removes safeguards.

I hope, for Bristol's sake, that they've voted No in this referendum.

Turns out that Bristol doesn't know what's good for them. While other major cities have realised that the system is flawed, we've jumped in (on a low turnout) and said "sure, let's give ourselves less chance to influence the direction of the city, and potentially get stuck with exactly the same situation we've currently got!". Well done Bristol. *slow claps*

Not another referendum...

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.

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)

"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...

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)

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.

"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...

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.

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.