Filed under: law | Tags: constitutional law, devolution, human rights act, labour party, napier, scotland act, scottish, scottish executive, scottish ministers, trainspotting
While reading this article I was reminded of a story I was told as an introduction to human rights. I hope this post interests readers, it’s certainly a piece that’s close to my heart – it’s Scottish Constitutional law. It’s a sordid tale of broken dreams, misplaced trust in man, drugs and the EC and I found it extremely interesting.
The Scotland Act is a fascinating piece of constitutional law and all Scots should read it — after all it’s the founding document of the fanciest named local authority of them all. The wording can be positively inspirational:
s.1(1) There shall be a Scottish Parliament
(2) One member of the Parliament shall be returned for each constituency (under the simple majority system) at an election held in the constituency.
…
(6) Be willing to trade all the days, from this day to that, for one chance, just one chance, to come back here and tell our enemies that they may take our lives but they’ll never take our freedom*
*There may only be 5 subsections in section 1, I forget.
Well, 1(1) is inspiring at least — you know exactly what the drafter is looking for there. The Act draws directly on the European Convention on Human Rights-there’s no messing about with the Human Rights Act for us Scots. Despite implementing the convention in roughly the same way as the Human Rights Act (another of the new 1997 Labour government’s constitutional reforms) it is not exactly the same in its implementation — the limitation period from the Human Rights Act was missed out. Then, the House of Lords had a look over it, pointed out that actions were unlimited with the draft and it was not corrected. We can only assume that Parliament intended it that way.
Unfortunately this beautiful act of trust in the concept of Human Rights met its natural conclusion with a man named Napier. Napier v Scottish Ministers is the early, Scottish Court of Session case, not Somerville which is the meaty, precedental House of Lords decision but Napier involves drugs and I feel that gives Napier “edginess”.
Robert Napier was locked in a cell with his cellmate of the time, a recovering heroin addict and as everyone who has watched the Scottish tourist board propaganda film “Trainspotting” heroin causes you to become constipated while it is in your system. With a regular habit you can became quite consistently constipated. There was no access to heroin in this cell. The man was no longer constipated.
A very long story (and an even longer night for Napier) later, Napier, who if I recall correctly was in the jail in connection with some fairly violent crimes and should not be considered the innocent victim of this story but nevertheless should be greatly pitied, was left in cell in a Victorian prison with no toilet, a small bucket and a recovering drug addict with diarrhea.
This grim scene, combined with other elements of the Victorian prison system (Scottish jails taught the European prison inspectors something new and they have to deal with the former Soviet bloc) lead to convincing a judge that this amounted to a violation of the pursuer’s article 3 convention rights:
No one shall be subjected to torture or inhuman or degrading treatment
Napier, as a Scottish individual, had two routes to his Convention rights the Human Rights Act and the Scotland Act, both of 1998. One allowed Napier to get damages but the other allowed him to get damages and every other person who has ever had to do their jail business into a pot could equally also, claim damages. There was no limit on how far back the cases would go because of the drafting of the Scotland Act. The Scottish Executive set aside £50 million in a liability fund and even mere to get a toilet in every jail cell as soon as possible. The oversight has been corrected -on the 18th of June 2009. 11 years after the House of Lords pointed it out while the act was still under debate.
I don’t know if you can really call that a loophole at that point, it seems more Parliament’s fault.
Filed under: General | Tags: politics, MP, they work for you, UK, Government, Question Time, celebrity, politician, heckling
Here’s a question – in the olden days, when everyone was busy with spending their oodles of credit and figured that MPs were dirty but hey, we’re all rich together, did anyone heckle Question Time? I’m not the show’s biggest fan or most avid watcher but I can’t remember it happening nearly as often (every week) as it has been recently. I think it, most clearly this week from Birmingham where a lot of the audience were forced to disclose job links to the car industry, shows that there is a serious lack of opportunities for angry, potentially unemployed people to shout at MPs from the comfort of a warm TV studio. Flippant phrasing? Yes. A gap in the current market? Absolutely, and an important one.
The format of Question Time is great for calmer situations – you have a panel of professional politicians and other speaking heads who sit in front of an audience who ask questions of them. It’s great if all you have is a vague urge to pick a group of people’s brains on a bit of current affairs but, to reveal some underlying ennui, it’s a bit of an insubstantial program at the base of it all, a great deal of posturing, a bit of slap talk and they all say they hate the BNP if it comes up (well, yeah but doesn’t everyone? Only anonymous people on the street get to like the BNP) but it’s not where work gets done. It’s also about the only one that people are invited into. Paxman et al don’t interview in front of a studio audience, certainly not one that can ask questions, and politicians are hard enough to get a hold of even before they’re elevated into positions of extra power. The fabled “MP’s surgery” is a fairly rare event at the best of times and Ministers (the kind of people you want to be able to get a hold of, even just to give them a good shake) may get a regular common or garden MP from a neighbouring constituency to do their surgeries for them, because they’re busy Ministering.
Heckling is a sign of the emotion that’s running through the citizenry. It’s also shockingly out of place in a show like Question Time for a fairly good reason – you can’t actually do much when a member of the audience is shouting out. It’s why stand up comedians have to deal with hecklers quickly and effectively to continue with their set. It’s why there’s a Speaker in the House of Commons. If people are shouting out it means that other people, who are waiting their turn patiently, can’t be heard. It’s rude and it spoils things for other people. That’s the huge, huge downside. The problem is that there’s no other obvious place for people to do this. There needs to be a greater level of public integration with the process – there’s no end of ways to talk to a politician if you’re a lobbyist or retain the services of one or, heaven forbid, you’re a politician yourself but it’s a bit of a black art if you’re not in the right circle. This is really something that needs addressed. I’ve been very impressed with the “They Work For You” site which basically aims to provide a connection between voter and MPs to show what they’re doing with their weekdays and to generally make the whole thing quite convenient, I’ve actually got an email alert set up for whenever Lord Hope of Craighead speaks(1), basically just because you can do that.
This is the sort of thing that’s needed for the current situation – a nice, convenient and personalised route to talk to the elected representatives that are nominally acting on your behalf but are apparently more likely to be huddled under their desk in their second home hoping their moat can keep the Daily Telegraph away. Routes do exist, but are they well publicised?
The truly hard bitten cynic in me wonders if people who shout out on TV are shouting out… on TV in the same way that, in a period of decreasing church attendance, Songs of Praise always seems to find the really full one every week and in that case, pointing them to surgeries and phone numbers and addresses and other means of meeting and talking to a real politician in a quieter setting won’t actually appeal to them because it’s more effective but it’s not TV but that’s just celebrity aspiration gone mad and I hope that’s not what’s lead to this rise in shouting on Question Time.
(1) Only when he speaks in the House of Lords, obviously. Not in general.
Filed under: Personal, Tech | Tags: corporate speak, linguistic, netbook remix, performant, presentation, report, Strike Out, Ubuntu
Admittedly it is a word. I just think it’s a very bad word. Teeth on edge sort of thing.
I use a modified version of the Strike Out system when I’m reading things online – if it’s something that’s interesting or important I’ll keep going but if it’s just for fun I will make a quick value judgement and if it’s badly spelt or poorly written in some other way I’m liable to get bored and go read something else. I also have a fairly short trigger for words which were spawned in the bleak hell of the corporate report/presentation.
Blue-sky-thinking-out-of-the-box has me physically wrestling the mouse towards the close box. Performant’s another word that gets a wince out of me. I think it’s a word you use to sound clever, like the egregious user of French. Which can be me sometimes but that’s because French is more beautiful as language than I am skilled in its performance. Remember I’m not here to say I’m perfect, just that using it to my hypocritical self is dicey.
The biggest problem with performant is that it’s a waste of a word, it’s entirely reliant on context to reveal what particular facet of performance you’re actually referring to. The next is the smugness which fair drips off the word, it’s a masonic handshake of a buzz-word clique, you either get it or you’re not cool. Thirdly is the fact that other words actually suit the situations where it gets rolled out entirely better.
This is due to me reading a review on the new Ubuntu Netbook Remix (9.04) release which said that the reviewer’s system was “more performant” with the new interface turned off. The reviewer means his computer was quicker after he disabled the newly added parts and that’s obvious. It’s still entirely valid though and there’s no shame in saying it was more responsive or merely just “faster”, which conveys more information while being half as many words. There’s simply no need to dive into corporate speak.
Edit (ugly, rant of a paragraph deleted): In hindsight does every post need a sharp non sequitr about law? Probably not, I don’t like the word, that’s all I’m actually saying.
Filed under: General | Tags: 2009 EWCA Civ 407, court of appeal, Jaffa Cake, pringles, procter and gamble, Revenue and custom, tax, VAT
Revenue & Customs v Procter & Gamble UK [2009] EWCA Civ 407 sounds at first glance to be one of those many commercial tax cases that are just sent to try us students with copious amounts of critical, yet tedious, detail with mind bogglingly large sums of money dropped in for flavour.
It turns out to be rather more entertaining – making it to the front page of today’s Metro, a free paper not well known for its legal reporting, because it concerns Procter & Gamble trying to prove that their savoury snack is not made of potatoes, to the horror and confusion of shoppers everywhere.
In a similar arrangement to the Jaffa Cake debate (I still don’t know*) the “once you pop you can’t stop” “savoury snack” (says Procter and Gamble) that is Pringles has been thoroughly judged to be a potato crisp.
The real precedential gem in this Court of Appeal judgement does not concern food or tax more than any other field but is the creation of (I believe) a new legal standard to stand alongside the venerable “reasonable man”, the “reasonable professional” and the “moron in a hurry.” It is the standard of the “child at a party.” That is, what would a child at a party interpret the product to be. I find it hard to express in words just how lovely I find this test.
The Court of Appeal ruling has cost the makers of Pringles potentially £100-120 million so I suspect moves to a further appeal are already under way so it remains to be seen if the child at a party will be an interesting bit of obiter or real, live law.
Although on hearing the arguments of the manufacturers I don’t know if the child should have Pringles at his party in the first place. The Guardian sub editors are calling this a “brilliant, ‘our product is rubbish’ defence” and they’re pretty spot on, one of the language arguments (the VAT regulations were distinguished on a made of / made from point) was that you couldn’t say they were made of potato because they were made from nearly equal amounts of fat, a detail sure to warm (and clog, possibly) any mother’s heart.
*the court says cake, yes, but I’m still not convinced
Filed under: General, Personal, Tech | Tags: advert, blackberry, email, Internet, joe teenager, letter, mobile, phone, post, RIM, spam
Dear Internet,
I’ve noticed you never get letters anymore, it’s a shame. The only thing that comes through the letter box now is generally a bill. The electronic version of the letter, the email, is also in grim condition. It is either a spam infested wasteland or a firmly stodgy business tool. The current champion of email – Research In Motion has made millions from business email but has struggled to make a similar dent into the consumer market.
Young people, it appears, have decided that email is a big business shill and do not use it for social purposes preferring to use instant messenging and social networking sites. I find that sad as a young person who actively likes email. I think email is the letter of the internet – you write it all in advance, address it and send it off, to get a whole message back.
Letter writing is nice, email is a little less formal – there’s no chance to open an envelope and it can be lost among adverts for various enhancements. Since the email is so much like the much appreciated letter, except less expensive and quicker, it is sad to see that it has been relegated to the position of “work tool” by the young people of today.
Although email is undeniably a fantastic tool for work, as is the traditional letter, and many technologies rejoice to be adopted as one because it will be written into compliance specifications and generally hand around for future decades it does mean that Joe Teenager will not be so keen to go for it. That means that when Joe Teenager becomes Joe Office Worker email genuinely will only be a work tool to him.
RIM has made excellent money from showing how useful not much more than always having access to your email can be but remains very much a corporate business – it only recently put cameras on its phones because of corporate policies against cameras. The Blackberry, however, is a household name – they are quality devices and Barack Obama loves them which are just two substantial points in their favour.
The mobile phone, in my eyes, is not the easel for the next great letter, which should rather be penned in an attic flat, next to a window while it’s raining to really set the scene but with all teenagers (seemingly anyway) possessing phones with email capability this could be the scene of the resurgence of the letter. Next time Joe Teenager (or Joe Twenty Something, or Joe Thirty Something or…) is on a bus for a few minutes with nothing to do he should sit down and start to write a letter, using his phone and sending it off by email. He should occasionally resist the temptation to send a quick text now and again because you can say much more in a letter.
Yours,
A blogger
Filed under: General
I’m just going to quickly get this in under the wire – 20/05/2009 is the one year anniversary of the start of this blog. It’s been a very varied year with lots of learning, too much bunking off and some heart stoppingly scary exams at the end but I still think I need a summer holiday at the end of it all. First though, comes blogging.
364 days since this blog started with a call to the first year exams I’m finished my second year ones. They are harder, it needs said, and much less fun this time round. If you let your classes get away from you the catchup is like dealing with jetlag.
I’m going to list some of the topics I’ve been saving up while the exams were cramping my style as an advance warning:
Highbrow: MP Expenses
Lowbrow: Pens (I’ve had enough time with these lately to get fairly interested in them)
and some more
Filed under: General, law | Tags: academics, Antonin Scalia, business, counter terrorism, danger, data, data security, DNA database, dossier, human rights, information, information economy, intelligence, internet privacy law, Joel Reidenberg, judgement, knowledge, marketing, privacy, public figures, public sector, scalia, US supreme court
Knowledge comes in two massively different categories – data, which is the collective name for “facts” and then there’s information, which is data when it has been put into context. We have been told that we are living in a “information economy” and this is a lot more literal for some people than others – information has become a marketable good in itself. This is not a new phenomenon – there are reports of employees selling books of customer details to competitors for hundreds of years. If information is so valuable should we be concerned about information about us?
Antonin Scalia, the US Supreme Court Justice, doesn’t appear to think so. In fact, he’s gone so far to state that he believes it is “silly” to think that “every datum” about you online is private. I think he’s perfectly right in that statement but I would dearly like to be able to say that some information about me is private, Scalia agrees. I think it’s too far to say that data that I didn’t publish should be private but it’s probably really quite close for private individuals. If I actively choose not to fill in an item on a social networking profile that’s because I chose not to say. If someone circumvents me in my desire to not reveal personal details that’s obviously a move that impacts upon my privacy. Is it legally actionable or indeed malicious or even harmful? That varies on the detail that’s been revealed but I would have less privacy now than I did before.
The danger of data?
Data is pretty harmless without context and there are few facts about people that are “dangerous”(1) in isolation. The real “danger” is aggregation – collecting and putting that data into context. I say danger but it’s actually a very valuable part of the world and always has been. Every student and researcher does this every day they work, it’s the very basis of academia and it’s their collecting and analysing of information that is the added value that they’re rewarded for. The collecting of data is not an inherently bad act, it’s not always a bad thing. Some data collecting activities are illegal because of what the data is but the action of collecting images is not bad unless the images portray something illegal.
The role of data in academics
The academic world has long believed that knowledge is more useful when it is put together in context. This leads to people creating periodicals, textbooks, journals, papers, everything that is produced by the academic world relies on the collection and analysis of data in one way or another. This type of data collection is generally beneficial to society unless the mode of collecting the data itself is flawed or unethical and generally it’s not been a problem. We have ethics committees for that.
Data collection as a business
It’s equally useful in other places than just dusty universities – the marketing world has long believed that people can be sold to more effectively if you have a very detailed picture of them. To this end millions of pounds are expended annually on creating accurate surveys and market research and it’s often a very worthwhile investment to target marketing budgets very carefully.
Data collection in the public sector
The public sector intimately relies on the collection and management of data. The census is probably the largest data collection process currently undertaken and it is used to assess the level of funding for many public services (if the census says we have more children that means we need more capacity in schools). The compilation of the census is a hugely important job and it’s crucial for efficiency that it’s done accurately. A welfare state needs to know where it should be sending the services that it provides and in what proportions. It would be lovely to think that in the great British transaction taxpayers (obviously I’m a student, so Ken Dodd and I are taking a moral stance) merely swap taxes for services and that’s all but it seems increasingly we don’t.
The intelligence community is equally interested in collating information and it has been manifested, quite disturbingly, in the idea that you can identify “terrorist behaviour” and then, by using “data mining” thresh out the people exhibiting this terrorist behaviour so you can question them. This leads to the Home Secretary’s apparently inexorable plot to collect every piece of information about the electorate she can possibly lay her hands on. I think it leads to a crippling amount of false positives once you put the whole country on it and leads to a horribly high amount of people coming under vaguely McCarthyist levels of suspicion (and remember national security is area that the courts are often wary of overruling the executive on) for merely behaving in a way that is out of the average, which is especially hard because the authorities obviously can’t tell anyone what “average behaviour” is because then the people you’re trying to find could use it to hide. This is a massive issue in today’s Britain and one which appears to not be going away, especially with the deliberate human rights incompatibilities which are starting to really mount up with the UK DNA database.
The response to Scalia
Scalia’s comments have attracted a lot of attention, his use of the word “silly” has been considered by some people to be particularly offensive. The topic is very important to a great number of people and it deserves to be taken seriously. It is taken so seriously, in fact, that Information Privacy Law is taught as a class at Fordham Law in the US. The professor in charge – Joel Reidenberg – sets a piece of coursework which is to compile as much information as possible from publicly accessible sources on a particular person, generally himself. This year, however, the setting of the task happened to coincide quite neatly with Scalia’s statement and, this is extremely controversial, he became the subject of this year’s assignment.
US law students, probably because they’re on courses which leave them in such sickening levels of debt they absolutely require top dollar jobs to possibly pay off, are amazingly industrious and the hand-in they submitted ran to 15 pages of facts about the judge. As a combination of a desire to be ethical and open and to encourage debate the dossier was sent to Scalia to show him how unprivate his life was and see if this would change his mind. I found his reply to be fairly unexpected.
Scalia’s response
Scalia, to everyone’s surprise I think, did not really reply with a answer to if he considered the dossier to step into areas which he considered to deserve privacy protection or if it actually did break privacy law or other issues which I’d really love to hear him answer on but instead criticised the professor for his “judgement”. I can understand his reaction to this – receiving 15 pages of facts about myself would make me feel deeply uneasy since they come from a stranger and it’s not a justification to “e-stalk” because they said it wasn’t a universal right. Deciding you can teach someone a lesson by doing what they said was fine leads down a dingy road which ends with Dick Cheney being waterboarded. It’s not ethical just because people don’t see a problem with it.
Comments that suggest that Scalia was “asking for it” are wrong, he was not asking for a 15 page collection of his publicly accessible details to be arrive in his mail. He would have used totally different language if he was, probably including “I’d like” or “Please can I get” more than he did. He was taking a strong position on the topic but not actually giving his blessing to the project. However, that does not mean the dossier does not constitute an incredibly useful discussion aid in this debate and I believe that is what it was intended to be.
That out of the way I would dearly like to know what facet of Reidenberg’s judgement was wrong in Scalia’s opinion – legally, morally, socially, ethically? I think that Scalia simply saying that he thought the dossier was ill judged leaves so many questions unanswered. Most fundamentally of all would be “what is the ill-judged element?”
The dossier contained no new information, it was simply a collection of facts already accessible on the internet. All the students did was put the dossier together, probably using little more than a combination of copy and paste with Word’s footnotes and formatting for polish and referencing. If Scalia thinks the dossier was ill-judged he presumably must think that the aggregation of data is what’s ill-judged. That leads to some quite thought provoking questions:
- Does that mean that marketeers are practicing bad judgement when they compile demographic data?
- Is the government practicing bad judgement when they compile census data?
- Is it ok to use surveys because they’ve been consented to?
- What level of consent could you use to stop people repeating the dossier project?
- Are we talking EULAs on search engines here?
Most of all we have to ask is “bad judgement” illegal?
Legality
This is what it comes down to. Could bad judgement be enough to make the compiling of data illegal? Not in the US according to Scalia and also would we be comfortable being quite that paternalistic? Privacy law is supposed to cover unreasonable violations of privacy and no further, especially in the US where the right to free speech is entrenched in their highest source of law.
This requires a line in the sand to see what is unreasonable. It is a difficult task further complicated by the unusual nature of data even the most sensitive facts about a person – even something like “HIV positive” – is harmless without other pieces of information – a name, for example. Whereas very innocuous details, “[name] has spent 5% more on petrol than average this month” when combined with other equally innocuous trivia can reveal hugely embarrassing or unfortunate situations which completely violate the person’s privacy, for example [name] suffering from a serious illness and using the small amount of extra petrol to drive to hospital for regular treatment.
We would consider “outing” an HIV sufferer to be a massive breach of their privacy if they are not a danger to others yet we could not draw an unbreachable privacy line at “petrol receipts.” This does not help anyone in deciding if the information they possess is going to be an unreasonable breach of privacy when it’s put online before a judge decides on the legality of the end result and that’s a difficult position to be in.
Edit: Thank god I went for broad strokes instead of lots of close analysis. As someone who has tried to get full quotes from the Associated Press will know, that was not the full response, this appears to have been:
I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.
It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.
This is a bit better response than a mere “ill-judged.” I still wonder if it covers malice which is a wholly different kettle of fish. The issue would have many fewer people wearing tinfoil hats if it was simply an academic exercise that law students did in an elective but there are hugely significant implications which need to be addressed. The reference to the First Amendment is quite interesting, it’s a constitutional right that often gets criticised as everyone’s free ticket to shooting their mouth off with impunity. Scalia’s statement of using the rights in the first amendment with responsibility is common sense but it’s not something that can be guaranteed – just as data collection can be innocent and it can be something more. There’s limits on free speech in the UK, who’s to say there can’t be the same for data collection. The only question is what metric we use for that limit.
(1) from a data security perspective
Errata
It has been noted in the comments that some details are incompletely stated or inaccurate:
Justice Scalia was sent a letter which included an offer to be sent the dossier, rather than the entire dossier itself (which is, subjectively speaking, a better image in a narrative)
Scalia’s response was sent through the “legal tabloid” abovethelaw.com and not the professor directly.
I don’t believe I stated that the dossier has been published but just to be explicit – it’s not been. It’s still a “course material” and protected as such.
Thanks again to the commentator “Accuracy” for the fact-spotting.
