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The man who coined the term 'Bedroom tax' is an expert in housing, and a Crossbench peer
There are reasons why the “bedroom tax” is so unpopular. It has all the right ingredients. It affects families that garner popular sympathy: foster parents, military families, and people caring for their disabled or terminally ill husbands and wives. This is not “un-deserving poor” material. Furthermore, losing a bedroom is a highly visible, concrete sacrifice with is relatively easy for the media to understand, compared to, for example, the NHS reforms; and certainly much easier than trying to illustrate the impact of benefits uprating. It even has a snappy name – the ‘bedroom tax’ – perfect for a twitter hashtag and one which resonates with connotations of the poll tax, granny tax and pasty tax.
Virtually every week, David Cameron makes fun of Ed Miliband and Labour for arguing that the “bedroom tax” is not in fact a tax. Yesterday’s pre-scripted jibe was typical of so many feeble attempts to discuss this important societal issue coherently, as follows:
“Let us be absolutely clear that this is not a tax. Let me explain to the Labour party that a tax is when someone earns some money and the Government take some of that money away from them—that is a tax. Only Labour could call a benefit reform a tax increase. Let me be clear to the hon. Gentleman: pensioners are exempt, people with severely disabled children are exempt and people who need round-the-clock care are exempt. Those categories of people are all exempt, but there is a basic issue of fairness. How can it be fair that people on housing benefit in private rented accommodation do not get a spare room subsidy, whereas people in social housing do? That is not fair and we are putting that right.”
Lord Richard Best was one of the first high profile figures to use the phrase when the Welfare Reform Bill was going through parliament towards the end of 2011. However, Lord Best, speaking yesterday at the Chartered Institute of Housing south east conference in Brighton, said: ‘I coined this phrase bedroom tax because this is a tax.
‘I have been much criticised for using this phrase, but if you have to pay a sum of money and you cant escape from doing so, and that sum of money goes to the government – it looks to me all very much like having a tax.’
Lord Best said housing associations need to make the point to government that the bedroom tax will reduce their income. He said:
‘The thing that will chime with government is that it will lessen your ability to build more homes and the government really does believe we need to do that.’
And here’s the rub. Lord Best is actually an expert in housing, and a Crossbench peer. His Wikipedia entry is as follows:
David Cameron made a couple of glaring errors about the tax yesterday, summarised in C4 FactCheck:
““People with severely disabled children are exempt.”
No. There’s no automatic exemption for disabled children. In fact, not only is the government not making this blanket exception, it is actually fighting a legal challenge on the point from 10 disabled children who argue that the rule changes amount to discrimination. Under the new rules, the full benefit will only be paid if under-16s of the same sex share a room, and under-10s will have to share regardless of gender. And the expectation is that this will apply to disabled youngsters too. But local councils will have the discretion to waive the cut in regard to some disabled households. And there is a £30m hardship fund, the money targeted at preventing people whose homes have been adapted to help them cope with disability from being forced to move. We don’t have much more detail on exactly what guidance has been issued to local authorities on who they spare from the cut, or how many disabled children are likely to be affected. And the £30m has to be seen in the context of the total benefits cut disabled people are expected to take. According to government impact assessments, 420,000 of the 660,000 people affected by the changes are disabled, and they will lose an average of £14 a week. That’s just under £306m a year.
So there is some money available and councils are expected to use some discretion, perhaps mitigating the impact for the most severely disabled, but there is no “exemption” for disabled children overall.
“People who need round-the-clock care are exempt.”
Wrong again. DWP has said that an extra bedroom is allowed if a disabled person has a live-in or overnight carer. But that doesn’t apply if the carer is also your partner or spouse. If you are disabled and your wife is also your full-time carer, but needs to sleep in a different room, you will still face a benefit cut. Again, you could be eligible for money from the hardship fund, but that doesn’t amount to an exemption to everyone who needs 24-hour care.”
Indeed, a high court judge has given Iain Duncan-Smith days to show why there should not be a judicial review of the government’s “spare bedroom tax”, amid concerns that disabled people will be disproportionately affected by the change in benefit rules. This legal challenge against the benefit reduction had been launched against Iain Duncan Smith on behalf of ten disabled and vulnerable children. The claimants were hoping for a judicial review to take place before the tax comes into effect on 1 April but in the high court on Tuesday, Mr Justice Mitting said that was too short a timescale. However, he indicated that if, after hearing the Department for Work and Pensions’ grounds against the challenge, he was satisfied that the judicial review should go ahead, a full hearing could take place in early May.
Conclusion: the Government’s answers may fool some of the legislature, but, most importantly, they do not fool many in the public, and are unlikely to fool the judiciary.
The EU Data Protection Regulation: dual challenges for proportionality in primary care and for research
According to today’s Health Services Journal, the new Caldicott Review will recommend a new duty of sharing of medical data where it is in the patients’ best interests:
“The Caldicott review into information governance in health and social care is likely to recommend a new duty to share information between agencies where it is in a patient’s best interests. In an exclusive interview with HSJ Dame Fiona Caldicott, who has been leading the review for the past year, said the six information governance principles she formulated in 1997 were still relevant today. Her previous review led to the introduction of “Caldicott guardians” responsible for data security in each organisation. However, she said her current review would propose two modifications to the rules. “We’ve suggested a new principle which is about the duty to share information in the interests of the patients’ and clients’ care,” Dame Fiona said. The move would balance a tendency towards caution over sensitive information, even where sharing it between health or care providers could lead to better care, she said.”
Sir David Nicholson yesterday conceded that he found it odd that he could be sitting around a board meeting table, and the Chief Nursing Officer of a particular trust would be regulated by his or her regulatory body, the Chief Medical Officer would be regulated likewise by his or her regulatory body, but the manager would not be professionally regulated by any body. However, as a mechanism of last resort perhaps, nobody is above the law. As described here, on 25 January 2012, the Commission published its proposal for a new ‘General Data Protection Regulation’. The proposed Regulation promises greater harmonisation – but at the price of a significantly harsher regime, requiring more action by organisations and with tough penalties of up to 2% of worldwide turnover for the most serious data protection breaches. The draft Regulation is even longer than the current Directive (95/46/EC), running to 118 pages and 139 Recitals. The draft is to be finalised by 2014 and is planned to enter into force a further 2 years after that finalised text is published in the Official Journal. This Regulation is to have powerful effects on domestic policy regarding medical data sharing for research and for medical care. Whilst the legal doctrine of proportionality governs both policy issues, they have the potential to cause unhelpful confusion.
The European doctrine of proportionality means that, ‘an official measure must not have any greater effect on private interests than is necessary for the attainment of its objective’:Konninlijke Scholton-Honig v Hoofproduktchap voor Akkerbouwprodukten [1978] ECR 1991, 2003. Exactly how the courts should approach issues of proportionality was discussed by Lord Steyn in the case of R (Daly) v SSHD [2001] 2 WLR 1622, in which he said at paragraph 27: “The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself: “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
The response by the European Public Health Association to the report by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs report on the proposal for a General DataProtection Regulation (2012/0011(COD)) sets out the formidable nature of this challenge.
“The European Public Health Association, representing 41 national public health associations with over 14,000 members, welcomes the proposal by the European Commission to propose a Data Protection Regulation (2012/0011(COD) that seeks to create a proportionate mechanism for protecting privacy, while enabling health research to continue. In particular, the clarity provided by these proposals will make it possible for high quality research that will benefit their citizens to be undertaken in some Member States where this has not previously been the case. However, we view with the utmost concern the amendments set out by the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament in their report dated 16.1.2013. These amendments would mean that:
- Data concerning health could only be processed for research with the specific, informed and explicit consent of the data subject (amendments 27, 327 and 334-336)
- Member States could pass a law permitting the use of pseudonymised data concerning health without consent, but only in cases of “exceptionally high public interest” (amendments 328 and 337)
- Pseudonymised data would be considered within the scope of the Regulation, even where the person or organisation handling the data does not have the key enabling reidentification (amendments 14, 84 and 85)
The consequences of these amendments for health research would be disastrous, a description that we do not use lightly. If implemented, they would prevent a broad range of health research such as that which has contributed to the saving of the lives of very many European citizens in recent decades. We are concerned that these amendments must reflect a misunderstanding of the nature of health research and the central role played by data in undertaking it, and in particular our evolving understanding of the crucial importance of obtaining unbiased and representative data on large populations so as to minimise the risk of reaching incorrect conclusions that could potentially lead to considerable harm to patients.”
And indeed the authors of that letter, Professor Walter Ricciardi (President) and Prof Martin McKee (President-Elect) [at the time of writing of that letter 21 February 2012], concluded:
“We understand the need to strike an appropriate balance between the societal need for research that can promote the health of Europe’s citizens and the mechanisms that ensure the safe and secure use of patient data in health research and the rights and interests of individuals, while noting that they themselves have an interest in being able to benefit from treatment based on research. We believe that the Commission’s proposals achieve this balance but that the proposed amendments do not and, if passed, they would have profoundly damaging implications for the future health of Europe’s citizens.”
This has been followed up with the following, taken from “The ESHG suppports an initiative of the EUPHA: “EU Data Protection Regulation has serious impact on health research” (dated 7 February 2013):
“A number of these have serious implications for health research, based on the rapporteur’s premise that “processing of sensitive data for historical, statistical and scientific research purposes is not as urgent or compelling as public health or social protection.” He gives no indication of how the evidence for urgent action for public health or social protection purposes might be obtained without research. Were the amendments to pass, the major concern is that they would mean that identifiable health data about an individual could never be used without their consent. This would mean that much important epidemiological research could not take place. For example, it would outlaw any registry-based research, such as that using cancer or disease registers. This would also make it virtually impossible to recruit subjects with particular conditions for clinical trials. The amendments would allow Member State to pass a law permitting the use of pseudonymised/key-coded data without consent, but only in cases of “exceptionally high public interest”. (Amendment 27, p24; Amendments 327 and 328, p194-195; Amendments 334-337, p198-200.) this would be an impossibly high bar for all but the most exceptional research, such as that on bioterrorism. In addition, the amendments would bring all pseudonymised/key-coded data within the scope of the Regulation, even where the person or organisation handling the data does not have the key. This would significantly increase the regulatory burden on organisations using pseudonynmised data or sharing these data with collaborators in countries outside the EU. (Amendments 13 and 14, p15-16; Amendments 84 and 85, p63-64). This would have implications not only for the soon to be 28 Member States but also for accession states implementing the acquis communitare and for those in other countries collaborating with EU researchers.”
However, there is another big problem looming on the horizon for data sharing of medical information. Currently ATOS is running a service which allows queries to be made of GP data (“GP extraction service”), with the main GP IT “system suppliers” providing the hardware for this to be possible in GP surgeries. The information can then be made available to DMICs (formerly the “CSUs”), and it is currently unclear how the DMIC will be processing this information legally in compliance with the Data Protection Act [1998], and the rôle of the NHS Commissioning Board in “requiring” information from the system. A very basic description of this new scheme is shown pictorially below.
The expectation is, nonetheless, that these medical data have commercial value to industry, pharma, management consultancies in health, etc. as “big data”. It is argued that the prospect of commercial sale of medical data is part of the justification for government expenditure on GP data and the drive towards “integration”. Already, there is growing recognition for the need for clinical regulators to keep a careful eye on potential drifting of confidential information under the guise of ‘presumed consent’, not genuine informed consent. There is arguably a material risk that any public outcry over commercial sale of patients’ data without consent, or any major mishap in commercial handling of personal health data, may lead to justification for clamours to support the EU proposals and subsequent legislation.
Indeed, the legal doctrine of proportionality might come back to haunt the keeping of these data somewhere in the system. In a famous unanimous judgment, S and Marper v UK (2008), delivered 4 December 2008, the European Court of Human Rights found that the retention of the applicants’ fingerprints, cellular samples and DNA profiles was in violation of Article 8 of the European Convention on Human Rights – the right to respect for private and family life. Again, this case fundamentally rested on the legal doctrine of proportionality (full judgment here); as discussed elsewhere, the Court recognised the state had a legitimate aim in retaining DNA and fingerprints. The Court then examined whether retention was necessary in a democratic society. Certainly, the door is ajar to a test case being taken later down the line whether the GP extraction scheme is unlawful given article 8 considerations, and organisations such as Liberty may then be the most unlikelist of campaigners for patient confidentiality in reality.
These are complicated issues, but the framework for the extraction of GP data and their use, and the use of information for research in public health, appears to be the EU Data Protection Regulation. That is why it is important to get the implementation right in our domestic policy, otherwise there will be test cases brought in front of Europe in due course. Whatever the knee-jerk reaction politically to Europe and the whole issue of human rights, it is most unlikely that we will leave Europe as all three major parties have triangulated themselves into a position of being pro-EU. However, whilst the details of these discussions might be taking place behind closed doors amongst key stakeholders, they will need to be aired one day.
Why David Cameron's "lurch to the right" must not be above the law
Like John Hirst, the former prisoner who studied law and put the UK on-the-spot about the proportionality of imposing a total ban on prisoners using the vote, David Cameron is not above the law. In a question on fox hunting once in Prime Minister’s Questions, Cameron voluntarily offered the information that he had not done anything unlawful; this was a stupid strategic error, as nobody had accused him of having done anything unlawful. The ‘rule of law’ holds the supremacy of the law, everyone is equal in front of the law, and nobody is above the law.
David Cameron does make the law however for the time-being. He can effectively do what he wants: hence the famous aphorism of parliamentary supremacy of Sir Leslie Stephen ((1832–1904), “If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.” [The Science of Ethics, p. 145 (1882).]
Eastleigh was a tragedy for Cameron. Having set things up nicely on how his party would offer a referendum on Europe in 2015, which kept the Tory Euroskeptics happy for the time-being, the UKIP backlash was fully active last Thursday. Whilst UKIP does not have a single MP yet, they still threaten the Conservatives with the power to deny them an overall majority. And yet, David Cameron knows that he cannot unilaterally have special terms for the UK’s membership of Europe. Sure, directives can be applied by our Government according to parliament’s wishes, but if he wants anything more he will have to leave Europe. He is not above the law, but he could repeal the European Communities Act (though it would be difficult for him to do so). Even if David Cameron decides that he wishes to tear up the Human Rights Act, he will still have to submit human rights allegations to Strasbourg unless he decides not to become a signatory to the European Convention of Human Rights. Louise Mensch has described that the Human Rights Act itself is faulty, whereas most learned experts feel that the implementation of its analysis could be improved, and we are better off doing the proverbial in the tent than outside it. Leaving the European Convention of Human Rights denies us any moral authority on commenting on the human rights of other jurisdictions, and sets out a very dangerous signal in terms of reputation on our attitude towards inalienable human rights as per Delhi for example.
The more insightful conclusion is that David Cameron is desperate. He was initially tolerated as Prime Minister, but generally even this has deteriorated to being positively loathed by people within his party and outside of it. His Coalition, for example, has legislated for the Health and Social Care Act, which contains one clause section 259(10), which in conjunction with the Data Protection Act and Human Rights Act, is an area where the European Court of Human Rights could easily find the approach of GPs to data confidentiality unlawful; this could be determined one day in a test case similar to S and Marper v UK. It is helpful indeed that lawyers are able to act on poor legislation, as indeed they recently had to do with Iain Duncan-Smith’s mandatory work placement schemes (in the case of Cait Reilly). However, it is the democratic deficit, that laws appear to come from nowhere (and certainly not contained in any party manifesti at the time of the 2010 general election), which is most worrying. It is not so much a case of this Coalition ‘running out of things to do'; it is rather a case of this Coalition ‘running out of things to destroy’.
Unpacking the legacy of this Coalition is going to be extremely painful. George Osborne’s “badge of honour”, the triple A rating, was humiliatingly stripped off the Government, as Moody’s caste judgement on their deficit reduction plan. Construction performance hit a 41 month low this morning. Anyone with the most rudimentary understanding of economics will appreciate that the Coalition terminating ‘Building Schools for the Future’, and other key infrastructure projects, put the brakes on the economy which had been recovering in May 2010. Add to this an increase in 2.5% in the VAT rate, encouraged by corporate CEOs writing letters to the Times, and murder of consumer spending, and you can easily understand how corporate interests saw the UK’s economy being sent down the river. But it’s ok because we don’t have a functional BBC. The BBC, which is not covered by the Freedom of Information Act, is not obliged to explain its ‘creative authority’ for why its journalists never explain why the deficit exploded in 2009 due to a £1 tn recapitalisation of the banks. It does not need to explain either on the basis of its creative licence either why it barely mentioned the activities of the NHA Party in Eastleigh, or why the criticisms of the 2012 Health and Social Care Act (and the concomitant statutory instrument 2012/057) evade scrutiny. However, the reality is that the UK has been trashed like a Bullingdon restaurant party; whether this is the scrapping of the education support allowance, the implementation of tuition fees, the shutting of libraries, the poor regulation which allows ‘value’ horsemeat to be fed in school dinners, the privatisation of the NHS, the triple dip recession, rioting in the streets, or otherwise, the UK at the moment is a disgrace compared to what it could and should be. David Cameron’s “lurch to the right” will not get round that – his only way to get above the law is to rewrite it fast. The other way to get above the law is to annihilate access-to-justice, and by stopping access to the European Court of Human Rights, or any high street mechanism of achieving justice (for example, high street law centres or citizen advice bureaux). No comment.
My blogposts on Section 75 Health and Social Care Act and NHS England Procurement Regulations (SI 2013/057)
Since 7 January 2013, I have written a number of blogposts detailing the legal and policy implications of the Health and Social Care Act and the statutory instrument 2012/057.
These are on the “Legal Aware” blog.
Main article:
SI 2012/057:
The legal issues in the statutory instrument (2013, No. 257) on NHS procurement in England
Possible letter to send to the Clerk of the Committee
VERY IMPORTANT. Tomorrow is the last day to the write to the Clerk about SI 257
Lord Owen’s Bill:
History:
This one on stakeholder reaction is published on the ‘Socialist Health Association’ (independently authored) blog:
Rainbow coalition warns about section 75 NHS Regulations
Eastleigh reminds us all that all the Conservatives need to do is lose
Eastleigh was a remarkable by-election. It reminded us that, for Labour to win the General Election, all the Conservatives need to do is lose.
It cannot be considered fatal to ‘One Nation’ that Ed Miliband failed to win a seat which was 285th on his list of targets. What is remarkable is that the voters of Eastleigh did not give a “bloody nose” to the sitting incumbents, who include the Liberal Democrats. Despite a maelstrom of accusations and counter-accusations regarding Chris Huhne and Chris Rennard, local voters, albeit in fewer numbers, decided to give their vote to the Liberal Democrats. Even more strikingly, they did not “blame” the Liberal Democrats for policy failures for their senior partners. The Conservatives failed to win this seat, not simply because they failed to produce an ‘attractive offer’ to the British electorate, but also some voters are beginning to blame them for noteworthy policy mistakes. There is a huge repertoire of policy mistakes to choose from, but it is remarkable that former Conservatives who have voted for UKIP appear to have done so for two particular reasons. Firstly, they don’t give a damn about David Cameron’s “caste iron” guarantees about Europe. Secondly, they do BLAME George Osborne for snatching a triple-dip recession from the jaws of a fragile recovery bequeathed to them in May 2010.
“If at first you don’t succeed, blame Labour” has become an all-too familiar mantra, but people are increasingly unconvinced by the mouthpieces who have told them this. The BBC, plagued by an obsession over horsemeat and Jimmy Savile, have failed to report the massive outsourcing and privatisation implications of recent legislation over the NHS. Many in the public are sick-to-death of the tribal partisan line on the economy, which refuses to concede that there was an emergency bailout by the previous administration of the banking sector which led the deficit to explode. They are cognisant, through the social media, that the deficit has not gone down by a quarter, and, as anyone who has been lied to, they feel cheated.
Above all, it is tragic given that the Conservatives have many junior MPs within them that their party currently lacks direction and identity. The economy is a mess, many through Twitter knows the NHS is being auctioned-off to the highest corporate bidder, and disabled citizens are hopeful that they will see their benefits re-awarded on appeal. The fact that people would rather vote UKIP than Conservatives means that the Liberal Democrats votes could stay solid, particularly if Tory-LibDem marginal seat voters don’t blame them for having been forced into a corner on policy decisions. And yet, if the Liberal Democrats win similar seats in the 2015 general election, the Conservatives could be deprived of a working majority.
Contrary to what the BBC would have you believe, the Conservatives failed to win a majority last time. And support for LibDems in traditional LibDem areas is strong, because local activism of LibDem councillors and MPs is impressive. However, Labour find themselves in dangerous territory. They cannot afford to ‘take it easy’, thinking that their economic reputation will be restored if the economy screws up. There is a remote chance that, despite a prolonged experience of austerity-lite, the economy will slowly begin to recover. The truth, whether Labour likes it or not, is that the general public does not trust them with economic prowess; some people even still blame Ed Balls for making somewhat anti-immigration noises at the last election. So why doesn’t Labour campaign on a much stronger card of the NHS? There has become an increasing perception that Labour does not need to shore up their reputation in this regard, as they are ‘the party of the NHS’. This may be hard to sustain as their policy of NHS Foundation Trusts, and insidious marketisation of the NHS with a growing number of Trusts and departments going into an insolvency regime, is shredded to pieces. As a party supposedly representing social justice issues, Sadiq Khan MP, the Shadow Lord Chancellor, has all but resigned himself to the sweeping cuts in legal aid enshrined in the Legal Aid and Sentencing and Punishing of Offenders Act (2012), and parliament has generally been useless due to the arithmetic compared to moves afoot elsewhere, for example Lord Willy Bach’s “fatal motion”. The official Opposition part of HM Parliament seems powerless to stop unelected legislation at the moment, as another “fatal motion”, this time in the Lords from fellow Labour peer Lord Hunt, is one of the only mechanisms possible to stop the new statutory instrument on NHS procurement (SI 2012/057).
As outgoing Bank of England Governor, Sir Mervyn King, previously declared, this parliament was a ‘poisoned challice’. In a way, it is quite good for Labour that they have been given a few years to regroup their forces, and have had the Conservatives do some of their ‘dirty work’, in coping with a moribund economy, inflicting legal aid cuts, and accelerating the marketisation of the NHS. However, Labour has now a fighting chance of producing the arithmetic for a working majority in June 2015, but there is as yet no sense that Ed Miliband will be elected on a landslide. However, one very good thing to have emerged from Eastleigh is that the Conservatives seem to have retained their rather infamous ‘self-destruct’ characteristic, and all that needs to happen, for Labour to succeed in June 2015, is for the Conservatives to lose.
Avoiding defamation on the information superhighway
This is an academic article, and not to be construed as legal advice or opinion in any way. If you have a specific concern, you are advised to seek the help of a practising solicitor.
You can be even sued on Twitter for Libel. The recent experience of Lord McAlpine is a testament to this:
That you can end up in Court through Twitter is known to followers of the “Twitter Joke Trial”, successfully fought by David Allen Green (Preiskel & Co.), John Cooper QC (25 Bedford Row), and Sarah Przybylska (2 Hare Court) in the presence of Lord Chief Justice Lord Judge. This example is cited here only to illustrate how anxiety-provoking litigation can surround Twitter. The case itself was not about libel – it was about allegations of “menacing behaviour”, as per s. 127(1) of the Communications Act 2003.
The public has a right to criticise the people who govern them, so the least protection from defamation is given to public officials. Other people, with the resources, can of course sue you, but they have to prove that defamatory statements were made with actual malice, in most cases.
This excellent guide for Twitter users, regarding libel, has been published recently on the BBC website. Using the social media has become a ‘risk factor’ for attracting a claim in defamation, for the unwary, in the same way a cabbie may be, in theory, more likely to produce a driving offence simply by nature of the fact she or she is doing a lot of driving. This for example comes from the MoJ’s own guidance to the draft Defamation Bill:
Sim v Stretch [1936] 2 All ER 1237 provides the classic common law definition in English law:
“A statement which tends to lower the claimant in the estimation of right thinking members of society generally, and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem”. (Lord Atkin)
Article 10(1) ECHR states:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
But Article 10(2) ECHR states that:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary”.
“Defamation” is a catch-all term for any statement that hurts someone’s reputation. Written defamation is called “libel,” and spoken defamation is called “slander.” Defamation is not a crime, but it is a “tort” (a civil wrong, rather than a criminal wrong). A person who has been defamed can sue the person who did the defaming.
Defamation law tries to balance competing interests in keeping with the very important legal doctrine of proportionality: on the one hand, people should not ruin others’ lives by telling lies about them; but on the other hand, people should be able to speak freely without fear of litigation over every insult, disagreement, or mistake. Political and social disagreement is important in a free society, and we obviously do not all share the same opinions or beliefs. For example, I do not believe in important European and US competition and procurement laws voluntarily in governing the decisions of commissioning groups in the NHS unless we have to, and I am entitled to my opinion within reason.
The rule of the Jury is to establish the standard of ‘right-thinking members of society’, and to decide whether the claimant was defamed.
What the victim must prove to establish that defamation occurred
The law of defamation varies from state to state, but there are some generally accepted rules. If you believe you are have been “defamed,” to prove it you usually have to show there’s been a statement that is all of the following:
- statement
- published
- false
- injurious
- unprivileged
This is a MUST READ guide to defamation on Twitter by Dr Paul Bernal, who is a young leading academic in this area and Lecturer in IT, IP and Media Law at UEA.
Whilst this article has focused on Twitter, the general principles of defamation apply to all media, including blogs.
Thanks to Dr Paul Bernal for a helpful suggestion about an earlier draft of this blogpost.
"Lincoln" at the #Oscars: innovation, a story of charismatic leadership and MEN2B
There are many aspects of Abraham Lincoln which interest me, not least his attributes of leadership, his contribution and interest in innovation, and his possible underlying diagnosis.
Abraham Lincoln is a model for a charismatic leader, having been well-known to be a great story-teller, as explained here:
“Watching the superb film “Lincoln” by Steven Spielberg, I discovered a very important fact about our 16thPresident that I wasn’t really aware of. He was a great storyteller. I knew he was strong in his speechmaking (having memorized the Gettysburg Address in Grade School, along with countless other youngsters), but I didn’t know how skillfully he used the power of story to lead and inspire, to defuse tension and to stir an audience. He was an expert in using powerful language, imagery and humor to get across key points, to open listeners’ ears to another point of view, and to convey practical advice and wisdom that people then wanted and needed to retell themselves. He didn’t force his messages on his audience, he let in unfold in their own imaginations.”
Lincoln was apparently also a great inventor, and many consider him to be the “father of innovation” in the United States. As an attorney, he represented railroads. During the Civil War, he haunted the telegraph office (which provided the instant-messaging of its day) for the latest news from the front and was actively involved in directing troops. He encouraged weapons development and even tested some new rifles himself on the White House lawn. Patent No. 6469, a device for buoying vessels over shoals, makes Abraham Lincoln the only U.S. president to hold a patent. From The New Atlantis, it is described that:
“As a young man, Lincoln had spent some time on riverboats, transporting farm produce and other cargo down the Mississippi River to New Orleans. In 1848, then-Congressman Lincoln was a passenger on a boat in shallow Illinois waters when a passing boat ran into a sandbar. He watched as the captain ordered his crew to place anything that would float—especially empty barrels and boxes—under the sides of the boat for buoyancy. That incident was the direct inspiration for Lincoln’s invention: “buoyant air chambers” made of “water-proof fabric”; they could be inflated and deflated as needed to help keep a boat afloat.”
Although Lincoln was a weapons aficionado, perhaps his greatest contribution to the war effort was his use of the telegraph. Tom Wheeler, author of Mr. Lincoln’s T-Mails: The Untold Story of How Abraham Lincoln Used the Telegraph to Win the Civil War, notes that Lincoln had not even seen a telegraph in operation until 1857. That was twenty-two years before the invention of the light bulb, a time when electricity was a vague scientific concept and sending signals through wires “mind boggling.” Lincoln was fascinated and quizzed the operator about how the telegraph worked. “If he were alive today, we’d call him an early adopter,” says Wheeler.
There has been a longstanding controversy about what the clinical diagnosis of Abraham Lincoln was. The nature and cause of President Abraham Lincoln’s unusual physical features have long been debated, with the greatest attention, recently, directed at two monogenic disorders of the transforming growth factor ? system: Marfan syndrome and multiple endocrine neoplasia type 2B (“MEN 2B”). MEN 2B typically manifests before a child is ten years old. Affected individuals tend to be tall and lanky, with an elongated face and protruding, blubbery lips. Benign tumors can develop in the mouth, eyes, and submucosa of almost all organs in the first decade of life. Medullary thyroid cancer almost always occurs, sometimes in infancy, and is often aggressive. Cancer of the adrenal glands, phaeochromocytomas (sic), occurs in 50% of cases.
Recent work has examined newly discovered phenotypical information about Lincoln’s biological mother, Nancy Hanks Lincoln, and concluded that (a) Lincoln’s mother was skeletally marfanoid, (b) the President and his mother were highly concordant for the presence of numerous facial features found in various transforming growth factor ? disorders, and (c) Lincoln’s mother, like her son, had hypotonic skeletal muscles, resulting in myopathic facies and ‘pseudodepression’. These conclusions establish that mother and son had the same monogenic autosomal dominant marfanoid disorder. A description of Nancy Hanks Lincoln as coarse-featured, and a little-known statement that a wasting disease contributed to her death at age 34, lends support to the multiple endocrine neoplasia type 2B hypothesis.
A Californian cardiologist John G. Sotos of Palo Alto came up with the idea that the 16th American president suffered from a mutation named MEN 2B that could be easily tracked down through DNA analysis of the gene RET on chromosome 10. MEN 2B (multiple endocrine neoplasia type 2B) leads in 100 % of the cases to thyroid cancer and 50 % of the patients also develop adrenal gland cancer and could explain Lincol’s great height and other conditions.
Anyway, I wish Daniel Day-Lewis well in his nomination for Best Actor for “Lincoln” this morning. I bet my life he wins.
Possible letter to send to the Clerk of the Committee
To: seclegscrutiny@parliament.uk
The Lords Secondary Legislation Scrutiny Committee
Dear Sir,
Secondary legislation under Section 75 of the Health and Social Care Act 2012
I notice that the Lords’ Secondary Legislation Scrutiny Committee will be discussing the regulations laid by the Government under Section 75 of the new NHS Act 1 at their meeting on 5 March.
I write to request that the Committee send these regulations for reconsideration. The reason is that there is a significant disjunction between the public statements of ministers and the content of the regulations.
Ministers said:
- Andrew Lansley MP: “There is absolutely nothing in the Bill that promotes or permits the transfer of NHS activities to the private sector.” (13/3/12, Hansard )
- Andrew Lansley MP, 12.02.12, letter to Clinical Commissioning Groups: “I know many of you have read that you will be forced to fragment services, or put them out to tender. This is absolutely not the case. It is a fundamental principle of the Bill that you as commissioners, not the Secretary of State and not regulators – should decide when and how competition should be used to serve your patients interests..”
- Simon Burns MP: “…it will be for commissioners to decide which services to tender…to avoid any doubt—it is not the Government’s intention that under clause 67 [now section 75] that regulations would impose compulsory competitive tendering requirements on commissioners, or for Monitor to have powers to impose such requirements.” (12/7/11, Hansard, c442 )
- Lord Howe: “Clinicians will be free to commission services in the way they consider best. We intend to make it clear that commissioners will have a full range of options and that they will be under no legal obligation to create new markets….” (6/3/12, Hansard )
- Nick Clegg: “That’s why I have been absolutely clear: there will be no privatisation of the NHS. The NHS has always benefited from a mix of providers, from the private sector, charities and social enterprises, and that should continue… It’s not the same as turning this treasured public service into a competition-driven, dog-eat-dog market where the NHS is flogged off to the highest bidder.” 26/5/11
The regulations
The regulations break these promises by creating requirements for virtually all commissioning done by the National Commissioning Board (NCB) and Clinical Commissioning Groups (CCGs) to be carried out through competitive markets regardless of the will of local people. They contain legal powers for Monitor to enforce the privatisation spontaneously or at the request of private companies which lost bids.
They would also make it impossible to fulfil some of the key thrust of the Francis report recommendations.
According to David Lock QC, the regulations as a whole have the effect of closing down the current option of an in-house commissioning process, even if local people wish it. This option has been taken in a number of cases, including since the passage of the Act . Ministers have confirmed that at the present time such arrangements are legal and would not give rise to challenge under EU Procurement law .
Regulation 5 – awarding a contract without competition can, effectively, only be done in an ‘emergency’, a much narrower restriction than suggested in the parliamentary debate.
Regulation 10 makes whatever Monitor judges to be an “unnecessary” restriction of competition, illegal. It thus effectively closes down the current option of one state body (i.e. the NHS Commissioning Board or a Clinical Commissioning Group) merely making a new arrangement (not contract) with another – i.e. an NHS Trust.
Regulation 12 forces commissioners to use the market to meet waiting time considerations, in contravention of assurances offered to CCGs during the passage of the Act when they were told they would have discretion and could also consider quality issues. This regulation also ignores the summary of the DH’s own consultation which highlighted that waiting time considerations should not be used to override quality considerations.
Part 3 Regulations 13-17, covering Monitor’s powers
The sweeping (and time unlimited) statutory powers given to Monitor enable it to decide when the CCG has breached regulations (Regulation 14), to end any arrangements the CCG has come to and to impose their own (Regulation 15) – including the criteria governing selection of suppliers, and more fundamentally, the decision about whether to use competitive methods like tendering and AQP at all. Under these regulations Monitor will have sweeping statutory power to enforce (as yet unseen) guidance, whereas the current guidance is not legally binding.
In summary, therefore, there is a contradiction between the intention of the Act as expressed by ministers and the consequences of the regulations.
The regulations need to be reconsidered and rewritten.
Yours faithfully,
VERY IMPORTANT. Tomorrow is the last day to the write to the Clerk about SI 257
The deadline for writing to the clerk mentioned below is *Monday 25th February* so please write tomorrow or over the weekend if you can.
On 13th February 2013 the Government published the regulations (SI257) under Section 75 of the NHS and Health Care Act 20121 (http://www.legislation.gov.uk/uksi/2013/257/contents/made). Assurances were given by ministers during the passage of the Bill through Parliament that it did not mean the privatisation of the NHS, that local people would have the final say in who provided their NHS. The regulations just published break these promises by creating requirements for virtually all commissioning done by the National Commissioning Board (NCB) and Clinical Commissioning Groups (CCGs) to b carried out through competitive markets, which will have the effect of forcing through privatisation regardless of the will of local people. They contain legal powers for Monitor to enforce the privatisation spontaneously or at the request of private companies that lost bids. They would also make it virtually impossible to fulfil some of the key thrust of the Francis report recommendations.
This Statutory Instrument (SI) will be going to the Lords Secondary Legislation Scrutiny Committee on 5th March; this Committee will then report to the House. If people contact the Clerk of the Committee to emphasise its importance it will encourage them to look seriously at the Secondary Legislation and then hopefully report it to the House as meriting special attention. This in turn helps the tone of the debate on
the SI. The Clerk can be contacted at seclegscrutiny@parliament.uk <mailto:seclegscrutiny@parliament.uk>
LINK HERE
Here is an article by Caroline Molloy:
http://www.sochealth.co.uk/2013/02/23/new-threat-to-the-nhs-5-ways-you-can-help/
According to the HSJ, Lawyers working in the NHS told HSJ the regulations could have wide-reaching implications on the mix of providers of NHS-funded services. The rules ban “any restrictions on competition that are not necessary”. They say contracts can only be awarded without tender for “technical reasons, or reasons connected with the protection of exclusive rights” or for “reasons of extreme urgency”.”
Book review: "The Diaries of a Fleet Street Fox" by @fleetstreetfox
The Diaries of a Fleet Street Fox (here)
Published Constable 2013.
(c) FleetStreetFox 2013
This book, a mix of fiction and semi-autobiographical, is a very easy read. It is unpretentious, interesting, and has a story (even though it breaches the author’s number one rule of “never become the story”). You can easily understand why, towards the end of the book on day 204,
“That’s it: I declare defeat. I am over, broken, empty, finished, done. I woke up this morning feeling as spent and faded as a tattered five-pound note that’s been passed around between too many grimy heads.”
Even the title is quite telling. “The Diaries of a Fleet Street Fox” – in other words, not THE Fleet Street Fox. That I think is because the author, despite now being a celebrity, has a very realistic perspective on celebrity culture.
I have followed @fleetstreetfox for a few years now on Twitter, and I remember when Lily Miles (as she was then on Facebook) posted that she was having a great time in Wimbledon. I did not realise Lily was a pseudonym before then, and to be honest it would not have made any difference.
This book is exceptionally well written. I took it as a compliment when ‘A Fleet Street Fox’ had called my blogpost about the death of my own father, when I was in a state of absolute shock, very moving. It is with great pleasure that I now have evidence to return the compliment. You don’t get a sense of the depth of sincerity from the tweets, especially on those famous ‘benders’ often on a Friday night starting at ‘Vodka O’Clock’. You get some sense from the articles in the Daily Mirror. But wow – you get a really polished narrative in this book.
This is for example the beginning of day 38:
“You don’t have to be casually racist to work in a newsroom, but it helps. It’s also useful if you can be sexist, ageist, heightist, fattist, classist, nationalist and, if you work in features, unable to see a picture of any female without spotting some cellulite and zipping off two thousand words on the subject.
It’s not that journalists start out that way; but after long years of contact with mankind at its most extreme and unemotional – death, lust, birth, Kerry Katona – you become so injured to the human condition, that mockery is inevitable. There’s something strangely fitting about the fact that all cabbies hate driving, doctors can’t stand illness, and journalists like people.”
There is no clue as to the identity of the ‘ex-husband’, but the description of a failing relationship will be familiar to very many people. That’s the odd thing about the whole approach. Whereas the identity of a Fleet Street Fox has not been known for ages, the descriptions always have been very authentic. They are uniquely insightful, in that there seems to be a clear schism between the author’s work and the author’s non-professional life. The narratives switches seamlessly between divorce and the newsroom. Having been in a police cell for drunk-and-disorderly, known to the Solicitors Regulation Authority before they allowed me permission to be a law student, I could relate to the description of being in a police cell.
The attitude to the law is very precise. Reference is made to the Press Complaints Commission, RIPA, and phone hacking, but it is remarkably helpful to get a perspective from a young journalist sandwiched (not literally) between an interesting boss (Bish), the law, the newspaper industry, and readers. This book says nothing defamatory under English law – whoever the lawyers are for this book, they certainly did a good job.
Having been interviewed personally, I found particularly amusing the description of a ‘typical interview':
“The ideal interview, from a journalist’s point of view, starts with flirtation, leads to seduction, and resuts in betrayal. In my case, it’s more usual to flirt, fall over and fuck it all up, which I suppose is why I don’t get asked to do the big chats everyday.”
That’s the thing. The book is incredibly funny, and the author is clearly more than someone who is famous-for-being-famous (but the book reminds the readership that people who are famous-for-being-famous are constrained by the narrow scope of the media anyway.) The attitudes are vey real, and far from superficial. Day 153 commences with, “Beneath the fun of being single again there lurks a darkness which I have no idea how to face: a complete lack of self-worth.” But this to be fair is a feeling shared by many people, particularly those who do contribute most to society.
The book is endearing in its use of language. I knew who ‘Dishface’ was (this is the customary description of the Prime Minister), but ‘Twatface’ is an onrunning theme of this book. I know what ‘Faceache’ is, in the sense that my personal sagas are well known there for my 3298 ‘friends’. Some of the lines are priceless, e.g. “.. the shame of it – be told by Twatface I was too drunk to talk. It was like being told the Queen telling someone they were too posh.” I particularly liked the ‘Cubbaroo!’ tale on day 153.
Day 213 starts with,
“Sincereity must surely be the most abused, cheaply treated and misunderstood virtue in the world: only those who don’t have it lay claim to it, insisting on what nice people they are while those that seek it seem only to find the disappointing opposite in everyone around them.”
This book has sincerity in abundance, however.
#goread!
