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The NHS should not be like a conveyor belt
At first, I thought my criticism was simply because it was called “The Tony Blair Dictum”. For me, one of the most ‘successful’ Labour Prime Ministers in living history, and this is no time for hyperbole, was very good at knowing the price of everything and the value of nothing. This is what I thought was the heart of his failure to understand how modern business works, and the importance of people in the creation of value in the relatively new discipline of corporate social responsibility. But Blair was a lawyer and politician by trade.
The “Tony Blair Dictum” says “I don’t care who provides my NHS services ‘behind the curtain’, as long as it’s of the highest quality.’ Variants of it include the bit ‘as long as I don’t pay for it’, and indeed this bit is often tagged on to help to demonstrate that the reforms are not privatisation. However, if you include that the majority of contracts will be put out for competitive tendering, to avoid conflict, to the private sector – it is privatisation. It is taking away of resources to run a comprehensive, universal state-run service, and using the monies as consideration for entities running services for profit or surplus.
For ages, I thought my objection to this was purely in terms of my own business training. This training had taught me that increasing transactional costs was bound to magnify greatly the amount of wastage and inefficiency in running the system as a whole. Coupled with the loss of ‘economies of scale’, the likelihood of this process would be a fragmented service which costs money, and which is unlikely to be comprehensive. I don’t think my economic argument is incorrect. Nor do I think it’s somewhat disingenious for private contractors to run their services under the NHS logo, while it is well documented that programmed attacks on the NHS ideologically have taken place in parts of the media. Some parts of the media in an astonishing way have not reported on the ‘reforms’, estimated to cost about £2.5 bn so far, at all.
No, it’s not that. I think I find this Dictum potentially difficult, if it can be a different Doctor each time who sees you, and it doesn’t matter where they’ve come from. It suddenly dawned on me thanks to thinking about why Dr Jonathon Tomlinson (@mellojonny) loves general practice so much. My late father was a GP near Brighton for nearly 30 years, and he loved his job. He was a single-handed practitioner with a list of about 2500 with not a blemish on his professional record, and he did all his own on-calls. This means that he knew his patients (and often whole families) backwards – his families loved him as the community Doctor. He never breached medical confidentiality of course, but the continuity of care was of benefit to patients. This meant, like transactional costs, things would not get repeated to different people at different times, and things were not ‘lost in translation’ through Doctors reading the medical notes of other Doctors. My father knew his patients.
However, given that I have nothing to do with the medical profession, I am struck by how a ‘conveyor belt’ atmosphere had begun to emerge in the NHS, even in the brief time when I was a junior physician in busy Trusts in London and Cambridge. This means that the approach was that of a “production line”, what I would later know as ‘lean management’ (where it is very difficult to know the precise cause of clinical error because the system is literally firefighting all-of-the-time). In this production line, Doctors would never see the output of their combined efforts, the “product”, as the Doctor responsible for writing the discharge summary was invariably not the Doctor who had generated a ‘problem list’ when the patient was admitted to the Hospital in the first place.
This situation I feel is not unique to primary care, and certainly this is not meant to be any criticism of Group G.P. practices where Doctors are very keen to know the histories of all patients in their catchment. It is not meant to be a criticism of NHS Direct or the Out-of-Hours service, though the benefits of a patient seeing his or her own Doctor out-of-hours is not simply an issue of nostalgia. I think there is a clear parallel in the commodification of the legal profession. This commodification has seen law as not having a prominent place in one’s community (“There is no such thing as community” is possibly a more accurate phrase than “There is no such thing as society”), with the death of the high street law centre at odds with the flourishing multinational corporate law firms. Ironically, in the United States which has had a longer time to assimilate the effects of multinational corporates on modern life), there is now recognition from big-brand management consultancy firms that there is more value to be had inter-transactions rather than intra-transactions. This means that the approach of one ‘fee earner’ identifying and solving the legal problem, with that fee earner never to be seen again, is being replaced by a lawyer who is interested in the development of your issues over a long period of time.
This indeed had been the approach of the medical profession too. I remember being witness to some amazing physicians, who admittedly had remarkable memories but, who could remember events from the patients 20-30 years’ ago, which might have direct relevance to the symptom with which he or she was presenting today. Possibly, with the introduction of whole person care, this approach might take a comeback, and certainly continuity-of-care had previously been considered important for the conduct of medical professional life. Whether they intended to or not, my late Father and Dr Tomlinson have made me realise why I do actually find ‘The Tony Blair Dictum’, aside from macroeconomics, potentially very difficult.
Competitive tendering is no longer the solution; it is very much the problem
As part of the “Big Society”, medics and lawyers have now been offended over competitive tendering. Competitive tendering is no longer the solution; it is very much the problem.
Yesterday, it was the lawyers’ turn. The Bar Standards Board (“BSB”) yesterday extended (10 May 2013) the first registration deadline for the Quality Assurance Scheme for Advocates in the face of a threatened mass boycott by barristers. The Solicitors Regulation Authority is expected to follow. In a statement yesterday, the BSB said the deadline will be extended from 10 January to 9 March 2014 ‘to ensure the criminal bar will have more time to consider the consequences of government changes to legal aid before registering’. The end of the first registration period will now be after the Ministry of Justice publishes its final response to its consultation on price-competitive tendering. The SRA board is expected to approve a similar extension later shortly.
A group of leading academics, including Prof. Richard Moorhead from University College London, indeed wrote yesterday,
“As academics engaged for many years in criminal justice research, we write to express our grave concern about the potentially devastating and irreversible consequences if the government’s plans to cut criminal legal aid and introduce a system of tendering based on price are introduced. Despite the claim by Chris Grayling, the minister of justice, that ‘access to justice should not be determined by your ability to pay’, this is precisely what these planned changes will achieve. This is not about ‘fat cat lawyers’ or the tiny minority of cases that attract very high fees. As we know from the experiences of people like Christopher Jefferies, anyone can find themself arrested for the most serious of crimes. No one is immune from the prospect of arrest and prosecution.”
Previously, it had been the medics’ turn. That did not deter Earl Howe in collaboration with people who clearly did not understand the legislation like Shirley Williams in competition with the medical Royal Colleges, Labour Peers and BMA. The Royal College of Physicians set out their oppositions to competitive tendering articulated their position last month:
Competitive tendering is often considered to promote competition, provide transparency and give all suppliers the opportunity to win business. It may be that price tags are driven down, but most reasonable professionals would actually ask, “At what cost?” Competitive tendering, rather, has a number of well known criticisms.
When making significant purchases, frank and open communication between potential supplier and customer is crucial. Competitive tendering is not conducive to open communication; in fact, it often discourages deep dialogue because in many cases all discussions between a bidder and the purchaser must be made available to all other bidders. Hence, Bidder A may avoid asking certain questions because the questions or answers may help other bidders by revealing Bidder A’s approaches, features, and the like. At the moment, there is a policy drive away from competition towards collaboration, innovation and ‘creating shared value’. Dr. Deming also writing in Out of the Crisis, “There is a bear-trap in the purchase of goods and services on the basis of price tag that people don’t talk about. To run the game of cost plus in industry a supplier offers a bid so low that he is almost sure to get the business. He gets it. The customer discovers that an engineering change is vital. The supplier is extremely obliging, but discovers that this change will double the cost of the items……the vendor comes out ahead.” This is called the cost-plus phenomenon.
Competitive tendering furthermore encourages the use of cheaper resources for delivering products and services. A supplier forced to play the competitive tendering game may come under pressure to keep costs down to ensure he gets a satisfactory profit margin. One way a supplier can lower costs is by using cheaper labour and/or materials. If the cheaper labour and materials are poor quality, the procurer will often end up with inferior, poor quality product or service. However, warranty and other claims may result –raising the price of the true, overall cost. Another area where suppliers may be tempted to lower costs is safety standards. This current administration is particularly keen on outsourcing, and sub-contractors may cut corners and creating safety risks. This is obviously on great concern where patient safety in the NHS has recently been criticised, after the Francis Inquiry over Mid Staffs NHS Foundation Trust. Furthermore, then government agencies, and indeed, private companies use competitive tendering it can take several years to choose a successful bidder, creating a very slow system. The result is the customer can wait incredibly long periods for product or service that may be required quickly. Finally, insufficient profit margin to allow for investment in research and development, new technology or equipment. Already, in the U.S., private “health maintenance organisations” spend as little as possible on national education and training of their workforce.
So the evidence is there. But, as the Queen’s Speech this week demonstrated on minimum alcohol pricing and cigarette packaging, this Government does not believe in evidence-based policy anyway. In the drive for efficiency, with a focus on price and cost in supply chains, the legal and medical professions have had policies imposed on them which totally ignores value. This is not only value in the product, but value in the people making the product. One only needs to refer to the (albeit extreme) example of a worker being retrieved from the rubble of that factory in Bangladesh to realise that working conditions are extremely important. This is all the more hideous since the policies behind the Legal Aid, Sentencing and Punishment of Offenders Act (2012) and the Health and Social Care Act (2012) were not in any of the party manifestos (sic) of the U.K. in 2010.
Competitive tendering is no longer the solution; it is very much the problem.
Competitive tendering is no longer the solution; it is very much the problem.
As part of the “Big Society”, medics and lawyers have now been offended over competitive tendering. Competitive tendering is no longer the solution; it is very much the problem.
Yesterday, it was the lawyers’ turn. The Bar Standards Board (“BSB”) yesterday extended (10 May 2013) the first registration deadline for the Quality Assurance Scheme for Advocates in the face of a threatened mass boycott by barristers. The Solicitors Regulation Authority is expected to follow. In a statement yesterday, the BSB said the deadline will be extended from 10 January to 9 March 2014 ‘to ensure the criminal bar will have more time to consider the consequences of government changes to legal aid before registering’. The end of the first registration period will now be after the Ministry of Justice publishes its final response to its consultation on price-competitive tendering. The SRA board is expected to approve a similar extension shortly.
A group of leading academics, including Prof. Richard Moorhead from University College London, indeed wrote yesterday,
“As academics engaged for many years in criminal justice research, we write to express our grave concern about the potentially devastating and irreversible consequences if the government’s plans to cut criminal legal aid and introduce a system of tendering based on price are introduced. Despite the claim by Chris Grayling, the minister of justice, that ‘access to justice should not be determined by your ability to pay’, this is precisely what these planned changes will achieve. This is not about ‘fat cat lawyers’ or the tiny minority of cases that attract very high fees. As we know from the experiences of people like Christopher Jefferies, anyone can find themself arrested for the most serious of crimes. No one is immune from the prospect of arrest and prosecution.”
Previously, it had been the medics’ turn. That did not deter Earl Howe in collaboration with people who clearly did not understand the legislation like Shirley Williams in competition with the medical Royal Colleges, Labour Peers and BMA. The Royal College of Physicians set out their oppositions to competitive tendering articulated their position last month:
Competitive tendering is often considered to promote competition, provide transparency and give all suppliers the opportunity to win business. It may be that price tags are driven down, but most reasonable professionals would actually ask, “At what cost?” Competitive tendering, rather, has a number of well known criticisms.
When making significant purchases, frank and open communication between potential supplier and customer is crucial. Competitive tendering is not conducive to open communication; in fact, it often discourages deep dialogue because in many cases all discussions between a bidder and the purchaser must be made available to all other bidders. Hence, Bidder A may avoid asking certain questions because the questions or answers may help other bidders by revealing Bidder A’s approaches, features, and the like. At the moment, there is a policy drive away from competition towards collaboration, innovation and ‘creating shared value’. Dr. Deming also writing in Out of the Crisis, “There is a bear-trap in the purchase of goods and services on the basis of price tag that people don’t talk about. To run the game of cost plus in industry a supplier offers a bid so low that he is almost sure to get the business. He gets it. The customer discovers that an engineering change is vital. The supplier is extremely obliging, but discovers that this change will double the cost of the items……the vendor comes out ahead.” This is called the cost-plus phenomenon.
Competitive tendering furthermore encourages the use of cheaper resources for delivering products and services. A supplier forced to play the competitive tendering game may come under pressure to keep costs down to ensure he gets a satisfactory profit margin. One way a supplier can lower costs is by using cheaper labour and/or materials. If the cheaper labour and materials are poor quality, the procurer will often end up with inferior, poor quality product or service. However, warranty and other claims may result –raising the price of the true, overall cost. Another area where suppliers may be tempted to lower costs is safety standards. This current administration is particularly keen on outsourcing, and sub-contractors may cut corners and creating safety risks. This is obviously on great concern where patient safety in the NHS has recently been criticised, after the Francis Inquiry over Mid Staffs NHS Foundation Trust. Furthermore, then government agencies, and indeed, private companies use competitive tendering it can take several years to choose a successful bidder, creating a very slow system. The result is the customer can wait incredibly long periods for product or service that may be required quickly. Finally, insufficient profit margin to allow for investment in research and development, new technology or equipment. Already, in the U.S., private “health maintenance organisations” spend as little as possible on national education and training of their workforce.
So the evidence is there. But, as the Queen’s Speech this week demonstrated on minimum alcohol pricing and cigarette packaging, this Government does not believe in evidence-based policy anyway. In the drive for efficiency, with a focus on price and cost in supply chains, the legal and medical professions have had policies imposed on them which totally ignores value. This is not only value in the product, but value in the people making the product. One only needs to refer to the (albeit extreme) example of a worker being retrieved from the rubble of that factory in Bangladesh to realise that working conditions are extremely important. This is all the more hideous since the policies behind the Legal Aid, Sentencing and Punishment of Offenders Act (2012) and the Health and Social Care Act (2012) were not in any of the party manifestos (sic) of the U.K. in 2010.
Competitive tendering is no longer the solution; it is very much the problem.
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.
The legal case for "the living wage"
It’s actually very bold, and fits in completely with the “One Nation” philosophy of Ed Miliband and Labour. It could even be one of the first Acts to be proposed by a Labour government in 2015/6, and has profound implications.
The “living wage” has a focus on the wage rate that is necessary to provide workers and their families with a basic but acceptable standard of living. It is an hourly rate set independently and updated annually, and calculated according to the basic cost of living in the UK. Employers currently can choose to pay the Living Wage on a voluntary basis; the UK Living Wage is calculated by the Centre for Research in Social Policy, but the London Living Wage is calculated by the Greater London Authority. This minimum standard of living is socially defined (and therefore varies by place and time) and is often explicitly linked to other social goals such as the fulfilment of caring responsibilities.
Uniquely for opposition policies, the Living Wage enjoys cross-party support, with public backing from the Prime Minister and the Leader of the Opposition. That said, the main beneficiary of the living wage is the Treasury, and this is obviously critical for it to be implemented at a time of austerity (but so was the £2bn NHS reorganisation). Financial gains from the living wage will arise from higher income tax payments, higher national insurance contributions and reduced spending on in-work benefits. This has a number of important implications.
On a visit to Islington in north London last year to discuss how Labour councils across Britain have succeeded in implementing the living wage, Ed Miliband described the living wage as an idea “whose time has come”. “The next step is to help more people, including workers in the private sector, have the dignity of earning a living wage. This is one way we can begin building a One Nation economy where prosperity is fairly shared, because it is only by coming together that we can succeed as a country.”
Background
The concept of the “living wage” has roots in various cultural, religious and philiosophical traditions. The modern UK Living Wage Campaign was launched by members of London Citizens in 2001. The founders were parents in the East End of London, who wanted to remain in work, but found that despite working two minimum wage jobs they were struggling to make ends meet and were left with no time for family and community life. In 2005, following a series of successful Living Wage campaigns and growing interest from employers, the Greater London Authority established the Living Wage Unit to calculate the London Living Wage. The Living Wage campaign has since grown into a “national movement”, and Ed Miliband has often talked about how he wishes Labour to be seen as a movement and not just a political party. Local campaigns began emerging across the UK offering the opportunity to involve many more employers and lift many more thousands of families out of working poverty. In 2008 the Centre for Research in Social Policy funded by the Joseph Rowntree Foundation began calculating a UK wide Minimum Income Standard (MIS) figure. In 2011 Citizens UK brought together grass roots campaigners and leading employers from across the UK, working closely with colleagues on the Scottish Living Wage Campaign inparticular, to agree a standard model, for setting the UK Living Wage outside of London. At the same time, following consultation with campaigners, employers who support the Living Wage and HR specialists, Citizens UK launched the Living Wage Foundation and Living Wage Employer mark. Since 2001 the campaign has impacted over 45,000 employees and put over £210 million into the pockets of some of the lowest paid workers in the UK.
The rationale for the living wage clearly merits scrutiny. It has much popular support, and thus, as far as Labour and the Unions are concerned, consitute a clear “vote winner”. In a recent article in the Telegraph, a newspaper not known for its significant Labour sympathies, Jeremy Warner described that, “the potential negatives from such a policy are almost too numerous to list – surging inflation, higher immigration, rising unemployment, a growing black economy, and so on. These alone might appear to kill the idea stone dead. Yet all these adverse consequences could quite easily be countered, and it is a fact that the great bulk of internationally competitive business in Britain already pays living wages. It is in the low-skilled, service areas of the economy that the problem largely lies.” Interestingly, Heller Clain (2007) (J Labor Res (2008) 29:205–218) had previously argued that living wage legislation produces statistically significant differences in poverty outcomes (but that minimum wage legislation does not), with empirical evidence, and provided a clear argument concerning costs and demand how this is most likely to have arisen.
“Beyond the bottom line: the challenges and opportunities of a living wage” (IPPR)
A critical development has been the publication of “Beyond the bottom line: The challenges and opportunities of a living wage” by the IPPR, authors Matthew Pennycook and Kate Lawton (20 January 2013). This provided much detail, with The Living Wage Foundation having already established three critical functions of theirs. It offers accreditation to employers that pay the living wage, or those committed to an agreed timetable of implementation, by awarding the ‘Living Wage Employer’ mark. It also provides advice and support to employers implementing the Living Wage including best practice guides; case studies from leading employers; model procurement frameworks; access to specialist legal and HR advice. Finally, it provides a forum for leading employers to publicly back the Living Wage. We work with Principal Partners who bring financial and strategic support to the work.
Does it need an Act of parliament?
The National Minimum Wage Act 1998 created a minimum wage across the United Kingdom. It was a flagship policy of the Labour Party in the UK during its 1997 election campaign, and is still pronounced today in Labour Party circulars as an outstanding gain for ‘at least 1.5 million people’. The policy was opposed by the Conservative party at the time of implementation, who argued that it would create extra costs for businesses and would cause unemployment. The Conservative party’s current leader (and Prime Minister), David Cameron, said at the time that the minimum wage “would send unemployment straight back up”. However, in 2005, Cameron stated that “I think the minimum wage has been a success, yes. It turned out much better than many people expected, including the CBI.” It is now Conservative Party policy to support the minimum wage.
Indeed, “the living wage” has some prominent supporters.
The IPPR indeed argue that are clear reasons not to legislate for a statutory living wage including the fact that the living wage should not be seen as a replacement for the minimum wage. It there is argued that the minimum wage is based on an empirical judgment about employment effects and is agreed through a social partnership model, allowing a mandatory, statutory approach. However, the living wage reflects standards of living and prices and does not take account of employment effects. Advancing the living wage therefore requires an incremental approach, which can also bring wider benefits by mobilising low-paid workers who lack traditional forms of representation. The question for policymakers is the extent to which the state can support a campaign rooted in civil society.
The IPPR instead recommended that government amends the UK corporate governance code to require listed companies to publish the proportion and number of their staff paid below the living wage, and legislate for this if necessary. This indeed is a very sensible idea, if Ed Miliband and Labour include it as part of a raft of measures in corporate governance which could encourage ‘responsible capitalism’, which thus far has been lacking regulatory teeth. It’s possible that “the living wage” is in fact a practical mechanism of delivering “predistribution“, the thesis articulated elegantly by Professor Joseph Hacker but which people dare not mention in polite public. As part of Labour’s policy review, the party is considering ways to make the rate, which is more than £1 higher than the legal adult minimum wage, the new norm. Listed companies who do not pay the living wage could be “named and shamed” through new corporate governance proposals, and Whitehall contracts could be limited to firms that pay their workers at the new hourly rate. This would be entirely in keeping of the description of a “moral economy” advanced by Jon Cruddas discussing rebuilding Britain, a “new Jerusalem“: “Markets require reciprocity for efficiency and productivity. Together they establish trust, relationships and a sense of stewardship at the heart of transactions. It is a moral economy that can be expressed through co-operative and mutual forms of ownership, and internalised in the culture of business through employee involvement in the governance of firms. In return for their commitment to the company, employees can have a voice on salary levels, improving productivity and business strategy.”
There are though, some might say, good reasons why living wage legislation should enter the statute books in some form, corresponding to the passing of any laws in our jurisdiction. These are namely to protect an individual from harm including employment exploitation, to contribute towards a framework of the rules needed for a society to live and work together, to ensure an enforceable mechanism through which justice can been served, to “punish” people as necessary, and to maintain social order (such as prevention of poverty). It is obviously important that any laws we introduce are not incompatible with European laws, and the current indications are that the “minimum wage is (not) always incompatible with EU procurement rules. There are however obligations to treat all bidders equally, fairly and transparently and in a non-discriminatory way in any procurement process.” Specifically, the European Commission has provided clarification on the issue in 2009, stating that living wage conditions “must concern only the employees involved in the execution of the relevant contract, and may not be extended to the other employees of the contractor”. However, this perspective is to treat law as an administrative process, free from social values and judgments, as discussed by LJ Laws for example in the context of human rights. By enacting a formal law on the living wage could be a strong signal that the law is not merely an error-corrective mechanism for market values, what Prof Michael Sandel at Harvard calls ‘markets mitigating governance’ as a technocratic process done through cost benefit analyses, but that the law is in fact designed ‘for the public good’, encouraging citizenship, civic values and solidarity. Sandel conceptualises this striving for the public good as a necessary reaction to the approaches of Thatcher, Reagan and indeed New Labour, which had generated a sense of ‘market triumphalism’, but points out readily that under such administrations this had had a destructive effect on rich and poor people living further apart in society. This indeed can be easily seen in the UK with the rich becoming even richer.
One Nation Economy
Trade unions are still a significant part of the culture of UK, not least because they serve to protect workers and employees against scrupulous employers. In the trade union movement, UNISON has had noteworthy success in offering practical advice about how citizens can “win the winning wage”. Ed Miliband has made it no secret that he does not wish to see a divide between ‘private sector’ and ‘public sector’, in that we all contribute to one unitary UK economy. This has been reflected in how Miliband has provided hints about trying to make trade unions also relevant to the public sector. Encouraging a ‘living wage’ could be a way of getting more people involved in the Union movement, which Miliband has openly warned should not be seen as the “evil uncle” of Labour. The IPPR report indeed cites: “The greatest successes in securing the living wage have been made through bottom-up processes of organising and campaigning. These processes have sought to involve low-paid workers directly in the struggle to improve their own wages, as well as building broader alliances with a diverse mix of unions, faith organisations and community groups.”
As the forerunner to a ‘one nation economy’, local and regional initiatives have consolidated a number of improvements in pay for nearly 45,000 low-paid workers. In addition to the nine local authorities that have been formally accredited as living wage employers, a growing number of private sector employers have introduced living wage agreements including Barclays, KPMG, Deloitte, Linklaters and Lloyd’s of London. More widely, living wage initiatives have reshaped social norms around wages and in-work poverty and have refocused attention on the role that decent pay above the national minimum can play in raising living standards, alongside remedial redistribution through tax credits and in-work benefits. This, alongside the fact that a national minimum wage has already been acted in the UK, is significant when noted with an observation from Heller Clain 2012 (Atl Econ J (2012) 40:315–327) about how experiences of implementation of the “living wage” in the US: “Ceteris paribus, the strength of the community sentiment in support of living wage legislation may be lessened, where the state government has already adopted policies aimed at raising the incomes of the working poor. For example, there may be less motivation to enact living wage legislation where the state has already enacted a statewide minimum wage higher than the federal level.”
There are clear benefits which have been experienced by adopters of “the living wage”. An independent study of the business benefits of implementing a Living Wage policy in London found that more than 80% of employers believe that the Living Wage had enhanced the quality of the work of their staff, while absenteeism had fallen by approximately 25%. A major economic rationale is that paying UK workers a “living wage” would save the Treasury more than £2bn a year by boosting income tax receipts and reducing welfare spending, according to a joint research by the Resolution Foundation and the Institute for Public Policy Research. They found gross earnings would rise by £6.5bn if employees were paid a living wage – an estimate, above the statutory minimum hourly rate, of what workers must earn to meet basic needs. There is, additionally, a much wider elegant narrative at play here. It has been recognised by anyone other than George Osborne and his colleagues that ‘underconsumption’ has been a major factor in why the UK economy has been failing latterly (parallel with decreased levels of tax receipts, even predating the current financial crash). Indeed, starting with Malthus and Ricardo in the nineteenth century, economists had long debated the viability of ‘underconsumption’ as a cause of cyclical depressions. This is now recognised in the economic press, for example “the increasing attention to consumer demand among businessmen merged with a related trend in economics: the rise of institutional economics … A key element, though, was the conviction that economists needed detailed, quantitative, empirical studies of consumer behavior (sic) and existing markets, encompassing everything from focused psychological or sociological analyses to expansive, aggregative surveys of household income, prices, and family expenditures.” (Stapleford, Labor History, Vol. 49, No. 1, February 2008, 1–22)
The IPPR are mindful that many small and medium-sized firms are likely to struggle with the costs of implementing the living wage if a significant proportion of their staff are low paid. They recommend the government should explore using the architecture of City Deals to create ‘living wage city deals’, drawing forward future tax and benefit savings from paying local government workers the living wage and devolving this money to support private sector businesses in transitioning to the living wage. So far, two thirds of employers reported a significant impact on recruitment and retention within their organisation. 70% of employers felt that the Living Wage had increased consumer awareness of their organisation’s commitment to be an ethical employer.
One Nation Society
It’s clear that the arguments for “the living wage” are not just economic, as discussed above, but also are profoundly relevant to a sense of soldiarity and “civic duty” inherent in a “one nation society”, Living wage initiatives grounded in forms of community organising seek to increase the bargaining power of workers who lack access to more traditional forms of representation such as through trade union structures. It furthermore can easily be argued that, beyond their ability to lift wages and living standards, living wage initiatives have the potential to empower low-paid workers, many of whom lack voice and power in the workplace and in wider society. Many living wage initiatives, both in the US and UK, have sought to mobilise low earners directly rather than campaigning on their behalf, by organising workers and communities through a process described as ‘community organising’ or ‘community unionism’. Indeed, here in the UK, the Living Wage campaign was launched in 2001 by parents in East London, who were frustrated that working two minimum wage jobs left no time for family life. The causes of poverty are complex and in order to improve lives there should be a package of solutions across policy areas. The Living Wage can be part of the solution. Over 45,000 families have been lifted out of working poverty as a direct result of the Living Wage.
This is fundamentally a point to do with “cohesion” of our society. It has been patently obvious that New Labour failed monumentally on “inequality”. in its quest for market triumphalism, described above. There is a sense of Ed Miliband ‘righting a wrong’ here, in addressing the societal problem of inequality, and if Miliband can achieve this he will have succeeded in a crucial area where Blair had failed.
Conclusion
Boris Johnson appears superficially laid the groundwork for “the living wage” in London, but credit that the overall Conservative-led admininstration has led the way on employment justice can only massively dampened for a number of diverse reasons. The cross-party support is described above, but it is conceded that, in the US, “a larger population and greater local support for Democratic presidential candidates are significantly linked to a greater likelihood of adopting living wage legislation and a greater speed in adopting living wage legislation.” (Heller Clain, 2012) And yet, the “living wage” may not be necessarily partisan, although one has no idea what the Liberal Democrats wish to advance following June 2015, and would nicely fit into the framework which Ed Miliband has already provided. I expect it will be a major, if not the, major campaigning issue for Labour in 2015, and could be one of the first things an incoming Labour government would legislate for in some form. The monumental research of IPPR, the Living Wage Foundation, numerous corporates and the trade unions will have contributed greatly to the success of this initiative, as will have Ed Miliband of course.
Legal proposals on the repeal of the Health and Social Services Act [2012]
Andy Burnham MP, currently Shadow Secretary of State for Health, will repeal the Act, but is due to establish Labour’s official position at Conference later this week. Burnham answered my straightforward question about the Health and Social Care Act (2012) with a simple answer, at the Fabian Society Question Time this evening, hosted by Alison McGovern MP, and a panel also including Owen Jones, Dan Hodges, and Polly Toynbee. I had a very nice chat with Andy at the end, and Andy seemed to be quite impressed that I had read the entire Act carefully ‘from cover to cover’.
Andy reinforced his belief that the Act would be repealed, but he wanted the NHS to further a spirit of collaboration. There’s been a question about, even if the Act is repealed, there are genuine questions about which policy planks might go into reverse. I feel it is unlikely that NHS Foundation Trusts will be revised, and I don’t think commissioning will be done away with, though I am uncertain about the future of ‘clinical commissioning groups’ (“CCGs”). Andy’s indication that existing structures might be asked to do different things gives Andy a bit of lee-way as to the working relationship between NHS Foundation Trusts, or CCGs (or whatever they turn out to be).
Part 3 will be first in the firing line, the Act will be repealed, and the NHS will go back to a system based on collaboration consistent with its founding principles. Critically, this Part of the Act establishes the legislative framework for the sector-regulatory body and its functions, “Monitor”, competition and licensing. My guess is that Andy Burnham MP will find a way for the NHS not to be a free-for-all in an unfettered market. My impression is a lot depends on escaping the EU definition of “undertaking” in EU competition law.
Dr Kailash Chand OBE (@KailashChandOBE), who is the Deputy Chair of the BMA, has this morning voiced in an article in the Guardian grave concerns about CCGs:
“Unfortunately, this proposed new dawn has already been tarnished by the protracted passage of the health bill and the ongoing financial squeeze that could mean there are fewer services available for CCGs to commission. Many GPs are concerned that they could become the administrators of NHS cuts as they are handed responsibility for decimated budgets. The NHS Act 2012 gives CCGs the authority to decide to whom they will provide a service, and what service they will provide. They will be under no obligation to ensure that a whole range of services are available to their catchment population. (There is already rationing of services such as hernia, cataracts and hip or knee replacements). The NHS Act also enables CCGs to enter into joint ventures with private companies to outsource most work to private companies with vested interests, beyond the scope of full public scrutiny.”
The NHS prior to this Act had been immune from a discussion of competition in that the NHS had from this previously is that a regulatory authority for competition, the Office for Fair Trading (“OFT”) did not consider that any public bodies involved in the purchasing or supply of goods or services within the NHS were “undertakings”, and therefore were not subject to action under the Competition Act. In other words, any involvement of these bodies was for “non-economic purposes”. This was reinforced by the EU in relation to a Spanish healthcare case FENIN v Commission in 2006, on the basis that the system concerned operated on the principle of ‘solidarity’. They have therefore exposed some services (which previously would have been provided in-house) to a scenario where they will be considered for competitive tendering. The extension of Any Qualified Provider (albeit with a more limited, phased implementation from 2012) to a wider range of services, and the distancing of the state from acute sector provision in the form of foundation trusts could conceivably weaken the argument against healthcare provision being for “non-economic purposes”, particularly when individual service lines are considered.
This is a highly significant development, I feel, that Andy Burnham could be steering the NHS away from being run for ‘economic purposes’, and this could be the passport for Andy for not becoming enmeshed in lots of complicated domestic and EU law. As it happens, I have a real feeling that European lawyers would prefer not to enmeshed in a complicated discussion about private provision in healthcare, as they feel that competition law is best applied to pure private or commercial entities not involved in social/healthcare policy.
As it stands, the Health and Social Care Act (2012) is a complex interplay of domestic and EU law in the disciplines of company law (including mergers, financial assistance), commercial law, procurement law (including public contracts), regulatory law, insolvency law (particularly administration). However, the law, albeit at nearly 500 pages, does have some notable omissions, such as what happens if a CCG ‘trades’ while going insolvent. Law would have to clarify consider, in its capacity as a ‘body corporate’, whether the CCG were still capable of wrongful or even fraudulent trading.
Is the future of legal education online?
An impression that the debate in delivering online legal education is fast gathering pace is a genuine one. Alex Aldridge reported in the Guardian last week that Peter Crisp, Chief Executive of BPP, had opined at a major conference about the merits of “online only solicitor training”: “More flexible learning options allowing students to “work while they study”, according to BPP Law School chief executive Peter Crisp, who was critical of the legal regulators’ refusal to allow his organisation to deliver online only solicitor training.”
On 17 July 2012, it was reported that Edinburgh University had become the first UK university to sign up to a major influential US online delivery project of education. The investment in this project has been substantial; for example, elsewhere it is reported that: “Adding to Coursera’s success are UPenn and Caltech combined investment of $3.7 million in the company. With additional investment from current investors New Enterprise Associates and Kleiner Perkins Caufield & Byers, the company now totals over $22 million in funding.”
Educators tend to wish to go off the record about their views, which makes debating this much harder. One lecturer at BPP that I know remarked, “Truth told, I’m still mired in old-world teaching and techniques. The classroom sessions I deliver are very traditional”. Yet, another lecturer at BPP whom I know well too commented, “Be careful what you try to destroy. Education is very personal. One size doesn’t fit all.” In response to this, Jon Harman, Director of Learning Design and Media at the College of Law responded, “one size doesn’t fit all yet we keep insisting on it in formal education.”
The Legal Practice Course (LPC) as currently set, across most institutions and centres, is delivered as a ‘standard product’. This means that it has a highly rigorous specification, and the learning objectives and assessment criteria for each part of it are clearly specified. I appreciate how this is organised, from having had an OFQUAL/QCF course approved myself in fact. These can be aligned transparently with the Solicitors Regulation Authority (SRA) document for key objectives for the LPC which is available on their website. However, when it comes to the issue of face-to-face teaching and learning, the SRA is in fact very precise. According to clause 3.50 of the ‘LPC Information Pack’ (available here), “A face-to-face requirement has been set to ensure there are opportunities for all students to interact with each other and with tutors and to develop together their professional skills, attitudes and behaviours.”
As a student, I fully agree with this. Being a bit banal about it, BPP is ‘preparing you to practice’, not ‘preparing you to sit at one of a computer terminal to meet assessment objectives’. Teamwork and communication are highly sought-after competences in corporate law firms, and your ability to communicate articulately with colleagues and explain your ideas must be a key attribute of trainees. However, I remember once asking a partner at Freshfields how much international corporate law is done online, and he explained, characteristically openly, “an awful lot”. So the component of international corporate law which is being done online is growing itself, one suspects.
I learnt a lot about innovation management in my MBA, and this is a specific sector within business which decades of experience in other sectors of business might not match. I graduate in November, having completed this course successfully at BPP Business School earlier this year. With an ‘innovation hat on’, having done a full course with my tutor Dr Vidal Kumar (@VidalAndreas) which I loved, we were taught about the importance of culturing a wider network through key participants of a network, such as the Coursera network involving Stanford, Michigan, Lausanne and Princeton above; about having some ‘key adopters’ such as A-star universities, the operational issues which might limit or facilitate its success (e.g. fast technological infrastructure, clusters of innovation), but most importantly how you could secure competitive advantage through your business model through innovation. Crucially – and most fundamentally – you need to understand what an innovation is. An innovation is more than an invention – it has to be a dialogue between the person who created it, and its purpose, and its intended recipient. That is why it’s going to be interesting to see whether Menshn ‘takes off’. Innovation is not necessarily about improving on design specifications, in the spirit of the famous Henry Ford saying, “If I’d asked customers what they wanted, they would have said ‘a faster horse'”. Likewise, producing an e-book is not the same as digitising a ‘conventional’ book.
This aspect is the heart of the issue. Democratising education is incredible, in that your outreach of the audience is of a different scale, but it means that you can offer online courses to the world. Many do not pass such courses because of the high attrition rate. Providers need to be able to ensure that such courses are not offered just because they are cheap, and indeed that the concepts of ‘cheap’ and ‘low price’ are not conflated with ‘cheap and nasty’. I believe online education can work, if supported by other means (such as the fact that students are individually supported by a real-life teacher so that there is regular monitoring of the learning experience which may not necessarily be the same as the assessment objectives). I first went up to Cambridge in 1993, so this is now my 18th year in higher education of some sort (some of which has not been on full-time or part-time courses), so I have much experience as an ‘end user’.
But the question must become also: what’s in it for the law school? By offering so many courses so cheaply, it is hard to see where the profit comes from, unless the inward investment comes from private equity or venture capital; but even then the private equity and venture capital firms need to consider carefully how sustainable the investment is, and in simple terms what the return-on-investment is? For example, the social media have been notorious in monetising their innovations; even possibly the chief strategy of making a profit from innovation, the initial public offering, has turned sour for Facebook.
This is a very complicated debate, but one which I will be sure to follow even though I will be leaving legal education for good in two months time, having done my LLM, LPC and MBA.
Guest post by Ibrahim Hasan – The draft "Communications Data Bill", opportunities and challenges
The draft Communications Data Bill was published this week. The Bill provides an updated framework for ensuring the availability of communications data and its obtaining by public authorities. It replaces Part 1 Chapter 2 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) and Part 11 of the Anti-Terrorism Crime and Security Act 2001 (ACTSA) and sits alongside the Data Retention (EC Directive) Regulations 2009.
If passed in its current form, the Bill will enact proposals, announced in the Queen’s Speech in May, which will require Internet firms to give Police, the Serious and Organised Crime Agency, the Intelligence Agencies and HM Revenue and Customs access to a wider range of communications data on demand, in real time. However it will not allow them to access the content of such communications without a warrant. The Home Office says that the Bill is “needed” to ensure that communications data continues to be available to the police and others in the future as it has in the past. Without action they say that there is a growing risk that crimes enabled by email and the internet will go undetected and unpunished. However various civil liberties groups, as well as Internet Service Providers have voiced concerns about the Bill from a privacy and technical perspective.
The Current Law
Part 1 Chapter 2 of RIPA (sections 21-25) sets out who can access what type of communications data and for what purposes. This includes the police and security services as well as councils, government departments and various quangos. The legislation as it stands restricts access to the different types of communications data depending on the nature of the body requesting it and the reason for doing so.
The definition of “communications data” includes information relating to the use of a communications service (e.g telephone, internet and postal service) but does not include the contents of the communication itself. Such data is broadly split into three categories: “traffic data” i.e. where a communication was made from, to whom and when; “service data” i.e. the use made of the service by any person e.g. itemised telephone records; “subscriber data” i.e. any other information that is held or obtained by an operator on a person they provide a service to.
Some public bodies already get access to all types of communications data e.g. police, security service, ambulance service, customs and excise. Local authorities are restricted to subscriber and service use data and even then only where it is required for the purpose of preventing or detecting crime or preventing disorder.
At present access to communications data is done on a system of self authorisation. There are forms to fill (signed by a senior officer) out and tests of necessity and proportionality to satisfy. Notices have to be served on the service provider requesting the data.
More information
At present, the Internet service providers are obliged to keep details of users’ web access, email and internet phone calls for 12 months, under the EU Data Retention Directive 2009. While they keep a limited amount of other data already on their own subscribers for billing and other commercial purposes, the new law will require them to store a much bigger volume of third party data such as that from Google Mail, Twitter, Skype and Facebook that crosses their servers every day.
Access in real time
It is unclear as to how the new proposals will be different from the current system. There is talk of the police and intelligence services being able to access data in real time. The current system normally gives access to historic data. It does allow real time access to certain organisations (including the police and security services) but only in an emergency to save life or limb or in exceptionally urgent operations. The authorisation forms still have to be completed and signed and served later on though. Maybe they are suggesting that the security services get carte blanche direct access into communications service providers’ systems. This would be unprecedented and certainly “Orwellian”, to say the least. The potential for abuse would be massive.
This is not the first time that this idea has been floated. In October 2010, the Government announced its intention to introduce the Interception Modernisation Programme, at a cost of £2billion. This latest announcement seems to be the same project but renamed “the Communications Capabilities Development Programme (CCDP)”. Details of the scheme will be published within weeks and will build on Labour’s abandoned proposal (which was heavily criticised by the Coalition partners at the time) to require communications service providers (CSPs) to collect and store the traffic details of all internet and mobile phone use, initially in a central database
Modernising the law
The Home Office Minister says they are updating the law “in terms of social media and new devices” – it is widely expected to include things like Facebook and phone calls via web-based systems such as Skype. If this means the agencies knowing when an individual visits these sites this is already allowed under the current regime known as traffic data (web browsing information). If the new system goes further and allows agencies to look at actual webpages visited within a domain (e.g Facebook) and calls made (e.g from Skype) this would be a big extension of existing powers and much more intrusive. It gives the possibility of building up a picture of someone’s lifestyle, their movements, contacts, interests etc.; potentially vast a amount of information which, if it gets into the wrong hands, can be quite damaging to individuals.
Safeguards
At present, the checks and balances are very weak (self authorisation followed by a notice to the CSP). The proposals, which talk of access in “real time” and “on demand”, require much stronger checks and balances.
If it is really necessary for GCHQ to have access to such a vast amount of information, it should be subject to judicial approval. This could be a similar system to the one which councils will be subject to as a result of the changes to the RIPA regime to be made by Protection of Freedoms Act 2012. In the future any local authority request for communications data (however minor) will have to be approved by a Magistrate. (See my earlier Blog Post for more detail about the Bill.) After all, the powers that the police and intelligence agencies have under RIPA to undertake surveillance and acquire communications data are much wider than those of local authorities.
There are also legitimate concerns about what would happen if the information held and accessed on individuals gets into the wrong hands. Can we really trust the law enforcement agencies not to mishandle such data? Only recently allegations have surfaced that that the police have been misusing their powers under RIPA to assist the tabloids to locate the whereabouts of celebrities and other persons of interest.
The effect on local authorities
The Bill will have a minimal effect on local authorities when accessing communications data. The process and procedure will remain the same (subject Magistrates approval as set out in the Protection of Freedoms Act (discussed above)). There is no provision to widen the scope of the information available to councils. The Home Office will have to issue a new code of practice and standard forms which Investigating Officers and their legal advisers will have to familiarize themselves with. This comes on top of other recently announced changes to the local authority surveillance powers.
The Bill will be subject to scrutiny by a joint parliamentary committee before the effort to bring the measures through Parliament and into law begins in earnest. Given what the Lib Dems and some Conservative backbenchers have said about it, it is likely to have a rough passage through Parliament.
Ibrahim Hasan is a solicitor and director of “Act Now Training” (website here). You can follow Ibrahim on Twitter here.
Article (c) Ibrahim Hasan 2012 (not LegalAware)
@garyslapper's top revision tweets
Prof Gary Slapper, from New York University, is a true Scholar, and anyone who’s met him will know that his scholarship is truly infectious. I feel his students are very lucky indeed. In a move which caught a number of #legaltweeps by surprise, Gary took to the twitter tom-toms to divulge some top revision tips. Gary’s had the delight of marking probably thousands of finals scripts in his time, probably. In a move unheard of, Gary effectively performed an “online revision surgery” for students who couldn’t believe their luck. With Gary’s permission, I am delighted to be able to share some of these tips here in a blogpost, in case you happened to miss the advice. You’ll note that the tips are either REVISION TIPs or EXAM TIPs.
This one is particularly crucial for the GDL, where you don’t get credit for answering more than the number of questions requested (at many institutions):
Gary evidently feels that the right sort of presentation is preferable.
Gary suggests that a ‘scattergun’ approach is not that desirable.
Precision is a current theme unsurprisingly for Gary.
When revising, Gary “goes for” quality-revision time.
In your exams, you only have a limited amount of time, so everything you write should be for a reason, and there seems to be no shame in stating uncertainties in some answers.
I don’t know of anyone who uses “cheat sites”, but Gary has a very good way of looking at their use. I did my GDL contract exam, having prepared all of the previous day for an exam in Con+ Ad (and still passed), so I sympathise with the second point in this set.
The manner in which you revise is not a trivial point, either.
I like the #AvoidSurprises tweet the most! #justsaying
Well worth a #ff @garyslapper – you will learn lots of law even if you don’t intend to!
or te intelligere legem melius…
Gary continues to be utterly inspirational in his teaching of law and its idiosyncrasies, weird or otherwise. Take for example his article on how bigamy has been dealt with by international courts!
Both @garyslapper and @charonqc certainly do not treat teaching as their “job”; they have inspired countless students through their love of their law; here they are ‘in action ‘s part of the hugely successful “Without Prejudice series”, episode 17.
@StephenMayson is right, though maybe the clouds can inspire legal regulation?
Being lawyers (or academic, in my case), it is hard to avoid an analogy with directives from the European Common Market affecting our domestic laws (with the regulations constituting a higher tier) and how different legal sectors could be regulated. It has been articulated elsewhere how reliable the “market approach” to legal services has been, so I don’t wish to go over this ground again. I do however wish to mention that it may not be helpful to leave the market entirely to its own devices, as you may certain ‘unprofitable’ areas of law, naming no names, shoehorning other areas of law out of the market, perhaps primarily involved in social welfare. This would be a great tragedy in itself, but also if it were allowed to compromise the education of future lawyers. Commodification also has been specifically dealt with, elsewhere, and I don’t wish to go over the arguments here either.
So should there be a ‘Superregulator’ for all parts of the law, including barristers, traditional solicitors firms, ABSs etc.? The intuitive answer is possibly no, as each division of the legal services ‘market’ will have its specific needs which need to be addressed. Like Directives, if there were seen to be a need for a ‘Superregulator’, maybe it could hand down directives for the Bar Standards Board, Solicitors Regulation Authority, or otherwise, to follow?
However, I was struck by a post by Prof. Stephen Mayson (from the College of Law) last night. It implied that there might be perceived inequality in ethical standards between different areas of the legal market. If there were to be perceived inequality, I feel that this could impact on competition within legal services, in that this might constitute ‘a barrier to entry’ (to use the Porter terminology) for alternative business structures. However, I am very much reminded of a completely different area in which self-regulation has been discussed until the cows come home – that of cloud computing. Here it’s argued that cloud providers should be talking the same common language, such that a customer/client can switch between cloud providers with ease (a notion called ‘interoperability’); it’s particularly important so that the public can confidently trust any particular cloud provider, whatever they are charging for their services which may be fundamentally different in quality and cost.
Let’s try that sentence switching the word ‘cloud’ by the words ‘legal service’. Here it’s argued that legal service providers should be talking the same common language, such that a customer/client can switch between legal service providers with ease (a notion called ‘interoperability’); it’s particularly important so that the public can confidently trust any particular legal service provider, whatever they are charging for their services which may be fundamentally different in quality and cost. It (for the time-being) works, emphasising that Stephen Mayson is right to warn against anything which could unwittingly cause a ‘barrier-to-entry’.
There are two aspects of the marketisation of legal services which dangerously have gone unaddressed, which I suggest ought to be of be importance to my senior academic colleagues. Firstly, you are not comparing like with like in this new market; even if you are able to compare legal services on measures of price and cost, you will run into difficulties in comparing the social value of a transaction, whether it be an acquisition of Instagram or a sensitive immigration case of a Ugandan citizen in West London. It’s the same reason ‘Monitor’ ran into problems as the regulator for the brave new world NHS. Secondly, you should be very conscious of where genuine partitioning or arbitrage of the legal services markets exists. Again, cloud providers may be able to charge differently according to supply/demand, quantity of services sold (e.g. bulk discounting), or different segments in time or geography. This is well known to the economists already due to Pigou’s elegant theory of price differentiation in competitive markets; unless the legal services regulators consider this too, I guarantee they will run into trouble in the long-run.
