The ‘Crusher’

The ISPAs 2010

Thursday night (8th July) was a glittering night for the Internet industry - the annual ISPA Awards bash at the Marriott Hotel in Grosvenor Square. After all the testing and all the submissions it was time to hear the judges verdict.

The awards are the Internet industry’s chance to recognise good practice and good performance. Over the last 12 years they have changed with new categories and new means of assessing performance in the ISP Division. The ISP Division recognises best practice across hosting, customer service, consumer and business broadband etc. The Times noted that the ISPAs were, ‘The awards that could have the most direct bearing on your life’ and the Daily Mirror called it, ‘The Internet event of the year’. Whatever, it is without doubt keenly awaited by those in the industry and keenly commented by customers and others.

Congratulations to all those who won. The Crusher was pleased to see the team at NewNet picking up another piece of acrylic to add to the two previous awards - this year in the class of Best Dedicated Hosting. Well done to the NewNet team and to all those who won in the ISP Division.

But, it is the Special Awards that arise more interest. New categories here for digital inclusion (Bolton Literacy Trust) and for Internet Safety (Childnet), Access Innovation (The Alston, Cumbria, CyberMoor project with a special commendation to SW Internet CIC) and Corporate Social Responsibility (Orange).

At the end of the evening there are two awards that evoke much wider interest - the Internet Hero and the Internet Villain award. Now, in years past The Crusher was pleased to nominate someone who was then awarded the Internet Villain prize so there is always a little more than minor interest here.

What was interesting this year was that both awards recognised different sides of the same thing - the passage through Parliament of the Digital Economy Bill to become the Digital Economy Act. ISPA Council members bestowed the Internet Hero Award upon Tom Watson MP for leading the opposition to the parliamentary fight against the Digital Economy Bill and continuing the campaign to ensure an informed approach to the Act. Well done Tom - your actions in the House of Commons and your speech in the final parts were an inspiration and made it clear that there was not a common cross-party consensus.

The passage of the Digital Economy Bill was fraught and was not helped by changes being made during the consultation period and then by inclusion within the final ‘wash-up’ stages before the end of the parliamentary session and the General Election. There were a number of nominations for the Internet Villain award, all in their own right quite worthy recipients, but in the end, the winner was a shoe-in for the award. It was the Dark Lord himself, Lord Mandelson, formerly Secretary of State for Business and Skills, who had steered the Digital Economy Bill through the various processes. The change that was made during the consultation phase coincided with a weekend meeting with a major rights owner and the final stages were a sham, forcing through legislation that was deeply unpopular and which made fundamental changes to the due process of law.

So, a worthy villain. Sadly, Lord Mandelson was not available to collect his award in person. What a shame - would have been a great appearance and a great acceptance speech!

The new coalition governement has now invited the public to suggest law that should be removed, replaced or amended. Inviting the public to comment is always a risk (a request to introduce a law ‘to allow me to marry my horse’) but sometimes shows popular unrest and resentment. No surprises really to see that some of the largest number of comments and requests related to repeal of the Digital Economy Act. So, it is over to you government, you asked and now you have been told. DEA must go!

Tempus fugit II …..

Time flees as the Latin tag says (perhaps more commonly recognised as ‘Time Flies’) and it certainly seems to be the case with Data Retention.

It seems just a short time ago that we were watching the progress of the Directive through the European parliamentary system, from introduction through discussion (is that really the right word for the actions of the UK Presidency in 2005?) to amendment and then to final acceptance and transposition to national law.

In the UK we were there at the beginning, transposing the first parts to apply to fixed line and mobile telephony. 18 months later came the inclusion of Internet data. The interesting bits were the differences between national transpositions - some elected for retention for as little as 6 months, others for 12 and some for as long as 24 months (but would have liked longer). The UK opted to allow for reimbursement of capital expenditure and the provision in relation to Internet data seems to pay only slight compliance - requiring retention of data only where the national authorities deem that it is necessary.

Some member states have only brought data retention within national law in recent months - Portugal in August 2009, Italy at the end of 2009 and Poland only at the beginning of 2010 (UK, 1st phase Sept 2006, 2nd phase March 2008). There remain a number of member states where data retention has still not been applied - Austria, Belgium, Greece, Ireland, Luxembourg, Romania, Sweden - so much for the idea of ensuring a common approach to law enforcement.

But, time flies. The implementation of the Data Retention Directive provided for an evaluation of the Directive. The time has now come for that evaluation and a number of conferences and meetings have taken place. The results of evaluation will be published later in the year, probably in October 2010. After that, the Commission will begin the processes that will lead to proposals for a revised Directive, probably by the end of 2011 with expected implementation by 2014.

It is too early to say what that new Directive may include, but undoubtedly there will be pressure to expand the range of retained data to include a wider range of Information society services - The Crusher would expect to see pressure for the inclusion of social networking data and web site access. There may be some agreement on a reduction in the range of the approved time scales -although as most members currently retain for 12 months this is unlikely to affect the majority (including the UK).

The evaluation report from the Commission does include some interesting data relating to the number of requests for access to retained data in 2008.

Clearly there are wide variations in the raw number of requests with France and the UK heading the number of actual requests. Of course, both have fairly high populations so it is reasonable that there should be a large number of requests. But, when the figures are compared against the national populations the data requests become more interesting. the right hand column shows the number of data requests per 100,000 of population. Under this order, Lithuania shows a massive 2239 requests per 100K with the UK behind France at a much lower 769. Yet Cyprus only requests data at the rate of 3 per 100,000!

Of course, there will be variations in what is perceived as relevant crime and the use of data to locate rather than to determine specific use. It may well be that the larger number of requests are being used more as a location tool than as a more detailed investigatory procedure. But, the figure for Lithuania is so much greater than others it does rather beg the question what use is being made of retained data in that small state? Perhaps there remains an investigatory throwback to a prevous regime - although the lower (far lower) figures for neighbouring Estonia and Latvia may negate that suggestion.

Interesting data - it will be interesting to watch what comes out of the Commission in late summer/autumn 2010.

All Change!

Well, here we are, just a week or so since the announcement of a coalition between the Conservatives and the Liberal Democrats. Now the new government is taking shape and we know who has the top jobs.

But is it a Lib-Con or a Con-Dem - only time will tell.

Anyway - now the politicians have had a week or so to wait by the telephone (guess there are quite a few Tories who did not get a call that they might have expected) and to start to get policies announced ahead of the formal State Opening of Parliament. That will see the reading of the Queen’s Speech but it is clear that many of the contents of that speech have already been announced.

It is clear that this new Parliament is going to be different. For a start there are now more newly elected Members (new intake) than at almost any previous time. The Crusher wonders just how many of these will actually have some understanding of the online world - perhaps the fact that there are many younger members may suggest that they may have some idea about how to use email and the various social networking media. Perhaps some may even understand what an IP address is.

But, the interesting bits have come in this second week. Policy announcements have made it clear that many projects favoured by the previous administration have now fall out of favour with the new. Most of this is down to cost (as the former Chief Secretary to the Treasury left a message for the incoming replacement - ‘there is no money’) but there are some areas where it is clear that public concern has manifested in political action.

An announcement today made the point - suspending the widely unpopular Home Information Packs(HIP). Introduced in an attempt to make information available to house purchasers and to streamline the conveyancing process they included an energy efficiency assessment. The reality was that there was now a requirement for sellers to purchase an expensive pack that duplicated the work that would still have to be undertaken by solicitors in the conveyance process (who would still have to conduct searches etc. in order to ensure that liabilities were met). The pack had to be prepared before sale and was only valid for six months. In the current sales environment there was every likelihood that sellers would have to arrange for several packs.

So, with immediate effect, there is no longer a requirement to have a HIP in place. But the requirement for the energy assessment remains in place and sellers will have to have an assessment and a certificate within 28 days. Now this is a European requirement and is set out within a European Directive so the hands of the UK coalition are tied - they cannot scrap all of the HIP and must retain the requirement for the energy certificate - all dressed up in the words of promoting green behaviour etc.

The energy certificate is a pointer to some actions elsewhere. Nick Clegg, Deputy Prime Minister, set out a number of pointers this week:

“This government is going to transform our politics so the state has far less control over you, and you have far more control over the state …..

Big, sweeping change. “

Nick Clegg continued:

“First, sweeping legislation to restore the hard won liberties that have been taken, one by one, from the British people.

So there will be no ID card scheme. No national identity register, a halt to second generation biometric passports. We won’t hold your internet and email records when there is just no reason to do so.”

There has certainly been concern over the use of RIPA (Regulation of Investigatory Powers) by some local authorities to keep tabs on parents, fishermen and dog walkers (and much more). It will be interesting to see how the actions of local authorities is to be curbed.

Cancellation of the ID card programme was always going to be on the cards as there were major cost implications. Quite simply it was a project too far, a project too expensive. Interestingly I recently saw a poster on the wall at an Identity and Passports Office - ‘ID cards are coming.’ Wonder if that has come down already!

‘We won’t hold your internet and email records when there is just no reason to do so.’ So far we have the Data Retention Regulations transposing the European Data Retention Directive - the UK implementation is rather idiosyncratic and is applied where the Home Office feels that there may be a need, somewhat less than the wording of the Directive. It is likely that the Regulations will remain (they are after all prescribed within European Law) but that the discussions for increased data gathering under the Internet Modernisation Plan will now go no further. IMP was causing concern with the suggestion that security services and law enforcement agencies could benefit from data gathered using deep packet inspection techniques implemented by ‘black box’ servers located within ISP networks. Forget concerns that the technology was not yet up to the task, nor really likely to be in the near future - the real problem was the potential cost. That is where the cut has fallen.

Another area that has raised much concern over recent years is that of the DNA database. The decision in the European Courts in S and Marper v United Kingdom made it clear that changes were required, however much the then Government disagreed and tried to back-track. Now it seems that there may well be a tide that will restrain the expansion of the database - restricting the collection of data to those who are actually convicted of a crime will be a start and removing all those records that relate to persons wholly innocent and with no conviction against them. Maybe, at long last, there will be the will to implement S and Marper.

Yes, the pendulum is now swinging towards change. How much will actually change remains to be seen but there is certainly a groundswell of opinion. We could well be heading for an interesting time. Not the least of which will be the realisation of where actions are restrained by Directives applied from Europe.

Identity - start by helping yourself ……

Whilst we all mull over the results of the General Election held on May 6th here in the UK, a time to ponder some other topics. It seems that it will be a while before there is any clear indication on future policy and on departmental responsibilities and it may now be likely that there will be some form of coalition. If there is not then we may well be in for a period of minority government and the likelihood of another election in the coming months. If that is the case I will suggest Thursday October 21st as a suitable day.

That is, of course, Trafalgar Day, so a suitable day to decide the future path of the coun try. Remember, you saw that date here first!

But, to a different topic. The Crusher finds an opportunity from time to time to consider things away from the normal run of regulation and legal development. Now seems as good a time as any to do that.

A few weeks ago The Crusher updated links to online credit cart transactions. As part of the update, the bank offered a higher level of security and the availability of software to monitor access to banking accounts and to advise of any potential threats to personal security. All good stuff and good to see that the bank are taking steps to help customers with their online transactions. The latest applications now run alongside the standard anti-virus, anti-spyware, firewall and other tools - all of which should be part of the standard set-up for any online user.

The Crusher is only too well aware of the potential problems. At the beginning of this year one of our financial service suppliers advised that they had detected an unusual transaction for a fairly large sum. They asked if an online order had been placed with a US based supplier. Apparently the order had already been declined as it was outside the normal pattern and had been flagged as potentially suspicious by security software - the call confirmed the status and no payment was authorised.

Of course, the result of this was immediate cancellation of the account and a new card. Interesting to speculate on how the card number came to be used. Maybe it was collected from the home PC (unlikely to be honest), maybe from a remote merchant or maybe it was randonly generated. Whatever the source, the security and anti-fraud systems at the bank kicked in and spotted and blocked an unusual transaction.

Online fraud and identity theft is an increaqsing problem. The card issuers in the UK have attempted to tackle problems here by issuing ‘chip and PIN’ cards. If a card is used and the correct PIN is inserted then the transaction is verified and payment authorised. If a card is used for an online transaction then there are a series of checks to ensure that the card is being used correctly - entering exact name, registration address, card verification code (the last three digits on the reverse), start and expiry date etc. And then there are the further security steps using ‘Verified by Visa,’ 3D Secure etc. where the card owner is asked to insert a password or a selection from a pass-phrase to validate the purchase. All godd stuff - but it is clear that the move to ‘chip and PIN’ has made life more difficult for criminals and that there is now an increasing in online fraud.

Identity theft is now a recognised problem, much publicised in the press and by financial service providers with strong advice to users. It really is not a good idea to store details of the PIN in the same location as the card! Shred unwanted documents and store statements and others in secure locations. Most people will recognise the actions and will be taking steps - and are rightly aggrieved with the loss of personal data by large organisations including Government Departments and others.

But - prevention of identity theft must start at home. As alreadysuggested, make sure that there are firewalls, anti-virus, anti-spyware in place and that operating systems are fully patched and up-to-date. Those are all the obvious and technical things. But it is the warmware that is likely to be the weakest link - not the software or the hardware.

Warmware is, of course, the user. So why is that that The Crusher is writing about this right now? Well, again it is down to personal experience.

Last week my mobile phone broke - well, it was the tiny pin within the charging connection of the Nokia phone. Once that broke it was impossible to charge the battery so only a short time before the phone became completely u/s. It probably could be repaired but it is now a few years old and there were other faults as well. So, time to get a new one. Or, at least, new to me. Relatively new mobile phones can be picked up quite easily online, eBay and other sources can offer deals at well below the prices of high street suppliers.

So, a search for a new phone, an order and a delivery. Very rapid delivery and far faster than it would have taken to have got the old one repaired. More up to date model to with lots of new gizmos to play with!

OK, steps to update. Connect old phone to PC and download all contact details and stored messages etc. Now connect the new one ready to sync the details.

Ah ha - the new phone has a lot of data in it. Download all the contents to the PC to edit. Now what do I have - all the previous owners contacts, family, friends, work related etc. Music tracks, some data, some video and more.

Of course, I have now taken steps to erase all the data, both from the phone and from my PC. But, in this world of identity theft it really is a little worrying to see what someone, probably wholly inadvertently, has left for someone else to discover.

Now, I no longer have the data but I coud very easily have built up a profile of the user. That would have included their home location(it’s in the Midlands), the location of family members (parents, parents-in-law, brothers and sisters and others), exact work location (try Googling a business phone number), names of work colleagues etc. I know who the previous owner is likely to bank with, likely hobbies and interests and that they are likely to be concerned over crime or anti-social behaviour in their area.

This sort of information would be an absolute gold-mine for a criminal. It is clearly so easy to overlook but a potential warning for us all.

If you are going to dispose of any item that may have personal or other important data on it then do take steps to either thoroughly delete the data or to destroy the device before disposal. The Crusher knows of one person who took a 12-bore shotgun to a hard drive, another who used a lump hammer and an electric drill to break up the device. You really cannot be too careful!

A final Westminster salute to the voters?

So now we have it. The Digital Economy Bill has completed all its stages and is about to become law, the last addition to the Statute Book at the end of this Parliament.

There has been wide discussion of the various clauses and a large number of amendment brought forward and, in most cases, subsequently withdrawn. The real problem has been the lack of effective scrutiny in the elected House and the resulting passage of a piece of flawed legislation. The final stages of the passage of this Bill may be something of a parting Westminster salute to the electorate - we really do not care for what you are telling us, we will go and vote on party lines, don’t trample me in the rush back to the constituencies.

The final debate took place in the chamber of the House of Common on Wednesday night. Interesting to follow the discussion and progress via the live webcast. Interesting and informed intervention and discussion from a small number of elected Members including Tom Watson, Austin Mitchell etc. But what was really noticeable was the small number of members who were actually in the House to take part in the debate. At times it seemed that there were no more than a dozen or so - out of some 646.

But wait - after a mere 2 hours and 11 minutes (including time out for the two Divisions) 236 elected representatives filed through the lobbies to vote. Hang on, at best there were only 40 in the chamber for the debate. Where were all the others. Following the debate via the Internet - I doubt it. From the quality of comment made by some I suspect they would not know how. Waiting outside the chamber of the House in order to troop through to the braying of the party whips - of course!

Forget the 5,000 people participating in live online discussion with nary a few in favour, forget the 20,000 who wrote to MPs and who contributed to campaigns against the Bill, forget …..

In fact, forget the views of the electorate, those who will actually cast a vote on Thursday 6th May. Demonstrate that you are all above this, able to force through a badly drafted and fundamentally flawed piece of legislation using ‘wash up’ procedures that involve horse-trading between party managers in order to reach a wholly undemocratic consensus.

OK, the final result of the horse-trading was that some parts of the original Bill was discarded or further amended. Clause 18 is now referred back, Clause 43 relating to orphan rights has been removed, much to the pleasure of photographers. Did it ever really impact on them - perhaps the original intention was that it should not but drafting may have made it possible. Whatever, that is now kicked out.

Out too went the tax (sorry, levy) on fixed line telephone circuits to fund next generation fibre. Oh - but that was dropped from the Finance Bill not from the Digital Britain.

Trying to track down exactly what the new law contains is not easy - until the final version of the Act is published one must cross-reference the original Bill laid before Parliament with Amendments and with the official record of the debate.

If you want to put it together the locations are:
Digital Economy Bill
Commons Amendments
Hansard debate (official record including list of Ayes and Noes)

Go to the Official Record and check to see if your MP voted. Did your MP vote ‘AYE’ (for the Bill) or ‘NO’ (against).

If they voted ‘AYE’ ask them why they were prepared to vote through a Bill that makes fundamental changes to the law, changes the presumption of guilt, introduces substantial new powers for the Secretary of State through ‘Henry VIII’ clauses, provides for Rights Owners to seek details of individual users of an ISPs services etc. etc.

Why were they prepared to force through such a fundamental piece of legislation in the face of very considerable informed dissent and using short-circuit procedures to prevent effective democratic scrutiny of the proposed legislation.

The Bill was introduced by an unelected and unaccountable member of the upper House. Sadly, he cannot be removed on May 6th. Likely he will no longer be in office but he will still have a seat.

As for the others ……

There will be a lot of new faces on May 7th. Some of them may bring experience and a new sense of right and wrong. What they should all realise is that there will be a new order and that the electorate will be looking for change, for some accountability and for some honest representation.

Tempus fugit …..

Where does the time go? It seems only just a few weeks ago that we were discussing the ramifications of the proposal for a European Data Retention Directive. The reality is that this was now five years ago and the major discussions took place during the UK Presidency of the European Union in the second half of 2005.

We are now fast approaching the date set within the Directive for the European Commission to report to the European Parliament and the Council on the working of the Directive and its impact on the economic operators and consumers. The date for the submission of the evaluation is 15th September 2010 - just 6 months away now. As a result of the evaluation, the Commission will determine whether it is necessary to amend the provisions, particularly in relation to the nature of the data to be retained and the period of retention. The results of evaluation must be made public.

In the background to the imminent evaluation there are some interesting developments and it is clear that the Directive has not yet been applied across all member states of the European Union.

On March 2nd, the German Constitutional Court ruled that the implementation of the Directive in Germany was in contravention of the German Constitution. Der Spiegel reported on Wednesday 3rd March that the Court had ruled that data collected and retained under the (now unconstitutional) law was to be deleted with immediate effect and that strict controls were to be brought into place before the law could be re-introduced. The case has taken some two years to progress but was brought as a class action on behalf of some 35,000 German citizens who argued that the new law went too far.

The court agreed and said that there was insufficient clarity in the reasons for the retention of data and that there were insufficient safeguards on the data once retained. A key point here is that the Constitutional Court has struck down the German implementation of the Data Retention Directive, not the Directive itself. The German government must now look at the decision of the Court and consider the safeguards that must be put into place before it can draft a new law and introduce that. It is certain that there will now be intense public scrutiny.

Belgium also faces an interesting period, particularly as it is scheduled to take over the rotating Presidency later in the year and will be ‘in the hot seat’ when the evaluation of the Directive is due to be presented. The transposition of the Directive into national (Belgian) law has taken some time and there has been considerable and vocal opposition to the Government proposals. The proposals went much further than provided for within the Directive including banking data and use of the data beyond what may be determined as ’serious crime’. The Belgian proposals also called for the retention of data at the maximum period (24 months) provided for within the Directive. The initial proposals attracted a negative response from the Belgian data protection agency, an almost unheard of situation - although that eventually was turned around to a more positive response when the proposals were watered down time scales pulled back to a more standard 12 months.

The Belgian proposals have not yet completed the parliamentary process. In the last couple of months, Belgian ministers have been trying to reach consensus with stakeholder groups to see if they can bring forward a new law before June. That is an important date - the rotating Presidency comes to Belgium on 1st July and the government wants to prevent the country from critiscism about their failure to implement whilst they are also supposed to be leading discussions on evaluation.

It is clear that some Belgian politicians had been awaiting the outcome of the case before the German constitutional court. That is now clear - it remains to be seen how this may affect the Belgian transposition.

Disconnection or Suspension?

What’s in a word? Is there really a difference between ‘disconnection’ and ’suspension’? Are we now approaching an end game in which the Government will want to make small changes to the Digital Economy Bill in order to ensure that it passes through the Parliamentary process with the minimum of problems before the Prime Minister calls the General Election?

Well, the PM is the only one who knows the date of the election - or so we are led to believe. Smart suggestions have tagged the 6th May as the day, coinciding with the district council elections, but there have been suggestions in mid-February that the PM may decide to call the election earlier, particularly if there appears to be a double dip within the recession.

The Digital Economy Bill has been progressing through discussion in the House of Lords with a succession of amendments being laid before the House, withdrawn or incorporated. The Bill has now been through the Committee stage and will move on to the Report stage with further line by line examination on 1st March. After completion of the Lords stage, the Bill will move on to the Commons for further stages - 1st and 2nd readings, Report stage, 3rd reading and consideration of amendments. The Crusher continues to think that these stages have the possibility of taking more Parliamentary time than will be available.

However, it is noticeable that there have been changes to the Bill. Much trumpeted at the beginning of the process was the inclusion of powers to allow the disconnection of internet service for those found to have been engaged in file-sharing. There had been some suggestion, maybe incorrect but widely publicised at the time, that changes were introduced by the Secretary of State following a weekend meeting with a Hollywood producer, changes that would have hardened up the response to potential file-sharing.

Now, it seems that the Government is back-tracking. A response to a No 10 Petition sets out the Government’s position and that it considers there should be economic recompense for those engaged in creative production. No problem there, and the response goes on to indicate, “that [the Bill] require[s] ISPs to write to their customers whose accounts had been identified by a rights holder as having been used for illegal down loading of their material. In the cases of the most serious infringers, if a rights holder obtains a court order, the ISP would have to provide information so that the rights holder can take targeted court action.” Little difference there to the current procedures where most ISPs pass on notifications of potential abuse and discuss with their customers and where some (ISPs) have been the subject of court action to release details of customers to rights owners.

The interesting line comes later, “We will not terminate the accounts of infringers - it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal – cases.” This appears to be a step back from the previous position and may have more than a passing nod to the discussions emanating from Brussels - where it is clear that access to broadband internet is seen as a basic right.

“We will not terminate” - that is the interesting bit and really comes back to ‘disconnection.’ What’s in a word? If you terminate or disconnect an ADSL circuit then the ISP puts an order to the wholesale provider to physically disconnect the circuit at the exchange, to remove the inter-connect on the frame between the PSTN and the ADSL mux. BT raise a charge for this, a charge that is now passed on by most ISPs to end-users. Terminate and you will be charged - ISPs will not want to bear the costs of this and will probably find it difficult to recoup costs from either end user or from rights owner. When the end user wants to re-connect there will be a standard connection charge applied by the wholesale provider. Now, suspend and the link to the internet is removed at the ISP (block the authentication request) but the physical link remains in place. To the end user there is still no access but there is no charge for disconnection and no charge for re-connection (add those two together and you are talking about quite a susbtantial penalty) and the ISP only needs to permit the authentication again when the suspension is served. Depending on the terms of the service agreement, the end user could find themselves liable for on-going circuit charges during the suspension (the wholesale provider will continue to levy these).

In terms that the end user will understand there may be little effective difference (until the charges roll in), they will still be unable to access the internet. French legislation (the ‘Hadopi’ law) suggests that suspension may be applied for up to 12 months - that will pretty much seem like termination to the user - there does now need to be some indication within the UK process as to what the terms of suspension may be.

There do appear to be movements in other areas. An end user may wish to appeal against a decision to apply ‘technical measures’. There does now seem to be some change to the appeal process and to the way in whcih the measures will be applied by Ofcom. This may be particularly important where an end user has a wireless network and someone unknown accesses the network and uses it for file-sharing. If the subscriber can show that they took reasonable measures to prevent access (although the exact nature of ‘reasonable measures’ is not explained) then they may well have a good case for appeal.

There is now no option for the introduction of immediate suspension - technical measures will not be able to be introduced for at least 12 months after the coming into force of the initial obligations code. No suspensions until April 2011 at the earliest (and then likely to be another Government that will take the hit!).

It may well be that the politicians are playing with words before an election - but there are differences between termination and suspension. What we now need is some clarity as to what the intention is in relation to length of suspension - 1 week for first offence, 1 month for second etc.

320 years down the line - was this what they meant?

The news that 3 Labour MPs have cited clauses within the 1689 Bill of Rights as part of their reaction to criminal proceedings brought in relation to claims submitted for expenses leaves a feeling that this was not what was intended when the original draft was laid before Parliament.

The Bill of Rights is one of the fundamental pieces of legislation that defines the English system of government and the constitution of the land. It came after a turbulent period in English history - the Civil War had taken place some 40 years earlier and had led to the execution of King Charles I in 1649 and the creation of a republic under the leadership (dictatorship) of Oliver Cromwell. After Cromwell’s death in 1658 the monarchy was restored and King Charles II returned to London in 1660. The death of Charles in 1685 with no legitimate heir raised substantial issues of succession. James, Charles brother, took the throne but was not popular. Charles eldest son, James, Duke of Monmouth raised an army and led a rebellion in the west, culminating in the last battle fought on English soil, at Sedgemoor in 1685. James, Duke of Monmouth escaped the field of battle but was captured at Ringwood, tried and executed for treason (the executioner botched the job and was forced to finish the decapitation with his pocket knife). James II fled in 1688 (The Glorious Revolution) and was replaced by his son-in-law, William of Orange. After the experience of James II (absolute monarchy), Parliament introduced the Bill fo Rights in 1689 in order to define the role of Parliament and the freedom of members.

The Bill of Rights makes clear its importance, ‘An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne’. The reason for the Act is then set out, ‘Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome.’

The part that has been cited in the recent period comes later in the Heads of Declaration. The Bill makes it clear that the election of Members to Parliament ought to be free and that there should be freedom of speech, ‘That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.’

It is this part that has now been brought forward in an attempt to prevent prosecution in the criminal courts. The MPs suggest that their dealings in relation to Parliamentary expenses should be considered as ‘Proceedings in Parlyament’ and should therefore not be questioned in any place other than ‘in Parlyament.’ Proceedings in Parliament are defined on the Parliamentary website, a definition that offers some clarity. Proceedings taking place on the floor of the House, in committee etc. are protected by privilege. If necessary, a Member can name a person within a speech without fear of that person taking action for slander in another place (in the courts). This is an important freedom and one that must be guarded and protected.

Submission of expense claims may take place within the Palace of Westminster and may be seen as part of an MP’s administrative proceedures but should not be seen in the same context as a speech, statement, question etc. before the House. Those actions are recorded in the proceedings of the House (Hansard) and available in print and on line.

To consider the use of the clause within the 1689 Bill there should be consideration of the context and the intent of the Parliamentary draughtsmen at the time. The preface to the Bill makes it clear that the Bill is a repsonse to the abuse of Parliament conducted by James II, ‘Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert ….. the Lawes and Liberties of this Kingdome.’ Parliament was taking care to enshrine and ensure the freedom of speech, the opportunity for Members to make statements, to raise questions and to name and shame without fear or favour.

The allegations made agains the Members suggest that there was criminal intent (mens rea). The Crown Prosecution Service have now indicated that they consider there is a case to answer and that this should be answered in the Criminal Courts with charges laid under the Theft Act. The intent of the Bill of Rights was clearly to protect Parliamentary freedom but reading the Act with the preliminaries does suggest that the intent was not to provide an escape clause for criiminal proceedings.

The late, great Master of the Rolls, Lord Denning, reiterated Thomas Fuller’s statement of some 300 years ago, “Be you ever so high, the law is above you.” Good advice, as ever. The three MPs who now find themselves facing criminal proceedings should now make it clear that they wil not attempt to distract the investigation by calling upon privilege. It does rather seem that this is the view of the party who have now withdrawn the whip from the accused.

None of the accused will be candidates in the forthcoming election, that had already been decided by the party. Now they should face up to the criminal investigation, prepare their defence and make efforts to persuade a jury that they are indeed innocent.

If they do want to insist on the application of the 1689 Act then they may wish to consider accepting the penalty that would have been applied for theft at that time - if they are found guilty. A couple of public beheadings on Palace Green might concentrate the minds, ‘pour encourager les autres’, as Voltaire noted in Candide after the execution of Admiral Byng. Somehow, The Crusher believes there might be a limitation as to the application of 17th Century legislation.

Welcome to a New Year

Welcome to the New Year - 2010

This will be an ‘interesting’ year - not the least of which through the absolute knowledge that we will have a General Election here in the UK this year and that the outcome is likely to be a change of government.

When that election will be is still open to some form of guess work. It is probable that the only person in a position to determine the election date does not yet know which date he will choose and that the actual date may well depend on circumstances. Hints from recent interviews suggest that later rather than earlier may be the form - The Crusher suspects that the date will go long leaving the current administration to remain in power for as long as they can in the knowledge that they are unlikely to return in power. Enjoy it while you can!

The Crusher suggests that the most likely date for a General Election will be Thursday 6th May. This is the day already determined for local government elections - it simply makes economic sense to hold the General Election on the same day although this has not always been the case.

The last day that an election may be held is 3rd June. The 2005 General Election was held on 5th May with Parliament meeting for the first time on 11th May 2005. The last date that a notice may now be issued to call a new Parliament (requiring an election) is 10th May - the election would then be held 3 weeks later on 3rd June.

However, for the election to be this late the current Parliament would have to run to the end of its statutory period and would expire. Parliaments in recent years have not expired and elections have been called before the last date.

For an election to be held on May 6th, the Prime Minister would have to ask the Queen to dissolve Parliament some 3 weeks before this date. Notice of the election would thus have to be given around 10th April - one week after the Easter holiday.

Now these dates are not so far away and the short period makes the current legislative programme all the more interesting.

Currently high on the agenda is the Digital Economy Bill with its provisions for restrictions on Peer to Peer file sharing etc. The Bill was in second day of committee stage in the House of Lords yesterday (12th Jan) with a large number of tabled amendments. As expected, many of those have now been withdrawn but there have been further significant additions.

The Bill must progress through committee and then formal reading stages in both Houses of Parliament. That takes times and The Crusher suspects that Parliamentary time will not be sufficiently available to allow passage before Parliament is prorogued and an election is called. If the Bill has not then completed all of its stages then it will fail. The Crusher suspects than an incoming administration will not feel that the Digital Economy Bill will be its first priority - rather that will go to more traditional economy. If the Bill does not pass through Parliament before March it may well be some time before it is brought back.

That may be fortuitous - current amendments tabled by the Secretary of State for Business suggest that technical measures could be applied to all subscribers rather than particular subscibers. That could, if implemented and passed, provide for content filtering for all with specific sites identified by copyright owners. A further amendment provides for discussions and representations between the Secretary of State and rights owners to remain confidential - in order to protect their business interests.

Difficult - and not promoting transparent government. The current developments have seen a number of meetings and representations which have changed the way in which the Bill has been presented leaving a hint of some opacity. If there are to be future changes to the Copyright legislation then the reasons for requiring a change should be transparent and open to all.

Vetting turnaround

The Independent Safeguarding Authority was set up following the recommendations of the Bichard report into the circumstances surrounding the murder of two young girls by Ian Huntley, a school caretaker, at Soham in Cambridgeshire. The murder was a shocking event and was quite rightly reviled but the outcome in the form of the ISA was the creation of a draconian new quango with the power to bar persons from contact with young people or vulnerable adults.

Of course there should be protection and there should be barring. Anyone convicted of a sexual or violent offence should be barred from working with vulnerable groups. That has been in place for many years. Part of the Bichard response was to bring together various bar lists into a single place - no problem with that.

The problem was that the new legislation required that all adults working with young persons or vulnerable adults on a frequent basis had to submit to CRB checks and ISA registration. Without the registration, employment or activity was not permitted. The issue was predominantly around the definition of the term ‘frequent’. Initially this was taken as meaning regular contact with children - monthly for example. The definition caught a number of groups who had not previously required clearance - authors visiting schools, parents taking part in the running of sports clubs etc. There was a backlash which was initially rejected - the protection of children comes above all else ….. On the one hand that seems reasonable but on the other hand the implications were that somewhere in the region of 11 Million people would need to achieve ISA clearance and registration in order to carry out activities - both employed and voluntary. It is the voluntary that causes problems (those undertaking employment expect to be checked and that successful checking will form part of the employment contract) - many perceived the checks as requiring them to prove that they were not paedophiles before being able to help out with clubs, societies etc.

There is a fundamental assumption in English law that a person is innocent until proved guilty beyond all reasonable doubt. In this case there was an assumption that if a person could not present an ISA registration then they must have something to hide and might well be a paedophile. This, of course, is wrong but that was the perception. A group of well known authors (Philip Pulman and others) objected and made it clear that they would cease to visit schools if they were forced to submit to checks. Parents found themselves being told that they would have to register in order to transport their own and other children to sports events.

Now, the Education Secretary (Ed. Balls) has announced a climb down - the definition of frequent is to be taken down to contact with the same group of children on a weekly basis rather than monthly. It is estimated that this will reduce the number of registrations by 2 Million - dropping from 11 to 9 Million. OK, a step in the right direction - but bear in mind that the number of barred individuals is only likely to be in the order of 20,000 to 40,000 - at worst case scenario just 0.4% of all those checked.

Now protection of children is right and proper but when you set 40,000 against 9 Million there does seem to be something of an over zealous approach. The figure of 20,000 barred individuals represents the current pattern (just 0.2%), however this could rise to 40,000 under the new vetting regime. Why the difference - well the ISA will take evidence of suspected activity rather than proven (in a court) when deciding to bar an individual. If there is suspicion that an individual may have engaged in activities but there is insufficient evidence to bring a prosecution to court then this may be disclosed to the ISA and may result in a decision to bar. The ISA (chair, Sir Roger Singleton, speaking on BBC Radio 4 ‘Today’ programme - 14th December) will give an individual the opportunity to dispute a bar decision but the Crusher does think there may well be a problem here. Unfortunately, many teachers are falsely accused of activities which might lead to barring and therefore to dismissal. When accusations are made they must be investigated although this can take far too long and can result in severe stress leading to deterioration in health and dissillusionment with working in the education environment. The result is that perfectly good and innocent teachers are forced out of their job. When the investigation clears the teacher it may be too late - but it may also be the case that the accusation remains on the teachers record and may be disclosed in a future ISA request. If that is then used to bar the individual from working this would be a gross abuse of process.

The Crusher is of the opinion that this may well happen - there are already examples where a employee has been rejected because a CRB search revealed a record retained within the national DNA database recording samples taken when the person was arrested on a suspected charge and retained even though there was no further charge or conviction. The person was innocent of any charge yet remains at the mercy of a retained sample. Somehow The Crusher suspects this will happen in the ISA process.

The reason for all of this bureaucracy is ‘the protection of the children.’ The Soham case is often quoted to justify the means -yet an investigation of the actual circumstances of that case suggests that the new vetting system would not have been able to prevent the act - the victims came to know the murderer through a third party who would have passed checks and registration.

The Crusher is all in favour of checks, vetting and barring in order to prevent those convicted of relevant offences from working with children or vulnerable adults. But this has to be done in the context of a proportionate and relevant response. Even with the changes announced by Ed. Balls this week there does not yet appear to be a willingness to implement an appropriate control.

However, there was some additional glimmer of hope. Recent reports have shown some circumstances where schools have introduced procedures that go far beyond the legislation - requiring all adults coming on to a school site to be in possession of CRB checks, including parents - and local authorities have prevented parents from accompanying their children in play parks stating that children could only be accompanied by CRB cleared adults. Ed. Balls has now made it clear that there have been gross over-reactions and these should be reviewed. sadly this seems to be all too common a situation - headteachers and others react and respond to their perceptions of legislation and regulation without fully investigating or understanding the actuality of the requirement. Health and safety seems to be another area liable to similar mis-construction. The reason is always the same, ‘for the protection of the children’. By over-reacting we are denying much that is good and right - to the detriment of the children.

But - there is an election in the offing. Will the incoming Governement have the Balls to repeal and re-draft the legislation.