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wide discussion of the various clauses and a large number of amendment brought forward and, in most cases, subsequently withdrawn.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.

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.

In the run up to an election …..

We know that a General Election is coming in the UK. The current government is now in the last Parliamentary session before they must prorogue Parliament and send members back to their constituencies to seek re-election. The last date that the election can be held is June 2010 - that is the time when the 5 year maximum period runs out.

So, the Government must go to the country. The likelihood is that the election will be before the absolute last date, possibly on Thursday 6th May. This is the date already set-aside for district council elections in England so it would make sense for the General Election to be held on the same day.

Of course, the election may come sooner and The Crusher hears whispers that a date in March may already be in consideration.

The recent State Opening of Parliament (18th November) saw one of the shortest Queen’s Speech ever as plans for future legislation were cut back and cut back to the absolute minimum. Many expected measures were dropped in the rush to cut back to what the Govt. thought they might just be able to squeexe through before the election. Perhaps the headline piece was the Digital Economy Bill which has now received its Second Reading in the House of Lords. This rather contentious piece now passes to the committee stage which will not now take place until January. That is beginning to look mighty close to the election. The Crusher is minded to think that there may be very little of the contents of the Queen’s Speech that will actually make it all the way to the Statute Book.

But - as we now run up to the election, and the State Opening was perhaps the first and opening element of the election campaign, a look at something elsewhere in Europe. A General Election was held in Portugal on Sunday 26th September. Posters across the country exhorted the population to cast their vote. But one poster caught the eye of The Crusher - a large billboard alongside the main road leading to the airport just outside central Lisbon.

Now, clearly child protection is an issue in Portugal as it is here in the UK. Perhaps we are less likely to see campaigning here on this particular front. Translated, the poster reads:

“If you want to provide paedophiles with freedom, continue to vote as you would normally. For chemical castration of these criminals and to change Portugal, vote MMS.”

This particular party did not win the majority mandate - the election returned the previous centre-left government but with a reduced majority.

Somehow it seems unlikely that we will see this poster reproduced here in the run up to the General Election.