Protecting Data Protection: accounting for human error

October 31, 2011 by Leave a comment

Following recent revelations made by The Mirror, Oliver Letwin has undoubtedly been forced to adopt a more conventional filing system.  On approximately five separate occasions throughout September and early October the Prime Minister’s policy advisor (and MP for West Dorset) was seen discarding handfuls of paper work into public bins close to Downing Street.  Whilst the various correspondences and documents were clearly considered to be redundant or unimportant by the MP, for The Mirror they were journalistic gold, and were therefore retrieved from amidst empty Coke cans and used train tickets.  Totalling in excess of 100 sheets, the papers allegedly relate to a diverse array of individuals (including the Dalai Lama, Philip Green, Tony Blair and Letwin’s own constituents) and topics (from “The Big society” to al-Qaeda and British security).

There is no doubting that Oliver Letwin’s actions went against protocol, eliciting an apology from the MP and described as “not a sensible way to dispose of documents” by a No.10 spokeswoman.  Indeed whilst the Cabinet Secretary, Gus O’Donnell, has stated he is satisfied that none of the papers in question were of a classified or sensitive nature, the Information Commissioner’s Office is, nonetheless, investigating the case to deduce whether or not Letwin’s actions were in breach of Data Protection Laws.

“Bin-gate” was not however the only (potential) breach of data protection to have been discovered in the past few weeks, though it certainly received the most national media attention.  A housing group based in Dorset (Letwin’s neck of the woods) was found to have emailed the personal details of 200 employees to the wrong external email address clearly breaching data protection.  Furthermore in Scotland, the Dumfries and Galloway council accidentally published the names, salaries and dates of birth of almost 900 employees (past and present) in response to an FOI request.  The information could be viewed on the council’s website for over two months and was only removed following complaints from a trade union and numerous individuals mentioned in the data. This accident broke the fundamental principles of data protection, intruding on the privacy of affected individuals and exposing them to identity fraudsters. It is telling (yet by no means surprising) that Oliver Letwin’s blunder has received so much more media attention, despite the fact that the severity of his actions is as yet unknown and potentially minimal.

Whilst the nature and consequences of these three cases differ, one common variable is present in all: human error.  Through misjudgement and mistakes the most basic principles of data protection fail to be upheld.  All too often we see politicians carrying confidential papers in transparent folders or hear of memory sticks holding volumes of important information being left on trains.  Incidents like these would not look out of place in an episode of “The Thick Of It”.  Fundamentally, Data Protection Laws are only as robust as the integrity of those entrusted to maintain and abide by them.

The Information Commissioner has recently called for the ICO to be given more powers to carry out compulsory data protection audits on local government, the NHS and the private sector, all of which have breached data protection repeatedly.  Speaking at the 10th annual data protection compliance conference, Christopher Graham stressed how important it is to ensure that those handling data concerning members of the general public are acting within the rules.  It will be interesting to see both whether his appeal is acted upon but also whether increased auditing can help identify or even minimize human errors which, given its nature, are particularly damaging to data protection.

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Changes to the rules of succession are not all plain sailing

October 31, 2011 by 1 Comment

The announcement at the Commonwealth conference in Perth of changes to the rules of succession suggested it was a done deal.  David Cameron has the agreement of the heads of government of the other countries of which the Queen is head of state (the realms).  But all the realms now have to change their laws, in a process which will take years.

It has been a longstanding aim of British governments to end the discrimination in the laws of succession.  11 private member’s bills have been introduced into Parliament to reform the Act of Settlement.  Successive governments have supported the change in principle, but have said that only the government could legislate; because only the government could negotiate with the other realms.  But getting all the realms signed up seemed daunting.

Gordon Brown went to the Commonwealth conference in 2009 with the same objective as David Cameron, but failed.  Since then there has been a lot of work behind the scenes to get the other 15 realms on board.  The tide of goodwill towards the monarchy following the royal wedding in 2011 and the Queen’s diamond jubilee in 2012 provides the perfect window of opportunity to make the change.

The fanfare of David Cameron’s announcement is intended to give maximum momentum to a project which is not all plain sailing.  The UK can give a lead, but cannot legislate for the other 15 realms.  In Australia the six states claim a separate relationship with the Crown, and the change may require their separate consent.  In Canada the federal government will certainly have to gain the consent of the provinces, including Quebec.  In both countries it will revive the republican issue.

Questions will also be asked about why the discrimination against Roman Catholics is only to be partially removed.  The prohibition on the Monarch being a Catholic will remain. Even if it were removed, no Catholic could satisfy the requirement to be ‘in communion with’ the Church of England and thence Supreme Governor of the Church of England.  Catholics in Britain might be willing to accept that, although their numbers are now broadly equal to Anglicans.  While welcoming the removal of the ‘unjust discrimination’ against Catholics, the Archbishop of Westminster, Vincent Nichols, said ‘At the same time I fully recognise the importance of the position of the established church [the Church of England] in protecting and fostering the role of faith in our society today’.  But in the 15 realms Catholics outnumber Anglicans by three to one, and they may be less understanding.

The ending of male primogeniture is less controversial.  Most other European monarchies have changed their rules of succession already to make them gender neutral.  Sweden changed their law in 1980, Holland in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009 (with a referendum), Luxembourg in 2011.  Only Spain, Monaco and Liechtenstein retain male primogeniture.

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Press Release: Cameron delivers Brown’s project on rules of succession, but not all plain sailing

October 28, 2011 by Leave a comment

Press Notice
Friday 28 October: for immediate release

Cameron delivers Brown’s project on rules of succession, but not all plain sailing, says constitutional expert

Commenting on today’s announcement in Perth of the planned changes to the rules of succession, Director of the Constitution Unit Prof Robert Hazell said:

“It has been a longstanding aim of successive British governments to end the discrimination in the laws of succession.  Gordon Brown went to the Commonwealth conference in 2009 with the same objective as David Cameron, but failed.  Since then there has been a lot of work behind the scenes to get the other 15 realms on board.  The tide of goodwill towards the monarchy following the royal wedding in April and the Queen’s diamond jubilee next year provides the perfect window of opportunity to make the change.”

“But it is not all plain sailing” Prof Hazell continued.  “The UK cannot legislate for the other 15 countries.  In Australia the six states claim a separate relationship with the Crown, and it may require their separate consent.  In Canada the federal government will certainly have to gain the consent of the provinces, including Quebec.  In both countries it will revive the republican issue.”

“Questions will also be asked about why the discrimination against Catholics is only to be partially removed.  The prohibition on the Monarch being a Catholic will remain, because the Monarch is Supreme Governor of the Church of England.  Catholics in Britain might be willing to accept that, although their numbers are now broadly equal to Anglicans.  But in the 15 realms Catholics outnumber Anglicans by three to one, and they may be less understanding”.

Notes for Editors

  • The UK is following the example of other European monarchies, most of which have changed their rules of succession already to make them gender neutral.  Sweden changed their law in 1980, Holland in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009 (with a referendum), Luxembourg in 2011.  Only Spain, Monaco and Liechtenstein retain male primogeniture.
  • 11 private member’s bills have been introduced into Parliament to reform the Act of Settlement.  Successive governments have supported the principle of the change, but have said that it required government legislation.  Only the government can negotiate with the other realms.
  • Prof Hazell is available for interview 0207 679 4971, or contact our Press Officer Brian Walker on 07892 176347.

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Commission on British Bill of Rights Debate

October 28, 2011 by Leave a comment

On 26 October, UCL’s Institute of Human Rights hosted a lively evening on the much-debated British Bill of Rights. The discussion included the current push by Attorney General, Dominic Grieve, to use the principle of subsidiarity to get more leeway for domestic interpretations of European Convention rights. Dr. Saladin Meckled-Garcia from the Institute described this as an unfortunate attempt to shift the meaning of subsidiarity from “primary responsibility for implementation to primary responsibility for interpretation” of convention rights. Colm O’Cinneide (UCL Laws) persuasively argued that expanding the margin of appreciation for Britain would open the floodgates for countries like Russia to limit human rights claims. Aileen Kavanagh (Oxford), also on the panel, warned that there was no legally expedient way to distance the UK from Strasbourg jurisprudence and described the Human Rights Act as Britain’s Bill of Rights. The discussion was provocatively reported in the Guardian the next day.* *Members from the Government’s Commission on a Bill of Rights attended the UCL Institute for Human Rights debate on 26 October, to hear speakers dissect a number of proposals.

For more information:

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MPs’ Expenses, IPSA and Constitutional Watchdogs: A Parliamentary Committee Inquiry-Lite?

October 28, 2011 by 2 Comments

Did you know that a House of Commons Committee is currently holding an inquiry into the Parliamentary Standards Act 2009? No? Thought not.

The Act is the centrepiece of the Government-inspired response to the Members’ expenses scandal, and which created IPSA (Independent Parliamentary Standards Authority).  Given the media and public firestorm over expenses in 2009, and the continuing bad press – especially the patent lack of sympathy with Members’ criticisms of the new system – it is a pity, if not really surprising, that the current Inquiry, by the aptly-named Members Expenses Committee, is proceeding almost unnoticed.

The Inquiry was ordered by the House in mid-May, but was not actually announced until mid-July, after a protracted delay in establishing the Committee’s membership, when it was given until the end of this year to report.  Its remit was relatively broad, perhaps to reflect the range of Members’ concerns about the operation of the IPSA-run system:

“to review the operation of the Parliamentary Standards Act 2009 and make recommendations, giving due consideration to ensuring:
(a) value for money for taxpayers;

(b) accountability;

(c) public confidence in Parliament;

(d) the ability of Members to fulfil their duties effectively;

(e) fairness for less well-off Members and those with families; and

(f) that Members are not deterred from submitting legitimate claims.”

A Committee press release of 20 July sought written evidence by 3 October.  This evidence has now been placed on the Committee’s website, including a submission by me. To date, there have been 4 oral evidence sessions since mid-September.

It is a pity that there has not been more interest in this Inquiry. Apart from the detailed issues of the structure and operation of the new expenses system (as an aside, the Committee is chaired by Adam Afriyie, who publicly supported in 2009 the replacement of the current salary and expenses with a single ‘consideration’ based on the initial 1911 figure of £400pa, as up-rated by reference to average earnings), it is proving to be a forum for more fundamental questions of constitutional interest, including the nature and purpose of ‘constitutional watchdogs’, especially those which have a close connection with Parliament.  This is an issue which has long interested the Constitution Unit, being the subject of two Reports and one book chapter published by it (I declare an interest as a co-author of these).

A fascinating debate, within and outwith the Inquiry, has been raging on what sort of body IPSA actually is, and what its primary function should be.  While MPs and the Committee on Standards in Public Life see IPSA mainly as a body to administer schemes of financial support for MPs in carrying out their parliamentary duties, IPSA sees itself primarily as an independent regulator, and as such, its fundamental purpose is “to serve the public interest”.

At heart, as with any such ‘watchdog’, is the interrelationship between the two principles of independence and accountability, one which is especially difficult and complex when what is being ‘regulated’ is Parliament itself, the ultimate constitutional watchdog.  With the principle of independence entrenched in the scheme establishing IPSA – as rushed through Parliament by ministers in the 2009 Act, and revised by legislation last year – MPs are focussed on IPSA’s accountability, by which they mainly mean, answerability to the Commons (through mechanisms such as the Speaker’s Committee for IPSA).  On the other side, IPSA’s maximalist view of its regulatory rather than mere payroll/administration role, emphasises its independence, especially from the very people and bodies which it is ‘regulating’.

Unfortunately, the Inquiry doesn’t seem so far to be addressing these complex questions in any evidence-based way, such as by research into, or much direct interest in, how other parliaments, including the 3 UK devolved institutions, address these problems. This absence of comparative perspective is regrettable.  For example, the Scottish and Welsh systems are of direct relevance, and the present Chair of the Welsh Assembly’s Remuneration Board, George Reid, would be a useful witness, being a former MP and Holyrood Presiding Officer.

With such a short timescale and methodology, this Inquiry cannot hope to do all its terms of reference justice.  All it can do is address, and maybe assuage, some of the main grievances voiced by Members since 2009, which was probably the main reason for this Inquiry in the first place.

What would be of value – apart from any tinkering with the detail of the IPSA-run system – would be for the Committee to recommend strongly in its report to the House that a dedicated committee of inquiry of some sort should be established to address the fundamental questions of IPSA’s relationship with Parliament and how the twin pillars of its independence and accountability can be reconciled positively for the benefit of the public, both as taxpayers and as constituents of adequately-resourced MPs.  The Public Administration Committee began the process in the last Parliament of examining these tricky issues where there are constitutional watchdogs.  That would provide a useful starting point for any future inquiry.

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Judicial views on the selection process for senior judges

October 27, 2011 by Leave a comment

[Posted on behalf of Kate Malleson]

The President of the Supreme Court, Lord Phillips, gave evidence to the House of Lords Constitution Committee’s inquiry into the judicial appointments process last week. He argued against the introduction of any form of parliamentary hearings for Justices of the Supreme Court or the Lord Chief Justice. In this view, he is joined by most, if not all, the other members of the Supreme Court and senior judiciary who remain to be convinced that there is any role for Parliament in the appointment process of individual judges. More surprising, was Lord Phillips’ view about potential reforms to the role of the Lord Chancellor in the process. He argued that he would like the Lord Chancellor to be on the selection commission for Supreme Court appointments, believing that this would be preferable to the LC having a veto late in the process.

Even more unexpectedly, Lord Phillips strongly objected to the requirement that he must sit on the panel to choose his successor – he said that he had tried to argue that one can interpret the provision to excuse the President when the next President is to be selected but that he had not been successful in persuading others that his interpretation is tenable. Although this is the first time (as far as I am aware) that Lord Phillips has expressed this view publicly, he is not alone amongst the judges in accepting that the current process, whereby the President and Deputy President both sit on the Supreme Court ad hoc selection committee is problematic. There has been a strong groundswell of opinion outside the judiciary that this arrangement is likely to promote self-replication and is inconsistent with all other senior appointments processes in either the public or private sector. It appears from the evidence taken by the Committee that some of the senior judges share this concern. This now, therefore looks like an area in which the Committee is likely to recommend reform.

The last surprise from Lord Phillips was his decision to produce a draft of a provision that might replace the ‘merit’ provision in the Constitutional Reform Act 2005. His amendment read that: “The Commission must select that candidate who will best meet the needs of the Court having regard to the judicial qualities required of a Supreme Court Justice and the current composition of the Court”. Having produced the draft provision Lord Phillips made clear that he himself would object to such a change and would argue against it. What the Committee will make of that position is hard to know.

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Thou Shalt Not Chill: Cabinet Manual Seeks a Clear Audit trail

October 24, 2011 by Leave a comment

The new cabinet manual published today goes to some lengths to emphasise the need to have a clear chain of record-keeping around decisions and prevent a ‘chilling effect’.

It gives a very wide definition of information

‘Official information is information created and commissioned in the course of official government business. It includes information created or received by ministers in a ministerial capacity. Official information can be in any format, and includes correspondence and memoranda, guidance, emails, datasets and databases, websites, official blogs and wikis, and film and sound recordings. Other formats that emerge will also be covered.’

 It then goes on to describe what information needs to be kept in relation to decisions:

 ’The role of ministers’ private offices

11.4 Guidance issued by the Cabinet Office and The National Archives1 emphasises the need for private offices to record ministerial decisions on any correspondence or submissions to ministers or officials, including special advisers, and outside interest groups, private sector organisations and MPs. This would include any meetings, telephone conversations and communications via the internet where decisions are taken that relate to government business, so that there is a clear audit trail.

11.5 All papers and electronic information relating to a minister’s personal, party or constituency affairs remain the minister’s personal responsibility during their time in office and once they have left office or moved to another ministerial appointment. Private Office staff and special advisers should manage and maintain personal, party and constituency papers and information separately from departmental material and Cabinet and Cabinet committee documents.2 Data security of constituency material is the responsibility of the minister in their capacity as an MP. Responsibility for party information is a matter for the relevant political party to determine.’

It would be interesting to know if this is preventative, a subtle telling off for certain ministers who may be trying to hide communications or whether they know something about the extent of the chilling effect that we don’t.

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Unit in the News: Clegg appoints new Spads

October 24, 2011 by Leave a comment

Nick Clegg & Robert HazellFollowing recommendations in our report into coalition government, the Deputy Prime Minister has announced new Liberal Democrat advisors will be placed in government departments.

The report, by Prof Robert Hazell and Dr Ben Yong, suggested that the Liberal Democrats have spread themselves too thinly and require additional resources to extend their influence, including more special advisers, expanded Private Offices, and additional support for the parliamentary party.

The report is part of a one-year project into monitoring the new coalition government in the UK sponsored by the Nuffield Foundation.

Media:

Further information:

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Human Rights and Judicial Appointments: The Judges meet the Lords

October 20, 2011 by Leave a comment

The Lords Constitution Committee took evidence from Lord Phillips (President of the Supreme Court) and Lord Judge (Lord Chief Justice) yesterday. The topic of the meeting was the Committee’s current inquiry into the judicial appointments process but the discussion touched on some broader themes, including the role of the judiciary and of the European Court of Human Rights in Strasbourg.

For watchers of the judiciary the exchange repays watching – you can watch the whole thing here: http://www.parliamentlive.tv/Main/Player.aspx?meetingId=9199

There’s no transcript yet but one should appear on the Committee website soon: http://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/.

The most newsworthy part (it received a good deal of press coverage today) was Lord Judge’s opinion that the UK courts are not necessarily bound by the decisions of the Strasbourg court. Lord Phillips expressed the view that the Human Rights Act meant ultimately that ‘Strasbourg is going to win’. Lord Judge appeared to disagree, and suggested that a debate would eventually need to happen in the UK Supreme Court about what exactly the Human Rights Act means when it says that UK courts are required to take account of Strasbourg decisions. It is at least arguable, he said, that having taken account and given due weight to these decisions, the British courts are not obliged to follow them. One might interpret this as a very polite suggestion that the Supreme Court should change its approach to this issue.

(Whether there is an actual disagreement here is open to interpretation, but there is certainly a live issue. At the moment the UK courts treat Strasbourg precedents as binding and a decision that is directly addressed to the UK certainly binds the UK in international law. And while precedent does not formally bind in international law it is generally very persuasive. As such Lord Phillips’ point seems entirely correct. However, traditionally the Strasbourg court has spoken of affording a ‘margin of appreciation’ to states and it could certainly be argued that – again as a matter of international law – Lord Judge is correct to say that there should be some space for disagreement about what the provisions of the Convention mean between domestic courts and Strasbourg.)

On judicial appointments, both judges agreed that the President of the Supreme Court should not have a role in the selection of his successor and both expressed hostility to the involvement of Parliament in appointments. Lord Judge expressed hostility to the idea of a ‘beauty parade’. However, they were open to alternatives, such as the involvement of the Lord Chancellor throughout the process of selection of senior judges (rather than just at the end, as at present) or the involvement of an MP as part of the selection committee. Both judges were at pains to point out that the role of the UK Supreme Court is, unlike some of its peer Courts in other countries, not political and that different considerations therefore apply to selecting judges for it.

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Royal Succession rules: view from the Realms

October 20, 2011 by Leave a comment

HM Queen Elizabeth IIPost by Anne Twomey, Associate Professor at the University of Sydney Law School

Changes to the rules of succession will be one of the items discussed at the Commonwealth Heads of Government meeting in Perth on 28-30 October.  These changes include removing the priority given to males over females, and removing the disqualification of people from the line of succession if they marry a Catholic.

Not all Commonwealth countries have to agree to such changes, because most are republics.  It is only the fifteen other ‘Realms’, of which Her Majesty is Sovereign, that are potentially affected.  They range in size from Canada and Australia at one extreme to St Kitts and Nevis and Tuvalu at the other.

Westminster no longer has any power to legislate for these countries.  Any changes the UK makes to the laws of succession will not apply to those Realms, unless the local law of the Realm picks up and applies the British law, or simply identifies its Sovereign by reference to whoever is Sovereign of the United Kingdom.  In Tuvalu, for example, Her Majesty is Queen at the request of the people of Tuvalu.  The office of Sovereign extends to her heirs and successors, according to the law of Tuvalu, but in the absence of such a law, the British law of succession applies.   In contrast, in New Zealand, the Act of Settlement has become part of New Zealand law and can only be changed in its application to New Zealand by the New Zealand Parliament.  So unless the New Zealand Parliament changes its law of succession, the old law will continue to apply, regardless of any change made in the United Kingdom.

Matters become more awkward in the federations.  In Australia, whether the federal Parliament has the power to enact a law changing the rules of succession, or whether it requires the cooperation of all the State Parliaments remains debateable.  In Canada, the matter is even more uncertain.  A constitutional amendment in relation to the office of the Queen requires the passage of resolutions by both Houses of the federal Parliament and all the provincial legislatures.  It is unclear whether such a law would amount to a constitutional amendment.  However, if the consent of all the provinces is required, difficulties might arise in getting the consent of Quebec.

The United Kingdom is perfectly entitled to change its laws concerning succession to its throne at any time without needing the consent of any other country.  The ‘convention’ set out in the preamble to the Statute of Westminster 1931, which required the parliamentary consent of certain Dominions, is out-dated and arguably no longer applicable.  However, if the British Government places importance on maintaining a single law of succession across all of the Realms, then this may be more difficult to achieve, given the constitutional difficulties in some of the Realms.  The discussion at CHOGM will be an important first step in this process.

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