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Roger Warren Evans
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item0018 17 October 2002
No
property protection
Naomi Campbell failed in her libel action against the Daily Mirror earlier this year, for their coverage of her treatment for drug addiction. She had denied taking drugs at all, and the Court considered that the Mirror was perfectly justified in demonstrating her duplicity. But the reasoning of Mr Justice Morland, in the High Court, salvaged a little victory for Miss Campbell on a lesser point, namely the Mirror’s use of her medical records. Those records, he ruled, were private property and enjoyed confidentiality, i.e. she was entitled to rely on their being kept secret. That confidentiality was breached, and Miss Campbell was awarded damages for that breach, some £3,500. And that made a big impact on her liability for the Mirror's legal costs. The Court of Appeal this week swept aside even that last fig-leaf of private property reasoning – see The Guardian The assertion of property rights, they held, should not stand in the way of the proper exercise of Press freedom. In balancing the two considerations, priority was to go to freedom of expression. The three Appeal Judges held that the Mirror was perfectly entitled, in the context of their overall exposure of her position, to publish those records. Indeed, they said, their use was an essential factor in demonstrating her duplicity. Considerations of Press freedom, under Article 10 of the European Convention of Human Rights, overrode any legitimate interest which Miss Campbell might have had in preserving their secrecy. The case shows yet again that Britain's senior Judges are ready to make full use of the Human Rights Act in order to do justice. < Back to Home Page
481 17 October 2002 Public Space v Private Property Washington New Town Centre seems an unlikely stage for a major Human Rights political trial. But that is just what we now face. And the issue is “When is a public space not a public space?” This is what happened, as reported in The Guardian As part of Margaret Thatcher’s rushed Dissolution of the New TowneriesThe new private owners acquired a huge slice of real estate generating goodly public-sector rentals, encompassing –
But more problematical, as it turned out, was that they acquired all the spaces in between - roads, pavements, parking-lots, parks open spaces and all. So that when local citizens gathered for a civic protest in 1998, the private owners refused to consent to any "political" demonstration at all. At a stroke, space that had for many years been public space had become private space, leaving the owner free (as the Prudential contends) to do just what he likes with it. That is, after all, the essence of a private property right, at English law. And the Pru does not like political demonstrations. So the Town Centre has remained closed to public demonstrations ever since. This week LIBERTY, acting for the local peasantry, argues this matter before the European Court of Human Rights in Strasbourg. The issue raises many key questions of the Disappearing State, as public matters disappear behind the private corporate veil. Earlier UK decisions have upheld the private status of commercial shopping centres, even where they have replaced entire shopping streets and highways. I think LIBERTY will win this one, in Strasbourg. But the Court will only decide the narrow issue of this case, of the improper closure of a space that was previously public. The more problematical issue (as the PFI wends its way through the byways of our Constitution) will be the private enclosure of newly-created spaces which the public would ordinarily expect to occupy. < Back to Home Page
482 17 October 2002 Oppression by E-mail Watch out for your privacy! Reports abound of employees penalised for E-messages, and Internet downloads, effected while at work. Within most Intranet systems (in both the private and the public sectors) employers retain huge technical powers of scrutiny and intervention. And they are backed, through employment law, by a culture of employer dominance. How should our rights of “private life” and “private correspondence” be guaranteed, in these changing circumstances? What is at stake is the further restraint of traditional employer prerogatives, which were derived originally from property law. The law of Master and Servant (as it was still known when I first studied law) was only one remove from the law of slavery – which remains the ultimate misapplication of property law. The powers of the Master/Employer were very extensive indeed. They have now been whittled away by legislation and trade union pressure, but there are still very great – indeed, they remain excessive. And they fall to be interpreted now, in the light of the E-revolution. How far are employers entitled to go, in controlling their employees’ use of the E-media? What are the bounds of privacy and confidentiality? First, I would distinguish between traffic and content. By “traffic” I mean simply the fact of sending an E-message or initiating an Internet-link. By “content” I mean the substance or content of the communication itself. Second, in terms of traffic, I consider that an employer is entitled to restrict the personal use of E-media during working-hours, if that restriction is open and incorporated explicitly into the contract of employment. Of course, many employers do not object to such usage, and trust their employees not to abuse the freedom they are accorded - I applaud that, but I would nevertheless recognise the employer’s legal right to prohibit such usage. Certain employees might choose not to work for a “prohibition employer”, but that would be their choice. Third, if an employer has agreed “E-communication rights” for employees when off-duty (say, during their lunch-hour or before or after work), whether at the employer’s expense or otherwise, the employer should not under any circumstances make scrutiny trawls of the content of such communications. The content should be sacrosanct, and protected against employer-interference, while I would accept that a watch could reasonably be kept on the volume of traffic engendered. Employees should in such circumstances be able to conduct their correspondence or inquiries in the knowledge that they would remain private and confidential. An employee should be able to resist any action by an employer based on any non-contractual scrutiny of their correspondence, and would also be entitled for damage caused by any such breach of contract. Fourth, I say that even if an employee is prohibited altogether from using the employer’s system for personal purposes, and does send messages in breach of that prohibition, the right of privacy of content should not be lost. The result might be a perfectly proper dismissal for breach of contract – but the private content of the message should remain protected. Fifth, what about the commission of a crime? I do not think that the employer should be entitled to scrutinise the content of employees’ private communications at all, whether in the pursuit of crime or otherwise. However, if a public investigating Authority sought proper access to private employee communications via the company Intranet, that should be accorded by the employer. The employer would certainly be under no duty to resist their direct access to the full E-record as held by the firm, or to “protect” the privacy of the employee. This is a sector in which new thinking is needed, to structure this new field of human endeavour. < Back to Home Page
483 17 October 2002
Public Politics I have a soft spot for the Institute of Public Policy Research. In 1994, when nobody else would take me seriously, they published my first pamphlet on company law reform, Coming to Terms. And I am most enormously impressed by their current Director Matthew Taylor. But I find that, with their most recent pamphlet on Party funding, I disagree with almost everything - Clean money needed to restore trust in politics I am satisfied, with Disraeli, that representative democratic institutions cannot function satisfactorily without the institution of “Party”. Every Party activist needs the support of kindred spirits, the comradeship, trust, and common allegiance, both when in power and in Opposition. The institutions of Party put the flesh on the bare legal skeletons of the Constitution. I am convinced that legitimate ways must be found to strengthen this element in our public life. That, I accept, is a core value judgment which is fundamental to my position. I am sure that the protagonists of IPPR would agree with that judgment. But beyond that, we seem to part company. IPPR says private contributions should be limited to £5,000 p.a, whether from individuals or organisations IPPR says that electoral spending should be statutorily restricted, even below present levels. IPPR says that state funding should be limited to certain specific training or educational objectives. IPPR says that State grants should be paid by way of “match-funding” against Party membership donations, therefore related to the success of Party recruitment. Labour will have to take the responsibility, without the comfort of political consensus, for getting this right. My call is to all Party members – both Labour and otherwise – to make a constructive contribution to this vital debate. < Back to Home Page
Irresponsible Guardian Inter-media competition forces even the most balanced editors to devise eye-catching reports. But this week the Guardian went too far.A telephone survey was commissioned immediately after the Bali bombing, and respondents were asked whether they now favoured attacking Iraq.
But what was the truth? The pollsters obtained 1,008 telephone responses contacted on Monday 14 October. This was not a mathematically "random" survey, and "no-contact" calls were simply excluded. The pollsters effectively collected 1,008 interviewees, who happened to be at the end of a phone during Monday, and were willing to talk. Their answers were then re-balanced by reference to the typical structure of the population as a whole. That means that if there were, say, only three teenagers, their answers were "weighted" upwards so that they represented the national proportion of teenagers. The same was done for gender, and occupational class.The "margin of error" for such a sampling method, with only 1,000 responses, is huge. Even for the well-structured "quota sample" of 2,000, conducted by Gallup every Saturday, the built-in error is 5% - which means that every reported figure could be 2.5% higher or 2.5% lower than the sample result. Gallup's quota sampling, while not as reliable as proper random sampling, is a well-tried method, and far better than the telephone process used here. For telephone polling of this kind, with huge systemic distortions involved, the margin of error is huge - certainly 10%, i.e. 5% either way. What then, were the figures? You will see that, allowing for a 5% margin of error, the reported change melts away...
Faced with this evidence, the Editor should not have published any statement at all. These results are entirely consistent with there having been no change at all. Rusbridger should have called for a second poll on precisely the same question, which would at least have reduced the margin of error. Instead, this was Tuesday's front-page lead. Read it for yourself. < Back to Home Page
Wrongful Closure My Government is guilty of the abuse of power, by simply closing, 3,000 sub-post-offices. I am ashamed of the narrow managerialism displayed by my Party, its failure to understand the dynamics of local community life, and the absence of communal counter-measuresLet's de-construct. I am keen to pinpoint the disagreement.
My quarrel with the Government starts there. We are assured this week by the Minister Stephen Timms that everyone will still be "within on mile of a post-office", a promise worthless for many of elderly and infirm for whom these local businesses are a lifeline. The closures in my part of Swansea mean that the Timms Mile is up and down the most vicious of hills. I like Stephen Timms, but he must come from a flat constituency. For the truth is that many of these 3,000 post-offices have become the hub of their neighbourhood, as other businesses have failed. The Government should have insisted that the 3,000 local communities affected had the chance to take over those sub-post-offices, to run them as community businesses, as not-for-profit businesses or cooperatives, reducing their costs and adjusting to the decline in the volume of PO business. These shops, supported by a State stipend since the days of Roland Hill (mid-19th century) should be considered for retention by some different form of stipend. Earlier this year, I set up a special company to offer alternative communal solutions - it was called Community Counters Limited - but I ran out of time to progress the idea, and the company is now in liquidation. But I remain incensed by the Government's sheer insensitivity in this matter. The Government has been supplier-driven, compliant with the Post Office in cutting its losses, adopting a convenient mangerialist solution and ignoring the "client" communities. Stephen Timms has been caught behaving just like an old-style private capitalist. Such failures of judgment are very difficult to forgive, for they indicate a profound failure of political imagination. And in spite of adverse backbench Labour concerns, the Government steam-rollered this capitalist solution through the Commons this week, by a majority of 271 to 170.
Brains for Business Why does Britain have so many second-rate captains of industry? Government Minister Patricia Hewitt is paying £50,000 for a special four-month study, by an American management guru Michael Porter. The explanation is extraordinarily simple. It is the continuing knock-on effect of the ol' English devil - class. Too high a proportion of our most able children choose to avoid business careers. All the other "professions" remain more desirable - medicine, teaching, law, accountancy, the military, public administration - anything but the core activity of organising and running a business. I should know. I left the safe-haven of the Bar, at the age of 34, to become a management trainee, then a Managing Director, with the excellent construction company, Bovis - check out my biog. My friends and family were appalled, at my abandonment of the ideal middle-class career trajectory. They simply did not understand it. My motives were personal, and political. I realised that I could not find fulfilment within the artificialities of the Bar - I had to move out, to make contact with the "real world", and to explore its ramifications. And I found that the challenges of business management (in my case, the housebuilding industry) generated the greatest intellectual and personal satisfaction of all - the task demanded all my abilities, tested all my personal resources. I was no slouch, I should say, in the academic stakes. I had behind me a First at Cambridge (History and Economics) and a good Upper Second at the Bar - indeed, I was a Senior Scholar of my great Cambridge College, Trinity. But the housebuilding industry turned all that to positive account. It is absurd that "business" should be regarded by the English middle-class as a refuge for the less able. Our task is to convey, to the early teenagers of each generation, the excitement and interest of the business world, and to excite their interest and attention. So - Patricia - you are part of the problem. You have yourself always chosen the safe white-collar middle-class option - including that of management consultant, with Arthur Andersens. As a society, our task is to reverse that talent flow. We must persuade our early teenagers to change their perspectives of life, and get stuck in to business management. The world of trading, of buying and selling, of manufacturing and marketing, should welcome them, and they should value the opportunity to go into business.
My own I do not believe in the war on "terrorism" - but I am sure there should be waged a war on terrorists. The campaign is global, and that is why I seek international approaches to the pillars of my campaign. Three of my primary strategies relate directly to the task of defeating terrorists. This is what I propose. Strip away their privacy. International terrorists and criminals take full advantage of the international thicket created by company law. The international maze of artificial legal persons, and the accompanying legal protection for their business offers to criminals and terrorists the ideal hiding-place. The world's Governments deliberately maintain this arcane and inaccessible secret world, ostensibly for the benefit of their business communities: the UK Labour Government is about to update and "improve" these company law systems, as a service to business. But in practice, this same system provides a myriad safe-havens for criminals and terrorists. The system is so effective that the US war on terrorism has been reported to have foundered upon the rocks of corporate and banking secrecy, throughout the world. The opening-up of this secret world is a pillar of my campaign for company law reform - see Tame the Corporations. Strip away their financial support. We must strip away the protection afforded to the criminal fraternity by the "prohibition" of drugs. We have accorded to the terrorists an ideal system of fund-raising, which can in turn be kept secret through the company law system. The right course is to open up the international drugs business and to regulate it openly, as a lawful trade. This crucial fund-raising card must be taken away from the terrorists and criminals At a stroke, legalisation would remove huge swathes of income from the terrorist movement and the international criminal communities - read and ponder the Angel Declaration, and lend us your support. Curtail their mobility. The entire system of international migration control is based on the premiss that migration is illegal, and all unauthorised movements are treated as illegal. This forces the whole administrative process into the criminal shadows, also generating further sources of criminal income, and grievously infringing human rights. By international treaty, the system should be shifted to one of controlled legal migration, bringing openness to the whole process. That would strike an additional blow to terrorist and criminal networks - check out my proposals at DOMUS. I rest my case. < Back to Home Page
488 21 October 2002
Firemen, Teachers I have little sympathy with either the firemen, or the teachers. The firemen are entitled to a significant wage-rise, having lost out over the years. But any rise should be conditional upon the acceptance of sane working-hours and conditions for the Service, which reduced moonlighting and permitted wider access to the job, particularly for women. The work-schedules of firemen are so favourable to moonlighting that the Force is never short of recruits. A fireman, the FT reports, can complete a working-week of 42 consecutive hours in less than two consecutive calendar days - and then take the rest of the week off. Within those 42 hours, he can sleep for 14 hours on the job, and count those hours towards his working-week. These hours are inimical to the recruitment of women with any household responsibilities. Firemen are a relatively privileged body of workers, as the waiting-lists demonstrate. The Fire Brigades Union cannot even secure the support of their own colleagues, the volunteer firemen who serve huge swathes of the country. This is an ill-chosen and ill-configured battle, the wrong proving-ground for this new generation of more militant union leaders. But I am equally out-of-sympathy with the teachers – including my teacher-wife Elizabeth – in their resistance to the deployment of non-teacher assistants to help in the classroom.. I am convinced that our society must mobilise a far higher proportion of adults to play an active part in the maturation of our children – and this is one way of achieving that. This was a January/02 theme of mine, if /misunderstood at the time. // I also favour the drastic reduction of class-sizes, requiring a big increase in the number of qualified teachers.
But there's more. The network of adult participation should be cast much wider. I would like to see the introduction of directly-elected “school boards” to replace the present Education Authorities, allowing citizens the option of seeking popular election to local Boards, as was the case the before the Education Act 1902. These Boards would be much smaller that the present mega-Education Authorities, perhaps taking responsibility for just two or three secondary schools, and their feeder primaries, and having no role in further education. As in other political sectors, in education we have whittled away the role of the active citizen in community governance. The work of civic governance has been narrowed and professionalized, with long-term reductions in the opportunities for democratic participation.
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