Should Dr Malcolm Jack pack a toothbrush?

Dr Malcolm Jack is the Clerk of the House (of Commons), and since 1992 the Clerk of the House is also the Corporate Officer of the House of Commons. The House of Commons appeal to the High Court against the Information Tribunal rulings on various Information Commissioner decision notices relating to MPs’ expenses, particularly the now infamouse Additional Costs Allowance, was made in his name. He is also the person to whom the order of the Information Tribunal is addressed.

Details of MP’s allowances were published on 18 June 2009 online. However, there has been a media frenzy about the amount of redaction on the published information. It should be noted that the Information Tribunal descision sets out what information could be redacted:

(1) Any sensitive personal data, relating to the MPs named in the requests, within the meaning of DPA s2(a), (c) or (e)-(h).
(2) Personal data of third parties (not the MPs). But this exception shall not extend to the name of any person to whom the MP paid rent or mortgage interest which was claimed under ACA.
(3) The MPs’ bank statements, loan statements, credit card statements, other personal financial documents, and financial account numbers and financial reference numbers. This exclusion shall not extend to the names of mortgagees, chargees or landlords in respect of homes for which ACA was claimed, or to the amounts of interest or rent which were paid, claimed and reimbursed under ACA or (subject to the requisite redactions of sensitive or irrelevant data) to the information submitted in support of such claims contained on statements of account with mortgagees, chargees or landlords: these items of information must be disclosed.
(4) The itemised parts of telephone bills listing calls to individual numbers.
(5) The names and addresses of suppliers or contractors who had regular access to the MPs’ homes.
(6) All details relating to the security measures at the MPs’ homes (whether goods or services), save that where an amount has been identified by the MP as relating to security, that reference and the total amount attributed to it shall not be redacted.
(7) Where a particular MP has a special security reason for keeping the address of his or her main or second home confidential (for example, because of a problem with a stalker, or a terrorist or other criminal threat), that address may be redacted.

So what if the original applicants for the MPs’ expenses information consider that the redactions go to far?  It would seem, from a little known unreported case (see our Re Ewing Briefing Note) that the Information Tribunal is a court.  Failure to comply with its orders would be a contempt of court, for which, in the extreme, the court can order imprisonment.  Whilst the procedure in the Freedom of Information Act 2000 is not clear (for example, do the applicants have to complain again to the Information Commissioner under section 50, or can they go direct to the Information Tribunal?), it would appear that Parliament cannot expect its interpretation of what is redactable to be the last word.

Creative Uncommon?

Do you know what this symbol means?  We admit we did not know, either, until we read a survey report on the use of Crown Copyright carried out by Bunnyfoot for the Office of Public Sector Information.  Yet this is the most common form of the Creative Commons’ family of copyright licences, the “Attribution” licence.

We quite like the idea of using Creative Commons licensing for online content.  Frankly, what is the point of slapping © on online content that can easily be ‘cut and paste’.  Even we use the copyright symbol on our official website.  A Creative Commons licence would seem to be more realistic, even if it only limits the enforcement question by recognising some “fair use”.

There are 6 Creative Commons licences:

Regulatory holidays all WACC'd out?

How can national regulatory authorities (NRAs) promote investment in next generation access networks (NGAs) ?  It’s a common question, to which some would reply that “not interfering” would be an appropriate answer.  In other words, let those who are willing to risk investment in these uncertain times exploit their investment unregulated by NRAs – let them have a “regulatory holiday” (see, for example, the explanation from our friends at Ofcomwatch).

In previous blogs we have suggested that we think regulatory holidays are a bad idea.  We cannot see that regulation and investment are mutually incompatible.  We believe that it is highly likely that investment in NGAs will introduce new economic bottlenecks. Where an NGA is deployed, no effective and sustainable infrastructure competition will be possible in the short or medium term.  NRAs will therefore find that there will be at least some form of dominance in wholesale access to super-fast broadband.  The remedy for the dominance will be the requirement to provide access at a cost-orientated price, with an allowable regulated mark-up, the old favourite Weighted Average Cost of Capital.

We consider that those who protest that investment is impossible in super-fast broadband should explain to simple regulatory lawyers such as ourselves what is wrong with the old model of wholesale access at cost + WACC?  Doesn’t WACC include an assessment of risk? (See, for example, Ofcom’s statement on its approach to risk in the assessment of the cost of capital).

Please may I have my ball back?

The Football Association made an admirable offer to refund ticket holders who were unable, as a result of a widespread Tube strike, to go to the England -v- Andorra World Cup Group Qualifier on Wednesday, 10 June 2009 (for the record, a comfortable 6 – 0 win for England).  There was no question of the FA hiding behind any terms and conditions to deny refunds, even though it could easily have claimed that it was not at fault.  57, 897 England fans were, after all, able to get to Wembley to see the match.

This contrasts very favourable with the attitude of some of the clubs.  In particular, Tottenham Hotspur were brought to task by the Office of Fair Trading for including in its terms and conditions a term that stated that tickets would not be refunded or exchanged in any circumstances.  Not surprisingly, as soon as the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs) were brought to bear on this term, then this term was ruled unfair.  The OFT took particular exception to the possibility that a fan unable to attend a match that had been postponed or rescheduled would not be able to claim a refund for a ticket to that match.

This is not an isolated case.  Premiership clubs seem to have a problem remembering that they are not above the UTCCRs.  Most recently, Man United were required by the OFT to amend their season ticket terms and conditions.

As an aside, we wonder if a competition law analysis could be applied to these facts.  Certain fans appear to have a particular loyalty to their own football club.  There is arguably not much cross-elasticity between clubs.  It should be possible to define a relevant market as narrowly as, say, the retail market in tickets to matches of a particular Premiership club.  A SSNIP test on an increase of season ticket prices, especially for the Big Four (Manchester United, Liverpool, Chelsea, Arsenal) could easily show dominance.  Would unreasonably refusing refunds be an abuse of dominance?

The only reason this might be interesting is that under competition law the OFT can fine up to 10% of turnover.  That’s a few millions for most Premiership clubs.  However, under the Unfair Terms in Consumer Contracts Regulations, OFT can only apply to a court for an injunction to prevent a person using an unfair term.

The Chilling Effect

One of the many arguments put forward by opponents to freedom of information access is that the potential disclosure of information relating to the formation of public policy will inhibit free and frank discussions – the so-called chilling effect.

This argument is often invoked when Government departments seek to rely on the exemption at section 35 of the Freedom of Information Act 2000.  Section 35(1)(a) provides that information is exempt from disclosure if it relates to the formulation or development of government policy, but the exemption is qualified.  This means that the exemption can only be applied if the public interest in disclosure of the relevant information does not outweigh the pubic interest in the information being withheld by the relevant public authority.

To see this work in practice, look up the recent Information Commissioner’s Decision Notice to the Department of Health.  In the Notice, the Information Commissioner considered the chilling effect argument, but in that case came to the view that the public interest in accountability and transparency for the Department of Health’s decision making, with the Department having to provide reasoned explanations for its public health guidance, meant that disclosure was ordered.

The request asked for information relating to the Department of Health’s guidance that women who are pregnant or trying to conceive should not drink any alcohol.  Thinking of possible real-life chilling effects and a pre-conception alcohol ban, we cannot help being reminded of a silly country song from the ’70s, whose chorus went:

If they had one when all our dad’s were young men,
Most of us wouldn’t be here tonight!