Law – Page 6 – John Vincent

Cyber

Now, where did that word come from? My earliest recollection is the scariest adversary of Dr Who. The cybermen hit the small screen back in 1966. This fiction of an amalgam of machine and human is particularly scary. This was the fabled monster that drove young children to hide behind the sofa. The BBC hasn’t given-up on this character. Somehow, these fictional metal-men are almost certainly going to retrun to run amok and devastate humanity.

Patrick Stewart being assimilated by the Borg is a mega dramatic cliff-hanger. The Cylons[1] obliterating the colonies sent humanity on a runaway across the endless expanse of space. The indestructible killing machine of the Terminator was a huge box office success. There’s a recuring theme. In the popular imagination the combination of machine and human is thought of as fundamental threat. The enemy is the machine that transforms human mind and body into a single-minded demon intent on mischief or destruction.

By this reckoning you might think that “cyber security” was a Robocop like police force committed to routing out bad cyborgs. Yet, that’s nothing like the common usage of the term. There’s a certain threat, and it does involve digital systems and humans. However, in this century they are not yet[2] wandering around doing unpleasant things to all and sundry.

Strangely enough the term “cybernetics” has been around for a long-time. It’s not about robots. It came into being before modern digital systems and the silicon revolution were kicked-off. In part, cyber was coined as a way of expressing the almost magical qualities of feedback processes. It was wide-ranging, in that this term described natural as well as mechanical systems. In the words’ origins there was nothing sinister or chilling implied.

In 2023, “cyber security” is how we reduce the risk of cyber-attack[3]. Not a great description but let’s just say the notion is dealing with a recognised threats in digital systems.

This wasn’t something that was commonplace until the Personal Computer (PC), its software and the INTERNET connected billions of people. The normal human limitations that constrained our sphere of influence have been extended across the globe. Now, bad actors intentionally doing bad things can be based anywhere on the planet.

Since they are human actors, they are mighty creative and inventive. These people are a constant threat, like the Borg[4] that adapts and modifies what they do so as to counter any actions to defeat them. Our defence can’t be as that of the Battleship Galactica, disconnection, we are going to have to find another way. Unlike some threats there’s little chance this one will ever go away.

[1] https://ew.com/gallery/battlestar-galactica-12-things-you-need-know-about-cylons/

[2] https://www.bostondynamics.com/

[3] https://www.ncsc.gov.uk/section/about-ncsc/what-is-cyber-security

[4] https://intl.startrek.com/database_article/borg

Still learning leasons

Mobility has transformed society. By land, by sea or by air the world we see around us has been shaped by the technology that has enabled us to move people, goods, and services. Aviation, the youngest means of everyday transport, has radically transformed society in just over a century.

Demand for air transport is linked to economic development and at the same time air transport is a driver in an economy. Nearly all States work to encourage the growth of aviation in one form or another. All States acknowledge the need for the stringent regulation of activities in their airspace.

4.5 billion people moved around the globe by air. Well, that is until the COVID pandemic struck[1]. Even so, there’s an expectation that global air traffic levels will start to exceed those of 2019 when we start to get into 2025 and beyond.

One quote, among many, sums up the reason for the safety regulation of flying, and it is:

“Aviation in itself is not inherently dangerous. But to an even greater degree than the sea, it is terribly unforgiving of any carelessness, incapacity or neglect.”

[Captain A. G. Lamplugh, British Aviation Insurance Group, London. 1930.]

Here the emphasis is on aviation safety and security as the top considerations. In fact, ask an airline CEO of the number one priority of their business and that’s likely how they will answer, if on the record. Much of that open expression will be sincere but additionally it’s linked to the need to maintain public confidence in the air transport system.

We need to remember that aviation had a shaky start. Those magnificent men, and women in their flying machines were adventurous spirits and born risk takers. That is calculated risk takers. Few of them lasted long unless they mastered both the skill and science of flying.

In the post war era, improvements in aviation safety have been dramatic. As the number of hours flown and the complexity of aircraft has grown so has the level of flight safety. Aviation has been an uncompromising learning machine. A partnership between States and industry.

Sadly, in part, the framework of international regulation we may now take for granted has been developed because of lessons learned from accidents and incidents, many of which were fatal.

[1] https://www.icao.int/sustainability/Documents/COVID-19/ICAO_Coronavirus_Econ_Impact.pdf

Poor law making

If you thought the Truss era was an aberration, and that the UK’s Conservative Party had learned a lesson, then please think again. Wheels set in motion by the ideologue Jacob Rees-Mogg MP are still spinning.

The Retained European Union Law (Revocation and Reform) Bill is trundling its way through the UK Parliament. The Government Bill will next be prepared for its 3^rd reading in the House of Commons[1]. The Conservative Government has brought forward this Bill to revoke, reform or revise all the remaining law in the UK that was formerly derived from the UK’s membership of the EU. This turns on its head the normal approach to changing UK legislation. Revocation is automatic unless there’s an intervention by a Minister.

UK civil aviation depends on several thousand pages of legislation derived from EU law[2]. Much of this law was created with considerable contributions from the UK. There’s hardly any if any advocates for automatic revocation of current aviation legislation. Even the thought of this action sends a shiver down the spin of aviation professionals. Generations of them have worked to harmonise rules and regulations to ensure that this most international of industries works efficiently.

Unless amended, the Government’s EU Retained Law (Revocation and Reform) Bill[3] could turn out to be an absolute disaster. Even those who have an irrational wish to eliminate any and every past, present, or future link to Europe must come up with a practical alternative and do this in an incredibly short time. Without a consistent, stable, and effective framework civil aviation in the UK will grind to a halt. Again, even those who have an unsound need to change for change’s sake will be hitting a vital industry hard, as it is only just getting back on its feet after the COVID pandemic and now setting out to meet tough environmental standards.

It’s going to be interesting to see what happens when this poor Bill reaches the House of Lords. Once again, the country will be relying on the upper house to add some common sense to this draft law.

POST 1: The 3rd reading debate makes it clear that the Government is unsure which laws are covered by the Bill. If the Ministers responsible for this legislation do not themselves know its extent, how can anyone expect civil servants working on this legislation to know the full extent of change? A most strange state of affairs Retained EU Law (Revocation and Reform) Bill (Third si – Hansard – UK Parliament

POST 2: Retained EU law lays down rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations in the UK Commission Regulation (EU) No 748/2012 of 3 August 2012 laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations (recast) (Text with EEA relevance) (legislation.gov.uk)

POST 3: Retained EU Law Bill is being debated in the House of Lords on Monday, 6 February.

[1] https://bills.parliament.uk/bills/3340

[2] https://www.eiag.org.uk/paper/future-retained-eu-law/

[3] https://www.gov.uk/government/news/the-retained-eu-law-revocation-and-reform-bill-2022

Crisis in Health

It’s difficult to think of a more inappropriate person to be Secretary of State for Health and Social Care[1]. He has all the bedside manner of Dracula. Prime Minister (PM) Rishi Sunak re-installed him in that vital Government post. So far, he’s achieved nothing but distress and mismanagement[2].

I shouldn’t joke. The seriousness of the situation in the National Health Service (NHS) isn’t a joking matter. Winter is testing the service to breaking point. Both the statistics and the experience of patients are not acceptable by any reasonable measure.

What’s intolerable is the general Ministerial response. Hard-line rhetoric about not budging on negotiations is callous. Dismissing every call for support by rattling-off lists of figures about Government spending is no help at all. Trying to redirect attention away from the things that need fixing. The shabby politics of avoidance is not what’s needed.

As a personal note, I find the situation indicative of broader failures too. My one term as a Surrey Country Councillor, between 1993 and 1997 is more history than anything else. The problem is that it’s not. I remember papers coming to full council meetings with a title that is pertinent and recognisable today. The subject being “bed blocking[3]”.

That’s 30-years ago, our institutions struggled with making the transition between hospital care and social care. It was clear that there was going to be a growing problem. The demographics pointed to a rising aging population. There was no ambiguity about the facts.

Ministers have come and gone. Quite rapidly over the last year. Each with the responsibility for NHS service delivery, performance, and social care policy. Some like incoherent gad flies, some who span like windmills in a storm, some like patrician overseers but none with the managerial skills needed to address the challenge that stares them in the face.

Most local authorities are dealing with cuts to their budgets, financial constraints and the cost of living demands we all confront. In some cases, they are tittering on the brink of bankruptcy[4]. Many local authorities have been forced to reduce their funding of social care at a time of rising demand.

It’s mad that, after all this time, we have still not come up with an integrated health service. Pitching the NHS and local authorities against each other for funding is absolutely ludicrous. It’s costing lives.

Today, we must recover from a crisis. Tomorrow, real change must be implemented to prevent a future crisis. It isn’t as if we don’t know what to do!

[1] https://www.gov.uk/government/people/stephen-barclay

[2] https://www.independent.co.uk/news/uk/politics/nhs-strikes-barclay-cooper-libdems-b2244466.html

[3] https://fullfact.org/health/bed-blocking-what-it-and-it-paralysing-nhs/

[4] https://www.kentonline.co.uk/kent/news/what-it-means-for-kent-residents-if-kcc-goes-bust-277075/

Voters

It’s one of those things I do, most years. For the greatest part, I can predict what I’ll be doing in March-and April. It started back in the 1980s. At the time we lived in Cheltenham[1] town. Putting leaflets through doors. Knocking on doors. “Hello, I’m calling on behalf of …….” was usually the introductory line. With prepared words not only did I remind the town’s residents that there was a local election in May but let them know the name of the best candidate.

I’m writing this as credentials. Yes, I know a thing or two about the nitty gritty of local elections in the UK. My experience has been accumulated over nearly 40-years. Lots of cold early spring evenings and weekend delivery rounds to get a message out in a short space of time.

One of the biggest changes, in terms of practical organisation, has been a change that has affected all parts of life. In 1985, everything was paper based. If I said: “Shuttleworths[2]” to a 21^st century campaigner there’s a good chance they will not have a clue what I’m talking about. These were paper pads used to record names and addresses of supporters.

Local campaigning has undergone a digital transformation. However, in the British electoral system paper is still at the heart of everything that is done. The ballot paper is sacrosanct. Voters put a cross in a box set against a name and a logo. It remains inclusive in that there are few people who cannot manage that basic act.

In all my time campaigning, I can remember no voter fraud or corrupt activities. Yes, over enthusiastic, or idiotic behaviours pop-up now and then, as they do in all walks of life. It’s always an important function but also amusing to check spoilt ballot papers at an election count. A small number of voters can be creative in the insults and images they draw on ballot papers.

So, listening to last night’s Parliamentary debate on new Voter ID Regulations was distressing. The Conservative Government plan is to spend £180 million on solving a problem that doesn’t exist. This law is being pushed forward aggressively at a time when local Councils are cutting services due to lack of funding. The Local Government Association (LGA)[3] is saying that there’s not enough time to make the demanded changes before next May.

Ministers are ignoring such advice. Additionally, these regulations seem nonsensical. They impose new requirements on the operation of polling stations but do nothing in respect of postal voting. The natural suspicion for the forceful timescale is that this act is to suppress votes at a time when Conservative candidates are expected to loose in great numbers next May.

A further reason to be sceptical that Voter ID can prevent instances of electoral fraud is that convictions for voting offences have overwhelmingly related to postal votes, not personation at polling stations. Measure that create a barrier to voting in person will lower local election turnout. That’s a voter turnout that is as low as 29% of registered voters in my Borough.

This is a sad day for British democracy.

[1] https://www.visitcheltenham.com/

[2] https://www.libdemvoice.org/how-did-shuttleworths-get-their-name-40299.html

[3] https://www.local.gov.uk/about/news/lga-statement-parliamentary-vote-plans-introduce-voter-id

Cold Data

It’s cold. The numbers on the energy meter keep clocking up and getting to new highs. Compared with last year my energy bill is going to be horrendous. Add to that inflation on just about everything else and it’s hard work to make it a winter of good cheer. Smart energy meters are useful in that they give real time feedback on household energy use. I’m not sure they have an impact on behaviour, but meters do forewarn of astronomical bills to come. Comparing Christmas past, present and Christmas future gave author Charles Dickens an idea.

Looking at media reports this year’s Christmas looks more Dickensian than ever. That is without the transformation that Mr Scrooge[1] underwent. It’s certain the attitudes of Ministers resemble that of Mr Scrooge. Protect the moneymen in their obsession with money and penalise the ordinary working soul. This story is being played out up and down Britain.

The fact that it’s not seen as strange to be talking of freeing up the City of Lonon from regulation at the same time as restricting and controlling working men and women is a bad indication of these difficult times. The Prime Minister may look like a busy light-hearted mouse, but he has a heart as cold as the winter mists.

As the Government has said it wants to collect data from our smart meters, I wonder what can possibly flow from that intrusion into our privacy. In so far as it might guide national policy and reminds Ministers of the benefits of insulating homes, data collection could be helpful. However, there’s a dangerous precedent set when Governments collect every bit of data homes produce.

There’s a creeping tendance to always ask for more data. Mr Scrooge can then compile a leger on the comings and goings of every citizen. Don’t believe for one moment that GDPR will protect our data. Personal information such as names, addresses and bank details are not stored on a smart energy meter. However, computing capability being as powerful as it is, relating energy data to its point of collection and thus bill payer isn’t so difficult to do.

To me, this recalls the saying about knowing the cost of everything but the value of nothing[2].

[1] Ebenezer Scrooge, character in the story A Christmas Carol (1843) by Charles Dickens

[2] Oscar Wilde’s famous definition — someone who “knows the price of everything and the value of nothing”

Reform

The UK’s recent political calamities make it look like we have a long-run soap opera rather than an example of effective governance. There are examples of good governance. Look at the role played by select committees in holding decision makers to account. That’s a rare example. One reason for the last six years of turmoil is that stultifying lack of innovation and blockheaded belief in MPs superiority. Gradually, Parliament has become disconnected from everyday life. It mimics a theatre of the absurd in its form and manners.

Parliament will be relevant to people if it’s seen to work for people. Today, any claim that it works raises laughter and sullen looks.

So, I welcome Labour’s former Prime Minister proposing a rewiring of the UK Parliament. The House of Lords (HoLs) in its current form is “indefensible”. Naturally, the tabloid media uses the word “abolish” for its dramatic impact. Better to say that there’s a transformation to be undertaken to bring our democracy into the 21^st century.

This is not as new as detractors might suggest. Here I sit not far from a rotten Borough[1] that returned two Members of Parliament at a time when cities like Manchester returned none. Gatton’s disfranchisement was agreed on 20 Feb. 1832. Yes, that’s 192 years ago but in terms of the evolution of the British constitution that isn’t that long ago.

The arguments against the current HoL should not be based on an attack against all its members. There are many who take their role extremely seriously and perform the scrutiny of Government bills with care and diligence. However, out of the large number of members many do little.

It’s the legitimacy and structure of the institution that are highly questionable in the 2020s. The form of the HoLs does not represent the country. It’s manner of working is stuck in pre-history. It’s a sign of reward for a tiny minority.

Both Canada and Australia have a Parliamentary system. Their second chambers are based on a more rational, democratic and effective structure. They provide regional representation as well as scrutiny. A Senate of the UK makes sense to me.

It’s well overdue that the “Mother of Parliaments” stepped into the world we all inhabit.

[1] https://historyofparliamentonline.org/volume/1820-1832/constituencies/gatton

Air Safety List

A long time ago in a far away place. Well, that’s how it seems, and it was more than 17 years ago.

A flight ban was placed on Turkish airline Onur Air back in 2005. At that time, I was in my first full year in Cologne, Germany building up the European Aviation Safety Agency (EASA). We were well on the road managing the handover of responsibilities from activities of the Joint Aviation Authorities (JAA) to EASA. However, the European legislation that empowered EASA was in a first and most basic version. This was planned to be so because taking on aircraft certification work was a big enough task to start the new Agency.

The JAA had coordinated an aircraft ramp inspection programme and maintained a centralised database for its members. This was where a member state would inspect an aircraft arriving from a third country to ensure that international rules were fully met. The SAFA programme was launched by the European Civil Aviation Conference (ECAC) in 1996. SAFA standing for Safety Assessment of Foreign Aircraft.

Onur Air failed such inspections, and the Dutch government imposed a flight ban[1]. Similar bans were imposed by Germany, Switzerland, and France. However, if my reflections are correct the airline moved operations to Beligum where there was no ban. As you might imagine this caused concern amongst EU Member States. Where everyone had agreed to cooperate on aviation safety matters there seemed to be a degree of incoherence.

Long before the first EASA Basic Regulation, which by the way, didn’t address this subject, there was Regulation 3922/91[2]. I remember a hastily convened committee composed of representatives of the Member States and chaired by the European Commission (EC). The “3922[3]” committee hadn’t sat for years but then it sprung into action in response to the lack of a consistent approach to airline safety bans across Europe. I was there representing EASA.

So, the EU Air Safety List was born and the associated legislation[4] to support it. Even though the UK has left the EU, and left EASA this safety list remains the basis of the UK’s own Air Safety List[5]. Adding and removing air carriers and States that fail to meet internationally agreed safety standards is work that no one State should do alone.

[For safety’s sake, this should not be one of the parts of adopted EU legislation the UK Parliament wants to sweep away with its planned new Brexit law].

POST: Current list The EU Air Safety List (europa.eu)

[1] https://www.expatica.com/nl/general/dutch-lift-ban-on-onur-air-38258/

[2] Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonization of technical requirements and administrative procedures in the field of civil aviation.

[3] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ%3AL%3A1991%3A373%3A0004%3A0008%3AEN%3APDF

[4] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32005R2111&rid=6

[5] https://www.caa.co.uk/commercial-industry/airlines/licensing/requirements-and-guidance/third-country-operator-certificates/

Practicable

I am in two minds. When I see the words: “in so far as practicable” I can think; great, a degree of flexibility. On another occasions when I see the self-same words I think; that’s too vague and indistinct. It can easily circumvent more strict language.

Practicable is a perfectly useful word. The idea that it’s practical to do something and likely to succeed can be a matter of reasoned judgement. However, there lies the crux of the problem. It’s the subjective of that judgement, as to what’s practical and will it succeed, that becomes the possible difficulty.

If there’s a clause in a group’s constitution or working arrangements that says: “in so far as practicable” then it can become open season for someone to avoid a commitment or go their own way. That can be to shoot a big hole in a set of agreed expectations.

A lot depends on where the burden of proof sits. In other words, I may assert that something is not practicable but is it then for someone else to prove me wrong? Or do I have to provide the necessary proof?

There are elements of degree here too. If the assumption is that a judgement can be a snap judgement that’s one thing. However, there may be an assumption that a judgment is based on a rigorous level of analysis and reasoning.

The term “in so far as practicable” is most useful when applied thoughtfully and with honest intent. That the person applying this caveat would work hard to undertake whatever obligation was written and only as a fall back, having been unable to meet an obligation, revert to the use of these words.

Context and circumstances weigh heavily on what is practicable. An easy task on a sunny day can be a nightmare in a thunderstorm. Some legal clauses go as far as “insofar as is reasonably practicable in the circumstances”.

I guess I’m coming around to the wish that the “ALARP” concept (short for “as low as reasonably practicable”) would be sparingly used. ALARP weighs risk mitigation, elimination or reduction against time, trouble, and money. That’s a balancing act where there’s no perfect answer.

ALARP is a basic concept in health and safety law, but it hasn’t caught on in aviation or at least safety of flight. It’s not that aviation is blind to the fact that flight safety can be a priority, but it will never receive infinite time, trouble, and money.

It’s more that with flight there’s always a choice. It’s a “go – no go” choice. If adequate risk mitigation, elimination or reduction is not available the reasonable choice is to stay on the ground.

Bad Law

Jacob Rees-Mogg resigned on St Crispin’s Day. Shakespeare’s imagination of glory and immortality in Henry V no doubt on his strange mind. Well, let’s say we are not outnumbered by the French. We are outnumbered by the ideology of persistent right-wing Parliamentarians.

The bill in Mogg’s name got a reading in the UK Parliament last night. The so called Orwellian “Brexit Freedoms Bill” would make any authoritarian Government in the world simile.

This is a dreadful bill. To imagine British legislators are so superior that they can replace, fairly, effectively and honestly, so much complex law in so short a time is a simple con. Much of the legislative texts facing replacement took decades of research, investigation and proving to take shape. A great many of these laws of EU origin were driven by the UK.

Ministers attempting to claim to the UK Parliament that the EU retained law bill will allow ambitious standards to be maintained sounds like the worst sales pitch of a second-hand car salesman. Consumer, employment, and environmental regulation is not a burden. It’s an asset. Widespread outcry is justified[1]. #AttackOnNature

Duplications is a serious concern too. For organisations trading with the EU and beyond, having to met two sets of different laws will add considerable additional costs.

This bill would tie-up civil servants for a long-time and oversight of what happens wouldn’t be of the quality needed.

The former Business Secretaries were driven by Brexit dogma. The new Business Secretary needs to stop and think again. There’s no profit in trashing what works.

A serious debate about individual laws is the job of Parliament. Sweeping away swaths of good law because it’s a prejudice of the secretive European Research Group (ERG)[2] is sheer madness. Parliamentarians should work for the people, not against their interests.

POST 1: Financial Times: UK’s Rishi Sunak eases off on taking Brexit axe to EU laws. Plan for ‘delivery unit’ shelved in wake of warning EU legislation review would tie up hundreds of officials.

POST 2: Mogg continues to promote his “bonfire” of EU law retained after Brexit in The Express newspaper.

POST 3: Brexit supporters are coming out against this bad law Rees-Mogg’s plans to axe all EU laws will cripple Whitehall, says leading Brexiter | Law | The Guardian

[1] https://www.rspb.org.uk/our-work/rspb-news/rspb-news-stories/attack-on-nature-the-story-so-far/?from=hp2

[2] https://en.wikipedia.org/wiki/European_Research_Group