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Saturday, 11 April 2009

  • MP's seek immunity from prosecution with Reasonable Discretion defence

    If evidence was needed that members of parliament fear a public backlash, here it is, in the form of a new Bill, Exercise of Reasonable Discretion Bill 2008-09, which is due to get a second reading on the 24th April 2009. Below is a summary of what the Bill sets out to achieve;

    The Bill aims to ensure that public authorities and public servants would not be subject to any criminal or civil penalty as a result of the exercise of reasonable discretion in the performance of their functions. Its provisions would cover public authorities, public servants and contracts for public services. The term public authority is defined by the Bill and includes the NHS, the police, local and central and devolved Government and non-departmental public bodies. The formal intent of the Bill is to indemnify public servants, central government, local government and other public agencies from legal action if they take decisions in good faith, as a result of the exercise of reasonable discretion, in the public interest.

    In other words, MP’s amongst other public servants which include the Police, local officials and even the NHS, will be able to claim that in effect they acted in good faith, or in the words of the Bill, exercised ‘reasonable discretion’. Any lawyer will tell you that such a defence is subjective, therefore it offer enormous scope for any public servant (including, of course, MP’s) seeking to defend their actions.

    So, hypothetically, any Minister taking this country to war on dubious grounds could claim that they had exercised ‘reasonable discretion’ by, for example, commissioning a security assessment of the threat to this country. The information they act on does not have to be factually correct, so long as the Ministers can claim that they acted in good faith. The public would have no right of criminal or civil recourse. No longer will public servants be accountable to the public…and this is a democracy?

    Reasonable discretion is defined as being either, in the public interest or in the performance of their functions, in other words, it covers everything. The Bill seeks to include cover for all civil servants (and of course Ministers), for any mistakes they have made related to contracts for public services. Therefore, the civil servants responsible for ordering the new NHS database, which was originally budgeted to cost £2.3bn, has now spiralled to £12bn and is expected to result in a total bill of £32bn, will be able to claim that they exercised reasonable discretion.

    What about the Department of Work and Pensions where officials wasted £300m on two cancelled IT projects In 5 years the DWP managed to spend £2.14bn on IT projects, both ongoing and cancelled, with over £500m going to consultants alone. Was reasonable discretion exercised? You decide, because it is unlikely the courts could do anything about it.

    Would a Police officer be able to argue that he or she exercised reasonable discretion when they shoot an innocent bystander? Or could a Doctor claim that he or she exercised reasonable discretion when they removed the kidneys of a patient because they pick-up the wrong patients notes? Remember, there is no right of criminal OR civil recourse. Will this prevent people from suing the NHS and/or Doctors for criminal negligence?

    This legislation is a danger to all of us, given it is a Rogues Charter that seeks to protect all public servants from accountability to the people they are supposed to serve or represent. It is, perhaps, the most draconian and self-serving legislation ever devised by our parliament. Worst of all, it prevents the public from taking any action (civil or criminal) against MP’s or Ministers, because in virtually every instance, other than a direct and proven lie, they will be able to claim they had exercised reasonable discretion. In fact, even in their lied, they could claim that they did so ‘in the public interest’.

    I would urge all fellow bloggers with an interest in justice to use their blogs to publicise this outrageous attempt provide public servants, especially MP’s with a ‘get out of jail free’ card. If this legislation gets through, as it undoubtedly will, then no public servant can truly be held accountable to the public, because a ‘good faith’ defence will always be available! - More at Power to the People

  • Are the British Police out of control?

    Now I am not just referring to the case of Ian Tomlinson the bystander who died of a heart attack shortly after being hit (allegedly) by a police officer at the G20. No, I am basing my statement on the fact that the Police appear are, for all intents and purposes, a law unto themselves.

    Unless you are very lucky, anyone that has had to report a crime to the Police will be aware that they (the Police) are the ultimate arbiter as to which crimes they will investigate and which one’s they will not. This is likely to depend on what their local priorities are, which can range from Government targets, to a local, ‘wet behind the ears’ Police Inspector’s latest management wheeze, designed only to progress his career. A friend of mine has a business which is in a street just behind the main police station, it has been plagued for over 5 years by open drug dealing, anti-social behaviour, criminal damage, tenant intimidation and arson. The best the Police can do is send a PCSO around the industrial estate once or twice a day, the ‘local’ bobby was moved off the area nearly 2 years ago. He has not been replaced.

    A neighbour of mine has complained 3 times over a period of 5 weeks about cars parking on the ‘zig-zags’ outside her children’s school. She was prompted into action after witnessing a near miss accident when a child ran onto a crossing, he could not see the car and the driver could not see him because of 3 other cars being parked on the zig zags. The first time she complained, a PCSO was sent over, but only one person dared to park on the zig zags that day, but the PCSO could do nothing anyway. Then a traffic officer promised to do several drive-by’s at the appropriate time, a promise he failed to keep. On the 3rd complaint, the local police officer “promised” to deal with the issue, that was two weeks before the kids broke up for Easter, nothing happened. What has made her particularly angry, is that she has witnessed 5 police cars over the period in question manoeuvre their own vehicles around those illegally parked without do anything about it, not so much as a warning.

    The Government has recently launched a new initiative designed to ‘engage’ with the public, but no-one seems to have told their front-line staff. If you try and speak to your local officer you must go through their call centre, staff will record the information and state that they will pass it on to the relevany departement, but offer no promises of any action. If the police do respond, it will not be a proper copper, it will be a PCSO. If you want to lodge a complaint you cannot speak to a ’senior officer’ (by that they mean anyone of sergeant level of above, yep…a sergeant) by telephone, no, you must go into the station.

    My car was hit my an uninsured motorcyclist. To his (the drivers) credit he gave me his correct name and details. When I went to the police station, I had to give all of the details to a civilian, not a police officer. The police never contacted me about the issue, I had to chase them, when I eventually got an answer they said they would be taking no action because there was no independent witness. I can tell you, that I KNOW they never even visited the other driver, much less investigated the incident, it was just swept under the carpet. They did not even bother to come and get a statement from me, something that had been promised. This is just a small microcosm of what is happening today, little wonder, that in spite of there being over 150,000 police officers, crime is up, detection is down and people feel less safe than ever before.

    Meanwhile, everytime the Police want more powers, Jacqui Smith gives in to them. The police have unprecedented powers, they can even decide on whether or not we can exercise our ‘democratic right’ to demonstrate. At the G20, the Police effectively (and illegally) detained thousands of people by shepherding them into certain areas and then insisting that they remain there. What civilised democracy allows their police to act in such a way? When the Police decided that the demonstrations must end, they then acted like street yobs themselves by bullying, for the most part, well-behaved and peaceful protesters. I do not, nor would I ever criticise the Police for dealing quickly and decisively with those breaking the law, acting in a threatening manner or intent on trouble at such demonstrations, but to tar everyone with the same brush is completely unacceptable.

    The film of Tomlinson appears to show an unprovoked attack on someone who was trying to go home and had no part in the demonstrations. The film depicts an image of a police office hitting him with a baton and then shoving him over. The man had his hands in his pockets and his back to the Police, he was even walking away, based on the filmed evidence he posed no threat to the officers. That did not stop one Police Officer acting in a manner that was completely unacceptable and reckless. Only a complete idiot would push a man with such force that he could fall forward, but would only be able to break the fall if he was to get his hands out of his pockets in time. This action was captured on film, prior to that the Police were denying that there was any interaction between them and the victim. There is no suggestion here that the actions of the Police were a contributory factor to the mans death, instead, I contend that the Police Officer, on the face of it, acted in what appeared to be an aggressive and unprofessional manner. Further, the Police tactics of dealing with the G20 demonstrators amounted to nothing other than illegal detention, it must not happen on our streets again.

    The current Police baton is a very serious piece of kit and would be considered an illegal weapon if carried by a civilian, because it could prove lethal. Yet the Police routinely bring out the baton when there is NO threat, just watch any ‘fly on the wall’ programme on the Police service. Officers also have CS gas and now, all front line officers are to be ‘armed’ with lethal Tasers. Have the public been provided with any safeguards against rogue or over-zealous Police Officers, no, in fact they (the Police) can now rely on new legislation to prevent anyone filming them? Little wonder people refer to this country becoming a Police State.

    I am NOT anti-police, but I believe people that are paid to do a job must do it, they should not be allowed to pick and choose which bits they will or will not do on a whim. Further, officers are given extensive training on how to handle difficult situations calmly and professionally whilst always operating within the law. The film clip of the Tomlinson incident suggests that there are some officers out there who think they can do what they want or perhaps that they are above the law.  Yet the Police are forever whining, especially is anyone dares to criticise them or expect them to fight crime.

    If a Police Officer dies in the line of duty, we are reminded at how the Police put their lives on the line to protect the public every day, now that is true. But they also know what is expected of them before they join the police service, they are well trained and very well rewarded. Good career prospects, excellent salary and pension scheme and if they behave themselves, a job for life. However, scratch below the surface and the ‘danger’ aspect of policing in this country just doesn’t stand up to scrutiny, with all the health and safety rules they must adhere to and the fact that they so rarely get their hands dirty, it is probably one of the safest. Many times more travelling salesmen die in the course of their work than police officers.

    The police have demanded and received from compliant politicians more and more powers to monitor, control and deal with ordinary members of the public. Further, they have been given physical weapons and new laws that they can use against any person they so wish, with little, if any independent oversight. They have people within their ranks (serving officers) that have been charged and found guilty of offenses ranging from drink driving, through to violence and drug dealing…..yet they are still expect the public to trust them. Even though these same officers will be the ultimate arbiter of which laws to enforce, when and against whom. A succession of compliant Ministers have made the police in this country all powerful and answerable to no-one. We must wrestle control back to where it must be and that is with the people….because it is difficult to argue that the British Police are NOT out of control.

  • Manchester Police extend Big Brother Britain

    Not satisfied with 4.2m CCTV cameras, speed cameras and ANPR, the Greater Manchester Casualty Reduction Partnership has now introduced (as a pilot) a Smart Car complete with high level CCTV camera. The aim is to catch errant motorists that speed, use a mobile phone, park illegally or commit any other form of motoring offence. Drivers can then expect to receive, in the post, a fine and/or penalty notice which could carry 3 points.

    At a time when the public struggle to get the police to act when they are the victim of a burglary, anti-social behaviour, fraud or criminal damage, the police have decided to continue persecuting drivers, simply because they are an easy target and the police can claim to have detected, investigated and prosecuted another crime. Great for their clear up rates! However, this type of prosecution (or persecution) lacks any interaction with the public, therefore it is likely to create even more resentment between the police and the public at a time when they need all the support they can get.

    Of course, this type of system will only be able to trace and prosecute people that are, for the most part, law abiding. This is because these types of cameras rely entirely on the registration number and as we all know, there are over 1m vehicles on the road where the drivers have no insurance and/or bogus registered keeper details. So the serious criminals will be simply get away with it. I am not defending law breaking, instead I am advocating a programme where the police treat all crime seriously, rather than placing so much resource behind a single section of the community, because is is easier to secure a ‘hands up’ prosecution.

    At a time of economic mayhem, increased cases of serious crime and terrorist threats, the police, presumably supported by politicians, make clear where their primary focus will remain. Targeting easy crime. Of course these cameras won’t just take pictures of errant motorists, operating constantly, they cannot discriminate between an errant motorist and someone going about their normal business. So must we all acccept that, if extended, we must allow ourselves to be monitored by 4.2m CCTV cameras, as well as mobile cameras?

    Big Brother Britain is getting out of hand. Everything we do and say is being monitored and stored, this does not feel like a free and democratic country, instead is seems like we are in a police state. Civil liberty campaigners are often derided, as are those that claim we are moving to a police state, but take my word for it, in a few years time, the people of this country will realise that far from being reactionary, these people were visionary…and unlike our politicians, they have been speaking the truth.

Tuesday, 10 February 2009

  • Government shirks responsibility for RBS bonuses

    Despite all the political grandstanding surrounding the proposed bonuses to be paid to RBS staff, there is little that can be done about it and the government knows it. Don’t get me wrong, I am completely against the payment of bonuses to staff when the very fact that they still have a job is down entirely to the intervention of the government with taxpayers funds.

    However, the fact remains that the vast majority of the staff will have some form of contractual entitlement to a bonus; the senior bankers know this and so do government ministers. For example, it is estimated that some £500m is due to be paid to ABN Amro staff and this was a pre-condition of the original sale of the business to RBS. If senior managers don’t honour their employment contracts, then they could very quickly find themselves in breech of contract and you can rest assured that there will be a massive queue of lawyers offering to take up their cases.

    Gordon Brown is reported to be “very angry“, well, bully for him,  what difference will his temper tantrum make? None! Treasury minister Yvette Cooper said any contractual or legal obligations on banks to pay bonuses at a time when they were making huge losses must be “challenged“. Yeah right Yvette, you know that there is little or nothing that can be done about it, which is why you squirmed so much when John Snow put some eminently reasonable to you on Channel 4 News last night. Alistair Darling is quoted as saying “I have spoken to the chief executive of RBS, and made it quite clear, and he agrees, that no-one associated with these huge losses should be allowed to walk away with large cash bonuses.” Quite right Mr Darling, but this is a legal issue, not a place for political rhetoric.

    Even David Cameron demonstrates how out of touch he is by stating “As the principal shareholder, you are able to say what is and what is not acceptable.” True Mr Cameron and that is precisely the point, but you cannot do it retrospectively, if you had any business experience you would know that, unless of course, you are simply taking us all for fools.

    The truth is this government rushed into “saving the banks from collapse” and in doing so, they left any commonsense back in the office. So keen were they to be seen as the saviors of the banking world, they did not complete any form of due diligence. I know that ministers and civil servants can often be accused of rank incompetence, but this goes off the scale. No experienced businessman and I mean not one, would blindly invest into a business, however urgent the need, without completing a full review of the business. As one contributor stated on one of my recent posts on the RBS fiasco;

    Due Diligence is only half of the required formula for meeting the requirements under “Standard of Care” or “Due Care”. Due care is the second half of the diligence formula and equally as important. For without it, the standard of care can not be measured.

    Performing Due Diligence identifies where investment risks or exposures lie, due care is exercising the requirements discovered under due diligence to protect or mitigate exposure from those risks.

    Not only has the PM missed the first but importantly government has neither the resources, skills, or initiative to deal with the second which is what ultimately leads to failures.

    In the normal course of events, due diligence would have uncovered that there were, amongst other things, contractual liabilities to pay bonuses; this would have included an estimate as to the likely cost. Had the government and its advisors acted with a reasonable level of care, arguably, this whole situation would have been avoided. Government could, for example, have included conditions which required staff to sign a waiver in relation to their bonuses. Alternatively, they could have been made redundant and re-employed on new contracts, the business after all was likely to collapse. Those that were expecting large bonuses, but had been party to significant losses, could have been warned that if they attempted to exercise there ‘bonus guarantees’ they could expect to be dismissed with immediate affect and could face a claim if they had acted recklessly or without a reasonable level of care.

    I am not an employment lawyer, but I am convinced that there were (’were‘ being the operative word), any number of imaginative ways in which government ministers could have avoided this massive kick in the teeth to hard pressed taxpayers if they had acted with foresight and were in receipt of legal advice. Instead, once again, the rank incompetence of government ministers has cost UK taxpayers £billions.

    There have been justified cries for the bankers to pay back their bonuses and even suggestions, quite rightly in my opinion, that traders should be sued for bonuses paid on what have subsequently turned out to be ‘questionable or toxic’ investments. These are perfectly justifiable initiatives, but what about the government ministers, surely they are equally culpable? Leaving aside the issue of regulation and so on (pre-bust), government ministers ordered a massive injection of taxpayer cash into banks without fully understanding the liabilities and obligations therein. At best, it demonstrates incompetence of the highest order and at worst, that they do not appear, based on the evidence currently available, to have demonstrated a reasonable standard of care.

    This current political grandstanding and rhetoric is nothing more than a smokescreen designed to divert attention from the incompetent management of the whole banking crisis by members of this government. New Labour ministers have proven themselves to be incapable of humility, unable to accept any form of personal responsibility and aggressive towards anyone who would question their intent. That is arrogance in its most basic and crude form, the people of this country must not let them get away with it, government ministers must be held to account and accept moral and legal responsibility for their actions. Anything less would be an outrage to the people that will have to pay the price over the coming decades.

  • David Cameron sets up Economic Recovery Group

    The latest announcement from the Tory Party machine is that David Cameron is to invite “leading businessmen” to join his ‘Economic Recovery Group’. now, don’t get me wrong, this is a laudable initiative, but it lacks a certain something, specifically its failure to appoint people from the SME sector, even though they are undoubtedly the backbone of our economy.

    The UK’s 4.4m small and medium-sized businesses (SMEs) are the engine room of our economy, accounting for 47% UK employment (13.5m), 99.7 per cent of all enterprises and 48.7% of UK Plc turnover. Within the SME sector, some 4.2m actually employ less than 10 employees and a further 167,000 less than 50. In fact, SME’s actually employ 60% of the ‘private sector’ workforce. It is, therefore, self-evident that small business is the primary vehicle for innovation which leads to new jobs, new industries and new wealth for this country and its people.

    The people Cameron has invited include Next’s Simon Wolfson, Lloyds TSB chairman Sir Brian Pitman, Google chief executive Eric Schmidt and ex-Vodafone boss Sir Chrisopher Gent.  Quality people, but what do these guys know about small and medium sized enterprises. Granted, they may have once worked within one or two, but you can be certain that it was a very long time ago. If Cameron wants to come up with sensible initiatives that have a positive impact on the vast majority of businesses in this country, then he needs to stop trying to hit the headlines with industry ‘names’ and start talking to real business people within the SME sector. It may not give him the same headlines, but it will provide him with a better insight into the real issues and there is a chance that the people of this country will start to think he is a man of substance rather than glitz. We have all, I am sure, had enough of glitz, polish and rhetoric to last a lifetime.

    Don’t get me wrong, I don’t doubt the credentials and standing of these men, but I do question the logic of inviting these ‘wise men’ to offer advice on how to deliver real solutions to the SME sector. Unless, of course, Cameron doesn’t realise what contribution the SME sector makes towards UK Plc turnover and how many the sector employs. Don’t go for an industry spokesman Mr Cameron, invite a couple of SME businessmen. If Mr Cameron doesn’t know where to look, as a SME businessman myself, I will gladly give my two-penneth and my time, at no charge.

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