ja_mageia

Once upon a time in Great Britain, law was made in Parliament. The people’s elected representatives gathered in the House of Commons and voted for or against a particular bill. If the vote was positive, the bill shuffled forwards and backwards between the Commons and Lords a few times, so that amendments could be made and the legislation improved. It was then sent to the monarch to receive the sovereign’s signature. Royal assent marked the end of the process and the bill became law. Absolute and legitimate law. Its removal from the statute book would require another act of Parliament, a change in mind of the people’s representatives.

Not any longer. An emboldened judiciary, its reach lengthened by the incorporation of the European Convention of Human Rights (ECHR) into British law and more recent equalities legislation, has gained the power to legislate from the bench. Our governments are increasingly fettered to the rap of the gavel, the sound of judicial review.

That this is a problem to us of a liberal stripe is increasingly obvious. Yesterday’s Mail reported that the Equalities and Human Rights Commission is debating whether to contest the Government’s budget in court, following the IFS’ claim yesterday’s that the budget is ‘regressive’. Never mind that the British public voted overwhelmingly for the parties proposing realistic deficit reduction; it may well be judges whom decide the nation’s budgetary priorities and, thereby, its level of indebtedness.

The written-in left-wing bias of the ECHR and equalities legislation disproportionally threatens with repeal laws that only violate the Left’s perverted definitions of ‘fairness’ and ‘freedom’. Reform-minded governments seeking to limit the state to an effective size are the most exposed, being, as they are, typically indifferent to equalities impact assessments or the placation of human rights lawyers, preferring, rather, to promote their countryman’s welfare.

Thankfully, our nation’s constitution has not been eroded past a point of no return. By repealing in Parliament the Human Rights Act 1998 and the Equality Act 2010, the Government can remove this obstruction to its reforming agenda. It would be foolish not to.

75% of people think cold-calls should be banned. The consumer group Which? questioned 2,092 people, 25% of whom had felt intimidated by these calls. With the estimation that the average consumer receives 6 cold-calls a month, it’s no wonder the majority are fed up to the back teeth.

Unlike doorstep, telephone cold-calling is rather ambiguous. You can’t just put a sign up, and although households can ask to be taken off business’ databases, ringing round is, understandably, viewed as being a rather daunting and time-consuming task.

Although it is not obviously an act of trespass for somebody to cause another person’s telephone to ring, and for that person to hear his or her voice down the line. Conceivably, such an action could fall under the tort of nuisance. The law of tort, being largely judge-made, would need to be altered (this would be largely up to the judiciary to do) to cover telephone calls.

Like a doorstep, a telephone does invite people to call. However, this could be made negative by the electronic equivalent of a “no cold-callers” notice. It is up to the telecom providers, under demand from customers, to facilitate this. For example, a recorded voice could say “no cold-callers”.

But how would this be enforced? With doorstep cold-calling, the owner of the property can lawfully use reasonable and proportionate force to propel the uninvited caller back to the street.

The electronic equivalent of this is hanging-up. But neither stops the call in the first place. Injunctions would be the obvious remedy, but they’re expensive. Therefore, what is required, as opposed to simply banning, is for the telecom providers, acting in concert (they act together anyway to link their networks), to devise and offer a contractual and electronic equivalent.

BBC: Scrap civil legal aid, says Adam Smith Institute
Politics.co.uk: No win, no fee - no legal aid?
Press Association: Civil legal aid 'should be cut'
Spectator: Tipping the scales against legal aid

Download a copy of the briefing paper (PDF) here.

You may not have heard of UKAS (United Kingdom Accreditation Service), the quango that approves the standards of certification bodies. For example, the certifying body for radiologists acquires accreditation from UKAS by demonstrating that it is doing its job to an adequate standard. Most of UKAS’s “customers” are in healthcare, i.e. largely the NHS, and almost all of them are in the public sector. So we can regard the annual turnover of UKAS, about £15M, as a cost to the taxpayer.

As a quango, UKAS is nominally independent but is de facto part of BIS. The Chief Executive, Paul Stennett, is worried about the Treasury axe and, rightly, has written (13th August) to thought leaders to increase awareness of UKAS and the benefits it brings.

The case for checking the competence and standards of certifying bodies is sound enough and even if it were not, the EU is about to make it a requirement. The questions therefore are the size and cost of such a quango, whether participation by certifying organisations, e.g. the Food Standards Agency, should be optional or mandatory and how widely the UKAS net should be thrown.

Unsurprisingly, the UKAS website, Annual Report and Mr Stennert’s letter all make plain that the main objective is for UKAS to be as large as possible. Growth is the key performance indicator. All the 11 current certifiers under the UKAS aegis are other parts of government. How many public sector workers should be certifying other public sector workers in addition to their own managements, the National Audit Office and Parliamentary committees? Pelion is being heaped upon Ossa and this is before, as UKAS hopes, the whole of the private sector is required to come into its orbit. By then we would be looking at an additional burden of £100M to the economy.

Mr Stennert claims “Accreditation delivers confidence to the market in a proportionate way that reduces unnecessarily invasive and expensive bureaucracy” and that UKAS supports the delivery of “effective regulation”. These claims are excessive. The government has better ways to deliver effective regulation and UKAS is itself the unnecessarily expensive bureaucracy it claims to be reducing.

A more tightly focused and less growth-happy UKAS should not cost us more than £5M per annum.

• Our latest briefing paper, by lawyer and medical practitioner Anthony Barton, says that civil legal aid should be abolished for most compensation schemes.
• It argues that Britain’s legal aid system – the most generous in the world – is fundamentally flawed. By putting claimants in a no-lose position and defendants in a no-win situation (defendants cannot recover legal costs, even if they are successful), legal aid encourages risk-free speculative litigation.
• Given the rise of Conditional Fee arrangements (CFAs), commonly known as “no-win, no-fee”, civil legal aid is no longer necessary.
• However, current CFA arrangements are subject to some of the same problems as civil legal aid. At present, the balance of risk in litigation is biased in favour of claimants. This encourages excessive civil litigation and disproportionate costs.
• The main drivers of this risk imbalance are the additional costs of litigation – specifically, lawyers’ success fees and after the event (ATE) insurance.
• Success fees: The claimant’s lawyer can charge an additional success fee up to 100% of the legal costs if the case wins and nothing if the case loses. The level of this fee is set by the claimant, even though it is only ever paid by the defendant. There is therefore a clear incentive to maximize success fees.
• ATE insurance: In principle, claimants are liable for the defendant’s costs if their litigation is unsuccessful. However, ATE insurance covers claimants’ exposure to such costs liability. As with success fees, the cost of ATE insurance premiums are determined by the claimant but borne by unsuccessful defendants. The ATE insurance premium is usually waived is a claim is unsuccessful. Again, this insulates claimants from risk, while driving up the costs imposed on defendants.
• Lady Justice Smith, in the Court of Appeal, has recognized that the current system allows would-be claimants to “litigate weak cases without any risk themselves”.
• Lord Justice Jackson’s Review of Civil Litigation Costs proposes that recoverability of the success fee and ATE insurance should be abolished, so that they are borne by the claimant. However, he also proposes the introduction of one-way cost shifting so that costs are borne by unsuccessful defendants, but not by unsuccessful claimants. This would open the floodgates to risk-free, speculative litigation. His proposals should be rejected.
• The ASI report proposes that the level of additional costs – specifically success fees and after the event (ATE) insurance – recoverable from unsuccessful defendants should be capped. This would deter claimants from bringing weak cases with no risk to themselves, while preserving access to justice in the absence of civil legal aid.
• These reforms would go some way towards giving Britain a system of funding access to justice that is simple, robust, fair, accessible, affordable, and with costs proportionate to the damages at stake.

Download a copy of the briefing paper (PDF) here.

On every gas and electricity bill that UK households receive, there is a hidden tax. A tax of more than 8%. It's called the Renewables Obligation. Energy companies are obligated – that is, they are forced by the government under pain of fines and imprisonment – to spend a chunk of their revenues developing and installing non-fossil energy production systems. That means they are forced to pay for things like wind factories, photo-electric technology and wave power, whether or not they think these generation methods have the slightest value, either to themselves or the nation.

Like all political efforts to make companies pay for things, the government's plan does not work. The energy companies do not pay for these generation technologies. The cost does not come out of their profits, or their shareholders' dividends. It comes from their customers, naturally. All of us who use energy in the home – and there may be one or two completely self-sufficient households in the UK, but the other 28 million or so do have to buy in gas or electricity – end up paying. We pay this premium on our bills so that our energy companies can subsidise wind farmers.

Or maybe we should call them subsidy farmers, because the fact is that these alternative energy sources are far from covering their own costs. None of those noisy, unsightly turbines that are marching across the country's most beautiful hill country (since that is where the wind is) would exist at all if it were not for the subsidy. Except perhaps the one on David Cameron's house.

Just think about it. In ordinary garden soil, there are trace elements that are actually quite valuable. You might even have a gram or two of gold lurking under your lawn. What good fortune: you could be sitting on a gold mine. Except that these things are not valuable at all, because the cost of extracting them would be enormous in relation to the tiny quantities that you could isolate. You could get the excavators in, and boil up all the soil in your garden to find them, sure enough. But it wouldn't be worth the effort. You could spend £250,000 on digging the holes and refining your soil, and maybe end up with just a few grams of precious metals worth maybe £100. It's a no-brainer, isn't it?

So why do we think it is any better to spend more on non-fossil generation than the value it brings to our energy network? Well, there may be a strategic benefit from having diversity, so we are not dependent on Russian oil and gas, for example. That's a plausible argument, though it still may not justify paying over the odds for that diversity. Then there's the argument that we want to develop new 'green' energy technology and be first in the field. No, we don't. We're better to buy technology from the world's best producers. We don't make phones for ourselves in the garage, we buy them from Apple. And in any event, the first people into any market aren't usually the people who make money from it. Usually it is the second entrants, who see the idea but improve the way it is designed and marketed. We'd be better and cheaper letting other countries develop green technologies, then capitalise on their efforts.

And what is true of energy is true of all the other things that governments subsidise. If it was your money, you would buy the cheapest. So why does government force us to pay for the most expensive?

As another massive, glossy 'corporate responsibility annual report' from a FTSE 100 company thuds onto my desk, I am reminded of the words of Milton Friedman in Capitalism and Freedom:

"Few trends could so thoroughly undermine the very foundations of our free society as the acceptance by corporate officials of a social responsibility other than to make as much money for their stockholders as possible. This is a fundamentally subversive doctrine. If businessmen do have a social responsibility other than making maximum profits for stockholders, how are they to know what it is? Can self-selected private individuals decide what the social interest is? can they decide how great a burden they are justified in placing on themselves or their stockholders to serve that social interest?"

Perhaps it is time we thought about asking families to pick up more of the strain.

Imagine a world where the government provided us with our cars. It would purchase a set number of them from private producers and some rationing board, lets call it the National Institute for Car Exboblification, or NICE, for short, would be established to allocate them. NICE wouldn’t necessarily allocate them to those who want them the most, but by some arbitrary principle.

Imagine, now, that a brilliant new hatchback is produced; superior in every way to the currently provided hatchback. However, NICE decides not to supply this hatchback. ‘It’s too expensive’, the rationing body decries! ‘It may well be superior in every way, but you’ll just have to make do with the old model.’

Clearly, this method of allocating cars is a nonsense. Why, then, do we apply it to the allocation of far more fundamental goods?

As readers of this blog are no doubt aware, a real life NICE determines which drugs are and are not made available on the NHS. A remote, unaccountable board of technocrats takes decisions that massively alter the lives of the individuals and families that they affect; such as that made yesterday to not provide Avastin: a new bowel cancer drug that could effectively treat 6,500 people a year.

In the allocation of drugs, as in the allocation of cars, the market does a better job than a rationing body. Removing rationing enables people to make better-informed choices. The medicines that one receives wouldn’t be determined ad hoc by NICE, but by an informed choice made in advance after a full consultation of health insurance options and their prices. One could object here that the poorest might struggle to purchase a decent plan. Yet is this really worse than the current system, where NICE denies them access to treatments in the first place? Also, there is no reason why, in a freer system, the government couldn’t step in to help the poorest purchase plans that meet a pre-defined standard.

It’s time to abolish NICE and wean our healthcare system off the wartime rationing mentality that has dogged it since its inception.