conflict between transparency and rights to protection of personal data November 10, 2010
Posted by Bradley in : transparency , add a commentTransparency is a Good Thing, but the EU’s Court of Justice has held in Volker und Markus Schecke GbR (Cases C-92/09 and C-93/09) that the publication of details of the recipients of agricultural aid, while promoting transparency, conflicts with the recipients’ rights to protection of their personal data. The Court stated that by aiming to increase the transparency of the use of funds in the context of the CAP, the relevant regulations did pursue an objective of general interest recognized by the European Union, however the EU institutions did not satisfy the requirements of proportionality because they did not balance transparency with aid recipients’ rights to protection of their personal data:
Regard being had to the fact that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary.. and that it is possible to envisage measures which affect less adversely that fundamental right of natural persons and which still contribute effectively to the objectives of the European Union rules in question, it must be held that, by requiring the publication of the names of all natural persons who were beneficiaries of EAGF and EAFRD aid and of the exact amounts received by those persons, the Council and the Commission exceeded the limits which compliance with the principle of proportionality imposes.
Legal persons don’t have the same sort of rights, so publication of information about their receipt of aid is acceptable. Corporations don’t have the same sort of rights to private life that natural persons do. And presumably this would apply even where the legal person had one owner. Another factor to bear in mind when deciding whether or not to incorporate. The Court says legal persons are in any case subject to “a more onerous obligation in respect of the publication of data relating to them.”
Because many disclosures have been made based on an understanding that the regulations providing disclosure were valid, the Court limits the ability of those subject to past disclosure to bring claims:
In view of the large number of publications which have taken place in the Member States on the basis of rules which were regarded as being valid, it must be held that the invalidity of the provisions mentioned in paragraph 92 of the present judgment does not allow any action to be brought to challenge the effects of the publication of the lists of beneficiaries of EAGF and EAFRD aid carried out by the national authorities on the basis of those provisions during the period prior to the date on which the present judgment is delivered.
gory public bodies bill November 4, 2010
Posted by Bradley in : governance , add a commentThe Public Bodies Bill (horrible title) is criticized today by the Select Committee on the Constitution:
The Government has not made out the case as to why the vast range and number of statutory bodies affected by this Bill should be abolished, merged or modified by force only of ministerial order, rather than by ordinary legislative amendment and debate in Parliament. As we have said, and as is axiomatic, the ordinary constitutional position in the United Kingdom is that primary legislation is amended or repealed only by Parliament. Further, it is a fundamental principle of the constitution that parliamentary scrutiny of legislation is allowed to be effective. While we acknowledge that exceptions are permitted – as in the case of fast-track legislation, for example – we have also sought to ensure that such exceptions are used only where the need for them is clearly set out and justified. As we have said, the use of Henry VIII powers, while accepted in certain, limited circumstances, remains a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided.
And, if that isn’t enough:
The Public Bodies Bill [HL] strikes at the very heart of our constitutional system, being a type of ‘framework’ or ‘enabling’ legislation that drains the lifeblood of legislative amendment and debate across a very broad range of public arrangements. In particular, it hits directly at the role of the House of Lords as a revising chamber.
.. The Public Bodies Bill [HL] is concerned with the design, powers and functions of a vast range of public bodies, the creation of many of which was the product of extensive parliamentary debate and deliberation. We fail to see why such parliamentary debate and deliberation should be denied to proposals now to abolish or to redesign such bodies.
I suppose that if you use the word bodies in a bill title you are just asking for responses invoking blood and guts.
uk independent banking commission public meetings November 4, 2010
Posted by Bradley in : consultation , add a commentThe Independent Commission on Banking announced that it wants to stimulate a wide debate. It is holding a series of public meetings as part of this effort:
Leeds, 4pm on 19th November 2010. The event will be hosted by the Leeds University Business School and be chaired by Clare Spottiswoode.
Edinburgh, 6pm on 22nd November 2010. The event will be hosted by the David Hume Institute, at the Playfair Library. Bill Winters will chair the discussion, and panellists will include representatives from Lloyds Banking Group and Royal Bank of Scotland, as well as Bill Jamieson from the Scotsman and Professor Marcus Miller of Warwick University.
London, 3pm on 2nd December 2010. The event will be hosted by the Confederation of British Industry, chaired by Sir John Vickers and introduced by Richard Lambert. The panel will include John Varley, Chief Executive of Barclays.
Cardiff, in early December 2010. The event will be hosted by the Welsh Assembly Government at the Pierhead building in Cardiff Bay and be chaired by Martin Wolf. The event will focus on the banking needs of small and medium enterprises.
London, 6pm on 13th December 2010. The event will be hosted by Consumer Focus, will look mainly at consumer and retail issues and be chaired by Martin Taylor.
The press notice has contact details to arrange attendance.
regulatory opacity October 29, 2010
Posted by Bradley in : consultation , add a commentThe Federal Reserve’s final rule on gift cards and the Credit Card Act was published in the Federal Register today. The rule states:
The Board received two comments on the interim final rule from a credit union trade association and a bankers’ trade association. Both commenters generally supported the interim final rule. The bankers’ trade association suggested that the Board exercise its exception authority to eliminate in-store disclosures where cards sold meet the final gift card rule’s substantive fee and expiration date protections. This commenter also requested an extension of the delayed effective date. No other comments were received. The final rule adopts the interim final rule as issued, with minor non-substantive edits.
The comments don’t seem to have been that significant and didn’t seem to have an effect on what the Fed did, but still, and in the spirit of transparency reflected, for example at regulations.gov, I’d like to know who these commenters were, and exactly what they said. The NAFCU’s website shows that it sent comments to the Fed dated April 14, 2010 on ” The CARD Act Final Two Provisions” although these comments are only accessible by members. Other comments by the NAFCU to agencies which publish responses,such as the SEC, (the Fed does publish responses to some of its proposals) are visible.
immigration law & community October 28, 2010
Posted by Bradley in : events , add a commentTomorrow at UM Law in Room 352, beginning at 12.30 pm, a half day symposium on immigration law and community with panels on undocumented immigration and community, immigrant women, and Haiti, followed by a training on Saturday on immigration law and deportation defense (here are the background materials for the training).
recent developments in financial regulation October 27, 2010
Posted by Bradley in : financial regulation , add a commentLots of developments, including:
G-20 Ministers Agree ‘Historic’ Reforms in IMF Governance
The Financial Stability Board published a report on Implementing OTC Derivatives Market Reforms
The Joint Forum published a Report on Developments in Modelling Risk Aggregation
The Basel Committee published a report to the G20 on its response to the crisis
The SEC has proposed rules on shareholder approval of executive compensation and golden parachutes, investment managers’ reporting of proxy votes, swap trading and clearing, issuer review of assets backing ABS
Agreement on the alternative investment funds directive in the EU
The EU Commission published Communications on An EU Framework for Crisis Management in the Financial Sector and on Taxation of the Financial Sector and a Green Paper on Audit Policy: Lessons from the Crisis (and there’s the Final Report on Strengthening Economic Governance by a task force to the Council).
strange questions journalists ask October 19, 2010
Posted by Bradley in : Uncategorized , add a commentFiji has admitted losing the legal document confirming its independence from the United Kingdom. But does that threaten its existence as a state?
Although the article compares this lost legal document to a lost birth certificate, it is more like a lost copy of a divorce decree. After all, a birth certificate is evidence of the notification of a physical fact (which exists independent of any formal evidence of that fact), whereas the legal document Fiji lost was evidence of a change of status.
monbiot sizes up the quango hit list October 19, 2010
Posted by Bradley in : governance , add a commentHere:
Public bodies whose purpose is to hold corporations to account are being swept away. Public bodies whose purpose is to help boost corporate profits, regardless of the consequences for people and the environment, have sailed through unharmed. What the two lists suggest is that the economic crisis is the disaster the Conservatives have been praying for. The government’s programme of cuts looks like a classic example of disaster capitalism: using a crisis to re-shape the economy in the interests of business.
fighting compensation culture… again October 15, 2010
Posted by Bradley in : risk , add a commentThe explanatory notes to the Compensation Bill which became the Compensation Act 2006 (and which instituted the regulation of claims management by the Ministry of Justice) noted:
16.The Better Regulation Task Force (BRTF) report: Better Routes to Redress published in May 2004 found that the “compensation culture” is a myth but that it is a damaging myth that needs to be tackled. The BRTF identified the activities of claims intermediaries as contributing to a ‘have a go culture’ and recommended that claims intermediaries should be subject to statutory regulation, if self-regulation did not work.
David Cameron still seems to believe that the UK has a compensation culture problem and asked Lord Young of Graffham to investigate. Cameron is reported in the announcement of Lord Young’s report: Common Sense, Common Safety as saying:
A damaging compensation culture has arisen, as if people can absolve themselves from any personal responsibility for their own actions, with the spectre of lawyers only too willing to pounce with a claim for damages on the slightest pretext.
Did Cameron actually read the report? The report notes that the UK’s “compensation culture” is more a matter of perception than of reality:
Press articles recounting stories where health and safety rules have been applied in the most absurd manner, or disproportionate compensation claims have been awarded for trivial reasons, are a daily feature of our newspapers… Businesses now operate their health and safety policies in a climate of fear. The advent of ‘no win, no fee’ claims and the all-pervasive advertising by claims management companies have significantly added to the belief that there is a nationwide compensation culture.The ‘no win, no fee’ system gives rise to the perception that there is no financial risk to starting litigation; indeed some individuals are given financial enticements to make claims by claims management companies who are in turn paid ever-increasing fees by solicitors. Ultimately, all these costs are met by insurance companies who then increase premiums. However, any employer not covered by accident insurance faces bankruptcy, which encourages them to follow every recommendation of their health and safety consultant, no matter how absurd.
The Report makes a number of different proposals, including introducing a simple procedure for personal injury claims, replacing the Adventure Activities Licensing Authority with a Code of Practice; changing the risk assessment process, and introducing minimum qualification standards for health and safety consultants. The Report announces:
We should all accept that health and safety in non-hazardous occupations is little more than common sense in action.
And Lord Young wants to change the behaviour of insurance companies:
Insurance companies should cease the current practice that requires businesses operating in low hazard environments to employ health and safety consultants to carry out full health and safety risk assessments.
He also suggests that schools should be able to have a single consent form that would cover the activities a child might be involved in during his/her time at a school. This is an idea Cameron likes, but I’m not sure I would sign such a consent. Who knows when they might decide to go on a dangerous (and seemingly to be unregulated) caving trip? And what about sports injuries (see also here)?
consumer protection in the uk October 14, 2010
Posted by Bradley in : consumers , add a commentMore details on what is to happen with consumer protection here (wouldn’t it be nice if the announcement of changes to quangos (or non-departmental public bodies) linked to other related departmental press releases and announcements ?). Enforcement will be transferred to the Citizens’ Advice service and to local Trading Standards bodies:
In our proposed new regime, Trading Standards will be given responsibility for enforcement of almost all consumer law. Local threats to fair trading will continue to be handled at local authority level. But national and regional threats will now increasingly also be addressed through one or more dedicated, expert teams, within Trading Standards with work co-ordinated nationally for this purpose. Specific arrangements may need to be made in Scotland and Wales.
This approach chimes with the Government’s Localism agenda, should lead to significant efficiency savings and is a potential model for integrating local and national funding for regulatory enforcement in other areas.
In addition to these measures, I propose that responsibility for all non-financial consumer education, information and advice, and notably the Consumer Direct helpline, will transfer to the Citizens Advice service. I believe there is scope for other Government advice and information services also to become part of the Citizens Advice service, to reinforce a simple message to consumers – if you need information or advice, go to Citizens Advice.
Yes, but will they provide proper funding? And how is this decentralization of enforcement consistent with the idea of increasing transparency touted in the quangos announcement?