Clause 88 – the bingo clause of the Deregulation Bill?

Lord Tunnicliffe asked in Parliament on November 20, 2014: “are these  new clauses a licence for regulators to approve regulations that kill people to save money?”

Imagine an unsafe care home where children or the elderly are at risk.

Imagine its staff with fewer professional registration requirements than today.

Imagine the home could legally reject a Care Quality Commission call for changes, citing that to do so would harm the home’s “economic growth”.

Could this ever be reality, if this controversial clause 88(2) of the deregulation bill becomes law? [1]

In bingo, the number 88 is outdatedly and naughtily nicknamed ‘two fat ladies.’

In the media today we often hear about ‘health’ and ‘social care’ issues, and they currently overlap on the future approach to tackling the serious societal implications of obesity.

Headlines more rarely talk about changes to law which could have equally serious implications for the future approach to how we look after our health and care system and its oversight.

However, changes that could affect each of us, are currently in the Lords for review, and my bet is that few beyond their benches and MPs, have had their eyes down on the detail.

The Deregulation Bill – What is the very big bill all about?

It has been on the go for over 18 months, and Richard Grimes addressed some of the concerns in September 2013.[2]

The Deregulation Bill, is a very large bill indeed and is as broad in its content as its title is bland, but it has the potential to be a bombshell in its impact.

Functionally it covers subjects as diverse as busking and the Breeding of Dogs Act. It will make changes to the process the police use to obtain journalistic material [3] and provide a gateway to sell information from birth, death, marriage and civil partnership records.

Some changes in law will specifically affect the NHS: the ‘Road traffic legislation: use of vehicles in emergency response by NHS’, and ‘NHS foundation trusts and NHS trusts: acquisitions and dissolutions’.

Other clauses are area non-specific, such as my ‘bingo clause’, Clause 88(2), that creates a new legal duty for regulators to give regard to promoting economic growth.

The term ‘regulators’ covers a wide range of organisations [4]; you might think of Ofwat responsible for oversight of water and sewage, or the Food Standards Agency, or Human Tissue Authority.

Ken Clarke, joint bill owner with Oliver Letwin MP, wrote in 2013 [5]: “This is the beginning of a fundamental change in the culture of government. We think Reagan would have approved.

“By putting a duty on regulators not to burden business with unnecessary red tape, it will help to ensure that every nook and cranny of Whitehall is relentlessly focussed on growth.”

Will the Deregulation Bill take a gamble with the public interest in our NHS health and  social care provision through the ‘relentless’ duty to promote profit in Clause 88(2)?

Slimming down laws and the administration processes they affect, could of course be a very good thing. Lord Hunt of King’s Heath says of the bill as a whole: “I’ve no problem trying to streamline the regulatory processes, that’s why we broadly support it.”

But what about the detail in practice? Is Letwin and Clarke’s ‘relentless focus on growth’ going to mean compromise in worker safety, or in today’s health and social care market?

Will regulators be less rigorous about requirements and imposing penalties on commercial companies, if a private provider could complain, arguing non-compliance with this clause?

Clause 88(2): a duty to promote economic growth on regulators

Lord Hunt shared his key concern with clause 88(2): “The nub of the issue is ‘will this compromise their main regulatory function?’ I think it’s very ambiguous. He said:

“The health regulators are very unkeen on all of this. It’s pretty clear to me in discussions that they worry about the impact this will have.”

One regulator that could be affected is CQC. A CQC spokesperson said:  “The Government’s response to the report of the Draft Bill Committee’s pre-legislative scrutiny said the duty does not set out how economic growth ranks against existing duties as this is a judgement only a regulator can and should make.

“The quality and safety of services is the primary basis on which we will regulate, and take enforcement action where necessary to protect people who use services. We would not consider a new duty to promote economic growth to override this position.”

How these new regulatory functions will work with their existing duties is unclear.

If they conflict how will it be decided which is considered most important if the law “does not set out how economic growth ranks against existing duties”? Summary guidance [6] on the deregulation bill is that the growth duty does not automatically take precedence over or supplant existing duties held by regulators, but what will that mean in practice?

If the economic growth duty should not make any difference to the key responsibilities of the regulator, why bring in this change at all?

A Department for Business, Innovation & Skills spokesperson said:
“Regulators will be required to be transparent about how they are complying with the growth duty.

“The Government will monitor the implementation of the growth duty through existing reporting mechanisms such as annual reports, published policies and service standards.”

To ring-fence the regulatory functions of health and social care bodies from the effects of Clause 88 (2) Lord Hunt proposed an amendment to 11 of them.[7]

He said: “In earlier discussion with ministers it was made clear they have a preliminary list of 5 regulators that they consider [in health] would fall under the economic growth clause in the bill: The Care Quality Commission (CQC), the Human Fertilisation and Embryology Authority (HFEA), the Human Tissue Authority (HTA), the Medicines and Healthcare Products Regulatory Agency (MHRA) and the Professional Standards Authority.

“I cannot for the life of me, see why the health regulators are in there. I hope that the government will be able to take some, or all of them out.”

But the amendment was not supported on February 11 by the government and instead it only promised further discussion before the next stage of the bill.

What changes will it make and are they in the Public Interest?

A year ago in February 2014 [8], MPs in the House of Commons, Caroline Lucas, Jonathan Edwards, John McDonnell and Jeremy Corbyn MPs proposed the removal of this same clause, requiring the desirability for economic growth, and they had concerns:

…”that this Bill represents a race to the bottom and an obsession with GDP growth at any cost which is not in the public interest.”

If the aim of the deregulation bill is to streamline services and remove red tape it should be very clear what purpose will be served through the changes and what consequences will be unleashed as a result.

However it appears that the government wants to get the bill through in principle and leave the practical detail of such risk analysis to be defined by regulations set out after it is law.

Regulations are not subject to the same parliamentary scrutiny and discussion as primary legislation, and some feel they are harder to veto.

Lord Hunt said: “It’s a very unsatisfactory way of doing it, there’s no guarantees and the government can just produce and list and then change that at any time in the future.

It is not the first time that Mr. Letwin’s proposals have been open ended and could have unforeseen consequences. [9]

Lord Hunt asked: “it’s a very open ended piece of legislation and the thing to ask is will it inhibit these key health regulators in protecting the public?”

Of key concern is whether regulators will be inhibited from taking actions in the public interest because of the potential for legal challenge by private interests.

If this sounds familiar, you may have heard similar language on deregulation in discussion of the behemoth of deregulation playing in parallel internationally: the TTIP, the Transatlantic Trade and Investment Partnership (TTIP). [10]

How the consequences of these national and international deregulation changes are inter-related is impossible to fully understand given the lack of public information available.

Public Consultation and Professional Voice given too little regard The Deregulation Bill and the effects of the duty to promote economic growth will spread across all our regulatory bodies.

Like the obesity discussion, the Bill is complex, it’s cumbersome, and whilst appearing to have good intentions, hard to understand how changes will be applied in practice.

It also appears at times to lack common sense and to ignore experienced professional opinion.

The Equality and Human Rights Commission felt that: “applying this growth duty to the EHRC poses a significant risk to the EHRC’s independence, and therefore to its compliance with the Paris Principles.”

The Government therefore risks the possibility of the EHRC’s accredited “A” status being downgraded and of putting the UK in breach of its obligations under EU equality law.

But Clause 88(2) will be applied to this body which promotes worker rights and fairness.

Social care is to become less regulated by scrapping the need to register staff with Ofsted.

Baroness King of Bow said in the Lords debate on November 18th: “There is a feeling in the [social care] sector and indeed elsewhere that there has been quite simply inadequate debate around these very serious and important issues.”

Lord Reid of Cardowan in the Lords on February 5th said: “There are occasions during a ministerial career where, on study, what seems a relatively small decision becomes an obviously profound and very risky decision […] having listened to this debate, I have the impression that this is one of them.”

The potentially harmful consequences of these changes demand greater public scrutiny.

Will this bill future-proof the regulatory protections of health, environmental, safety, and social care, and prioritise the public interest?

If instead a duty to profit should be put first, one day the words of Lord Tunnicliffe may come back to haunt us: “Are these new clauses a licence for regulators to approve regulations that kill people to save money?” [11]

We may then look back to find why failings happened, look to this bill, and shout, ‘bingo!’

Notes:

The third reading is on 4 March and Lord Hunt has submitted an amendment to take out the The Human Fertilisation and Embryology Authority (HFEA) and Professional Standards Authority (PSA) for Health and Social Care from being covered by the growth clause.

As the Bill is amended and re-written, clause numbers will change. Clause 88(2) was the number of the duty to promote growth clause on February 11 2015 in the House of Lords debate.

A version of this article was first edited, amended and published by Open Democracy on February 25, 2015.

References:

[1] http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0058/lbill_2014-20150058_en_9.htm#pb16-l1g91

[2] https://www.opendemocracy.net/ournhs/richard-grimes/bonfire-of-citizens-rights

[3] http://www.theguardian.com/media/2014/jan/31/secret-hearings-police-journalists-deregulation-bill

[4] List of regulators: http://discuss.bis.gov.uk/focusonenforcement/list-of-regulators-and-their-remit/

[5] http://www.conservativehome.com/platform/2013/07/ken-clarke-oliver-letwin.html

[6] www.gov.uk/government/uploads/system/uploads/attachment_data/file/274552/14-554-growth-duty-draft-guidance.pdf

[7] http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0058/amend/ml058-III-Rev.htm

[8] https://www.nuj.org.uk/news/nuj-backs-reasoned-amendment-to-deregulation-bill/

[9] http://www.theguardian.com/politics/2014/dec/30/downing-street-files-oliver-letwin-poll-tax

[10] https://www.opendemocracy.net/ourkingdom/linda-kaucher/eu%27s-giant-and-secretive-deregulation-blitz

[11] http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/141120-gc0001.htm

care.data – one of our business cases is missing

“The government takes the view that transparency is vital to healthy public services. It has created a new Statistics Commission to improve the quality of information collected (and to end arguments about “fiddling” figures).” [Tim Kelsey, New Statesman, 2001] [1]

In a time of continuing cuts to budgets across the public sector the members of the public have every right and good sense to question, how is public money spent and what is its justification.[#NHS2billion]

For the flagship data extraction care.data programme, it is therefore all the more surprising, that for the short and long term there is [2]:

a) no public proof of how much the programme is costing,
b) little around measurable tangible and intangible benefits,
c) or how the risks have been evaluated.

The Woolly Mammoth in the Room

The care.data programme has been running under its ‘toxic’ [3] brand in a similar form now, for two years.

When asked directly on costs at the Health Select Committee last month, the answer was, at best, woolly.

“Q655   Rosie Cooper: While I appreciate that, can you give us any rough figures? What would a CCG be contributing to this?

Tim Kelsey: I cannot answer that question, but we will very rapidly come back to you with the CCGs’ own estimates of the costs of the programme and how much of that cost is being met by the programme.” [Hansard January 2015][4]

The department appears very unwilling to make public and transparent its plans, risks and costs. I’ve been asking for them since October 2014, in a freedom of information request. [5]

They are still not open. Very much longer will look decidedly shady.

A few limited and heavily redacted parts were released [2] in poor quality .pdf files in Jan 2015, and don’t meet my request as there’s nothing from April-October 2014, and many missing files:

Transparent?

As I followed the minutes and materials released over the last 18 months this was a monstrous gap [7], so I have asked for it before.[8]

I had imagined there was reticence in making it public.
I had imagined, the numbers may be vague.
I hadn’t imagined it just didn’t exist at all.

For the programme whose watchword is transparency, this is more than a little surprising.  A plan had to be drafted to drive transparency, after the FOI was received [which I believe fails section 22 refusal criteria, as the decision to publish was made after the FOI]

– here’s the plan [9] – where are the outcomes?nessie

Is the claim that without care.data the NHS will fail, [10] no more than a myth?

 

Why does the business case and cost/risk analysis matter? What is the future of our data ownership?

 

Because history has a habit of repeating itself and there is a terrible track record in NHS IT which the public cannot afford [22] to allow to repeat, ever again.

The mentality that these unaccountable monster programmes are allowed to grow unchecked, must die out.

Of the NPfIT, Mr Bacon MP said: “This saga is one of the worst and most expensive contracting fiascos in the history of the public sector.”

Last autumn, a new case history [23] examined its rollout, including why local IT systems fail to deliver patient joined up digital records.

Yet, even today, as we hear that IT is critical to the digital delivery of NHS care and we must all be able to access our own health records, we read that tech funds are being cut.

Where is common sense and cohesion of their business planning?

These Big Data programmes do not stand alone, but interact with all sorts of other programmes, policies, and ideas on what will be done and what is possible in future for long term data purposes.

The public is not privvy to that to be able to scrutinise , criticise and positively contribute to plans. That seems short-sighted.

And what of previous data-based ventures? Take as a case study the Dr. Foster IC Joint Venture [NAO, February 2007] [24]

“The Information Centre spent £2.5 million on legal and consultancy advice in developing the joint venture, and setting up the Information Centre. The Information Centre contends that £855,000 of the money paid to KPMG was associated with costs for setting up the Information Centre which included business planning.

However, they could not provide an explicit breakdown of these costs […] We therefore calculate that the total cost to the taxpayer of a 50 per cent share is between £15.4 million and £16.3 million.”

“The Information Centre paid £12 million in cash for a 50 per cent share of the joint venture (see Figure 2 overleaf).

The UK plc made a sizeable investment here. The UK state invested UK taxes in this firm – so what’s the current business case for using data? How transparent are our current state assets and risks?

Being a shareholder in one half, it is fair to ask who are we now sharing the investment risk with or was this part sold soon after?[25] Was that investment a long-term one, or always meant to be so short term and are there any implications for the future of HSCIC?

In 2011 this report [26] another investment group, Bamboo holdings [related to other investor companies], wanted but did not succeed in selling its Dr. Foster stock at an acceptable price, said the portfolio introduction due in their words, to ‘poor performance’.  [Annual investor review from 2013 [p.5]

So what risks does the market see as a whole which are not made available to the public which affect how data is used and shared?

What of the other parts of Dr. Foster Research and so on, we, the state, went on to buy or sell later? It appears complex.

Is the commercial benefit to be made for private companies, seen as part of the big picture benefit to the UK plc or where does state investment and expectation for economic growth fit in?

What assessment has been made of the app market in the NHS and how patient data is expected in future to be held by the individual, released by personal choice to providers through phones?

Is a state infrastructure being built which in the surprisingly short term, may see few healthy people who store their data in it or will we see bias to exclude those with the money and technology to opt out who prefer to keep their health data in a handheld device?

What is the government plan for the future of the HSCIC and our data it manages? The provider Northgate was just bought by European private equity firm Cinven, which now manages a huge swathe of UK’s data [32] and HSCIC brought others in-house. [33]

“Its software and services are used by over 400 UK local authorities, all UK police forces, social housing providers in the UK and internationally, and NHS hospitals. Its IT projects support the sharing of information for criminal intelligence and investigations across UK police forces and the management of health screening records in the UK and in Ireland.”

All the easier to manage – or to manage to sell off?

Is the business plan future-proofed to survive the new age of health data management?

One of the problems with business cases for programmes which drag on and get swamped down in delays, is they become obsolete.

The one year mark has now passed in the announced care.data pause, announced on February 18th 2014.

The letter from Mr.Kelsey on April 14th 2014, said they would use the six months to listen and act on the view of patients, public, GPs and stakeholders.

Many of the open questions remain without any reply at all, never mind public answers to solutions to open issues.

The spine proposal by medConfidential [30] is one of the best and clearest proposals I have found with practical solutions to the failed opt out 9Nu4 for example.

Will these be addressed, or will NHS England answer the Data Guardian report and 27 questions [31] from December?

Is care.data arthritic or going quietly extinct? The last public information made available, is that it is rolling on in the background towards the pathfinders.

“By when will NHS England commit to respect the 700,000 objections to secondary data sharing already logged but not enacted?” [updated ref June 6th 2015]

How is the business plan kept up to date as the market moves on?

Is Big Data in the NHS too big to survive or has the programme learned to adapt and changed?

As Peter Mills asked a year ago, “Is the Government going to take this, as a live issue, into the next general election? Or will it (like the National Programme for IT) continue piecemeal, albeit without the toxic ‘care.data’ banner? “

The care.data programme board transparency agenda in Nov 2014 : “The care.data programme has yet to routinely publish agendas, minutes, highlight reports and finalised papers which arise from the care.data Programme Board.

“This may lead to external stakeholders and members of the public having a lack of confidence in the transparency of the programme.”

We all recognise the problem, but where’s the solution?

Where’s the cost, benefit and risk analysis?

Dear NHS England. One of your business cases is missing.
Why has the public not seen it?
Why are you making it hard to hunt down?
Why has transparency been gagged?

Like Dippy, the care.data business case belongs in the public domain, not hidden in a back room.

Like the NHS, the care.data full risk & planning files belong to us all.

Or is the truth that, like Nessie, despite wild claims, they may not actually exist?

***

more detail:

[1] New Statesman article, Tim Kelsey, 2001

[2]http://www.england.nhs.uk/ourwork/tsd/care-data/prog-board/ care.data programme board webpage

[3] http://www.infosecurity-magazine.com/news/nhs-caredata-pr-fiasco-continues/

[4] http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/health-committee/handling-of-nhs-patient-data/oral/17740.html

[5] https://www.whatdotheyknow.com/request/caredata_programme_board_minutes?nocache=incoming-621173#incoming-621173

[6] http://www.england.nhs.uk/wp-content/uploads/2015/02/cd-prog-brd-highlt-rep-15-12-14.pdf

[7] http://www.telegraph.co.uk/news/science/science-news/11377168/Natural-History-Museums-star-Dippy-the-dinosaur-to-retire.html

[8] http://jenpersson.com/care-data-postings-summary/

[9] http://www.england.nhs.uk/wp-content/uploads/2015/02/propsl-transpncy-pub-cd-papers.pdf

[10] http://www.computerweekly.com/news/2240215074/NHS-England-admits-failure-to-explain-benefits-of-caredata

[11] http://nuffieldbioethics.org/blog/2014/care-data-whats-in-a-dot-and-whats/

[12] http://www.theinformationdaily.com/2014/03/26/business-scents-boom-in-personal-information-economy

[13] http://www.hscic.gov.uk/article/3887/HSCIC-publishes-strategy-for-2013-2015

[14] http://jenpersson.com/flagship-care-data-2-commercial-practice/

[15] http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/141015-0001.htm

[16] http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/141015-0001.htm

[17] http://www.legislation.gov.uk/ukpga/2014/23/pdfs/ukpga_20140023_en.pdf

[18] http://jenpersson.com/hear-evil-evil-speak-evil/

[19] https://www.whatdotheyknow.com/request/nhs_patient_data_sharing_with_us

[20] http://www.hscic.gov.uk/hesdatadictionary

[21] http://www.bbc.co.uk/news/uk-politics-24130684

[22]  http://www.nao.org.uk/wp-content/uploads/2007/02/0607151.pdf

[23] http://www.cl.cam.ac.uk/~rja14/Papers/npfit-mpp-2014-case-history.pdf

[24] http://www.nao.org.uk/wp-content/uploads/2007/02/0607151.pdf

[25] http://www.healthpolicyinsight.com/?q=node/688

[26]http://www.albion-ventures.co.uk/ourfunds/pdf%20bamboo/Bamboo%20IOM%20signed%20interims%2030611.pdf

[27] http://www.v3.co.uk/v3-uk/news/2370877/nhs-needs-patients-digital-data-to-survive-warns-health-chief

[28 ]http://uk.emc.com/campaign/global/NHS-Healthcare-Report-2014/index.htm

[29 ] http://uk.emc.com/campaign/global/NHS-Healthcare-Report-2014/index.htm

[30] https://medconfidential.org/wp-content/uploads/2015/01/2015-01-29-A-short-proposal.pdf

[31] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/389219/IIGOP_care.data.pdf

[32] http://www.privateequitywire.co.uk/2014/12/23/215235/cinven-acquire-northgate-public-services

[33] http://www.ehi.co.uk/news/EHI/9886/hscic-starts-sus-and-care-id-transfer

 

Nothing to fear, nowhere to hide – a mother’s attempt to untangle UK surveillance law and programmes

“The Secret Service should start recruiting through Mumsnet to attract more women to senior posts, MPs have said.”
[SkyNews, March 5, 2015]

Whilst we may have always dreamed of being ‘M’, perhaps we can start by empowering all Mums to understand how real-life surveillance works today, in all our lives, homes and schools.

In the words of Franklin D. Roosevelt at his 1933 inaugural address:

“This is preeminently the time to speak the truth, the whole truth, frankly and boldly…

“Let me assert my firm belief that the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.”

It is hard to know in the debate in the ‘war on terror’, what is truthful and what is ‘justified’ fear as opposed to ‘nameless and unreasoning.’

To be reasoned, we need to have information to understand what is going on and it can feel that picture is complex and unclear.

What concrete facts do you and I have about terrorism today, and the wider effects it has on our home life?

If you have children in school, or are a journalist, a whistleblower, lawyer or have thought about the effects of the news recently, it may affect our children or any of us in ways which we may not expect.

It might surprise you that it was surveillance law that was used to track a mother and her children’s [1] movements when a council wasn’t sure if her school application was for the correct catchment area. [It legally used the Regulation of Investigatory Powers Act 2000, (RIPA) [2]

Recent headlines are filled with the story of three more girls who are reported to have travelled to Syria.

As a Mum I’d be desperate for my teens, and I cannot imagine what their family must feel. There are conflicting opinions, and politics,  but let’s leave that aside. These girls are each somebody’s daughter, and at risk.

As a result MPs are talking about what they should be teaching in schools. Do parents and citizens agree, and do we know what?

Shadow business secretary Chuka Umunna, Labour MP told Pienaar’s Politics on BBC Radio 5 Live: “I really do think this is not just an issue for the intelligence services, it’s for all of us in our schools, in our communities, in our families to tackle this.”

Justice Minister Simon Hughes told Murnaghan on Sky News it was important to ensure a counter-argument against extremism was being made in schools and also to show pupils “that’s not where excitement and success should lie”. [BBC 22 February 2015]

There are already policies in schools that touch all our children and laws which reach into our family lives that we may know little about.

I have lots of questions what and how we are teaching our children about ‘extremism’ in schools and how the state uses surveillance to monitor our children’s and our own lives.

This may affect all schools and places of education, not those about which we hear stories about in the news, so it includes yours.

We all want the best for our young people and security in society, but are we protecting and promoting the right things?

Are today’s policies in practice, helping or hardening our children’s thinking?

Of course I want to see that all our kids are brought up safe. I also want to bring them up free from prejudice and see they get equal treatment and an equal start in life in a fair and friendly society.

I think we should understand the big picture better.

1. Do you feel comfortable that you know what is being  taught in schools or what is done with information recorded or shared by schools or its proposed expansion to pre-schools about toddlers under the Prevent programme?.

2. Do government communications’ surveillance programmes in reality, match up with real world evidence of need, and how is it measured to be effective?

3. Do these programmes create more problems as side-effects we don’t see or don’t measure?

4. If any of our children have information recorded about them in these programmes, how is it used, who sees it and for what purposes?

5. How much do we know about the laws brought in under the banner of ‘counter-terror’ measures, and how they are used for all citizens in everyday life?

We always think unexpected things will happen to someone else, and everything is rightfully justified in surveillance, until it isn’t.

Labels can be misleading.

One man’s terrorist may be another’s freedom fighter.

One man’s investigative journalist is another’s ‘domestic extremist.’

Who decides who is who?

Has anyone asked in Parliament: Why has religious hate crime escalated by 45% in 2013/14 and what are we doing about it? (up 700 to 2, 273 offences, Crime figures [19])

These aren’t easy questions, but we shouldn’t avoid asking them because it’s difficult.

I think we should ask: do we have laws which discriminate by religion, censor our young people’s education, or store information about us which is used in ways we don’t expect or know about?

Our MPs are after all, only people like us, who represent us, and who make decisions about us, which affect us. And on 7th May, they may be about to change.

As a mother, whoever wins the next General Election matters to me because it will affect the next five years or more, of what policies are made which will affect our children, and all of us as citizens.

It should be clear what these programmes are and there should be no reason why it’s not transparent.

“To counter terrorism, society needs more than labels and laws. We need trust in authority and in each other.”

We need trust in authority and in each other in our society, built on a strong and simple legal framework and founded on facts, not fears.

So I think this should be an election issue. What does each party plan on surveillance to resolve the issues outlined by journalists, lawyers and civil society? What applied programmes does each party see that will be, in practical terms: “for all of us in our schools, in our communities, in our families to tackle this.”

If you agree, then you could ask your MP, and ask your prospective parliamentary candidates. What is already done in real life and what are their future policies?

Let’s understand ‘the war on terror’ at home better, and its real impacts. These laws and programmes should be transparent, easy to understand, and not only legal, but clearly just, and proportionate.

Let’s get back to some of the basics, and respect the rights of our children.

Let’s start to untangle this spaghetti of laws; the programmes, that affect us in practice; and understand their measures of success.

Solutions to protecting our children, are neither simple or short term. But they may not always mean more surveillance.

Whether the Secret Service will start recruiting through Mumsnet or not, we could start with better education of us all.

At very least, we should understand what ‘surveillance’ means.

****

If you want to know more detail, I look at this below.

The laws applied in Real Life

Have you ever looked at case studies of how surveillance law is used?

In  one case, a mother and her children’s [1] movements were watched and tracked when a council wasn’t sure if her school application was for the correct catchment area. [It legally used the Regulation of Investigatory Powers Act 2000, (RIPA) [2]

Do you think it is just or fair that  a lawyer’s conversations with his client [3] were recorded and may have been used preparing the trial – when the basis of our justice system is innocent until proven guilty?

Or is it right that journalists’ phone records could be used to identify people by the police, without telling the journalists or getting independent approval, from a judge for example?

ft

These aren’t theoretical questions but stem from real-life uses of laws used in the ‘counter terrorism’ political arena and in practice.

Further programmes store information about every day people which we may find surprising.

In November 2014 it was reported that six British journalists [4] had found out personal and professionally related information had been collected about them, and was stored on the ‘domestic extremist’ database by the Metropolitan Police in London.

They were not criminal nor under surveillance for any wrongdoing.

One of the journalists wrote in response in a blog post on the NUJ website [5]:

“…the police have monitored public interest investigations in my case since 1999. More importantly if the police are keeping tabs on a lightweight like myself then they are doing the same and more to others?”

Ever participated in a protest and if not reported on one?

‘Others’ in that ‘domestic extremist list’ might include you, or me.

Current laws may be about to change [6] (again) and perhaps for the good, but will yet more rushed legislation in this area be done right?

There are questions over the detail and what will actually change. There are multiple bills affecting security, counter-terrorism and data access in parliament, panels and reviews going on in parallel.

The background which has led to this is the culmination of lots of concern and pressure over a long period of time focuses on one set of legal rules, in the the Regulation of Investigatory Powers Act (RIPA).

The latest draft code of practice [7] for the Regulation of Investigatory Powers Act (RIPA) [8] allows the police and other authorities to continue to access journalists’ and other professionals’ communications without any independent process or oversight.

‘Nothing to hide, nothing to fear’, is a phrase we hear said of surveillance but as these examples show, its use is widespread and often unexpected, not in extremes as we are often told.

David Cameron most recently called for ever wider surveillance legislation, again in The Telegraph, Jan 12 2015  saying:[9]

“That is why in extremis it has been possible to read someone’s letter, to listen to someone’s telephone, to mobile communications.”

Laws and programmes enable and permit these kinds of activity which are not transparent to the broad public. Is that right?

The Deregulation bill has changes, which appear now to have been amended to keep the changes affecting journalists in PACE [10] laws after all, but what effects are there for other professions and how exactly will this change interact with further new laws such as the Counter Terrorism and Security Act [p20]? [11]

It’s understandable that politicians are afraid of doing nothing, if a terrorist attack takes place, they are at risk of looking like they failed.

But it appears that politicians may have got themselves so keen to be seen to be doing ‘something’ in the face of terror attacks, that they are doing too much, in the wrong places, and we have ended up with a legislative spaghetti of simultaneous changes, with no end in sight.

It’s certainly no way to make legal changes understandable to the British public.

Political change may come as a result of the General Election. What implications will it have for the applied ‘war-on-terror’ and average citizen’s experience of surveillance programmes in real life?

What do we know about how we are affected? The harm to some in society is real, and is clearly felt in some, if not all communities. [12]

Where is the evidence to include in the debate, how laws affect us in real life and what difference they make vs their intentions?

Anti-terror programmes in practice; in schools & surgeries

In addition to these changes in law, there are a number of programmes in place at the moment.

The Prevent programme?[16] I already mentioned above.

Its expansion to wider settings would include our children from age 2 and up, who will be under an additional level of scrutiny and surveillance [criticism of the the proposal has come across the UK].

How might what a three year old says or draws be interpreted, or recorded them about them, or their family? Who accesses that data?

What film material is being produced that is: ” distributed directly by these organisations, with only a small portion directly badged with government involvement” and who is shown it and why? [Review of Australia‘s Counter Terror Machinery, February 2015] [17]

What if it’s my child who has something recorded about them under ‘Prevent’? Will I be told? Who will see that information?  What do I do if I disagree with something said or stored about them?

Does surveillance benefit society or make parts of it feel alienated and how are both its intangible cost and benefit measured?

When you combine these kinds of opaque, embedded programmes in education or social care  with political thinking which could appear to be based on prejudice not fact [18], the outcomes could be unexpected and reminiscent of 1930s anti-religious laws.

Baroness Hamwee raised this concern in the Lords on the 28th January, 2015 on the Prevent Programme:

“I am told that freedom of information requests for basic statistics about Prevent are routinely denied on the basis of national security. It seems to me that we should be looking for ways of providing information that do not endanger security.

“For instance, I wondered how many individuals are in a programme because of anti-Semitic violence. Over the last day or two, I have been pondering what it would look like if one substituted “Jewish” for “Muslim” in the briefings and descriptions we have had.” Baroness Hamwee:  [28 Jan 2015 : Column 267 -11]

“It has been put to me that Prevent is regarded as a security prism through which all Muslims are seen and that Muslims are suspect until proved otherwise. The term “siege mentality” has also been used.

“We have discussed the dangers of alienation arising from the very activities that should be part of the solution, not part of the problem, and of alienation feeding violence. […]

“Transparency is a very important tool … to counter those concerns.”

Throughout history good and bad are dependent on your point of view. In 70s London, but assuming today’s technology, would all Catholics have come sweepingly under this extra scrutiny?

“Early education funding regulations have been amended to ensure that providers who fail to promote the fundamental British values of democracy, the rule of law, individual liberty and mutual respect and tolerance for those with different faiths and beliefs do not receive funding.” [consultation guidance Dec 2014]

The programme’s own values seem undermined by its attitudes to religion and individual liberty. On universities the same paragraph on ‘freedom of speech’ suggests restrictive planning measures on protest meetings and IT surveillance for material accessed for  ‘non-research purposes’.

School and university is a time when our young people explore all sorts of ideas, including to be able to understand and to criticise them. Just looking at material online should not necessarily have any implications.  Do we really want to censor what our young people should and should not think about, and who is deciding the criteria?

For families affected by violence, nothing can justify their loss and we may want to do anything to justify its prevention.

But are we seeing widespread harm in society as side effects of surveillance programmes?

We may think we live in a free and modern society. History tells us all too easily governments can change a slide into previously unthinkable directions. It would be complacent to think, ‘it couldn’t happen here.’

Don’t forget, religious hate crime escalated by 45% in 2013/14 Crime figures [19])

Writers self-censor their work.  Whistleblowers may not come forward to speak to journalists if they feel actively watched.

Terrorism is not new.

Young people with fervour to do something for a cause and going off ‘to the fight’ in a foreign country is not new.

In the 1930s the UK Government made it illegal to volunteer to fight in Spain in the civil war, but over 2,000 went anyway.

New laws are not always solutions. especially when ever stricter surveillance laws, may still not mean any better accuracy of terror prevention on the ground. [As Charlie Hebdo and Copenhagen showed. in these cases the people involved were known to police. In the case of Lee Rigby it was even more complex.]

How about improving our citizens’ education and transparency about what’s going on & why, based on fact and not fear?

If the state shouldn’t nanny us, then it must allow citizens and parents the transparency and understanding of the current reality, to be able to inform ourselves and our children in practical ways, and know if we are being snooped on or surveillance recorded.

There is an important role for cyber experts in/and civil society to educate and challenge MPs on policy. There is also a very big gap in practical knowledge for the public, which should be addressed.

Can  we trust that information will be kept confidential that I discuss with my doctor or lawyer or if I come forward as a whistleblower?

Do I know whether my email and telephone conversations, or social media interactions are being watched, actively or by algorithms?

Do we trust that we are treating all our young people equally and without prejudice and how are we measuring impact of programmes we impose on them?

To counter terrorism, society needs more than labels and laws

We need trust in authority and in each other in our society, built on a strong and simple legal framework and founded on facts, not fears.

If the Prevent programme is truly needed at this scale, tell us why and tell us all what our children are being told in these programmes.

We should ask our MPs even though consultation is closed, what is the evidence behind the thinking about getting prevent into toddler settings and far more? What risks and benefits have been assessed for any of our children and families who might be affected?

Do these efforts need expanded to include two-year-olds?

Are all efforts to keep our kids and society safe equally effective and proportionate to potential and actual harm caused?

Alistair MacDonald QC, chairman of the Bar Council, said:

‘As a caring society, we cannot simply leave surveillance issues to senior officers of the police and the security services acting purportedly under mere codes of practice.

What is surely needed more than ever before is a rigorous statutory framework under which surveillance is authorised and conducted.”

Whether we are disabled PIP protesters outside parliament or mothers on the school run, journalists or lawyers, doctors or teachers, or anyone, these changes in law or lack of them, may affect us. Baroness Hamwee clearly sees harm caused in the community.

Development of a future legislative framework should reflect public consensus, as well as the expert views of technologists, jurists, academics and civil liberty groups.

What don’t we know? and what can we do?

According to an Ipsos MORI poll for the Evening Standard on October 2014 [20] only one in five people think the police should be free to trawl through the phone records of journalists to identify their sources.

Sixty-seven per cent said the approval of a judge should be obtained before such powers are used.

No one has asked the public if we think the Prevent programme is appropriate or proportionate as far as I recall?

Who watches that actions taken under it, are reasonable and not reactionary?

We really should be asking; what are our kids being shown, taught, informed about or how they may be  informed upon?

I’d like all of that in the public domain, for all parents and guardians. The curriculum, who is teaching and what materials are used.

It’s common sense to see that young people who feel isolated or defensive are less likely to talk to parents about their concerns.

It is a well known quote in surveillance “Nothing to hide, nothing to fear.” But this argument is flawed, because information can be wrong.

‘Nothing to fear, nowhere to hide’, may become an alternative meme we hear debated again soon, about surveillance if the internet and all communications are routinely tracked, without oversight.

To ensure proper judicial oversight in all these laws and processes – to have an independent judge give an extra layer of approval – would restore public trust in this system and the authority on which it depends.

It could pave the way for a new hope of restoring the checks and balances in many governance procedures, which a just and democratic society deserves.

As Roosevelt said: “let me assert my firm belief that the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror.”

 

******

[On Channel4OD: Channel 4 – Oscar winning, ‘CitizenFour’  Snowden documentary]

References:

[1] The Guardian, 2008, council spies on school applicants

[2] Wikipedia RIPA legislation

[3] UK admits unlawfully monitoring communications

[4] http://www.theguardian.com/uk-news/2014/nov/20/police-legal-action-snooping-journalists

[5] Journalist’s response

[6] SOS Campaign

[7] RIPA Consultation

[8] The RIPA documents are directly accessible here

[9] The Telegraph

[10] Deregulation Bill

[11] Counter Terrorism and Security Act 2015

[12] Baroness Hamwee comments in the House of Lords [Hansard]

[13] Consultation response by charity Children in Scotland

[14] The Telegraph, Anti-terror plan to spy on toddlers ‘is heavy-handed’

[15] GPs told to specify counter terrorism leads [Prevent]

[16] The Prevent programme, BBC / 2009 Prevent programme for schools

[17] Review of Australia’s CT Machinery

[18] Boris Johnson, March 2014

[19] Hate crime figures 2013-14

[20] Ipsos MORI poll, October 2014

 

******

 image credit: ancient history

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Burning questions on Detention Centre healthcare & welfare

A man deliberately set fire to his mattress and clothes, and was taken to hospital in Surrey on Jan 31st, two weeks ago.

He is one of 426 men held at Brook House, one of the immigration removal centres (IRCs) at Gatwick. After being treated for smoke inhalation he was returned later the same evening, according to a G4S spokesman.

Crawley’s West Sussex Fire & Rescue Service put out the fire, and had ventilated the smoke damaged cell before leaving, all in 30 minutes.

Clearly it did not come to much,  but why did a man feel the need to set fire to the few possessions he has, and what happens next?

The G4S media spokesman said last week in connection with the fire, he was unaware of any standard health assessment or any procedures for the care of men after these incidents.

In 2010, only one year after its opening, the HM Chief Inspector of Prisons report based on an announced visit at Brook House Immigration Removal Centre [3] labelled the Brook House IRC as fundamentally ‘an unsafe place’.

The inspectorate found in 2010 and again in 2013 that the mental health failings were serious. Should it not be realistic to expect standard practices should already have been put in place since, for their improvement?

What will the recent multi-million contract for healthcare at a number of detention centres awarded by NHS England to G4S and separately in prisons mean for standards and continuity of their NHS care, and will improvements be put in place which work?

The multinationals working in our UK justice and home office systems, G4S [which manages Brook House] and Serco, haven’t exactly got track records which are equal to the ethical expectations the public has in their roles.

They also operate in Australia where Ministers have taken a hardline approach in defiance of human rights asylum conventions.

One year ago today, twenty-three-year-old Reza Barati was killed in an Australian immigration detention centre on Manus Island. In August 2014, police have reportedly charged two guards working for former camp operator G4S with his murder. A parliamentary enquiry found the violence was foreseeable.

Another man, Hamid Kehazaei did not get taken from Manus to receive adequate medical treatment quickly enough due to paperwork delays, and died in December, the Guardian reported.

Are there warning signs that the provision in England is heading in the same way and not just for IRCs but for detention and prison across the UK?

Do people needing healthcare get taken offsite quickly enough when needed in England? How have they responded to deaths in detention?

In the UK, the IAP on Deaths in Custody has produced a comprehensive statistical breakdown of all recorded deaths in broad state custody settings between 1 January 2000 and 31 December 2010.

The report included a focus on the deaths of people detained under the Mental Health Act (MHA).

Children have died in detention and men during IRC removals.
[For more detail, see the section below, Questions on the Staffing and use of Force in care]

The care and the responsibility for these IRC-held men, women and children may not be of interest to everyone in the UK.

But as the expansion of private contractors becomes the norm, any family in England who finds someone they love in any non-HMP run English prison might be touched by the values of these providers.

Should we demand that equal ethical standards, transparency of targets and procedures, and the provision of physical and mental health care, be for all, as basic human rights?

Must our state keeps awarding massive contracts to these massive multinationals?

Will we, under the cuts of austerity, see situations deteriorate further in the UK, to the Australian standard?

Will we look back and wish we had acted sooner?

These issues are not new and are well documented

Lord David Ramsbotham GCB CBE, Her Majesty’s Chief Inspector of Prisons – December 1995 – August 2001 wrote the foreword in the 2008 report by the Birnberg Peirce & Partners, Medical Justice and the National Coalition of Anti-Deportation Campaigns  [Outsourcing abuse 2008] in which he identified:

“a most unfortunate attitude, adopted by officials towards issues surrounding asylum and immigration, described by the Commission as ‘a culture of disbelief’.”

It seems this culture of disbelief is allowed to continue.

Yet despite years of evidence, the February 2015 Home Office response by today’s government only accepts in part, some of the issues raised and recommendations in the Tavistock Institute Review [2] of IRC mental health care.

These include indefinite detention and the impacts on mental health, and a proposal of cultural change to speed up processing times.

As this is considered, I wonder will any change aimed at reducing indefinite detention manage to be designed in such a way as to also future-proof thorough and proper processing procedures?

In the meantime, detainees and prisoners are protesting via the few channels they have.  Self harm, starvation and setting things alight.

So what can we, the Public do?

If you think this matters but know little about it, we can get informed, or we can ask that our MPs intervene on our behalf.

We can support those who work or campaign in this area, like AVID [see on social media #Time4aTimeLimit and @DetentionForum

I wonder if those more informed, perhaps your local Red Cross or immigration volunteers, could read and consider responding to the Care Quality Commission (CQC) somewhat ‘informal’ consultation [p14] underway, on the approach to the CQC regulation in England?

This will affect how healthcare is regulated in IRCs. The closing date in March is unconfirmed.  Views are being taken now, in consultation via email: cqcinspectionchangeshj @ cqc.org.uk [1].

Joint working may be a good thing if it brings action to improve the health, care and welfare of the people in these institutions.

What it must not mean, is less frequent, independent, or less comprehensive reports by the HMIP which covers a wider area of inspection than CQC might.

Pregnant women, women who have been trafficked, torture victims: [added March 2: see Channel 4 on #Yarlswood] people are not getting the specialist support or care they should. Their carers and NHS staff are not universally getting specialist training they need.

Public pressure and transparency should support the campaign organisations who are familiar with these issues and demand change through MPs. There are big questions for IRCs whether people should be there at all, pregnant women and children even more so.

But specifically on health and welfare issues I would like to ask:

  • MPs: if they are aware already, of The Tavistock Institute Report [2],  government response, and ask for action, not only in IRCs but across all detention settings (incl. indefinite detention)
  • Ask: ‘is the parity of mental health delayed yet again, for people in prison and anyone in IRCs’? [ref the NHS Guidance to Mental Health Access  and Standards for 2015/16 from 12th February]
  • Ask: ‘What will the NHS England awarded multi-million contract for healthcare at a number of detention centres to G4S and separately in prisons mean for standards and continuity of their NHS care?’
  • Ask: ‘What training does NHS England offer healthcare staff who work with these people and how is it universally applied?’
  • Ask: ‘How is the provision of quality medical care being assessed and well documented changes needed actually acted upon’?
  • Ask: why are reports [as outlined in a letter from John Vine CBE QPM] taking so long to action? “The majority of my reports since January 2014 have been subject to significant delays between submission to the Home Secretary and being laid in parliament”
  • Ask: ‘Why is it deemed NOT in the public interest to ensure that all the providers’ procedures, protocols, the expected standards they operate to, and clear accountability for when they do not,  are transparent and in the public domain?’

The state may have, in places, outsourced the service, but it cannot outsource its responsibilities.

In my research to date, the question that I am left with overwhelmingly is this:

“As a provider of punitive systems, can healthcare and welfare can be delivered “with an equal sense of fairness” through the same outsourced service?”

Are the steps Theresa May refers to in the recently announced Shaw review, an indicator of real change?

The reports and reviews over the last ten years listed above seem to have made no difference to the unknown man, who set fire to his stuff, on the Saturday evening of January 31st 2015 at Brook House.

Parliament is well aware of many failings already. [9] and there are known others which are yet to be made public. [10]

Since 2010 through June 2013 the HMIP reports clearly identify issues but what follow though is made and who is accountable for it?

While there are solutions needed to big philosophical questions that may trouble our conscience, like ‘what kind of country do we want to be to unaccompanied children escaping life threatening situations?’ equally big political questions continue to challenge: ‘How and why do we continue to engage multinationals with unanswered ethical questions on financial and humanitarian practices?’ ‘What hope for refugees and asylum seekers in Greece and what are the wider EU implications, if EU political and economic next steps are unclear?’

For now, for many people who want to take action, it is the small and practical which can be done, in practice. Often small acts which make a difference in the silent and unreported space between desperation and hope, for each person,  each day.  Supporting our NHS staff to ensure they get the specialist situation training they want and continue their invaluable roles in these places. Supporting the visitors’ volunteer groups. You might consider joining them.

Call on our MPs to demand change now, not review after review.

More reviews, reports, consultations and new legislation bills, seem to run in parallel with little, at least little public regard to one another and ignoring the continuity of their calls for change.

They could make a difference with cohesion between the responses and if accountable action were taken.

That needs compunction and oversight of accountable follow up.

Until however long the next review takes to report, and any action is put in place, we might see another fire, for another person; in another prison, or another young offender institution, or another detention centre.

It might be in one near you. It might affect someone you love. It may be a child.

It’s not over dramatic to say: it might be a matter of life or death.

****

If you are interested in more detail, read on below after the continue reading break:

A. What happens to someone at an IRC after a fire like this?
B. Review of Welfare & Mental Health at IRCs incl. detention time
C. Brook House, Gatwick Cluster
D. Who is responsible for the healthcare offered at IRCs? The role of NHS England and the CQC
E. Questions on Staffing and use of Force in care
F. Another Review, another Report? Will there be Change?
Conclusion: Burning questions on Immigration Removal Centre healthcare

References

Continue reading “Burning questions on Detention Centre healthcare & welfare” »