[Bradford] Monday’s meeting

[Robert Burrell Donkin]

On Wed, Nov 11, 2015 at 9:03 PM, Mike Goodman <mike.goodman at zen.co.uk> wrote:

<snip>

> I totally agree. I rang them to see if they had any idea. They didn't and
> admitted as much. Although it does seem they are aware of the Cabinet Office
> promise that they must supply appropriate software and the EU law which
> tells even the tories they can't hand everything IT to, in this instance
> foreign, proprietary system licensors.

In this case, it's not the Tories but the interpretation of EU law
currently favoured by the European Commission (EC). EU procurement law
may seem reasonable and slender but is enforced by politicians at the
EC who have wide powers with considerable discretion. So, de facto, EU
procurement laws are whatever the EC say they are today. (Strangely
enough, the EC is currently chooses not to police key elements of the
EU statue. So, de juro and de facto law is inconsistent.)

The interpretation of EU law preferred by the EC drives IT procurement
towards large corporations with closed licenses and a service
provision model. Not impossible to workaround, but tricky.

As far as I could tell (before I gave up with a shrug), I would
describe the current status-quo as an armed stand-off between the
Civil Service and the EC. The Civil Service (and the Cabinet Office)
prefer moving back to a more open and transparent model but the EC are
keen to force everyone else in the EU to move to our current (broken)
system. Both models would be compatible with EU statue. Therefore, in
the end the EC legal case relies upon "ever closer union" extending
simple, reasonable statue into an unreasonable model facilitating and
encouraging "pay to play". Which is what we have now.

I suspect that the Civil Service are hoping that removal of "ever
closer union" will break this deadlock without more drastic measures
being required. If England remains in the EU with "ever closer union"
then I expect that the Civil Service will just stop cooperating and
net off any "fines" imposed by politicians in the EC from English
contributions. This tactic would allow procurement rules to be changed
unilaterally relying on the UK courts to interpret the rather
reasonable EU statues.

In this scenario (adherence to the words of EU statue but not living
political law created by the EC) I expect that the UK would be heading
for an inter-EU trade war in any case. The EC are just an institution
and have no sovereign immunity, so I expect that they'd lose against
the Civil Service. However, I also expect the damage to be very
serious for all parties since the EC don't seem to realise how weak
their position potentially would be.

Russian journalists and presenters targetting by EU sanctions for
their political views are protected from harm by the degree of
independence enjoyed by the financial system of Putin's Russia. Having
establish this precident, the UK could reasonably seek to employ the
same tactics against European politicians whose views on "ever closer
union" they find disagreeable. Europe is heavily integration with and
reliant on the UK financial system and these politicians lack state
immunity. Potentially, similar measures would be much more harmful for
them.

The British secret services would no doubt find ways to dish dirt as
well. It was much easier for the outgoing Polish government to use EU
privacy law to protect unconstitutional activities (by closing Polish
newspapers and strangling Google) that it would have been to gain
traction in London courts against The Times for similar stuff, I
think. I doubt that UK courts would allow privacy concerns to excuse
or conceal criminal activity by politicians being publicised.

(EU privacy laws as interpreted by the EC protect truths, not
falsehoods. So, if you're a politician caught on microphone breaking
the Polish constitution and you did it, you may find you enjoy a right
to privacy. Not so, if you did not, though. Funny old world. UK courts
have tended to disagree with this intepretation of Human Rights.)

What goes around, comes around.

Do to others as you would have them do to you.

Interesting times.

> I tried pointing out that they must release in a format to which all have
> access.

I do not think that HMRC are bound by such a duty, though I'm sure
that the Cabinet Office is keen on universal access[1]

> I got the impression they knew that but had no idea how to implement it.

Technically, no, not an issue I think. Just code the libraries in
JavaScript (say), Ruby or Python. Then grant a license allowing anyone
to build front ends on top. Probably need a certification scheme, but
that's just a testing problem really.

I think that the legal implementation is indeed tricky, given the
prevaling conditions of EU law, the opinions of the Commission and the
departmental politics involved. Not a service and not possible to
outsource to one large corporation.

Robert

[1] Take a look at the old Tax Farming statues, and I think you might
discover that the newer stuff is just a layer on top. This makes the
"fines" not strictly speaking fines at all. This is consisent with the
practice by HMRC offices of using EU privacy laws to defend unlawfully
prevention of recording, acceptance of legal paperwork and naming the
officers dealing with your case. However, this seems inconsistent with
UK legal practice and case law, and I doubt that HMRC would want to
see these practices defended in court. You may well discover that the
"fines" are actually administrative charges only valid when a tax
payer has paid too little tax by the old due date. I believe that HMRC
may - from a formal, legal perspective - regard the app as therefore
an administrative convenience rather than a necessary part of the tax
system and that - given enough effort and knowledge - you can still
pay the old way.