What Comes To Pass

Ho Ho Ho

Michael Howard has given me the best Christmas present ever!

Pissing off Pro-War, Cultural and Euroskeptic Conservatives now he’s agreeing to the Government’s ID card proposals.

I back them 100% - I grew up in Hong Kong so I’m used to them and recognize that they are integral to my safety and the potency of the immigration system there. However it doesn’t take a rocket scientist to see that it’s a policy that has no support amongst High Tories and will in fact result in the Conservatives losing what are normally safe Tory votes.

After a year of violently thrashing his party through a year of opportunistic chicanes (opposition of Top-Up fees, about face on Iraq), Howard has finally thrown off the last of his loyal base. He’s ultimately stripped the Tories of their ideological foundations in a bizarre scramble to achieve spontaneous electability - at least under IDS there was something the Conservatives obviously stood for and principles upon which their policies were based. They’re not much better than the Lib Dems at the moment.

Thanks Mr Howard! The election is officially ours.

Later

John

Christmas giggles

Harry’s Place has a collection of fake Christmas articles, as if written by various members of the British Press. Classics include this diamond:

Michael Meacher – Was there really no room at the Inn? New evidence on the internet suggests there might have been plenty of space at the Inn after all. So why were Mary and Joseph forced into a stable? And why is our neo-con dominated government strangely silent?

And this,

Naomi Klein: Father Christmas exists. A taxi driver in Baghdad’s eye-witness account of seeing Santa near the Green Zone is being suppressed by the White House. Some other Baghdad taxi drivers believe the man dressed in the red outfit could have been a CIA or Mossad agent.

A good, fun read. I offer the following:

Julie Burchill: Israel is the best place to have Christmas. The people, the weather, the food, the way of life, the traffic, the sights, the… (continues for 9 pages)

Later

John

A & Others

I last posted about the Times coverage of the House of Lords decision in A & Others v Sec of State for Home Office and have finally had a chance to go over the case report.

Here’s a few tidbits:

1) In my own opinion Lord Bingham’s ruling on the matter of the discriminatory nature of the section could have gone either way. It’s a rather ingenious argument put forward by A’s counsel and in spite of how counter-intuitive it might be is probably right at law.

2) As for quashing the order of derogation, I disagree with the findings but the courts apparently have this power, it was represented as something different in the article.

3) I had some faith in the Lawlords’ decision ruling as to the proportionality of the section which the Attorney General sought to qualify under Article 15. That was at least until I read Lord Hoffman’s judgment. Lets just say I was deeply unimpressed and I’m not entirely sure that his lordship approached the subject with all the analytical caution it necessitated.

Overall I feel that the plaintiff’s argument as to ‘racial discrimination’ was on a rather peripheral point of law but the Lawlords were probably correct in their judgment (the fact that ironically their argument had the effect of pointing out that they had a better deal than UK nationals is largely irrelevant, law and common sense don’t always mix). However having read Lord Hoffman’s take on proportionality and the nature of national emergency I can’t help but feel that his (and perhaps many other) decisions were highly political and lacked subtlety when deciding a question which is perhaps the trickiest of tasks for the forum - that of proportionality.

The courts left Wednesbury behind after Smith and Grady and as their heavy handed interpretation of Article 15 implies, they appear quite happy to assume a role which is rather too powerful for my liking.

I’m left wondering what Dr Michael Arnheim, my Constitutional Law lecturer would say about this.

Later

John

The Hell?

The House of Lords (the Lords of Appeal in ordinary, functioning as the English court of Final Appeal) today held that the detainment of several suspected terrorists without trial was a breach of Human Rights.

Fair enough, the House of Lords has the power to pass a declaration that a statute is incompatible with the ECHR, this is not an over rulling of the legislation (as much as many judges would like it to be) because the courts don’t (rightfully so) have that power - it’s known as the Legislative Supremacy of Parliament or rather the “elected officials are elected and you are not” rule. In fact this (the power to issue the declaration of incompatibility) is a principle of modern law which largely came about in one of the biggest judicial power grabs in history following the case of Factorthame (which I shan’t go into because I don’t want to write a long post).

Anyhow, what is astonishing is the following sentence from the Times report:

“They also found that the Government had been wrong to opt out of Article 3 of the European Convention on Human Rights, guaranteeing rights to a fair trial.”

I can’t even begin to explain just how wrong that is and just how unconstitutional such a finding would be. I’m hoping this is just a national newspaper making a hash of their case reporting for the purposes of informing the layman because otherwise any principles of parliamentary supremacy have just been thrown out of the window by the House of Lords.

The courts derive the power for their new effective Human Rights mandate from the United Kingdom’s ratification of certain sections of the European Convention on Human Rights, it is on these not entirely steady grounds that they have assumed a great deal of power to create a jurisdiction that previously did not exist. However the decision of the crown as to which sections of the ECHR to accept is one that was taken by the crown and one which the House of Lords has absolutely NO power to refute or disallow. This is like a footballer getting up and red-carding the referee.

The sad thing is I wouldn’t honestly be surprised if the House of Lords had the gall to issue such a judgment. Judicial power in England has been creeping up in the past decades on the back of Europe, I hope that Clarke’s defiance marks the tide turning back on the judiciary.

Later

John

Mac Blogging

In the past three days, two excellent mac-related blogs have registered on my radar and are now safely ensconced in various bookmark folders. Where before there was only the fantastic Daring Fireball (whose writing is always top notch and insightful) there are now a multitude of mac blogs catching my eye. If you’re a mac user (as you’re already a blog reader) why not give them a try?

Deep Thought is a catch-all mac blog which promises to grow in the coming weeks.

Mac Specialist has a nice design and highlights new product releases and cool software.

Later

John

10 Days till Christmas...

And about 40 odd till Iraq finally becomes a democratic state. This article in the Times covers the growing electoral optimism in Iraq nicely, as always, taxi drivers provide the most interesting insights into political happenings.

The brothers from Iraq The Model have their political party moving into ‘campaign mode’ so a while ago I made a donation. Turns out their claims of transparent accounting are entirely truthful - here’s a screenshot from their latest financial reports:

I’m glad to have given my $20 to help the cause of democracy in Iraq - it’s only a bit less than my Labour Party membership fee and has the power to do quite a lot more. If you’re feeling kindly this Christmas season why not donate to the party? A small sum could make all the difference and you’ll feel better about yourself to a degree that it vastly disproportionate to the amount of money you’ve spent (ah, the farcical comforts of self-satisfaction that giving a miniscule percentage of your money to others brings!).

I’m off to buy a goat.

(PS: Comments still broken. I think I’m looking at moving the blog to a different system but I’ll have to keep all my precious CSS intact)

Later

John

The Exams Cometh

Sorry for the light posting, this is likely to continue well into the Christmas break. If my life were a movie, right about now is when it’d cut to a 2 minute montage of me hitting the books.

Later

John

Apples and Oranges

Yup, nothing on Ukraine from this blog, or the Blunkett ‘scandal’. Its another Apple related post but for once it has something to do with law (the thing that occupies so much of my life right now).

The Office of Fair trading has decided that the matter of the current iTMS pricing fiasco is to be passed onto the EC. Now we enter that glorious period of time when laypersons start pontificating on the merits of the case. This is horrifically dangerous and almost always results in something that makes me want to force my copy of Steiner & Woods, EC Law down the relevant pundit’s throat.

Let’s break it down simply:

The relationship between record labels and the iTunes Music Store is vertical, they operate on different tiers in the great ladder of commerce namely, the Labels are for the purposes of this example distributor and the iTMS is retail. The agreements between the parties are therefore Vertical Agreements.

Generally speaking such agreements are subject to Article 81 which deals with anti-competitive agreements.

Now, there may be an issue that there is a breach of Article 81, however it is not concerning Apple’s conduct refusing sale to residents of other member states, it concerns the clauses that are the labels’ bread and butter.

Agreements for rights to the distribution of music within a territory are entered into by the labels and Apple, they stipulate at the behest of the record companies, that Apple (like just about every retailer under the sun in the Music Industry) is given only the right to distribute the music in one territory. The clause which expressly grants Apple rights to retail only in one territory is known as a territorial protection clause and this is, under Article 81, illegal (highlighted in Transocean Marine Paint Association).

The agreement however has two primary means by which it can salvage legitimacy in the eyes of the Article, either by coming within a Block Exemption (it probably won’t qualify under the Vertical Agreements Block Exemption Reg 2790/1999 because of the iTunes Music Store’s massive market share, irrespective of whether the agreement is detrimental to the undertaking) or under 81(3) where Article 81 may be declared inapplicable to the decision between the undertakings (legalese for Agreement between Apple and Music Label) if it is one;

“… which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing customers a fair share of the resulting benefit and which does not:

a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question”

So put simply, most of the ‘defenses’ offered for Apple (even though they really don’t have much to gain from defending the agreement) by some pundits are conjecture based on an incomplete knowledge of European Community Competition Law and more particularly fail to actually look at what the law will allow.

Whether the record labels can prove that the agreements are exempt under 81(3) is another matter, my feeling is that they’re case as regards a) is either strong or horribly compromised depending on the Commission’s thinking on music distribution (lumbering and monolithic or forward thinking and progressive, respectively) and that b) is probably watertight on the grounds that such agreements are such a mainstay of music distribution that they result in a sort of equity by ubiquity (although there might be case law to the contrary, I’d expect not).

So there you have it, anyone who’s still awake I applaud heartily, anyone who’s a sad sack like me and actually enjoyed that little sortie into the world of European Community Law, I would recommend a career in Law to.

Later

John

Someone fire the Times technology department

You’ll remember a while back I threw a letter in the direction of the Times on the subject of some rather shoddy technology reporting.

Sometimes tech reporting drives me mad. According to the Times the iTunes Music Store has refused to sell the new BandAid song because it would mean altering its track price - they’re probably right to do this as they can’t make any exceptions to their policy lest the big labels start pushing for more concessions based on that precedent.

I was more annoyed by their ridiculously unfounded contention that millions of iPod owners would be unable to play the Band Aid 20 track (check my original post for the reasons why that’s a disgraceful lie).

However in a new attempt to discredit the iTunes Music Store, the Times is now reporting that Apple has decided to sell the song at 79p to stick to its business model and donate the difference to the Band Aid charity. This is a remarkably selfless act and it follows the iTMS’s strict adherence to their business model, how is it reported?

The apparently magnanimous gesture has been condemned by Apple’s competitors who have accused the company of hijacking the biggest charity event of 2004 to win itself more customers.

The big players in the online music industry, including the re-legalised Napster, HMV and MyCokeMusic, had all agreed to sell the single for £1.49 and pass the proceeds to Band Aid for projects in the strife-torn Darfur region of Sudan and elsewhere in Africa.

What the hell!? Apple takes a hit from a service that barely scrapes a few million dollars a year in profits and its competitors complain that it’s doing it in a selfish attempt to grab market share? Apart from the utterly laughable assertion that HMV, MyCokeMusic and Napster are “The big players” when they account for something less than 30% of the market compared to Apple’s 70%+ they have a go at Apple for actually sticking to their guns and donating considerable funds to charity.

The thinly veiled anti-apple bias is rather pathetic from a journal of the Time’s stature.

Incidentally I bought the Band Aid 20 single on the iTunes Music Store and as it makes no difference to the amount of money that will be given to charity I am happy to say that it is total crap. Abysmal. Appalling and horrific on every level. There are voices in there that truly do not deserve solos, some vocalists insist on screwing with tempo and timing to make themselves seem cool and the rap sequence is so dire that if played to the Sudanese refugees it would probably finish the job the Sudan government started. Only Robbie Williams makes up for some gargling singer maiming Bono’s signature lyric. What an utter travesty, I’d even listen to convicted pedophile Gary Glitter’s “Rock and Roll Christmas” before I deigned to play the new Band Aid track again.

Later

John

Best Prime Minister of the 20th Century

Much has been made of the results of the latest poll of British Academia, mostly because they’ve decided to give Clement Atlee the top spot ahead of Churchill.

Now I’d rank Atlee highly, he established the NHS and the foundations of the welfare state but he’s no Churchill.

To be honest I think the best poll in this instance is the Greatest Briton poll, Churchill won that one comfortably beating off Elizabeth I, Princes Diana (yawn), John Lennon, Isambard Kingdom Brunel, Shakespeare, Newton, Nelson, Darwin and Cromwell besides the hundreds of other applicants who didn’t make the top 10.

Political science professors can go waffle all they want but Churchill had the penultimate laugh when he beat Labour in the next General Election and the last one when Atlee didn’t even register in the top 100 of the Greatest Britons poll.

It’s the British people who are fit to judge the merits of Churchill’s premiership and they already have. As Churchill once said of Atlee: “a modest man who has much to be modest about”.

Later

John

Seriously

I can’t really say anything about this latest BBC News story. Iran hails the UN’s decision not to stop it from developing Nuclear weaponry as a victory over the US.

France, Germany and Great Britain ought to look at this and shake their heads. It’s like watching the kid who egged your house, shaved your dog and then poured sugar in your car’s engine, partake in a victory dance around on your lawn. The worst thing is that we’ll put up with it.

But, [Mr Rohani] added, the talks were a “historical opportunity for Iran and Europe to prove to the world that unilateralism is condemned”.

By allowing Iran to get away with their uranium enrichment programme scott-free with no possibility of punishment the multilateral tea-party has truly demonstrated the incapacity of unilateral action to take on rogue states! I can’t believe I’ve witnessed someone shamelessly spouting this crap! Move over former-Iraqi Information Minister! There’s a new man in town! All hail Rohani!

Later

John