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Don’t vote for Fine Gael

Fine Gael clearly have no idea what a law is, or more accurately, what its purpose is. It doesn’t control anything. It is not self executing. It is ineffective of itself.

Furthermore, Fine Gael should get out more.

I am prompted to these remarks by the report HERE of attacks on property in Limerick involving the use of a machine gun.

Exactly who, in what debating forum, advocates the use of machine guns (I exclude George W. Bush from consideration)? The report of the Fine Gael pronouncement was this:

Fine Gael has called for the introduction of more stringent legislation to deal with those involved in gun crime.

There we go again, more evidence of fuzzy thinking about legislation. What bit of our (relevant) current legislation is not stringent?

Have we not said that possession and/or use of machine guns is unlawful?

Fine Gael want it set out that possession and/or use of machine guns is not lawful at all, at all?

Or should that be at all, at all, at all?

Here’s your drug test, Minister…

Luckily for bookmakers, probability is not reliably intuitive. What is the value of a random drug test? (No account is taken here of the legality or morality of the testing).

Possibly not much. See Example 2 HERE.

The Wikipedia writer concludes that, even with the positive result for a test 99% sensitive and 99% specific, it is still more likely that the person tested and testing positive, is not a drug user than that he/she is a drug user.

The reason lies in the context of the drug testing. It occurs as a random test where the likelihood of encountering a drug user is known and is, in the example, .5%. So, a positive result even for a test as accurate as the postulated test is not affirmative, even probably, of drug use.

Hmm, what is .5% of a Cabinet?

A cup of tea for Mr. Obama!

Barack Obama is a US citizen. This can be inferred from the fact that he is a candidate for nomination to run for President and, now, information that he applied for, and presumably got, a US passport (he is not from US Samoa).

The power to grant that passport lies with the US Government. That power connotes the power to keep the applicant’s personal details on file. That file, it can be inferred, is electronic. This can be inferred because the evidence that the file was accessed, and accessed unlawfully, consists of the IT record generated by each access. A person accessing the record must use a personal login code.

Unlawful access is no big deal.

This can be inferred from the fact that, although there are criminal penalties for wrongful access of records, nobody is being prosecuted for the wrongful accessing of Barack Obama’s file. The applicable legislation is the Privacy Act 1974.

The relaxed attitude to the accessing of his file may be accounted for in several ways; firstly, the accessing was done under authority; secondly, anyway, as is known, the passport itself is not secure. (The modern US passport is biometric and contains an RFID chip. The chip can be read at a distance. The passport is supposedly shielded to prevent this but it is doubtful if it is effective.) Thirdly, so what? What is he complaining about? What can be in his passport file that he is anxious to hide?

I suggest the true reason is very deep; candidate or no, Barack Obama is, essentially, on the wrong side of an asymmetric relationship. The State has and owns the information it took from him and feels no obligation to him for that. In short, the Privacy Act 1974, like all such provisions anywhere, is a sop.

(As I have maintained HERE, the “State” is an abstraction. Its wrongful acts are the acts of its agents who should always be made answerable for those acts.)

In Ireland the equivalent provisions are found in the Data Protection Act 1988 and the Data Protection (Amendment) Act 2003. The latter was passed supposedly to transpose the provisions of Directive 95/46/EC.

These provisions are toothless. Essentially, they provide for the establishment of a regulator, the Data Protection Commissioner. If he (it has always been a he) receives a complaint he may investigate it. He is not obliged to prosecute an offender.

He may not have the resources to prosecute; he is, generally, dependent on the Government for resources. At least once in the recent past those resources dried up to almost nothing. (Arguably, the Commissioner is of a category of regulator as the Information Commissioner, but without the independence she has. The Government has been resolute in whittling away at her authority, mainly through the provisions of the Freedom of Information (Amendment) Act 2003)).

If Barack Obama were to lodge his complaint with the Irish Data Protection Commissioner there is every reason to expect he would be met by a Michael Mukasey response;

I don’t want to speculate but if somebody walked in here with a box full of evidence, they wouldn’t be turned away.”

Tea and sympathy?

Pleading the Belly

Something new HERE and further evidence of deficiency in my legal education.

However, I look forward to the case where I inform a court that my client will so plead.

A good cog?

Apropos cost overruns, it is interesting to note HERE that when Siemens hits a delay on a project in China and, elsewhere, defects on a project in Budapest it suffers a loss of €200 million, but when roads cost more in the UK the taxpayer takes the loss. Who, in the name of goodness, does the UK Roads Authority use to write its contracts?

Should we not ask our Irish ambassador in China to procure a copy of the Siemens contract and urgently check with the National Roads Authority for an assurance that their contract writer is not the same one as used by the UK Highways Agency?

Don’t come back

I have written (HERE) of the need for speed in challenging the award of a public contract where the provisions of the Regulations governing such contracts have not been followed. (European Communities (Award of Public Authorities’ Contracts) Regulations 2006 (Statutory Instrument No. 329 of 2006) ).

The Regulations expressly embody a good idea; that the nation get the best value for money. It is not easy to ensure this.

For instance, one assumes the contract for the “regenerationâ€? of Ballymun was awarded on the criteria adopted in the 2006 Regulations (not pursuant to them; they post-date the Ballymun contract).

We now see (HERE) that the Ballymun contract is €500 million over budget.
Who can now say that the seemingly more expensive underbidder was not in fact the cheaper of the bids? (Assuming there was an underbidder).

The problem is endemic in such contracts (especially in IT contracts).

In truth, neither the contractors nor the public authorities seeking tenders genuinely know what the costs of such projects are; the tenders are guesses.

The man who built the Empire State building in New York was asked what the most important element was in the construction; he replied, “getting the contractâ€?.

Following that line of thought, the best guess is the one that seeks, not to estimate the actual cost of the project, but to guess the cost projection of the public authority for the project. That will secure the contract.

It is possible to try and ensure that the cost overruns do not fall to the account of the public, but that, too, seems to be hard to avoid as we see in the Metronet debacle HERE and HERE.

What Transport for London seemed to have overlooked was the freedom of the individual members of the Metronet consortium to become sub-contractors (they gave the contracts to themselves) When Metronet went into administration, Transport for London continued answerable for the claims of those sub-contractors.

It is an important element in the negotiation of such contracts to ensure, to the greatest extent possible, that there will be no re-negotiation of the contract later. The World Bank has this to say on the matter:

8.3.1Avoiding renegotiations
According to one study,55 percent ofwater concessions awarded in Latin America were renegotiated in the 1990s,many within two years ofthe award (Guasch 2004). In some cases, the operator or contracting authority may reasonably refuse to renegotiate.Moreover,developing a reputation for being hard-nosed could reduce the likelihood that the contracting authority will be exposed to opportunistic behavior in the future. In other cases,circumstances may have changed in ways that mean the current arrangements are no longer appropriate,and renegotiation can help both parties.
Often,both the contracting authority and the operator have strong incentives to renegotiate rather than terminate the arrangement:contracting authorities are often concerned that terminating the arrangement may result in an interruption to key services,while operators do not want to lose any past investment or future profit. Yet renegotiation changes a previously agreed arrangement.The contracting authority or the operator may try to renegotiate in order to reduce its risk exposure or to gain advantages it was unable to obtain in the initial agreement (Box 8.1).When the operator is selected based on the lowest tariff bid or highest concession payment,operators may engage in aggressive bidding strategies (lowballing) to win the contract and then seek to renegotiate for more favorable terms once competitive pressure is no longer an effective constraint.

A Centre of Excellence

I suppose I am not alone in finding the “centre of excellence” phrase new. But am I alone in feeling the phrase is, somehow, a reproof?

It has overtones of the concept of a new year’s resolution. That concept has universal approbation (grouches excepted), brooking no dissent on the desirability of the idea of such resolutions. It also invokes a notion of “the norm” that is somewhat (mistakenly, I say) exclusionary. I have in mind the near certainty that Josef Stalin, or indeed, George W. Bush, never did or do make new year resolutions or ordered the creation of a centre of excellence.

I suggest the reason for this has nothing to do with their characters; it has to do with the fact that neither of them is (or was, in the case of Uncle Joe) a businessman. (Bush tried his hand at business but he was not a businessman).

The phrase is a stroke of dubious, comparative advertising genius and essentially, only a business consultant’s faddish phrase. After all, in what field do we establish a “Centre of Mediocrity”? Or a “Centre of the Shoddy”?

It collaterally depreciates possibly perfectly serviceable institutions. Or, given the current use in Ireland, it brilliantly distracts attention from institutions which are far from serviceable like, reputedly, Our Lady of Lourdes hospital in Drogheda, as seen HERE and HERE.

Who ever aspired to have a hospital that was not excellent?

The real drawback of the “centre of excellence” phrase is its avoidance of consideration of what we have, in favour of what we, by implication, have not.

There is abundant evidence that hygiene in hospitals is poor. See HERE and HERE.

Here is a quote relating to Our Lady of Lourdes hospital in Drogheda.

On the ‘Rate my Hospital’ website, patients or their relatives are asked to rate hospitals on a scale of one to five under a wide range of headings, including car parking, cleanliness, quality of care, catering and many other areas.

The Lourdes Hospital in Drogheda scored an average of 2.39 (48%) under hygiene among the 369 people who completed surveys on services at the hospital while Mallow scored an average of 4.20 (84%) among the 49 people who completed surveys on it.

Note the reference to St Columcille’s Hospital in Loughlinstown, Co. Dublin. This hospital and its suspect hygiene has obliquely featured in a previous post HERE.

In relative terms, fixing hygiene problems is cheap. Very little technology or new infrastructure would be needed. The Dublin County Coroner believes the appointment of a microbiologist in St Columcille’s Hospital in Loughlinstown, Co. Dublin would avoid the situation where he, the coroner, encounters the consequences of a hygiene deficit in the hospital, but it is not obvious that such an appointment is absolutely necessary. After all, we would hardly expect the microbiologist to go about actually cleaning the hospital.

The “centre of excellence” phrase has one merit; it draws attention to the centre. The centre is the Government. The Government is accountable for what is wrong with the Health Service. (The Irish Constitution, Article 28, 4, 1 and 2).

4. 1° The Government shall be responsible to Dáil Éireann.
2° The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.

This is the legal position.

Money, Money, Money

It is far from obvious what money is.

That the price of gold has risen to an all-time high is evidence of this.

Of what real value is a piece of gold? It has some industrial use, but not much.
It endures over time, but basalt does likewise and, indeed, in the context of a human lifetime the endurance of gold is nothing outstanding; it shares that property with too many other substances. Why should it increase in value relative to any or all national currencies, as it has done?

It is in fact a reference point; the currencies have fallen in value relative to it.

Probably money is an economic notion more than a legal one. That notion is subject to change; consider e-money.
E-money can be encountered in a chip card which has been “loadedâ€? with “valueâ€? and which can be used to discharge an obligation, limited to the value in the card. The possession of the card is sufficient to get the value of it. Significantly, the State need not, and usually does not, have any involvement in such e-money.

One theory of money, “fiat moneyâ€?, bases it on the State control of the monetary system and the issuing of notes and coinage. “Nominalismâ€? is an essential element of the State theory of money. Nominalism was recognized by Aristotle in the Nichomachean Ethics;

… money has been introduced by convention as a kind of substitute for a need or demand … its value is derived not from nature but from law, and can be altered or abolished at willâ€?.

It is a principle of Irish (and UK) law that the purpose of the award of compensation by the courts is to, insofar as money can, place the injured party in the same position as if he/she had not been injured.

The State theory of money is, potentially, at odds with that principle because nominalism disregards everything save the attributed value to the currency or State “unit of accountâ€?. Nominalism disregards the changing value of the currency. It takes no account of inflation or depreciation.

The compensation principle is an expression of another principle; the need to do justice. The acceptance of Nominalism is, when it comes to compensation for injury, a breach of the requirement to do justice.

Unadjusted money value may in a period of inflation greatly benefit a wrongdoer. The wrongdoer may deprive a victim of value but, due to the effects of inflation, ultimately be obliged only to make restitution of something of lesser value than the benefit he/she gained.

The Book of Quantum of the Personal Injuries Assessment Board has a similar effect.
It sets out “valuesâ€? for some types of personal injury and in doing so clearly accepts the State theory of money and inherently accepts the principle of nominalism. In truth, the “valuesâ€? in the Book of Quantum are not fixed values; they change to a greater or lesser degree and the underlying trend historically is to have them depreciate in value, relative to everything other than the attributed value of the currency.

The UK courts have avoided the problem by affirming that the “valueâ€? at the date of judgment is the appropriate value to determine proper compensation – Ascot Midland Baptist (Trust) Association v Bermingham Corporation (1970) AC 874. This approach involves taking account the value of the money; it takes account of the effect of inflation. A Book of Quantum does not.

It is worth noting that the UK Law Commission rejected the idea of the establishment of a “Compensation Advisory Boardâ€? i.e. a UK PIAB.

The Return of Whaling

I think I was too quick to venture an opinion on the Seroxat scandal as can be seen HERE

More sex

Little did I know, when I remarked HERE on the enduring confusion generated by sex that prima facie evidence of such prominence would spring up so quickly HERE.

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