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BREXIT – Science Proves Project Fear “Expert forecasts … worse than dart-throwing monkeys”

November 11, 2019

Who is better at predicting: the expert or the novice or someone else? Intuitively people believe experts. But science tells us a very different story. And Brexit provides some startling evidence in support.

Experts have been busy predicting what will happen if and when the UK leaves the European Union. And Remainers, including of course politicians who oppose Brexit and many in the media have been wheeling out the experts to tell us all what a disaster it is going to be unless we remain.

So we need to look to what the science tells us about the reliability of expert predictions.

As the 2001 Nobel Laureate for Economics Professor Daniel Kahnemann tells us about analysis of 80,000 expert forecasts:

The experts performed worse than ….. dart-throwing monkeys …”

[“Thinking, fast and slow” [pps 218-221]]

Science tells us that:

specialists are not significantly more reliable than non-specialists in guessing what is going to happen ….. Knowing a little might make someone a more reliable forecaster, but .. knowing a lot can actually make a person less reliable.”

“Everybody’s an Expert – Putting predictions to the test.” A review by Louis Menand of the Professor Philip Tetlock’s Book “Expert Political Judgment: How Good Is It? How Can We Know?”

If experts know better how does science explain this howler by HM Treasury under former Chancellor George Osborne, which became a major part of “Project Fear” in the days and weeks leading to the 23rd June 2016 Brexit Referendum.

The predicted disaster to follow a leave vote did not happen and in over three years since it has still not happened:

May 2016 HM Treasury analysis: the immediate economic impact of leaving the EU

This paper focuses on the immediate economic impact of a vote to leave and the two years that follow. ….The Treasury analysis in this document uses a widely-accepted modelling approach …. one of our country’s foremost economists and a former Deputy Governor of the Bank of England, …… says that it “provides reasonable estimates of the likely size of the short-term impact of a vote to leave on the UK economy”.

The analysis …. comes to a clear central conclusion: a vote to leave would represent an immediate and profound shock to our economy. That shock would push our economy into a recession and lead to an increase in unemployment of around 500,000, GDP would be 3.6% smaller, average real wages would be lower, inflation higher, sterling weaker, house prices would be hit and public borrowing would rise compared with a vote to remain.”

Part of the explanation is the illusion created by experts who provide credible explanations of past events. Experts gain credibility with the public from such explanations. We believe them when we should be highly skeptical.

Nobel Laurate Professor Daniel Kahnemann explains:

The illusion that we understand the past fosters overconfidence in our ability to predict the future.”

And experts provide the public with their analyses and explanations of past events. Kahnemann expands on this:

The idea that the future is unpredictable is undermined every day by the ease with which the past is explained. … our tendency to construct and believe coherent narratives of the past makes it difficult for us to accept the limits of our forecasting ability. Everything makes sense in hindsight, a fact that financial pundits exploit every evening as they offer convincing accounts of the day’s events. And we cannot suppress the powerful intuition that what makes sense in hindsight today was predictable yesterday.

Another part of the explanation is the experts themselves. Kahnemann explains:

Tetlock interviewed 284 people who made-their living “commenting or offering advice on political and economic trends:’ He asked them to assess the probabilities that certain events would occur in the not too distant future, both in areas of the world in which they specialized and in regions about which they had less knowledge. Would Gorbachev be ousted in a coup? Would the United States go to war in the Persian Gulf? Which country would become the next big emerging market? In all, Tetlock gathered more than 80,000 predictions. He also asked the experts how they reached their conclusions, how they reacted when proved wrong, and how they evaluated evidence that did not support their positions. Respondents were asked to rate the probabilities of three alternative outcomes in every case: the persistence of the status quo, more of something such as political freedom or economic growth, or less of that thing.

The results were devastating. The experts performed worse than they would have if they had simply assigned equal probabilities to each of the three potential outcomes. In other words, people who spend their time, and earn their living, studying a particular topic produce poorer predictions than dart-throwing monkeys who would have distributed their choices evenly over the options. Even in the region they knew best, experts were not significantly better than nonspecialists.“

“Prediction” is in-apposite when dealing with complex circumstances. “Forecasting” is more appropriate. Weather forecasts are a typical example. The ability to forecast the weather reliably beyond a few days is highly limited. This is a consequence of complexity. The further into the future we look the less reliable the forecasts become. Reliable prediction is impossible when confronted by complexity.

Kahnemann further describes what during over three years of Brexit we see practically every day and sometimes several times a day and covering many broadcast hours:

Television and radio stations and newspapers have their panels of experts whose job it is to comment on the recent past and foretell the future. Viewers and readers have the impression that they are receiving information that is somehow privileged, or at least extremely insightful. And there is no doubt that the pundits and their promoters genuinely believe they are offering such information. Philip Tetlock, a psychologist at the University of Pennsylvania, explained these so-called expert predictions in a landmark twenty-year study, which he published in his 2005 book Expert Political Judgment: How Good Is It? How Can We Know? Tetlock has set the terms for any future discussion of this topic.“

And what can we say about Brexit? The state of the UK’s economy today is far far better than the expert predictions over three years ago were claiming with such certainty.

In summary:

1) experts gain credibility by explaining past events cogently and coherently;

2) when it comes to the future, experts are no better at forecasting than non-experts and can be worse than “dart-throwing monkeys“.

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BREXIT – “WE’RE BETTER OFF IN” – EU GROWTH – WORST WORLDWIDE – EXCEPT ANTARCTICA – [POP: 8 MILLION PENGUINS]

October 30, 2019

Have we in the UK been getting steadily poorer year-on-year over 46 years in the “European Project” [the EEC and then the EU] than if the UK had been out?

What is the evidence?

Remainers claim “We’re better off in”. But is it true? And if “We’re better off out” people should know.

The UK is tipped to overtake Germany and become the largest economy in Europe. Will the UK’s Gross Domestic Product [GDP] increase faster if we are out of the EU and make us in the UK all wealthier? And could that be sooner than later if we are out?

By 2021, if the UK remains stuck in the EU, assuming we would have had 0.3% higher annual GDP growth out, we could be US$470 Billion worse off just in that one year – let alone any others. Or to put it another way for every 0.1% lower annual GDP growth in the EU, we will be worse off by US$137 billion by 2021 just in that one year. This ignores cumulation – the compounding of year-on-year lower GDP on each later year.

And what has been the cost to the UK over the entire 46 years in the European Project? First estimate the total annual loss each year over 46 years the UK has been in the European Project and add the amount every year over all 46 years.

Over 30% goes to government, so that is a huge amount of lost tax revenue every year to fund education, the NHS, social services and tax cuts.

GETTING ANSWERS

Comparing historic annual economic growth with other world regions can help provide answers to such questions. It must be over the long term and not just a couple of years. But with all the claims and counter-claims of each side, Leavers and Remainers accusing the other of [putting it politely] being “economical with the truth” or “gilding the lily“, whom are we to believe? On this issue in the run up to the 23^rd June 2016 Brexit Referendum you cannot even believe Full Fact, disporting themselves then and now as “The UK’s Independent Factchecking Charity”.

THE EU-ANTARCTICA ALIGNMENT

Boris Johnson’s 29^th May 2016 Telegraph newspaper article was headlined “The only continent with weaker economic growth than Europe is Antarctica”. All in all, notwithstanding the trend to attacks on the reliability of the pronouncements and promises of the UK’s current Prime Minister, it appears reliable and sound overall making useful points. Johnson included that:

Since 2008 the US has seen gross domestic product go up by about 13 per cent; the EU’s has gone up by 3 per cent. The EU is a graveyard of low growth; the only continent with lower growth is currently Antarctica. That is partly because of the sclerotic one-size-fits-all Brussels approach to regulation; but, worse, in the last decade the EU has been suffering from a self-inflicted economic disaster – the euro.”

The Antarctic alignment with the EU’s economic prospects was a lyrical poetic picture making a point. Antarctica, the fifth largest continent is the most desolate and cold place world-wide. Over 97% of its 5.5 million square miles are frozen assets – ice-covered all year. Populated by an estimated 8 million penguins: their main domestic product [aside from chicks] is gross – penguin poo. The remainder of the continent’s economy is considered to include fishing, tourism [around 60,000 tourists per annum] and scientific research [about 4000 researchers during the warmer months].

The stark contrast with world growth was implicit and exposed the weakness of the EU’s historic growth record. This spawned a rash of repetitions and responses.

THE REMAINER RESPONSES – “SUNNY DAY ECONOMICS”

Remainers tried to dampen the impact. The real comparison was the EU’s poor economic growth compared to the rest of the world, so defending against the Antarctic comparison was a hopeless cause. But could the EU-Antarctica comparison have distracted from the real issue: is the UK historically poorer in the EU than it would have been and so wealthier in future if out? That is the ball. Keep your eyes on it.

In 2016 Full Fact presented themselves as checking claims made in the run-up to the 23^rd June 2016 Referendum. Full Fact did not in fact fact-check adequately the information they claimed to have fact-checked. They published information which was unreliable and misleading. An example is a Full Fact 16^th June 2016 website entry claiming to have fact checked Michael Gove’s 15^th June 2016 BBC Question Time special. Full Fact tweeted “EU recently had the lowest growth of every continent but has now overtaken S America”.

That is Sunny Day Economics – sticking your head out of the window on a sunny day when it is raining in France and claiming the UK has the more pleasant sunnier climate, whilst ignoring decades of statistics.

So much for charity “Full Fact” [Major funder Google]. ITN re-published their claims in more detail including that:

But from 2014 until now, South America and Europe as a whole have grown more slowly than the EU. It has also been declining as a share of the world economy for several decades, though this mainly reflects fast growth in other regions.”

Whilst admitting the overall problem, ITN’s version of the Full Fact fact-check repeated two points which are misleading. This was still also Sunny Day Economics – in this case the Sunny Day is a period of at most 2.5 years. The UK has been in the “European Project” for about 46 years. EU economic growth historically has been for long periods the worst in the world – not 2.5 years. It would be the same if they relied on 2.5 seconds, minutes, hours, days or weeks or months. It is all Sunny Day Economics. And the “growth in other regions” excuse just will not do, as will be seen, reading on here.

Also on 16^th June 2016, Justin Haque, a Devon businessman, published a political commentary in the South Hams Gazette “The case for Leave“ also covered by other local Devon Papers. Haque included briefly Boris Johnson’s amusing and colourful claim that “the only continent with weaker economic growth than Europe is Antarctica!”. The idea appeared on Vote Leave’s Twitter feed the same day.

Two days before the 23rd June 2016 Referendum, a politically active academic economist [declared interest: Labour Party member], wrote a response to the Vote Leave tweet: “Fact Check: does only the economy of Antarctica grow slower than the EU’s?”. The response was published alongside what was meant to appear as a peer review of the response written by a University of London Professor of economics. The response included the following comment about Antarctic economic growth:

… Antarctica, …. has virtually no economic output. … the claim is simply false: the Latin American continent has lower growth than the European Union, ….”

That was misleading. Johnson cited an historic period 2008 to 2016, which at around eight years is a more reliable and more scientific approach. The academic cherry-picked and his reviewer allowed that without comment. He qualified his claim about Latin America with [emphasis added] “according to the latest figures from the International Monetary Fund’s World Economic Outlook”.

The figures were just for one year, 2016, and were so not comparable or representative of historic economic growth to Johnson’s 8 years – more Sunny Day Economics – more heads sticking out of windows.

The academic economist did make some better points such as “comparing continents’ performance is not particularly illuminating. Continents are geographical rather than economic areas”. However, the comment that “Comparing Britain’s relative growth to the other leading G7 economies shows that it has been doing relatively well recently.” was less than illuminating. Yet again, one year, a Sunny Day Economics year, 2015, was cherry-picked by the author. Additionally four of the G7 are EU member states: UK, France, Germany and Italy. So not much of a comparison. The other three are Japan, the United States and Canada. Japan’s economic growth has been historically poor for many years and the US, long the economic powerhouse of the world, has led all the other G7 historically for economic growth with the UK second only to the US.

The author of another response challenging Johnson’s Antarctica economic growth article claimed EU economic growth had improved, citing just one year, 2016: “the EU expanded faster than the US for the first time since 2008”. Not only was that Sunny Day Economics, that was [for these purposes] by a relatively inconsequential 0.1% [according to MarketWatch: 1.7%, compared to 1.6% for the US].

That writer went on to admit “It is true that the EU economy was sluggish” but blamed this on “recovering from the recession and eurozone crisis”. That crisis was a result of the EU’s own creation – the Eurozone – contrarian economically, it was and remains an EU politically driven self-inflicted wound. Relying on one year also ignored the continuing historic problem over decades – more Sunny Day Economics.

The author also compared what is not comparable to advanced European economies: “Africa’s growth slowed, Asia was steady and Latin America contracted. Antarctic’s economic growth is unrecorded.”

THE QUESTION & THE DATA – IMF WORLD ECONOMIC OUTLOOK DATABASE

Would UK economic growth have been better if the UK had historically not been part of the EU? Can the Leave confidence in the UK’s ability to trade outside the EU bloc be justified with evidence?

Let us look a little more scientifically at empirical evidence of the performance of the EU using historic economic data. Historic data makes it more difficult to make excuses. It evens out temporary disparities over time. Where there is a world economic downturn, that ispo facto affects the world. Figures covering the world economy over such a period provides fewer hiding places for those with something to hide [eg. the EU and especially the failing Eurozone].

In 2017 Global Finance Magazine [GFM] published comparative world economic growth figures. The magazine is not polemical. It aims to help corporate leaders chart the course of global business and finance, so it needs to publish reliable information. GFM chose particular regions and country groups to make economic growth comparisons.

The original data came from the International Monetary Fund [IMF]. The regions and country groups which GFM used for comparisons are the IMF regions and country groups. In two sets of figures, the totality of the figures covered a twelve year period – the more relevant figures covered 10 years – 2008-2017 – that is less likely to be considered Sunny Day Economic data.

One might like to see figures over a longer period – specifically the entire 46 years of UK membership of the “European Project“. Convenient data for that entire period does not appear to be readily available. The risk in using data over such a long period lies in its reliability: who produces those figures, how they do it, what adjustments they make and how reliable their interpretations might be in the light of world events and events affecting specific countries and regions over such a period, such as the Gulf Wars, the dissolution of the former Soviet Union, the fall of the Berlin Wall and reunification of Germany. And more importantly there is also author bias – by accident or by design.

ITS STARTS BAD AND GETS WORSE

IMF world data starts in 1980, so comparisons over longer periods are possible. However, assuming one can take the GFM 10 year average figures on face value, sourced from original IMF data, one can see that over a 10-year period from 2008 to 2017 the EU’s Eurozone had the lowest average economic growth over that 10-year period in the world at a seemingly dismal 0.4%. The wider EU’s economic growth over that 10-year period was second worst at 0.7%.

By comparison the 10-year average GDP growth world-wide was 3.2% or 8 times that of the Eurozone and 4.5 times better than the EU. In effect the overall world economic growth sits in the middle providing a benchmark to compare the best and worst performers in the world.

THE EU/ARTARCTICA ALIGNMENT SEEMS TO HOLD TRUE

So, shocking but true, Boris Johnson’s 29^th May 2016 Telegraph published analysis of the EU-Antarctica economic alignment holds, despite the valiant but [one hopes] misguided efforts of charity “Full Fact“, ITN, economic academics and others. Sure, its eye-catching and sure, Antartica is the antithesis of an advanced economy, but that makes the comparison of the EU being second worst to Antartica stark and difficult to fault.

It is still likely to be misleading to compare developing economies with the EU. Economies of developing nations can experience greater annual GDP growth and faster historical economic growth than the more mature advanced economies of developed nations over the same periods. This seems to be reflected in the GFM figures for regions experiencing the greatest historic economic growth over 10 years.

GFM ECONOMIC GROWTH FIGURES – EU v THE WORLD

Emerging and developing Asia was top over 10 years with 7.2% average annual GDP growth;
Emerging markets and developing economies were joint second at 5% with the ASEAN-5;
surprisingly, Sub-Saharan Africa was fourth at 4.7%.
Middle East, North Africa, Afghanistan, and Pakistan were fifth at 3.5%;
Middle East and North Africa taken alone next at 3.4%;
Emerging and developing Europe was seventh at 3.9%.

However, when we compare Advanced Economies [but excluding the G7 and Eurozone], at 2.4% average 10 year economic growth the performance of the EU and Eurozone are substantially worse [0.7 and 0.4% respectively].

Latin America and the Caribbean are also still better coming in at 2.2%;
the Commonwealth of Independent States [ie. former Soviet Union aligned states] is at 1.2%;

“Advanced economies” at 1.10% is still substantially better despite that figure being dragged down by the inclusion of the average economic growth of the ailing EU and Eurozone in that economic grouping.

The better comparison with the EU and Eurozone is probably with the “Advanced economies excluding the EU and Eurozone” – which is still six times better growth than the Eurozone and 3.5 times that of the EU.

THE LONGER TERM BIGGER PICTURE – IMF DATA 1980 TO 2018

During 1980 to 2018 the worst performers for average annual world economic growth were:

the Eurozone – bottom at 1.49%,
the former Soviet Union aligned states [Commonwealth of Independent States] next at 1.81%
third worst is the EU at 1.89%.

Obviously, attempting to cover such a long period since the end of 1979 one needs to consider relevant world events, but the figures still provide a comparison to world economic growth performance. And it is going to source and not relying just on the GFM figures [even though in turn also sourced from the IMF].

The dissolution of the Soviet Union in 1991 left the economies of those states in a dire condition. Extremely poor economic growth dragged down their average economic growth figure over the period since 1992. For example 1993 to 1996 the economies contracted dramatically instead of growing. There were large annual contractions in GDP of -9.57%, -13.86%, -5.34% and -3.57% respectively. That has changed substantially as the GFM figures indicate with that grouping having a 1.2% 10 year average economic growth to 2017 compared to the Eurozone of 0.4%.

The Eurozone started with the euro’s launch on 1 January 1999. It was then an ‘invisible’ currency, only used for accounting purposes and electronic payments for the first three years. The big change came on 1 January 2002 in 12 EU countries with the biggest cash changeover in history. The Eurozone grew over time as other EU states joined that currency system. So one must bear in mind the world has been changing when looking at the figures.

WHERE-EVER YOU STAND THE VIEW IS SIMILAR

No doubt Remainers will endeavour to criticise and undermine the figures presented here. However, by keeping faithful to the original data and avoiding “adjustments” it is likely to be more difficult to argue with. They will of course try no doubt. At least Sunny Day Economics and cherry-picking can be shown up for what it is.

Whatever one’s perspective and whatever counter-arguments might be deployed, the plain and stark fact, whichever way one looks at this is, the EU [which includes the Eurozone] on these IMF sourced figures has the worst 10 year average historic economic growth in the world and the Eurozone is worst of all at 0.4%. That is far from the world benchmark of a 3.2% ten year average growth, which sits in the middle of the best and the worst economic growth regions in the world. It is 8 times that of the Eurozone and 4.5 times better than the EU.

And the EU and Eurozone have consistently been bottom on average annual economic growth since 1980 with the temporary exception of the Commonweath of Independent States on their sudden emergence following the dissolution of the Soviet Union.

OTHER LESSONS?

What can we say about the top performing countries for growth in the world even if we cannot fairly compare their impressive growth figures as fast developing economies with more mature developed nations?

We can say this: those countries’ economies have been growing in many cases over decades with a cumulative growth record which tells us something. The people in those nations have more money to spend now than they had twenty or thirty years ago. A country like Bangladesh with annual growth in the region of 5-6% over many years will be far wealthier now than 30 years ago.

And we should also consider the IMF “Other Advanced economies” which can be more easily compared to the EU and Eurozone and which have had substantially better historic economic growth. They will also have more money to spend: countries like Australia, New Zealand, Singapore, Israel and Korea. To those one must add the G7 powerhouse of the USA and also Canada.

And when people in other countries have more money to spend, does the UK have products and services they could need or want? Are there greater opportunities for trade now world-wide than 10, 20, 30 and 40 years ago? And if so, are we better off out of the EU?

An in-depth analysis of these questions is for another article. The Leave answer we know is in the affirmative, but is it justified?

THE LEAVE ARGUMENT MAKES SENSE – EU TRADE OR WORLD TRADE?

When put in a perspective as done in this article, backed by empirical evidence, one can start to see the sense of it. This fills in some of the detail providing more clarity for what many Leavers know intuitively.

We can summarise the EU’s economic growth record as the worst in the world. It is not even keeping up anywhere near other advanced economies. There are 500 million people in the EU and many member states are not wealthy and net recipients of the EU budget contributions.[eg. like Bulgaria]

The Rest of the World is estimated to comprise just over 7 billion people and many more countries than the EU including many developed economies. The opportunities for trade must logically be far greater than those presented by the vastly smaller EU trading block. Perhaps this might be behind the recent claims that Angela Merkel allegedly expressed concerns about Brexit making the UK a competitor. And if that is what the EU is about, suppressing competition from the UK, is that alone reason to be out? What does Merkel know that others do not about the potential economic consequences for Germany of the UK leaving the EU?

One might ask whether the EU is the kind of anchor which instead of stabilising the economies of member states, destabilises by dragging their economies down? What view should citizens of the PIIGS take? Portugal, Ireland, Italy, Greece and Spain are the economic basket cases of Europe needing bailouts with invented EU money conjured up like a magic trick literally overnight to stave off a collapse of the Euro, as Donald Tusk described in an interview about the crisis and the EU’s management of it. Tusk seems to be genuine honourable committed passionate and sound, so no personal criticism of the man is intended here.

THE REAL BREXIT QUESTION

And we come to the real question about Brexit. It is not “are we better off in than out” or vice versa.

The real Brexit question is not being debated nor has it been, nor are the public being informed. Europhiles and Remainers alike also tend not to engage in the debate about all the things that are wrong with the EU – pushing the subject onto other issues instead.

What is wrong with the EU goes beyond economic growth and the destabilising effect the EU has had across Europe since its formation nearly thirty years ago.

And what looms large in any picture of peace in Europe is not how the EEC nor how the EU has helped maintain peace. There has been an exponential rise in prosperity since the end of World War II. That rise in prosperity would have happened with or without the EEC and EU. It has been seen across the entire world. Simply put, people in the developed EU economies have been too busy making money since 1945 to want to go to war with each other.

But once we see economic, political and social instability, especially if there is recession and economic decline, then there could be instability which might see a return to conflict between nations in Europe. The relatively recent Balkan wars are a demonstration of what can happen – that was war in Europe – whether anyone likes to see it as that or not – and there were war crimes trials – which we have known before then.

Never forget that some of the ordinary people walking down the street in your town in your road where your live are capable of doing what was done in the Balkan war and before. We are all fallible and subject to the same psychological pressures whether we like to admit that or not. Some are more fallible and more subject than others. The message is not to blame people but to recognise the reality. The ultimate question is whether the “European Project” is ever capable of ensuring peace in Europe. Frankly, it is creating instability socially, politically and economically. And in this writer’s view it is not the driver of peace – peace since 1945 is built on prosperity and enjoying all that brings.

Is economic growth – or at least political and social stability – more important than the EU? And regardless of what happens to the world in the coming decades.

It is all well and good speaking of our friends and partners, but historically Europe has been mired in conflicts over centuries. Those conflicts have not gone away. What social, political or economic changes might return the continent to greater or wider conflict? One cannot pretend it is impossible. Indeed we see it happening now – albeit and inappropriately not all is reported in our newspapers or on our television screens, including it seems events in the UK.

And are France and Germany and other EU states friends? Do not be misled by the mellowing of rhetoric over the past three years since the Referendum. The EU has mellowed most likely because of what some might interpret as posturing and statements aimed at the UK were counterproductive, persuading former Remainers to want to support leaving. And they need the UK’s money. Voting to veto extensions to the Article 50 period is like Turkeys voting for Christmas. There is little doubt that whilst the prospect of keeping money coming into the EU Commission and Council’s coffers from the UK remains, they will extend the period. Where the breaking point is and when an EU member state might veto an extension is moot.

And if the EU becomes the centre of the EU “Empire” as some claim it has been described by its proponents, and if it then has military forces under its control, what use might be made of them in dealing with dissent and conflicts internal to or between the EU states and the EU?

How easy would it be to suspend the rule of law in the EU in the event of a widespread collapse of social order or dissent against the ruling class?

These are merely questions. They are not predictions but they are issues any sovereign state concerned for the prosperity and security of its nation should contemplate, no matter how remote the concerns might be thought.

So economic growth is one small part of the picture – but it is an integrated picture. Growth and prosperity would have happened regardless of the EEC and EU and they are what have held the European project together – despite the questionable competence of the EU institutions and politicians. A diminishing of growth and prosperity is today seeing a less stable cohesive union of European states. Gilet Jaune in France were being reported but what else is happening in the EU which is not?

Any analysis of the problems of the EU would fill several volumes. Do you want to spend the time reading them if anyone wrote them? Or should the UK leave the EU in every sense and make its own way in the world unrestrained by the negative ambitions of France and Germany to capture and control a potential future competitor?

AFTER 46 YEARS HOW MUCH POORER IS THE UK IN THAN OUT

So far this article is based on examining historic annual percentage growth. There is a further aspect to consider.

How much poorer has the UK become year-on-year in cash terms? And how much poorer is the UK today as a consequence of the cumulative effect on the nation’s wealth over 46 years of lower annual growth? What would UK GDP be today?

Is there were a way to estimate reliably what UK annual growth might have been if the UK had never joined the European Project?

To put this into terms we all can understand – in hard cash terms what is the potential scale of how much poorer the UK has been getting year-on-year as a member of the European project? And how much in cash terms over 46 years has the UK lost through membership of the European Project?

Also bear in mind the hypothesis in the above article [for which there is evidence] that the EEC and EU have always been irrelevant to maintaining peace in Europe: that the main driver of peace in Europe has been near exponential economic growth post World War II. In other words, an unparalled period of growth and prosperity has meant people are too busy making money to go to war and certainly may lack the motivation in periods of great economic stability.

If that is correct then the main intellectual justification for the existence of EEC and later the EU and the driver for even greater political and economic union is wholly and entirely misconceived. That would mean the whole of Europe has been paying a heavy price to Brussels and in lost GDP over decades for nothing. It also takes away the rationale for increased European social, political, economic and military union.

There is a better rationale for such union but it is not the one seemingly driving the EU and its foundations are also structurally constitutionally and politically inappropriate for such a role.

AN ESTIMATE OF HOW MUCH POORER THE UK IS FROM MEMBERSHIP OF THE EUROPEAN PROJECT

The following figures are solely for illustration and are not and cannot be considered a reliable estimate of what the UK has been losing by being part of the European Project. The underlying assumption, based on empirical evidence, is the UK has had lower annual GDP growth during its membership of the European Project than it would have had out of it.

The calculations here are purely to indicate a potential scale of loss each year to the overall wealth of the UK over the 46 years membership of the European Project.

Let us get out our crystal ball. Assume the UK would have had 0.3% higher annual average GDP growth over last 46 years if it had never joined the European Project. And let us make this very very simple. A most naive calculation would place the UK with 13.8% higher GDP today – [ignoring the compounding effect each year of average annual growth on all the prior increments of average annual growth. Compounding growth on growth would produce a higher figure.]

So let us put that into a naive cash figure from the IMF data.

UK GDP in 2015 according to the IMF data was the US dollar equivalent of US$2.7 trillion. [The IMF figures are Gross domestic product based on purchasing-power-parity (PPP)].

UK GDP is projected by the IMF to rise in 2021 to approaching US$3.4 Trillion.

For the 2015 figure 13.8% is US$370 Billion extra GDP.

And on the basis of the projection for 2021, that is an addition to GDP of US$470 Billion.

How much that might mean in either total tax generating revenue for Government or for tax cuts is an interesting question. So how much extra would there have been for the NHS? Higher or lower than £350 Million pasted on the side of a big red bus? Was that figure far too low when the loss of cumulative and annual losses to GDP are taken into account?

And if the UK was generating an extra 0.3% GDP each year that [crudely analysed for simplicity of illustration] is crudely equivalent to something extra being added every year to the nation’s wealth – so there is a compound effect of the extra each year contributing to the overall wealth of the nation – in other words there is a potental capital accumulation over time in addition to the potential extra revenue generated annually.

LOST TAX REVENUE FOR EDUCATION, THE NHS, SOCIAL SERVICES AND/OR TAX CUTS

What is the Government revenue for every £1 generated in GDP? And so how much extra tax revenue from higher GDP would be available for HMG to spend on the UK if we were not part of the EU? How much more for schools, the NHS, social services or for tax cuts?

It is possible to make a very simple rough estimate in ball park figures [and it is possible to make a less rough estimate also with a bit more work – which I will leave to someone else to do if they want to].

This is thanks to the 2018 OECD Revenue Statistics for the United Kingdom – which are available online. These confirm that the UK Tax-to-GDP ratio has always been higher that 30% in the period 2000-2017.

So a reasonable assumption is that average UK GDP growth in the EU year-on-year for the past 46 years would have been higher not being in the EU/EEC [as the IMF figures already suggest strongly might be the case].

Assuming average annual GDP growth would have been 0.3% higher if the UK were not part of the EU/EEC for the past 46 years additional tax revenue at a conservative 30% of an estimated US$370 Billion extra GDP in 2015 = US$111 Billion for the year.

But for a weekly figure we arrive at = US$2.1 Billion per week in lost tax revenue attributable to lower UK growth as part of the EU.

Obviously that has to be converted to GBP Sterling from US$.

And on the basis of the IMF projection for 2021 UK GDP, that is an addition to GDP of US$470 Billion.

And lost tax revenue to the HMG at 30% of that = US$141 Billion.

Or per week HMG could be worse off by US$2.7 Billion per week in 2021.

If these figures are a good enough rough guide to get an idea of the scale of what EU membership costs in lost GDP, then £350 million on the side of a red bus is understating the weekly cost to the UK a tad.

And sadly this is just one of a number of ways in which EU membership has been making the UK poorer. So the final scale of this when all is taken into account could be somewhat even more concerning.

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EU Illegal Brexit Tactics – Invalidation of Brexit Withdrawal Treaty – Business Can Sue [Updated 16/3/2019]

February 27, 2019

[This post was last updated 16th March 2019 with some new points/explanation].

The UK and EU could drop off the cliff edge together without realising it just by completing the current Withdrawal Treaty.

The Treaty seems incapable of ever being valid or enforceable. This is because of illegal conduct by the EU.

All involved appear to have assumed Brexit is to be agreed and treated as if just an ordinary commercial negotiation and whoever has the greatest negotiating leverage gets the better end of the bargain. That does not appear to be correct. EU law dictates how the EU must act. If tested in the Courts the result could be the Withdrawal Treaty is not legally binding or enforceable.

An underlying theme for the laws and constitution of the EU is the circumscription and control of exercises of the powers of State. EU law is intended to operate to reign in abuses of State power.

The irony is that here we see the very abuses by the EU which have driven many to want to leave and which illustrate the need for dramatic reform for those who wish to remain.

The illegality by the EU and potential consequences are explained in my email to a number of London Members of the European Parliament today [see full text below].

If any reply I may also publish details on this blog.

SUMMARY

The illegal conduct of the EU is captured in a brief quote from Michel Barnier in French newspaper Le Point International.

In English: “I’ll have done my job if, in the end, the deal is so tough on the British that they’d prefer to stay in the EU”.

This breaches manifold provisions of EU law:

1) the Withdrawal Treaty seems to be made without lawful authority in breach of fundamental provisions of EU law;

2) and/or because any unnecessarily onerous provisions could be found to be illegal and unenforceable.

There may be a high degree of probability that the UK/EU Withdrawal Treaty approved by the Council in November last and relating to the UK’s exercise of its right under Article 50 is invalid, has never had and can never have legal effect and can be annulled under EU law at any time by any person with an interest.

This is argued primarily on the grounds of sufficiently serious breaches of Article 50 and of proportionality. There seem to be other breaches also.

Article 50 has been breached – specifically interference with the right to leave the union. That is a right all Member States have agreed all other Member States have. The principle of proportionality has been breached with respect to the terms imposed in the context of an inequality of bargaining power. This also breaches the exercise of the Art 50 right to leave by trying to make it a practical impossibility.

Breach of a Treaty provision puts the onus on the EU to prove the Treaty is the minimum necessary. [See eg. Craig 2nd Ed p604 on Proportionality I – The ECJ will tend to construe limits to such rights strictly, with the consequence that there will be a searching inquiry into the suitability and necessity elements of proportionality as exemplified by Hautala].

The Treaty is not the minimum necessary. EU Commission Chief Negotiator Michel Barnier has also been quoted publicly admitting he deliberately made it as hard as he could to deter the British from leaving the Union.

For serious breaches the Treaty will never have been valid and there is no time limit for bringing a challenge for such breaches [Craig 2nd Ed].

If the UK and EU go forward with the current Treaty, nothing they do will make any difference. No proposed changes will make any difference.

And to these breaches we can add additional breaches of principles of EU law and others may find further legal issues.

It is irrelevant that the UK Government has agreed the Treaty in negotiations because any natural or legal person with an interest can challenge the Treaty and the UK is subject to the law just as the EU is. The UK Government’s actions cannot validate illegality by the EU in the face of challenge by an aggrieved EU citizen with an interest.

If the Courts agree, even if the entire agreement does not fail, whenever in the 585 pages of the Withdrawal Treaty a less onerous provision could have been included whilst still achieving the objectives of the Treaties the more onerous one is illegal.

And the EU’s refusals to negotiate aspects of withdrawal may similarly be unlawful. The EU has refused to negotiate numerous aspects of withdrawal stating it will not do so until the UK has ceased to be a member of the EU.

That is obviously too late.

IN MORE DETAIL

So I wrote to 7 of my 8 London MEPs:

Dear …………

I write as a London constitutent. I am a lawyer.

I should be obliged if you would obtain for me from the Commission, Council and Parliament their position on the illegality of the EU’s approach to Article 50 negotiations and the consequences of that illegality.

The illegality is summarised in a recent quote from Michel Barnier in French newspaper Le Point International. Translated to English it is:

I’ll have done my job if, in the end, the deal is so tough on the British that they’d prefer to stay in the EU.

The EU does not appear to be legally entitled to offer the UK a deal so tough that the UK does not want to leave. A Withdrawal Treaty reached on such a basis may prove not to be legal or binding under EU law. And if there is no Withdrawal Treaty in consequence of an unlawful approach to negotiations the EU could incur financial liability.

Can you thus also ask each of the EU Institutions, [Commission, Council and Parliament] for their assessment of the liability to damages should there be no withdrawal agreement concluded or if the current withdrawal agreement is concluded and later found to be unlawful wholly or in parts.

If businesses and individuals lose money in consequence of illegal conduct of the EU there could be legal bills for damages.

Barnier’s approach appears to breach numerous provisions of EU law. In short whenever in the 585 pages of the Withdrawal Treaty a less onerous provision could have been included whilst achieving the objectives of the Treaties the more onerous one is unlawful.

And refusals to negotiate any aspects of withdrawal may similarly be unlawful. That appears to be the case in relation to numerous aspects of withdrawal which the EU refuses to negotiate until the UK has ceased to be a member of the EU. That is obviously too late.

There have already been a number of Brexit challenges in the Courts – including the recent Wightman Case [10 December 2018], the Gina Miller case [24 Jan 2017] and the £190,000 crowd funded Elizabeth Webster case [June 2018].

All Member States have agreed every State has the right to leave the EU.

It follows that the Court of Justice of the European Communities may have to find as a matter of law that the EU, its Institutions and Member States are not allowed under EU law to impede any State in exercising and giving effect to that right. Whilst Article 50 has never been invoked before, there is a body of EU law providing principles laid down by the Court of Justice of the European Communities. These are principles the Court has found must exist if the various EU treaties are to have effect as intended. Individuals can take proceedings under EU laws having direct effect.

The UK is bound to observe EU law so there are implications for the UK Government also.

And there are implications for other EU Member States. This could be if they endorse the Commission’s conduct of the negotiations and the current Withdrawal Treaty or if their electors decide to leave the EU.

Some examples of potentially applicable principles of EU law are mentioned here. There are others which might also apply.

THE RULE OF LAW AND THE VALIDITY OF THE WITHDRAWAL TREATY

The rule of law requires that EU institutions, bodies, offices and agencies shall act in accordance with the law. The supervening provision is Article 2 TEU. EU action to be lawful must accord with the Principle of Conferral or else the EU is acting without legal authority.

PROPORTIONALITY

The Principle of Proportionality [Article 5 of the Treaty on the European Union [TEU]] requires “the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.”

Necessary means “necessary” and no more nor less. Where there is a choice the least onerous must be used.

GOOD ADMINISTRATION

The Principle of Good Administration applies. It has many sub-principles.

In French it is the Right to Good Administration.

Michel Barnier’s admission is confirmation of acting contrary to Good Administration. This puts in question whether he has been acting without lawful authority.

EU’S LIABILITY IF UK REJECTS THE WITHDRAWAL AGREEMENT

If the UK leaves the EU rejecting an illegal Withdrawal Treaty does the Treasury have any calculation of the financial liability of the EU and its Institutions to the UK and to EU and UK citizens?

IMPLEMENTING AN ILLEGAL WITHDRAWAL AGREEMENT

On withdrawal from the EU there will be those who suffer detriments.

Can the UK or the EU implement lawfully a Withdrawal Treaty which is unlawful? If a challenge to the Withdrawal Treaty were upheld and it was found to be made without lawful authority, how much might the legal liability of the UK and the EU be?

If businesses in the UK and the EU were to continue to trade during a transitional period under the Withdrawal Treaty but then find there is no valid agreement and then later no valid trade agreement, what might the cost be and what might the UK and EU’s liabilities be?

What would be the consequences for other countries under WTO rules or GATT and what actions might be open to them to take? How can the requirements of legitimate expectation continue to be met?

And what difference would it make if a Court could remove the offending unlawful provisions of the Withdrawal Treaty as of no effect. What would be left to enforce?

What would the UK’s and the EU’s liabilities be:

- within the UK and/or EU to businesses and citizens and
- to third party states and to their businesses and citizens?

RIGHTS TO SUE

Related concerns are ensuring the UK’s rights and the rights of UK citizens to sue the EU for unlawful acts – in this context acts of the EU Commission, EU Council and their agents such as Michel Barnier – are not lost in any Withdrawal Treaty. The position is not clear in the current Withdrawal Treaty.

What is clear is the EU has repeated references in the Withdrawal Treaty to the EU’s ability to pursue the UK in legal proceedings.

And it needs to be clear that citizens have the right to sue the EU for EU unlawful acts occurring up to the end of any transition period and/or when the Withdrawal Treaty comes to an end, whichever is longer and the limitation period on commencing proceedings should be six years from when the breach is known publicly.

Mr Miller

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How Nurse Lucy Letby Was Convicted of Baby Murders She Did Not Commit – DON’T READ THIS IF YOU ARE INVOLVED IN ANY APPEAL AGAINST CONVICTION – IF THERE IS ONE YET

November 3, 2023

WHY LUCY LETBY WAS WRONGFULLY CONVICTED BY POLICE, MEDICAL PROFESSIONALS AND LAWYERS – AND HOW CAN THEY CLAIM THEY DID NOT KNOW THEY WERE DOING IT?

Detailed analyses of the case in a series of online articles. The identity of the author of these articles is not stated and his name is given only as “Mr Law”. However, it was clearly a painstaking task to assemble the information and evidence which he has.

Lucy Letby is not the first nurse to receive this treatment. Exactly 20 years ago practically the same thing was done to Lucia de Berk, a licensed paediatric nurse in The Hague, Holland. In 2003, she was sentenced to life in prison for four murders and three attempted murders.

Lucia de Berk’s case is one of the most famous miscarriages of justice in the history of the Netherlands.

A detailed academic account of Lucia de Berk’s case can be read in Chapter 2 of Legal Evidence, and Proof. Hendrik Kaptein, Henry Prakken, and Bart Verheij (Ed.) 2009.

The similarities to the Lucy Letby case seem striking.

For Lucy Letby I recommend you start with the Smoking Gun article first [LL Part 9] – which shows how it was possible to frame Lucy Letby by cherry-picking a short-list of deaths to fit the times when she was on duty. Pick the ‘right’ short-list of deaths and that could have placed any number of medical professionals working in the infant ICU but the police picked Lucy Letby. Then read about the prosecution’s ‘expert’ witness LL Part 6. Then the articles dealing with staff involvement LL Parts 12 and 19.

With those setting the scene all the rest show how the deaths were part of a bigger picture of many other deaths possibly attributable to the fact the ICU was handling far too many premature infants for its capacity and resources and other factors like raw sewage flooding the floor of the ICU where the infants were.

But read for yourselves and make your own minds up.

Scepticism in Action

Reflections on evidence presented in the Lucy Letby trial

LL Part 1: Hospital Wastewater

Lucy Letby and The Plumber

LL Part 2: An ‘Association ‘

Does a doctor identifying an ‘association’ between deaths and a nurse, mean the nurse is culpable?

LL Part 3: Death already lived in the NICU Environment

Is there any link between baby deaths and the plumber’s evidence?

LL Part 4: Outbreak in a New NICU

Build it and the pathogens will come…

LL Part 5: The Demise of Child A

Inconsistencies everywhere in the prosecution witness’ evidence

LL Part 6: The Incredible Dr Dewi Evans

The controversial, and opinion-laden professional expert witness

LL Part 7: The Demise of Child C

Was she or wasn’t she? Why are there so many contradictions?

LL Part 8: The Death of Child D

Had she been left or resumed on CPAP, she might still be alive today.

Lucy Letby found Guilty

But is this the last word in the matter?

Lucy Letby Part 9: Questions and (absent) Answers

A discussion with Prof Norman Fenton

LL Part 10: Numbers

Numbers everywhere…

LL Part 11: An example of Fair, Honest and Balanced Reporting

Or not….

LL Part 12: The Staff Involvement Scorecard

A quick reference scorecard showing the staff involved in caring for each neonate

LL Part 13: The Demise of Baby E

I don’t know where to begin…

LL Part 14: Insulin – the first issue

BBC, Frank Haviland and others say it wasn’t prescribed to anyone on the unit

LL Part 15: Some basic math

I don’t math. But when I do…

LL Part 16: Basic Math – Part 2

Here’s why even basic math is hard

LL Part 17: Another timeline

Sepsis, sepsis… EVERYWHERE!

LL Part 18: What happened to Baby F?

Insulin, Dextrose, Two kinds of Antibiotics, and… yep… Sepsis

LL Part 19: Updated Staff Involvement Scorecard

Can we do better than an X/Y Plot?

LL Part 20: It was a miracle that Baby G Survived

But there was always a high chance of a short, debilitating life.

LL Part 21: Reflections on Baby G

Why are there so many unanswered questions?

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The EU – A GDP Graveyard. Still Want to Rejoin? Read This

July 12, 2023

European Union Comment and Analysis Euro and Economy

If you want still to rejoin the EU, ask yourself after reading about nearly four decades of IMF economic data, how in the name of good judgement anyone might want to do that.

For those four decades the EU has been a graveyard for UK GDP along with the rest of the EU. Over that period the world and his wife has become comparatively wealthier as the UK has year-on-year [with the rest of the EU], become relatively substantially poorer.

The main rejoin argument focusses on prosperity – claiming we were better off in than out.

Sadly that is dramatically demonstrably not true as you will see here.

The EU and Eurozone have over four decades consistently been not merely bottom on average annual economic growth but very badly bottom – absolute rock bottom – and that is when compared to other similar advanced economies. The EU has consistently been rock bottom with the Eurozone, with the temporary exception of the Commonweath of Independent States on their sudden emergence following the dissolution of the Soviet Union.

So the EU cannot even beat the old Soviet Union and its successors for economic growth.

The £350 million figure on the side of a big red bus during the Leave campaign was a very stupid figure not because it was false but because compared to the IMF GDP data, it grossly underestimates the financial harm EU membership has cost every man, woman and child in the UK over nearly five decades of EEC/EU membership.

This is not millions but billions per annum.

The relative decline in economic performance recorded by the IMF data from 1980 is cumulative so it is billions per annum multiplied by five decades of EU/EEC membership. To compare 1973 when we joined the EEC to 2023, you have to take into account what the UK’s economy would be worth today if it was not dragged down by the EU/EEC every year for its nearly five decades of membership. These are eye-watering numbers. We are much poorer than we would have been if we stayed out.

Sorry Dominic – you did a great job in the view of many for Vote Leave but your £350 million figure was a mistake – you could have done so much better if you had the IMF data. But you would have needed a much much bigger red bus to fit the numbers on.

Perhaps no one believed Boris Johnson when he wrote in The Telegraph 29th May 2016 an article headlined “The only continent with weaker economic growth than Europe is Antarctica”. Perhaps it seemed too bizarre to be true. It was in fact true.

For the GFM analysis[discussed below] the 10 year average 2008-2017 the Eurozone is worst of all at 0.4% followed by all EU states at 0.7%.

It is clear the UK avoided the GDP disaster of Eurozone membership by not joining.

In 2019 when I wrote The European Project is Making People Poorer for the Bruges Group I made a serious error. I did not spell out the bottom line right at the start. I am correcting this error now – almost – [if you forgive this brief introduction]. In that 2019 article I also analysed articles and opinions arguing against Johnson’s EU/Antarctica alignment. These however turned out to be what I termed “Sunny Day Economics” – they cherry-picked short periods of time – as short as one year and 2.5 years in some examples – to pretend the GDP reality was not as bleak as four decades of IMF data proves it is.

My mistake in 2019 was a consequence of my desire for people to see that the 2019 article was balanced, not polemic, with a fair assessment of the IMF data it was based on – GDP by country and region from 1980 to 2018. I wanted people to see it was not another biased twisted version of data like so many other articles throwing supposed facts around like truth was out of fashion but a genuine account of what is there. I wanted to show it was authentic reasonable unbiased independent and objective.

The rejoin false prosperity argument ignores the dangerous destabilising aspects of the EU in undermining European democracy and social values. Ursula von der Leyen is its unelected poster girl – the woman who – as her own party recognised – single-handedly almost destroyed the Wehrmacht, the German military – and who now, by some miracle of stupidity, is put forward to run NATO. Is that Joe Biden’s hand I see raised taking responsibility for that?

What we in the UK need is a vision of our place in the world, to repair the damage of the past 50 years of EU/EEC membership and of the kind of Europe we want and then to go about making it happen. The EU is damaging Europe and every man woman and child in EU states need to come to understand the damage being done to them economically and in all other ways. For our own peace and prosperity we need a strong Europe to keep its people safe and prosperous but it is weak.

IMF DATA 1980 TO 2018

EU & Eurozone Worst Economic Performers in the World

I reproduce here some of the data quoted in the 2019 article. [That article was not however based on that data alone but on other independent analyses also.]

If it were not for the dissolution of the Soviet Union in 1991, during 1980 to 2018 the two worst performing regions in the world were the Eurozone and the EU for average annual world economic growth:

the Eurozone – bottom at 1.49%,
the former Soviet Union aligned states [Commonwealth of Independent States] next at 1.81%
third worst is the EU at 1.89%.

[Data for 2017 to 2018 were estimated by the IMF].

The only reason the former Soviet Union states [CIS] were so low in the world league with the EU and Eurozone was the dissolution of the Soviet Union. That changed substantially. Independently sourced figures I quoted in my 2019 article recorded the CIS having a 1.2% 10 year average economic growth to 2017 compared to the Eurozone of 0.4%. This leaves us with the extraordinary fact that the EU over four decades could not even beat the Soviet Union and its successors for economic growth. Extremely poor CIS economic growth dragged down the average economic growth of the CIS over the period from 1992. During 1993 to 1996 the economies contracted dramatically, impacting the longer term average GDP growth. There were large annual contractions in GDP of -9.57%, -13.86%, -5.34% and -3.57% respectively.

Taking this into account only makes the Eurozone and EU performance – which also means all of us in the UK – look far far worse.

The Economy of Antarctica

Aligning the EU with Antarctica for economic performance was an inspired comparison and makes the point with a clarity which no other can. If you want to compare rock bottom EU economic performance with the rest of the world, showing only Antartica has worse is the way to do it.

Antarctica, the fifth largest continent is the most desolate and cold place world-wide. Over 97% of its 5.5 million square miles are frozen assets – ice-covered all year. Populated by an estimated 8 million penguins: their main domestic product [aside from chicks] is gross – penguin poo. The remainder of the continent’s economy is considered to include fishing, tourism [around 60,000 tourists per annum] and scientific research [about 4000 researchers during the warmer months].

The IMF Data

‘IMF’ is an acronym for actor Tom Cruise’s fictional Impossible Mission Force. Here however it is a less glamorous acronym for the International Monetary Fund [IMF]. The IMF’s reams of boring but important data for 1980 to 2018 is based upon an objective indication of Gross Domestic Product and its growth for the nations and regions concerned.

WHERE-EVER YOU STAND THE VIEW IS SIMILAR

As I wrote in 2019, no doubt Rejoiners [then Remainers] will endeavour to criticise and undermine the figures presented here. However, by keeping faithful to the original data and avoiding “adjustments” it is likely to be more difficult to argue with. They will of course try no doubt. At least Sunny Day Economics and cherry-picking can be shown up for what it is.

In my 2019 article I quoted from a 2017 Global Finance Magazine [GFM] published comparative world economic growth figures. As I wrote then, the magazine is not polemical. It aims to help corporate leaders chart the course of global business and finance, so it needs to publish reliable information. GFM chose particular regions and country groups to make economic growth comparisons. GFM used the IMF regions and country groups data for its comparisons. Two sets of figures covered a twelve year period – the more relevant figures covered 10 years – 2008-2017 – that long enough not to be considered Sunny Day Economics data.

Whatever one’s perspective and whatever counter-arguments might be deployed, the plain and stark fact, whichever way one looks at this is, the EU [which includes the Eurozone] on these IMF sourced figures has the worst historic economic growth in the world and for the GFM analysis of the 10 year period the Eurozone is worst of all at 0.4%. That is far from the world benchmark of a 3.2% ten year average growth, which sits in the middle of the best and the worst economic growth regions in the world. It is 8 times that of the Eurozone and 4.5 times better than the EU.

GFM ECONOMIC GROWTH FIGURES – EU v THE WORLD

Emerging Economies

In 2019 I explained that it is likely to be misleading to compare developing economies with the EU. Economies of developing nations can experience greater annual GDP growth and faster historical economic growth than the more mature advanced economies of developed nations over the same periods. This seemed to be reflected in the GFM world economic growth figures for regions experiencing the greatest historic economic growth over 10 years.

Emerging and developing Asia was top over 10 years with 7.2% average annual GDP growth;
Emerging markets and developing economies were joint second at 5% with the ASEAN-5;
surprisingly, Sub-Saharan Africa was fourth at 4.7%.
Middle East, North Africa, Afghanistan, and Pakistan were fifth at 3.5%;
Middle East and North Africa taken alone next at 3.4%;
Emerging and developing Europe was seventh at 2.7%.

Advanced Economies

As I noted in 2019, when we compare Advanced Economies [but excluding the G7 and Eurozone], at 2.4% average 10 year economic growth the performance of the EU and Eurozone are substantially worse [0.7 and 0.4% respectively].

“Advanced economies” at 1.10% is still substantially better despite the inclusion in that figure of the average economic growth of the ailing EU and Eurozone.

Latin America and the Caribbean are also still better coming in at 2.2%;
the Commonwealth of Independent States [ie. former Soviet Union aligned states] is at 1.2%;

OTHER LESSONS?

The Leave proposition was always correct.

So we should be trading with them more now we can.

And we should also consider the IMF “Other Advanced economies” which can be more easily be compared to the EU and Eurozone and which have had substantially better historic economic growth. They will also have more money to spend: countries like Australia, New Zealand, Singapore, Israel and Korea. To those one must add the G7 powerhouse of the USA and also Canada.

We should also be trading with them more now we can.

THE LEAVE ARGUMENT MAKES SENSE – EU TRADE OR WORLD TRADE?

When put in a perspective as my 2019 article, backed by empirical evidence, one can start to see the sense of it. This fills in some of the detail providing more clarity for what many Leavers knew intuitively.

And when one looks further one thing is noticeable about the EU debate. That is how Europhiles become very quiet and do not engage in discussion to argue about the wider economic, social and political instability across the EU member states which has followed the unhelpful EU policy of austerity. To avoid discussion they keep silent, hoping to push or provoking debate onto other issues. They need to be challenged and all need to know and master a knowledge and understanding of the manifold failings of the EU to do so. It is no easy task because there are so many.

THE REAL BREXIT QUESTION

And we come to the real question about Brexit. It is not “are we better off in than out” or vice versa.

The real Brexit question is not being debated nor has it been, nor are the public being informed. Europhiles and Rejoiners alike also tend not to engage in the debate about all the things that are wrong with the EU – pushing the subject onto other issues instead.

What is wrong with the EU goes beyond economic growth and the destabilising effect the EU has had across Europe since its formation around thirty years ago.

Now we have a war between Russia and Ukraine.

Is economic growth – or at least political and social stability – more important than the EU? And regardless of what happens to the world in the coming decades.

And are France and Germany and other EU states friends? Do not be misled by the mellowing of rhetoric since the Brexit Referendum and the Withdrawal agreement. The EU has mellowed most likely because of what some might interpret as posturing and statements aimed at the UK were counterproductive, persuading former Remainers to want to support leaving. And they need the UK’s money.

How easy would it be to suspend the rule of law in the EU in the event of a widespread collapse of social order or dissent against the ruling class?

‘The European Project is Making People Poorer’

Have we in the UK been getting steadily poorer year-on-year over 46 years in the ……. READ MORE …..

https://www.brugesgroup.com/blog/the-european-project-is-making-people

Posted by cliffordmiller
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Tags: Economy, Euro, European Union

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7 Logical Science-based Reasons in Favour of Homeopathy and UK NHS GP Homeopaths [And Why Ben Goldacre Seems Such an Idiot]

July 7, 2023

Do please write to former NHS CEO Lord Simon Stevens of Birmingham in the House of Lords to point out the following because it seems he has a science-free zone between his ears – I wrote and told him but I got no reply. Contact details below.

He put patient safety at risk in my view when he banned homeopathy on the NHS. Only people who can afford it use it – like the late Queen Elizabeth II who lived to nearly 100 and would probably not have been allowed to use it if it didn’t work.

THE SEVEN REASONS

1) Ben Goldacre “The placebo effect is the extraordinary phenomenon of people getting better even when they have only had a dummy treatment“

So if homeopathy is just a placebo, the science indicates it works – regardless of any other claims for it and Ben helpfully confirms that is true. You can see him do it here:

BUT WHY DOES BEN SEEM A COMPLETE AND UTTER IDIOT WHO CANNOT PROPERLY INTERPRET SCIENTIFIC EVIDENCE UNDER HIS OWN NOSE?

In this next video Ben is telling us that homeopathy is a fraud when in the other video he praises the only proven scientific reason pseudo-sceptics like him might accept for why homeopathy works [if they were willing to admit it, which they aren‘t and don’t as you can see in these two videos by Ben]. Totally and entirely bonkers – another science-free zone.

Ben asks ‘is it right to deceive patients’ when everyone knows thanks to and according to Ben and people like him that homeopathy has got to be a fraud [although there is evidence it is not – see Further Reading below]. In other words, who is being deceived? He discusses the placebo effect but fails to mention that if homeopathy has no other effect it must at the least be a placebo. He also fails to mention placebos work whether you believe they work or not.

Notice also how agitated he seems – watch the remarkable facial contortions – a man on the edge. What on earth has he been taking? I’m afraid he looks a bit odd to me – not someone whose opinions I can trust.

2) if it were the main first-line NHS treatment patients would be safer because a GP has the training to assess the most appropriate treatment and whether it is worth trying homeopathy first;

3) homeopathy is extremely safe – no harmful adverse effects of prescription drugs;

4) it is inexpensive so will save the NHS loads-a-money;

5) many patients get better all by themselves – our immune system is remarkable and people just get better by themselves – [confirmed by email in a comment from that famous quackery sceptic Simon Singh. Singh admitted knowing very little about the placebo effect. He put himself and his family through hell on a big litigation case for calling chiropractic – another potentially effective placebo-type treatment – ‘bogus‘. What an idiot with a PhD in physics. He only needed to use a different word and he could have said much the same thing with none of the aggravation];

6) homeopathy seems to work – even if our current science knowledge suggests it should not – and as for scientific knowledge we have no idea why placebos work so why should we understand homeopathy?;

7) the late Queen used it. And she lived to nearly 100. If it didn’t work she probably wouldn’t have been allowed to use it.

FURTHER READING

Scientific evidence & homeopathy Dr Peter Fisher. Physician to the late Queen Elizabeth II HM. Director of Research and Consultant Physician at the Royal London Hospital for Integrated Medicine (RLHIM). A Fellow of the Royal College of Physicians, he was a member of the World Health Organization’s Expert Advisory Panel on Traditional and Complementary Medicine, involved in drafting its Traditional and Complementary Medicine Strategy 2014-2023, and Editor-in-Chief of the international medical journal Homeopathy.

Is Homeopathy Explained by the Placebo Effect? MIT Technology Review David Ewing Duncan March 30, 2007

In a 2000 article about the placebo effect published in the New York Times Magazine, the writer Margaret Talbot offered:

“The truth is that the placebo effect is huge – anywhere between 35 and 75 percent of patients benefit from taking a dummy pill in studies of new drugs – so huge, in fact, that it should probably be put to conscious use in clinical practice, even if we do not entirely understand how it works. For centuries, Western medicine consisted of almost nothing but the placebo effect. The patient who got better after a bleeding – or a dose of fox lung, wood lice, tartar emetic or any of the other charming staples of the 19th-century pharmacopoeia – got better either in spite of them or because of their symbolic value. Such patients believed in the cure and in the authority of the bewigged gentlemen administering it, and the belief gave them hope and the hope helped make them well.”

Scientists say homeopathy is not just placebo

Homeopathy Research Institute

CONTACT DETAILS FOR LORD STEVENS OF BIRMINGHAM

In any email or letter make sure you are polite and make it clear any email is for Lord Simon Stevens of Birmingham as the email address given is generic:

BY POST: Lord Simon Stevens of Birmingham, House of Lords, London, SW1A 0PW

Phone: 020 7219 5353 Email: contactholmember@parliament.uk

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EU Freedom of Movement [As Long As Its Not By Train – LOL!] – Europe’s 21st Century Transport System

January 27, 2020

60+ Years of Brussels Bungled Transport Integration

We’ve all heard the “wrong shape” banana or cucumber law stories the UK media served up in their past love-to-hate-the-EU news [which was repeatedly belatedly rebuffed by Brussels].

This is different.

This is about the height of stupidity especially if, with climate change and Australia on fire, one is concerned about a carbon neutral anywhere.

This is real Brussels bungling par excellence.

This is why the UK needs to keep the EU’s undemocratic Eurocratic law-makers out of UK law-making for good. [Brexit is for life – not just last Christmas. We wish you a merry Brexmas every year.]

If one wants to look at one area which exemplifies EU bungling, rail transport is a likely contender for the best.

Be patient and read on. I’ll get there soon. Enjoy a mild rant on the way.

A cynical reason for dumping the EU is we have enough trouble with one too many of our own politicians’ antics to have to contend with those of EU politicians and Eurocrats as well – over whom there is negligible democratic control and accountability. [There are positives and many well-intentioned UK and EU politicians but there are fewer positives to find in the EU overall, so bear with this for the moment.]

EU DEMOCRACY IN ACTION

Why involve the representatives of the people who have to live with Brussels law-making – that would be so burdensomely democratic that clearly Brussels and the EU word machines would have to start taking into account the views of real people who have to live in the Eurocracy they create.

And of course which national state parliaments have debated any of the laws the EU has been making about the EU’s heavily subsidised rail transport [or anything else for that matter]?

Its not just railways or laws.

The Coronation of Ursula von der Leyen as EU Commission President is a wonderful example of EU undemocracy in action. Ursula, in the view of some, did such a fantastically poor job as Defence Minister for the German military that those unseen to the many – the EU Royalty – found her to be a suitable candidate [in fact the only candidate] for EU Commission President.

Yes, you have guessed I’m not Ursula’s No 1 fan [me along with about half of the EU Parliament].

The Royalty submitted her for Coronation.

The EU Parliament obliged and Crowned her [with a grudgingly narrow margin]. Clearly the Parliament saw sense – if Ursula was the best choice of candidate then she had to be better than the second best choice – so they probably thought it was better to elect her than face the second-best choice. [A democratic election would have been the appropriate option but this is the EU so old habits die hard, along with democracy.]

Here is one opinion of Ursula quoted by Politico:

The inconvenient truth about Ursula von der Leyen – POLITICO

“Von der Leyen is our weakest minister. That’s apparently enough to become Commission president,” former European Parliament President Martin Schulz seethed in a tweet Tuesday evening.

Though Schulz is a Social Democrat, his analysis of the minister’s record is shared by many of von der Leyen’s fellow Christian Democrats, though most are reluctant to criticize her publicly. Instead, they point to the state of the German military.

“The Bundeswehr’s condition is catastrophic,” Rupert Scholz, who served as defense minister under Helmut Kohl, wrote last week before von der Leyen was nominated to the EU’s top post. “The entire defense capability of the Federal Republic is suffering, which is totally irresponsible.”

IRONY – EU vs HONG KONG – DEMOCRACY

Ironically, the democracy protesters in Hong Kong have more democracy than the EU. They get 5 to 6 candidates nominated by Beijing for election as their local politicians. And the irony of all ironies is the people of Hong Kong also get the chance to vote for them unlike the 500 million people of the EU who have no chance to vote for the Presidents of the EU Commission, Parliament or Council.

Here is the EU approach to compare to Beijing’s:

Next European Commission President: candidates and process
There is one process available called Spitzenkandidaten — which chooses the next president of the Commission based on the number of votes that each European political party receives. This means that the political family with the highest number of seats at the European Parliament nominates one of their members to take the role.

This happened at the last election in 2014, which saw the largest political party in the European Parliament — the conservative EPP (European People’s Party) — appointing Jean-Claude Juncker as European Commission president.

However, some countries believe this process is a “democratic anomaly.” The heads of state want to have the final say on who gets the most senior job in Brussels.

“The idea that the Spitzenkandidaten process is somehow more democratic is wrong,” Donald Tusk, president of the European Council, said last year.

I am sure Ursula is a fine woman who impresses many [but not that many in the European Parliament it seems].

Diane Abbott, political views notwithstanding, may not be good at math but the EU could do with a black woman politician as Commission President amongst the mass of all those white faces. She gets on well with Michael Portillo on the telly too so I am sure would be as just good as Ursula if not much better.

CUCUMBERS, BANANAS AND RAILWAYS

No wrong shape banana or cucumber laws here.

This is about two fundamentals of the European Project’s foundations: freedom of movement of labour and freedom of movement of goods. And how the Brussels bunglers have ensured these freedoms of movement are denied [by bungling].

The European project has existed for over 60 years but they cannot get the trains right despite the massive subsidies on travel in the EU.

Transport is not merely fundamental to free movement. An efficient effective transport infrastructure is vital to the economic well-being of any nation and especially a first world developed nation if it is to compete in an increasingly competitive world.

THE REALITIES OF EU UNFREE MOVEMENT BY RAIL
Let’s us focus on a review of how well some of the European Project’s lacklustre backroom boys and girls have been managing to cook up laws to improve transport.

To illustrate the issues I provide you with links to a blog by a British Europhile living in the EU.

If you want to go today from town A in one EU State to town B in another in C21 EU you can read of the impossibility of the task with the rampant lack of integration of European railways. This is illustrated by screen shot after screen shot of the morass of conflicting inadequate information available online. How to book Brussels-Amsterdam rail tickets – a further example of the absurdity of cross border rail in the EU

As the author writes: “The sad conclusion here: there is no booking website that does an adequate job even for cross-border routes from Belgium to its neighbouring countries. That there would be an adequate site for the whole of Western Europe, let alone the whole of the EU or the whole of Europe, remains a pipe dream. “

If free movement was so important in the EU one thing which would aid cross border transport is a simple online booking system for rail travel from one place in the EU to another. Instead of addressing that Brussels appears to have been more concerned about much more difficult issues like technical standardisation of railways across the EU – ignoring the needs of passengers for over 60 years and how to move freight with the rail systems that have existed for the past 63 years instead of writing laws about expensive upgrading which will take far longer to implement than making what already exists more accessible and adapted to inter-European rail travel.

These are links to EU efforts on rail travel.

Passenger rights:
https://ec.europa.eu/transport/themes/passengers/rail_en

What they have been doing for the last 25 years:
https://ec.europa.eu/transport/modes/rail_en

“What do we want to achieve ? Over the last 25 years the Commission has been very active in proposing restructuring the European rail transport market and in order to strengthen the position of railways vis-à-vis other transport modes. The Commission’s efforts have concentrated on three major areas which are all crucial for developing a strong and competitive rail transport industry: (1) opening the rail transport market to competition, (2) improving the interoperability and safety of national networks and (3) developing rail transport infrastructure.”

Interoperability and Safety
https://ec.europa.eu/transport/modes/rail/interoperability_en

Links to related posts on EU rail travel by the same author as the EU rail travel blog post:

The hypocrisy of Europe’s railways: some observations after a journey from Brussels to Germany

Topic 1 for NL-UK dialogue: rail tickets (London-Bruxelles-Rotterdam)

Why securing Europe’s railways against terrorism shouldn’t be attempted

The tricks of EU cross-border rail – Berlin-Bruxelles-St Gallen-Berlin

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The European Union – Catalyst for the Next War in Europe

March 20, 2019

Here I continue discussion of the causes of the new conflicts in Europe. Previously I discussed some of the conditions under which the next war in Europe may arise and whether a European Army will facilitate a power-grab in the EU by a totalitarian EU Government: Brexit And The Next War In Western Europe.

The following is part of a discussion which has been taking place on another blog.

_______________________________

cliffordmiller

March 20, 2019 at 7:40 am

Thanks for your view of history. I have seen many on all sides of the debate coming to recognise there are fundamental problems with the Union as currently constituted.

Brexit seen in context is a symptom of those problems. It is not the British. It is a symptom just as the gilet jaune in France are and other social, economic and political problems across the EU along with the rise of the far right across the EU.

Neither the UK nor the EU leadership come out of the present mess with much credit. Its the people who always end up paying the price.

It is a mark of the competence of the UK leadership and media that the EU has so far escaped being called to account.

The current games are a distraction from what is wrong.

So let us see what is known about the EU leadership just before Brexit – and remember the EU is roughly only two decades old and in that time has lurched from crisis to crisis whilst being the architect of a factual matrix which underpins social, political and economic problems across the EU geographically and politically for the PIIGS and from the Baltic States in the North East to Portugal in the South West.

Turn the clock back only a few years in the EU’s history to 2015. The year before the Brexit referendum – that is how close in time the EU’s woes are linked. It is not coincidence. It is mismanagement.

Even you rail at austerity which is also not just a British problem but describe it as such “The brutal austerity measures initiated by Cameron and Osborne”.

Austerity is a ridiculous and damaging EU wide policy forced on Member States. It has much to do with what is happening across the EU today. The losers are the people and it is taking Europe into conflict as now seen in France.

Austerity is deliberately imposed. The overall political objective is not clear but the symptoms of it we see in France and across the EU are and were a predictable outcome. Brexit is a predictable outcome – the ultimate expression of dissatisfaction with the EU.

Are the problems it has caused intentional or merely a by-product of creating more wealth for the very wealthy? Is the social political and economic destabilisation an objective or side-effect?

Economist Professor Yanis Varoufakis former Greek Finance Minister and someone of ability wrote of his experience of negotiations with the EU during five months in 2015 during the Greek debt crisis:

“…. a titanic battle is being waged for Europe’s integrity and soul, with the forces of reason and humanism losing out …. to growing irrationality, authoritarianism and malice. ….. Europe has twice in the past hundred years dragged the planet down into an appalling quagmire. It can do so again. ….. Leonard Schapiro … on Stalinism: … ‘the true object of propaganda is neither to convince nor even to persuade. But to produce a uniform pattern of public utterances in which the first trace of unorthodox thought reveals itself as a jarring dissonance.”

….. I bore the brunt of precisely this type of propaganda. My attempts ….. were met with a concerted effort to turn our sensible proposals into …. a jarring dissonance.”

Angela Merkel during the crisis and in relation to it stated that we did not want to see another war in Europe. That is how bad it was then. The problems today are not much better.

And there is a war taking place in the EU being fought without armaments and troops – at least not yet – France is on the brink.

Brexit is one of the battlefields. It is not the only one and it is the people of Europe who are paying the price of this war.

As with all wars there are costs.

But some things never make it onto the balance-sheet.

That root and branch reform of the political and administrative structures of the EU is thought to be needed by some on the one hand and on the other the frustration that it would ever occur with the system as it is, is another aspect. Uncertainty about the social, political and economic stability of the Union is another factor.

And how can one put a price on this? A Syrian in a rebel enclave was asked why he was fighting his Government and he answered that freedom is too important. Easy to forget its importance after many decades of relative [but not absolute] peace in Europe. There has been war and it was NATO which was deployed in case the conflict spread. It was not the EU nor its predecessor. That did not prevent war in Europe.

What has kept the peace in Europe has been increasing prosperity and economic development since the 1939-45 conflict. Neither the Common Market nor the EU were the cause of that. It would have happened with or without them.

What is causing lack of prosperity and economic problems is the EU and its austerity. The EU is turning into the architect of new conflicts flaring up in Europe. The clock is ticking. It is just a matter of time.

The irony is acute that the EU wrongly attributed with being a mechanism for peace appears is the architect of the new conflicts.

And put a European army at the disposal of Brussels and we will be on the brink of tyranny. The very kind of tyranny of governments Thomas Jefferson described in the context of the right to bear arms under the US Constitution.

As for your perspective of the history of the Brexit negotiations: “a patient accommodation of the more outrageous demands of a succession of Brexit negotiators” is not accurate.

From a very early stage the Prime Minister’s government conceded practically all the demands of the EU. There was rapid capitulation by the UK including to the payment of £39 billion without knowing what the framework of the future trading relation was to be.

And the context of what Barnier said could not have been clearer: “I’ll have done my job if, in the end, the deal is so tough on the British that they’d prefer to stay in the EU”.

You however write: “I’ll have to reserve judgement on exactly what was meant by M Barnier when he said this.” And then go on to praise him.

You go on to write: “As far as I can see, there has been no breach of Art 50, which simply provides the mechanism by which a member state may exit the Union.”

I cannot tell quite how far you can see. What I can say is that since I last posted here the validity of my legal arguments on the lawfulness of such conduct is coming to be accepted by others with the knowledge to appreciate the legal niceties.

You write “you mean like the “Led By Donkeys” campaign”.

No I don’t.

Please don’t mention ‘May’ again. That is as close to a four letter word as you can get for the numerically challenged but linguistically gifted. Much the same could be said about “Davis” as “Fox”.

And her “red lines” came long after the Withdrawal Treaty text had been finalised so again your version of the history needs attention. The finalised version of the Treaty was since then approved by the EU Parliament and in November last ratified by the Council.

I disagree that “In fact, a little thought on this matter should make it evident that extending anywhere near as advantageous conditions to non-members as to members, would undermine the very foundations of the Union.”

Why should it? Non-members cannot be full participants and can play no part in how the Union develops. Non-members are thus seriously disadvantaged.

And a moment’s thought reveals the wisdom of such an approach. It is better to have a club of contented members than malcontents so not forcing membership of those who wish to leave is a sensible approach – more likely to lead them to return – and in the negotiations one can create a framework to ease the return whilst in the interim effecting change to ensure the club is suited to the common objectives of its membership. A golf club with inadequate golfing facilities is likely to lose members to a club with better facilities but it can regain them if it puts needed change into effect.

What you are really saying is that the Union is an unhappy club run by individuals with issues which raise doubts over their suitability and a track record of failure such that the only way the club can stay together is by shackling the members in an economic prison – neither content to be in and worried of the consequences of being out.

The EU would be a better place if its Member States were content to be members rather than being locked into an economic cage with a key inside but from which they fear to escape. Like a caged bird remains even when the cage door is opened.

This makes no sense “Also, technically it was impossible to negotiate a future trade deal with the UK while it was still a member”.

“Negotiate” is form of talking. How can it be impossible for the UK and EU representatives just to talk to each other? And the UK is still a member and was when people were talking about Norway + and Canada + and suchlike.

In fact it is actually impossible to agree the framework of the future relationship without agreeing the principles of what the future relationship is to be. So again what you say about it being impossible to talk is not consistent with the express requirements of Article 50 for the parties.

This also is a non sequitur and logically flawed: “it is only when the Withdrawal Agreement has been finalised that the detailed aspects become clear of what is to be negotiated in terms of an extensive trade deal.”

It is necessary to know the framework of the future relationship in order to agree what must be done to withdraw.

And Article 50 addresses the future relationship – which does not necessarily include a “trade deal”. It does include things like continuing co-operation on security, arrest warrants, air and other travel.

You don’t need to withdraw from arrangements which are agreed to continue after withdrawal but you do need to know what the future relationships are to be to agree about them.

This is not correct: “Obviously, this process could have been accelerated if the UK demands and red lines had not been entirely internally inconsistent (also known as “cakeism”).” How can this be accelerated? The red lines did not appear until late in the day after the Withdrawal Treaty had been agreed by the UK’s negotiators but not by the UK Parliament. And thank all that is good it was not left to the Prime Minister and her Cabinet.

“The EU …. is constantly renewing itself.” It is not and that is a fundamental problem already noted above.

I will not continue addressing further lacunae. It has been an interesting exercise despite all. And thank you for your comments which have required me to think about the issues and refine my thinking further.

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Nobel Prize Winner’s Court Challenge to Brexit Withdrawal Agreement’s Validity Before It Is Even Made

March 10, 2019

I explained in a prior post that the Withdrawal Agreement appears to be be unlawful in its entirety, not valid and so not legally binding. Anyone can apply to the Courts to challenge it. If that happens and a Court agrees then the UK and the EU – particularly those Member States doing the most trade with the UK could all be jumping off the cliff top together even if Theresa May got her Withdrawal Agreement through Parliament. See EU Illegal Brexit Tactics – Invalidation of Brexit Withdrawal Agreement – Business Can Sue February 27, 2019.

And now someone is challenging the Withdrawal Agreement in the Courts.

Lord Trimble (the holder of a Nobel Peace Prize) who was an architect of the Good Friday agreement has been named in connection with a legal challenge to the UK Government in Court. The challenge is on the basis the ‘Withdrawal’ Agreement seeks to alter the constitutional relationship between Northern Ireland and the United Kingdom without the express consent of the people of Northern Ireland.

It is also now being explained via the Bruges Group’s blog that the creation of the backstop breaches the EU’s own principles and those of other European and international organisations. In particular it breaches the principle of Self-Determination: How the “Backstop” breaches international treaties

It is explained in the blog that imposing taxation without representation, via the customs union that the Backstop would establish, is not in keeping with the “European values”. The Backstop would place the EU-27 in breach of a number of their international obligations, including:

– The 1952 Protocol to the European Convention on Human Rights which ensures “the free expression of the opinion of the people in the choice of the legislature”;

– The right to self-determination expressed in Article 1 of the UN Charter and expanded upon in various UN Resolutions including: the Principles of International Law Concerning Friendly Relations and Cooperation Among States (UN Resolution 2625(XXV)), the Declaration on the Granting of Independence to Colonial Countries (UN Resolution 1514(XV)), and the International Covenant on Civil and Political Rights (UN Resolution 2200A(XXI));

– and The EU’s own treaty provisions, including “good neighbourliness” (Article 8 TEU) and the progressive abolition of trade barriers (Article 3(5) TEU) and citizen’s rights to participate in the democratic life of the EU (Article 10(3)).

These are examples of the wider and more general principles I set out on my law blog: EU Illegal Brexit Tactics – Business Can Sue – Invalidation of Brexit Withdrawal Agreement

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Brexit And The Next War In Western Europe

March 5, 2019

I discuss some of the conditions under which the next war in Europe may arise and whether a European Army will facilitate a power-grab in the EU by a totalitarian EU Government. This is in an abriged comment I posted on a discussion on ResearchGate:

Has the EU’s Illegal conduct of the Brexit negotiations made the Withdrawal Agreement invalid before it is even signed?

25 minutes ago Clifford Miller Added a reply

Hi Harish,

Thanks for your thoughts.

Yesterday I met with some Hungarian friends who are visiting London with their two primary school age children.

We discussed the EU. We have common concerns. None of them are about the gradual slipping of anything by any country. And the UK remains rated the fifth largest economy in the world, although I am very pleased to see India’s success and development along with the long needed development of many countries including that we now see in Africa since the end of the Cold War.

The union that is the USA and the current union in Europe are very different economically, politically, constitutionally and by maturity. The EU with its own currency, the Euro with the common economic controls on Member States which that entails, has existed for less than 20 years. The union in the USA you say has existed for over 230 years. The rise of the union in the USA could not have been more different and it has had time to develop and grow. Its population 230 years ago was very small but with substantial natural resources including land mass.

The USA has a State of the Union address from the President. The union in Europe could benefit from an annual independent, objective and public State of the Union audit.

In its absence let me give you some examples of what might be part of such an audit.

My friends and I can see and fear the rise of totalitarian government centred on the EU. We can see and fear new wars in Western Europe.

The lack of effective control over abuse of power at the centre of Europe, ignoring the rule of law, such as we see as part of Brexit, combined with the rise of an EU army controlled from Brussels and the civil unrest associated with economic mismanagement caused by a decade of the economically ridiculous and counter-productive austerity policy are all part of an unhealthy picture.

In parts of the EU there is 60% unemployment. The gilet jaune [Yellow Vest] movement in France is new and extensive, provoked by economic, political and social mismanagement. But with a European Army perhaps troops from countries like Bulgaria and Romania might have fewer qualms about shooting Frenchmen dead in the streets to help quell unrest?

One view of Europe is a region with Germany at its centre. Germany is surrounded by satellite states. There can be little doubt that one reason for Germany’s economic success is its geographical position. Germany’s location means it can benefit from the assets and resources of its near neighbours for labour, goods, services and the intellectual capital of educated work-forces.

My Hungarian friends have homes in Hungary and in Germany. They live and work in Germany and commute every few weeks home the 700km to Hungary. A drive of 5 hours.

They tell me that educated Hungarians with language skills find work in Germany. This obviously thereby depletes the intellectual capital of the local labour market and potentially inhibits local economic development in Hungary. However, currently the greatest immigrant population in Germany is from Italy, [and not Turkey as many might be misled to think].

Instead of investing in the economies of the satellites, the EU has literally sucked the life out of countries like Estonia, Latvia and Lithuania. These countries have virtually no young people. They have left to find work and not come back. The remaining populations of these countries are literally dying on their feet. Their economies cannot develop in such conditions. So much for the benefits to them of the EU!

Let us compare the location of Portugal. Portugal is at the edge of Western Europe with a long coastline bordering the Atlantic. It does not have the benefits of Germany’s geographical location. Portugal is one of the unhappily named group of European countries called the PIIGS – Portugal, Ireland, Italy, Greece and Spain. All are associated with economic problems and the need for financial bailouts of their economies. Greece’s economic problems threatened the stability of Europe with Angela Merkel at the time stating publicly that no one wanted to see another war in Europe.

So Merkel at that time could see where economic instability was leading Europe.

When on vacation in Italy a couple of years back after the substantial fall of the British pound after the Brexit referendum I was surprised at how inexpensive Italy is. Italy is poor. It is poorer than it was before. Italians have been leaving in search of work. Many do not come home. The local economies are not being developed and countries like Germany benefit from the outflow of workers.

And so to the stupidity of the austerity policy being pursued by the EU with the benefit of financial controls on Member States required to maintain a common currency, the Euro. The UK has also stupidly pursued austerity firstly under Prime Minister David Cameron and the Chancellor George Osbourne.

The UK is a smaller version of the picture seen throughout the EU. Despite being the fifth largest economy in the World, the North has been economically neglected. The industries were run down since the 1970s. There is poverty. There is a large disaffected population in the North-East and many other areas. The South-East centred on the economic power house of the City of London prospers – for the moment at least.

So what has austerity achieved? Mainly economic mismanagement and an increase in a disaffected population which is and feels poorer now than before.

To pay for the fall in economic activity which austerity encourages the national debt has been rapidly rising. In a few short years it rose from around £900 billion when Cameron’s Government came to power and introduced austerity. One estimate puts it now at about £2.2 trillion.

Had the UK instead of pursuing austerity over the time of this £1.3 trillion increase invested it in infrastructure projects and education and training new skills for C21, the UK would been in a much better place today. The monies invested on infrastructure would have stimulated the economy and returned to the Government in taxes whilst the work-forces in the neglected parts of the UK could have been provided with the skills national and international businesses seek. Instead we have an increase in poverty in the neglected areas with an increasing number of families relying on food-banks to feed the children and parents.

A contrast is the success of education with the focus in Scottish universities on computer gaming technology. This was not a Government initiative. One report suggests Scotland’s software and electronic publishing sector employs around 20,000 people and contributes about £1bn to the economy. So investment in infrastructure and education can and does work.

Is a Federation of EU States potentially good? There is no doubt about that.

Is the current form of union in Europe good? No. One must remember that the present political structure was designed to create a common market to aim at freedom of movement of labour, services, goods and capital. The Commission’s job was to create the laws to establish common standards throughout Europe of this common market – a free trade area. The Parliament had little or no power, although that has changed in part. The Commission was supposedly overseen by the Council comprised typically of a Minister representing each Member State.

This political structure is not appropriate for a Federation of States. And it has been mired in corruption and abuse of powers for decades. It is a system open to manipulation by external interests. And we can see that every day.

What no one thinks about is this – how much poorer are European States under the European Union and how much are their economies held back from developing compared to what could have been achieved without the current form of EU government riding their backs and holding them down.

A political friend told me that the record of economic growth in the EU region historically is second only to Antarctica – which is mostly inhabited by penguins.

Posted by cliffordmiller
Filed in Austerity, Brexit, EU, EU Law, Political Instability, War

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Brexit – Your Personal Right to Have Copies of the Brexit Negotiations Documents

June 27, 2016

Most people do not know about this so be prepared for a surprise.

Your right – yes for you personally – to documents of EU instititions is a fundamental right of EU law and also a basic condition of an open, efficient and independent European administration. Any limitation of this principle must be narrowly construed to comply with the criteria of Article 52(1) of the Charter of Fundamental Rights of the European Union and must therefore be based on law, must respect the essence of the right and follow the criteria of proportionality.

The right to documents is a right enshrined in the Treaty Establishing the European Union:

Article 15(3) TFEU: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph…. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph….’; Charter, Article 42: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

And under Article 42 of the Charter of Fundamental Rights of the European Union [“European Charter”]:

Article 42 Charter: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

In principle therefore you are entitled to documents relating to the forthcoming Brexit negotiations. There are of course limitations and exceptions. If any exception or limitation might be invoked in relation to contemporaneous disclosure of Brexit negotiation documents, a main question is whether there is an overriding interest favouring contemporaneous disclosure. And even if there is any delay in disclosure, there remains the issue of when disclosure will take place.

This law is implemented in an EU Regulation: Regulation No 1049/2001. Which is grandly titled:

REGULATION (EC) No 1049/2001 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 May 2001 regarding public access to European Parliament, Council and Commission documents

Here we will do things a little bit “backwards” by setting out the Articles of the Regulation so you can see the “nuts and bolts” of the law. However, unlike statute laws of English and other common law countries, when interpreting the Articles of an EU Regulation, the preambles and recitals are the first source to consult.

For Regulation 1049/2001 these are at the beginning under the oh so grand heading:

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 255(2) thereof,
Having regard to the proposal from the Commission (1),
Acting in accordance with the procedure referred to in Article 251 of the Treaty (2) …..

And then the Preambles and Recitals continue in this vein and here are set out just the first few and grandest of them all. The first are the most important:

Whereas:
(1) The second subparagraph of Article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.

(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EUTreaty and in the Charter of Fundamental Rights of the European Union,

(3) The conclusions of the European Council meetings held at Birmingham, Edinburgh and Copenhagen stressed the need to introduce greater transparency into the work of the Union institutions. This Regulation consolidates the initiatives that the institutions have already taken with a view to improving the transparency of the decision-making process.

(4) The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access in accordance with Article 255(2) of the EC Treaty.

The remainder of the Preambles and Recitals can be found in the Regulation:: Regulation No 1049/2001

Again, working from the end first these words found at the end of the Articles are significant for you personally:

“This Regulation shall be binding in its entirety and directly applicable in all Member States.”

This makes the regulation have direct application in every Member State to give effect to your personal right to access to EU documents including EU Brexit negotiation documents.

And here are the Articles:

Article 1

Purpose
The purpose of this Regulation is:

(a) to define the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission (hereinafter referred to as ‘the institutions’) documents provided for in Article 255 of the EC Treaty in such a way as to ensure the widest possible access to documents,

(b) to establish rules ensuring the easiest possible exercise of this right, and

Article 2

Beneficiaries and scope

1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.

2. The institutions may, subject to the same principles, conditions and limits, grant access to documents to any natural or legal person not residing or not having its registered office in a Member State.

3. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.

4. Without prejudice to Articles 4 and 9, documents shall be made accessible to the public either following a written application or directly in electronic form or through a register. In particular, documents drawn up or received in the course of a legislative procedure shall be made directly accessible in accordance with Article 12.

5. Sensitive documents as defined in Article 9(1) shall be subject to special treatment in accordance with that Article.

6. This Regulation shall be without prejudice to rights of public access to documents held by the institutions which might follow from instruments of international law or acts of the institutions implementing them.

Article 3

Definitions

For the purpose of this Regulation:

(a) ‘document’ shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility;

(b) ‘third party’ shall mean any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies and third countries.

Article 4

Exceptions

1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

(a) the public interest as regards:

— public security,

— defence and military matters,

— international relations,

— the financial, monetary or economic policy of the Community or a Member State;

(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.

2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

— commercial interests of a natural or legal person, including intellectual property,

— court proceedings and legal advice,

— the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure.

3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.

5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.

6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.

Article 5

Documents in the Member States

Where a Member State receives a request for a document in its possession, originating from an institution, unless it is clear that the document shall or shall not be disclosed, the Member State shall consult with the institution concerned in order to take a decision that does not jeopardise the attainment of the objectives of this Regulation.

The Member State may instead refer the request to the institution.

Article 6

Applications

1. Applications for access to a document shall be made in any written form, including electronic form, in one of the languages referred to in Article 314 of the EC Treaty and in a sufficiently precise manner to enable the institution to identify the document. The applicant is not obliged to state reasons for the application.

2. If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents.

3. In the event of an application relating to a very long document or to a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution.

4. The institutions shall provide information and assistance to citizens on how and where applications for access to documents can be made.

Article 7

Processing of initial applications

1. An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article.

2. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.

3. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

4. Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application.

Article 8

Processing of confirmatory applications

1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively.

2. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

3. Failure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the EC Treaty.

Article 9

Treatment of sensitive documents

1. Sensitive documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’or‘CONFIDENTIEL’in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters.

2. Applications for access to sensitive documents under the procedures laid down in Articles 7 and 8 shall be handled only by those persons who have a right to acquaint themselves with those documents. These persons shall also, without prejudice to Article 11(2), assess which references to sensitive documents could be made in the public register.

3. Sensitive documents shall be recorded in the register or released only with the consent of the originator.

4. An institution which decides to refuse access to a sensitive document shall give the reasons for its decision in a manner which does not harm the interests protected in Article 4.

5. Member States shall take appropriate measures to ensure that when handling applications for sensitive documents the principles in this Article and Article 4 are respected.

6. The rules of the institutions concerning sensitive documents shall be made public.

7. The Commission and the Council shall inform the European Parliament regarding sensitive documents in accordance with arrangements agreed between the institutions.

Article 10

Access following an application

1. The applicant shall have access to documents either by consulting them on the spot or by receiving a copy, including, where available, an electronic copy, according to the applicant’s preference. The cost of producing and sending copies may be charged to the applicant. This charge shall not exceed the real cost of producing and sending the copies. Consultation on the spot, copies of less than 20 A4 pages and direct access in electronic form or through the register shall be free of charge.

2. If a document has already been released by the institution concerned and is easily accessible to the applicant, the institution may fulfil its obligation of granting access to documents by informing the applicant how to obtain the requested document.

3. Documents shall be supplied in an existing version and format (including electronically or in an alternative format such as Braille, large print or tape) with full regard to the applicant’s preference.

Article 11

Registers

1. To make citizens’ rights under this Regulation effective, each institution shall provide public access to a register of documents. Access to the register should be provided in electronic form. References to documents shall be recorded in the register without delay.

2. For each document the register shall contain a reference number (including, where applicable, the interinstitutional reference), the subject matter and/or a short description of the content of the document and the date on which it was received or drawn up and recorded in the register. References shall be made in a manner which does not undermine protection of the interests in Article 4.

3. The institutions shall immediately take the measures necessary to establish a register which shall be operational by 3 June 2002.

Article 12

Direct access in electronic form or through a register

1. The institutions shall as far as possible make documents directly accessible to the public in electronic form or through a register in accordance with the rules of the institution concerned.

2. In particular, legislative documents, that is to say, documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States, should, subject to Articles 4 and 9, be made directly accessible.

3. Where possible, other documents, notably documents relating to the development of policy or strategy, should be made directly accessible.

4. Where direct access is not given through the register, the register shall as far as possible indicate where the document is located.

Article 13

Publication in the Official Journal

1. In addition to the acts referred to in Article 254(1) and

(2) of the EC Treaty and the first paragraph of Article 163 of the Euratom Treaty, the following documents shall, subject to Articles 4 and 9 of this Regulation, be published in the Official Journal:

(a) Commission proposals;

(b) common positions adopted by the Council in accordance with the procedures referred to in Articles 251 and 252 of the EC Treaty and the reasons underlying those common positions, as well as the European Parliament’s positions in these procedures;

(d) conventions established by the Council in accordance with Article 34(2) of the EUTreaty;

(e) conventions signed between Member States on the basis of Article 293 of the EC Treaty;

(f) international agreements concluded by the Community or in accordance with Article 24 of the EUTreaty.

2. As far as possible, the following documents shall be published in the Official Journal:

(a) initiatives presented to the Council by a Member State pursuant to Article 67(1) of the EC Treaty or pursuant to Article 34(2) of the EUTreaty;

(b) common positions referred to in Article 34(2) of the EU Treaty;

(2) of the EC Treaty, decisions other than those referred to in Article 254(1) of the EC Treaty, recommendations and opinions.

3. Each institution may in its rules of procedure establish which further documents shall be published in the Official Journal.

Article 14

Information

1. Each institution shall take the requisite measures to inform the public of the rights they enjoy under this Regulation.

2. The Member States shall cooperate with the institutions in providing information to the citizens.

Article 15

Administrative practice in the institutions

1. The institutions shall develop good administrative practices in order to facilitate the exercise of the right of access guaranteed by this Regulation.

2. The institutions shall establish an interinstitutional committee to examine best practice, address possible conflicts and discuss future developments on public access to documents.

Article 16

Reproduction of documents

This Regulation shall be without prejudice to any existing rules on copyright which may limit a third party’s right to reproduce or exploit released documents.

Article 17

Reports

1. Each institution shall publish annually a report for the preceding year including the number of cases in which the institution refused to grant access to documents, the reasons for such refusals and the number of sensitive documents not recorded in the register.

2. At the latest by 31 January 2004, the Commission shall publish a report on the implementation of the principles of this Regulation and shall make recommendations, including, if appropriate, proposals for the revision of this Regulation and an action programme of measures to be taken by the institutions.

Article 18

Application measures

1. Each institution shall adapt its rules of procedure to provisions of this Regulation. The adaptations shall take effect from 3 December 2001.

2. Within six months of the entry into force of this Regulation, the Commission shall examine the conformity of Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic Energy Community with this Regulation in order to ensure the preservation and archiving of documents to the fullest extent possible.

3. Within six months of the entry into force of this Regulation, the Commission shall examine the conformity of the existing rules on access to documents with this Regulation.

Article 19

Entry into force

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities.

It shall be applicable from 3 December 2001.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 30 May 2001.

For the European Parliament    For the Council
The President    The President
N. FONTAINE    B. LEJON

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Brexit – Getting Out – How EU Law May Prohibit a “Stitch-Up” of the UK – UK Citizens May Have Rights Post Brexit – and Might be able to Sue for Illegal EU Brexit Acts – Even After Brexit

June 27, 2016

If anyone thinks the UK will be at the mercy of the 27 remaining EU Member States in negotiations over and in reaching a final agreement over the UK’s exit from the EU then they may have to rethink. It is possible that long and well-established principles of European Union law may apply to any illegal actions. And if the law were to be broken and the final agreement is unlawful then it is conceivable that EU citizens in the UK – which means individuals and companies – may be able to sue the EU after the UK’s exit for losses and damage suffered, even if they have then ceased to be EU citizens.

Individuals and companies have legally enforceable rights to detailed information about information held by the EU which might include at least some information about the negotiations as they take place. And can negotiations by anonymous EU officials take place in private in what used to be called “smoke filled rooms” [a thing of the past under EU law] or must they be in public with all information published? See also:

Brexit – Your Personal Right to Have Copies of the Brexit Negotiations Documents

It is conceivable that negotiations to reach a final agreement must seek to achieve the best outcome for the functioning of the Single European Market. Hence, political claims could have some substance that it is possible an exit from the EU may not be one which excludes the UK from it nor one which imposes punitive trade tariffs and other obstacles to trade.

This blog post is not a detailed analysis of EU law. It is solely intended to introduce you to some principles of EU law which might apply to control and restrict the conduct of the exit negotiations and the legality of any final agreement. The intention is to equip you with some basic principles for further consideration of whether they might be applied to benefit the UK and its currently resident EU citizens in the lead up to and after an exit. How and the extent to which such principles might control and restrict the conduct of the remaining 27 Member States, the EU Commission and Council will no doubt be subject to consideration by others in the coming months and years of the exit process and beyond.

Here are some examples to give you an idea of some provisions of immediate interest:

“public authorities shall act and perform their duties within a reasonable time“

“Law: Article 5(4) TEU ‘Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties […]’.”

“neither the EU nor Member States can render virtually impossible or excessively difficult the exercise of rights conferred by EU law,”

And must the negotiations be conducted in public? How are the principles of transparency and of participatory democracy to be respected:

Article 10(3) TEU: ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’ Articles 11(1) and (3) TEU require Union institutions to hear views and opinions on EU measures and especially enter into consultation procedures.

These rights and obligations are applicable to situations where the proceedings lead to the adoption of an act of general application including decisions with general applicability. They require that in order to ensure that such hearing can effectively take place, active information of the public and structured means of feedback and response should be created.

That might be taken together with the right of access to documents. This is a fundamental right of EU law and also a basic condition of an open, efficient and independent European administration. Any limitation of this principle must be narrowly construed to comply with the criteria of Article 52(1) of the Charter of Fundamental Rights of the European Union and must therefore be based on law, must respect the essence of the right and follow the criteria of proportionality. See Regulation No 1049/2001.

Under Article 15 (3) TFEU:

Article 15(3) TFEU: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph…. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph….’; Charter, Article 42: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

And under Article 42 of the Charter

Article 42 Charter: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

Summary of Principles of EU Administrative Law **

The principle of the rule of law:

Article 2 TEU

Applies to administrative actions.

Any action of the Union has to be based on the treaties according to the principle of conferral [Case 46/87 Hoechst v Commission [1989] ECR 2859, summary point 3].

The rule of law requires that EU institutions, bodies, offices and agencies shall act in accordance with the law

[The hierarchy of legal norms must be recognized and respected in that no act may violate higher-level Union law (Case 1/54 France v High Authority [1954] ECR 7, 23; Case 38/70 Deutsche Tradax GmbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1971] ECR 145, para. 10.);]

They must apply the rules and procedures laid down in the legislation.

The principle of legality

Actions of European administration occur under and within the law.

Article 52(1) sentence 1 of the Charter of Fundamental Rights:

‘Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms’.

‘Second, it is important to point out that provisions on conferring powers of public authority on border guards – such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location – mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required’.

Case C-355/10, European Parliament v Council [2012], ECR I- published in the electronic Reports of Cases para 77:

The principle of legal certainty:

This principle requires EU legal rules to be clear and precise aiming to ensure that situations and legal relationships governed by EU law remain foreseeable.

Cases: Case C-199/03 Ireland v Commission [2005] ECR I-8027, para. 69. See also Case C-29/08 SKF [2009] ECR I- 10413, para. 77.22. And also see : Cases: C-55/91 Italy v Commission [1993] ECR I-4813, para. 66; Joined Cases T-55/93 and T-232/94, T-233/94 and T-234/94 Industrias Pesqueras Campos v Commission [1996] ECR II-247, paras. 76, 116, 119; Case 43/75 Defrenne v SABENA [1976] ECR 455, paras. 69 ff.; Case C-143/93 Gebroeders van Es Douane Agenten vs Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-431, para. 27; Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633.

Individuals must be able to ascertain unequivocally what their rights and obligations are and be able to take steps accordingly;

Cases: e.g. Case C-158/06 ROM-projecten [2007] ECR I-5103, para. 25 with further references.

Retroactive measures shall not be taken except in legally justified circumstances.

Cases: See Case T-357/02 Freistaat Sachsen v Commission [2007] ECR II-1261, para. 98, where the Court stated that ‘provisions of Community law have no retroactive effect unless, exceptionally, it clearly follows from their terms or general scheme that such was the intention of the legislature, that the purpose to be achieved so demands and that the legitimate expectations of those concerned are duly respected’.

Further, public authorities shall act and perform their duties within a reasonable time.

Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869, para. 140.

The principle of protection of legitimate expectations

This has been recognised since the very early case law of the CJEU as sub-principle of the rule of law:

Cases: See Case 111/63 Lemmerz-Werke v High Authority of the ECSC [1965] ECR 677, where the concept of protection of legitimate expectations was first explicitly enunciated. See also Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC [1957] ECR 39, 55; Cases 42 and 49/59 S.N.U.P.A.T. v High Authority [1961] ECR 53; Case 14/61 Koninklijke Nederlandsche Hoogovens en Staalfabrieken v ECSC High Authority [1962] ECR 253.

Actions of public bodies shall not interfere with vested rights and final legal situations except where it is imperatively necessary in the public interest.

Legitimate expectations shall be duly taken into account where an administrative decision is cancelled or revoked.

The principle of proportionality

This is a criterion for the legality of any act of Union law.

Law: Article 5(4) TEU ‘Under the principle of proportionality,the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties […]’.

CJEU: requires that any measure of the European administration be based on law; to be appropriate and necessary for meeting the objectives legitimately pursued by the act in question; where there is a choice among several appropriate measures, the least onerous measure must be used; and the charges imposed must not be disproportionate to the aims pursued.

Cases: See e.g. Case C-265/87 Schräder v Hauptzollamt Gronau [1989] ECR I-2237 para 21. See also e.g. Case C 343/09 Afton Chemical v Secretary of State for Transport [2010] ECR I 7027, para 45, and Joined Cases C 581/10 and C 629/10 Nelson and Others v Deutsche Lufthansa AG (C-581/10) and TUI Travel and Others v Civil Aviation Authority (C-629/10) [2012] published in the electronic Reports of Cases, para 71.

Next to legislative action as provided for in Protocol n° 2 on the application of the principles of subsidiarity and proportionality. The principle of proportionality is applicable as criteria of legality of acts of European administration as results from Articles 52(1) of the Charter of Fundamental Rights of the European Union and Article 5(4) TEU.

The right to an effective remedy

Cases: Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, para. 9; Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, para 19.

This right is enshrined in Article 47 of the Charter:

Article 47 Charter: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article”.

In Articles 6 and 13 European Convention of Human Rights;

This is recognised as a general principle of EU law. It is a key component to a legal system under the rule of law.

Neither the EU nor Member States can render virtually impossible or excessively difficult the exercise of rights conferred by EU law.

Cases: See e.g. Case C 128/93 Fisscher v Voorhuis Hengelo BV and Stichting Bedrijfspensioenfonds voor de Detailhandel [1994] ECR I 4583, para. 37; Case C-261/95 Palmisani v Istituto nazionale della previdenza sociale (INPS) [1997] ECR I-4025, para 27; C-453/99 Courage and Crehan v Courage Ltd and Others [2001] ECR I-6297, para 29; Case C 78/98 Preston and Others [2000] ECR I 3201, para. 39; Case C-187/00 Kutz-Bauer [2003] ECR I-2741, para. 57; Case C-30/02 Recheio-Cash & Carry [2004] ECR I-6051, paras 17, 18; Case C-212/04 Adeneler and Others [2006] ECR I-6057, para. 95; Joined Cases C-231/06 to C-233/06 Jonkman and Others [2007] ECR I-5149, para. 28.

They are obliged to guarantee real and effective judicial protection:

Cases: Case 14/83 von Colson [1984] ECR 1891, para 23.

And are barred from applying any rule or applying any procedure which might prevent, even temporarily, EU rules from having full force and effect.

Case C-213/89 Factortame [1990] ECR I-2433, paras. 19, 20.

The principle of good administration

This is naturally of particular relevance to administrative procedures.

According to the Charter the right to good administration requires that decisions be taken pursuant to procedures which guarantee fairness, impartiality and timeliness.

Good administration includes the right to be given reasons and the possibility of claiming damages against public authorities who have caused harm in the exercise of their functions.

Good administration also requires the protection of the rights of defence and of language rights.

In addition, good administration extends to information rights which include privacy and business secrets as well as access to information.

It is enshrined in Article 41 of the Charter synthesizing some of the case law of the Court of Justice in this field

Cases: The CJEU has referred to good administration principles since the very early case-law: Joined Cases 7/56, 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC [1957] ECR 0039; Case 32/62 Alvis [1963] ECR 49, para 1A; Joined Cases 56 and 58/64 Consten and Grundig v Commission [1966] ECR 299; Case 64/82 Tradax v Commission [1984] ECR 1359; see the Explanations Relating to the Charter Of Fundamental Rights, Doc. 2007/C 303/02, at

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri =OJ:C:2007:303:0017:0035:en:PDF

Sub-Principles of the principle of good administration:

The duty of care

This includes the right of every person to have his or her affairs handled impartially, fairly and within a reasonable time: Charter, Article 41(1).

It obliges the administration to carefully establish and review all the relevant factual and legal elements of a case taking into account not only the administration’s interests but also all other relevant interests, prior to making decisions or taking other steps.

AG van Gerven in Case C-16/90 Eugen Nölle v Hauptzollamt Bremen –Freihafen [1991] ECR I-5163; Case C-269/90 TU München v Hauptzollamt München Mitte [1991] ECR I-5469, para. 14.

Impartiality requires the absence both of arbitrary action and of unjustified preferential treatment including personal interest:

Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, para. 40; Case T-305/94 Limburgse Vinyl Maatschappij v Commission [1999] ECR II-931, paras. 317ff.

Timeliness, which pertains to the principle of fairness, means that decisions have to be taken within a reasonable time: Article 24 fourth subparagraph TFEU ; Article 20(2)(d) TFEU ; Article 41 (1) Charter

This is justified in part on the basis that slow administration is bad administration: AG Jacobs in C-270/99 P Z v Parliament [2001] ECR I-9197, para. 40 with reference to Art. 41 of the Charter and claiming that this was ‘a generally recognised principle.’

And it might also be in violation of the concept of legal certainty.

The right to a fair hearing

This must be observed in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person.

Case T-306/01 Yusuf and Al Barakaat International Foundation v. Council and Commission [2005] ECR II-3533, para. 325.

That principle (audi alteram partem or audiatur altera pars) is addressed in Article 41(2)(a) and (b) Charter;

Article 41(2)(a) Charter: The right to good administration includes: ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;’ ; Article 11(1) ‘The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’ and (3) TEU ‘The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.’

It cannot be excluded or restricted by any legislative provision:

Case T-260/94 Air Inter v. Commission [1997] ECR II-997, para. 60; case C-135/92 Fiskano v. Commission [1994] ECR I-2885, para. 39

The right to a fair hearing requires that the party concerned must receive an exact and complete statement of the claims or objections raised and must also be given the opportunity to make its views known on the truth and relevance of the facts and on the documents used.

See, e.g., Case 100/80 to 103/80 Musique Diffusion française v Commission [1983] ECR 1835, para. 10; Case 121/76 Moli v Commission [1977] ECR 1971, para. 19; Case 322/81 Michelin v Commission [1983] ECR 3461, para. 7; Case C-328/05 SGL Carbon v Commission [2007] ECR I-3921, para. 71. In Joined Cases C-402/05 P and Case C-415/05 P Kadi v Council and Commission [2008] ECR I-6351, paras. 338-352, the Court held that overriding considerations of safety or the conduct of international relations might justify that certain matters may not be communicated to the persons concerned, but do not allow for evidence used against them to justify restrictive measures or for them not to be afforded the right to be informed of such evidence within a reasonable period after those measures were taken.

The right of access to the file is essential in order to enjoy the right to a fair hearing. The right of access to the file is the right to get full information on matters which may affect a person’s position in an administrative procedure, especially where sanctions may be involved.

Case 270/82 Estel v Commission [1984] ECR 1195, paras. 13ff.; Case 64/82 Tradax v Commission [1984] ECR 1359, paras. 21f.; Case C-34/89 Italy v Commission [1990] ECR I-3603, paras. 14f.; Case T-100/92 La Pietra v Commission [1994], ECR (civil service) I-A-83, II-275, paras. 43ff.; Case C-54/95 Germany v Commission [1999] ECR I-35, para. 118.

It includes the right to get the administration’s response to complaints or representations,

Case 179/82 Lucchini Siderurgica v Commission [1983] ECR 3083, para. 27; Cases 96-102 and 104-106 and 110/82 NV IAZ International Belgium v Commission [1983] ECR 3369, paras. 12ff.

And to receive notice of the outcome of procedures and of decisions made:

Case 120/73 Lorenz v Germany [1973] ECR 1471, para. 5; Case 121/73 Markmann v Germany [1973] ECR 1495, para. 5; Case 122/73 Nordsee v Germany [1973] ECR 1511, para. 5; Case 141/73 Lohrey v Germany [1973] ECR 1527, para. 5; see also Ralf Bauer, Das Recht auf eine gute Verwaltung im Europäischen Gemeinschaftsrecht (Frankfurt/Main: Peter Lang, 2002) 64.

This includes information related to the rights of appeal.

Case 41/69 Chemiefarma v Commission [1970] ECR 661, para. 27.

See also Commission ‘Code of Good administrative behaviour’, Point 3, third indent:

‘Where Community law so provides, measures notified to an interested party should clearly state that an appeal is possible and describe how to submit it, (the name and office address of the person or department with whom the appeal must be lodged and the deadline for lodging it).Where appropriate, decisions should refer to the possibility of starting judicial proceedings and/ or of lodging a complaint with the European Ombudsman in accordance with Article 230 or 195 of the Treaty establishing the European Community.’ European Ombudsman ‘Code of Good administrative behaviour’, Article 19 – indication of the possibilities of appeal: ‘A decision of the Institution which may adversely affect the rights or interests of a private person shall contain an indication of the appeal possibilities available for challenging the decision. It shall in particular indicate the nature of the remedies, the bodies before which they can be exercised, as well as the time limits for exercising them. Decisions shall in particular refer to the possibility of judicial proceedings and complaints to the European Ombudsman under the conditions specified in, respectively, Articles [263] and Articles [228 TFEU].’

The duty to give reasons

The duty concerns decisions and arises from Article 296(2) TFEU. It is recognised as a right under Article 41(2)c) of the Charter of Fundamental Rights of the European Union as well as being an essential component of the right to an effective remedy recognised in Article 47 of the Charter of Fundamental Rights of the European Union.

The obligation to give reasons comprises an indication of the legal basis of the act, the general situation which led to its adoption and the general objectives which it intended to achieve:

Case 5/67 Beus GmbH v Hauptzollamt München [1968] ECR 83, 95 (English Special Edition 83); See also Case T-13/99 Pfizer Animal Health v Council [2002] ECR II-3305, para. 510; Case T-70/99 Alpharma v Council [2002] ECR II-3495, para. 394; Case C-304/01 Spain v Commission [2004] ECR I-7655, para. 51; Case C-184/02 Spain and Finland v European Parliament and Council [2004] ECR I-7789, para. 79; Case C-342/03 Spain v Council [2005] ECR 1975, para. 55.

The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the authority which adopted the measure in such a way as enable the persons concerned to decide if they want to defend their rights by an application for judicial review.

Case C-269/90 TU München v Hauptzollamt München Mitte [1991] ECR I-5469, paras. 14, 26.

The principles of transparency and of participatory democracy

Article 10(3) TEU: ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’ Articles 11(1) and (3) TEU require Union institutions to hear views and opinions on EU measures and especially enter into consultation procedures.

These rights and obligations are applicable also to situations where the proceedings lead to the adoption of an act of general application including decisions with general applicability. In order to ensure that such hearing can effectively take place, active information of the public and structured means of feedback and response should be created.

The right of access to documents

See Regulation No 1049/2001.

Under Article 15 (3) TFEU:

Article 15(3) TFEU: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph…. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph….’; Charter, Article 42: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

And under Article 42 of the Charter

Article 42 Charter: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

This is a fundamental right of EU law and also a basic condition of an open, efficient and independent European administration. Any limitation of this principle must be narrowly construed to comply with the criteria of Article 52(1) of the Charter of Fundamental Rights of the European Union and must therefore be based on law, must respect the essence of the right and follow the criteria of proportionality.

The right to protection of personal data

This is embedded in Article 16(1) TEU and in Article 8 of the Charter.

Regulation (EC) no 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.

Special attention needs to be dedicated to data protection aspects of complex and intertwined administrative procedures involving as well EU institutions, bodies, offices and agencies as member States’ authorities, which are related to interadministrative information exchange and databases.

Given that many administrative procedures are inextricably linked to IT systems (e.g. EU PILOT for infringements, CHAP for COM communication with complainants, ARES for COM document management, GEDA and EPADES for EP document management, etc.),

The principle of transparent information management

This includes duties to record data processing activities. See European Ombudsman ‘European Code of Good administrative behaviour’, Article 24 – Keeping of adequate records: ‘The Institution’s departments shall keep adequate records of their incoming and outgoing mail, of the documents they receive, and of the measures they take.’

This duty supports data protection and also fosters inter-administrative accountability and interaction with regard to collaborative information gathering. According to the principle of data quality, data used by the EU Administration shall be accurate, up-to-date and lawfully recorded. The data supplying authority shall be responsible for ensuring that the data are accurate, up-to-date and lawfully recorded.

___________________________

** This summary is made with due acknowledgement to the work of:

Diana-Urania Galetta, Professor of Administrative Law and European Administrative Law, University of Milan

Herwig C. H. Hofmann, Professor of European and Transnational Public Law,

Jean Monnet Chair, University of Luxembourg

Oriol Mir Puigpelat, Professor of Administrative Law, University of Barcelona
Jacques Ziller, Professor of EU law, University of Pavia

on an in-depth analysis for Directorate General for Internal Policies on the principles of EU Administrative Law.

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Fingerprint Identification Not Infallible, Nor Scientific & Based On Fraud

March 8, 2013

Published March 2013 for The Law Society Advocacy Section Newsletter under the headline “Pointing the finger“

Clifford G. Miller, a solicitor and a former university lecturer, considers recent developments questioning the infallibility of fingerprint forensic evidence

For nearly 100 years, internationally and in the UK, 16 ridge characteristics of partial latent fingerprints found at crime scenes have been used as the standard by fingerprint examiners to compare against inked prints taken from suspects (see R v Castleton (Thomas Herbert) (1910) 3 Cr App R 74). These identifications have, in all but rare cases, been treated unquestioningly as an exact means of linking a suspect to a crime scene print.

The standard of taking 16 ridge characteristics was based on a 1912 paper published in France by M. Alphonse Bertillon (Les empreintes digitales, Archives d’anthropologie criminelle, pages 36-52).

In a 1999 Court of Appeal judgment, the then vice president of the court, Lord Justice Rose, found that:

… in recent times, the originals of the prints used by Bertillon have been examined and revealed conclusively to be forgeries. It is therefore apparent that the 16 point standard was adopted on a false basis” (Buckley, R v [1999] EWCA Crim 1191 (30 April 1999)).

In the last decade, there have been dramatic developments calling into question the reliability of fingerprint identification of crime suspects. The scientific foundation of the fingerprint field has now come to be questioned. Latent fingerprint identifications may not be as reliable as previously assumed (see SA Cole. 2002. Suspect Identities: A History of Fingerprinting and Criminal Identification. Boston: Harvard University Press; Epstein).

Uniqueness of prints is impossible to establish scientifically. It is not possible to state with certainty that no two people have exactly the same fingerprints, nor that an individual’s fingerprints are unchanging over time. Fingerprints of genetically identical twins are closely similar but not identical. This suggests a reasonable inference is that two individuals’ fingerprints are highly unlikely to be indistinguishable. But can one determine with adequate reliability that an imperfect impression at a crime scene was made by the same finger that made an impression in a file from years before, possibly with imperfections which differ?

In October 2007, Baltimore County Circuit Judge Susan M Souder refused to allow testimony of a fingerprint analyst that a latent fingerprint was made by the defendant. It was a capital case. Judge Souder held that traditional fingerprint analysis to be “subjective, untested, unverifiable identification procedure that purports to be infallible” (State of Maryland v Bryan Rose. In the Circuit Court for Baltimore County. Case No. K06-545).

Developments in this most basic of all forensic evidence fields have often been overlooked, including in England and Wales, even though some of the most important have happened very close to home – in the 1998 trial in Scotland of David Asbury for the 1997 murder of Marion Ross. The repercussions led to The Scottish Fingerprint Inquiry, chaired by Sir Anthony Campbell. The extensive report was published on 14 December 2011 after six months of hearing evidence and considerably longer in consideration. The origin of a fingerprint – “Y7″– from the murder scene was alleged by Asbury’s defence to be that of police officer Sharon McKie. In evidence, McKie denied the print was hers and ever being at the scene. After Asbury’s conviction, McKie was prosecuted and convicted of perjury. In 2002, in consequence, Asbury’s conviction was overturned in an unopposed appeal. McKie, her family and her supporters, however, fought hard to establish her innocence. She was eventually unanimously acquitted and, in 2005, won £750,000 damages from the Scottish government.

The main conclusion of The Scottish Fingerprint Inquiry, which almost all courts internationally had not in over 100 years come to appreciate, is:

Fingerprint evidence should be recognised as opinion evidence, not fact, and those involved in the criminal justice system need to assess it as such on its merits … Examiners should discontinue reporting conclusions on identification or exclusion with a claim to 100% certainty or on any other basis suggesting that fingerprint evidence is infallible” (Scottish Fingerprint Inquiry final report, page 740).

Perhaps greater heed should have been taken of the 1999 detailed advice of the English Court of Appeal in Buckley on standards and procedures to be adopted with forensic fingerprint evidence. Lord Justice Rose in judgment also noted the concession of an expert’s testimony in cross-examination, that he “was expressing a professional opinion and not a scientific conclusion”.

Clifford G. Miller BSc ARCS is a solicitor, a former university lecturer in law, at Imperial College, London University, and a published academic on complex technical and medical evidence.

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Are unproven unscientific theories accepted in court?

December 13, 2012

As published December 2012 – The Law Society Advocacy Section Newsletter

Are unproven unscientific theories accepted in court?

Clifford Miller, a solicitor and a former university lecturer, considers some family cases where testimony from since-discredited scientific experts has led to injustices, and looks at how the legal system should manage expert scientific evidence.

In our courts, the innocent are sometimes convicted and children removed from parents on the basis of what are presented as scientific theories. Parents may be accused of Munchausen’s Syndrome by Proxy (MSbP), now renamed Fabricated or Induced Illness (FII) (alleged abuse by inventing illnesses in their children), or murder (due to Shaken Baby Syndrome (SBS) or when more than one child dies from Sudden Infant Death Syndrome (SIDS)). What the average family practitioner may not know is the details of the science behind these allegations.

SIDS

In some cases of SIDS, a parent, often the last person alone with their still living child, is accused of murder. The now discredited expert witness, Professor Sir Roy Meadow, a past President of the Royal College of Paediatrics and Child Health, devised ‘Meadow’s Law’: that in a family ‘one sudden infant death is a tragedy, two is suspicious and three is murder, until proved otherwise’ (The ABC of Child Abuse, Gower Press, 1986).

For SIDS, Meadow’s ‘expert’ testimony was that the chance of two SIDS deaths in one family was one in 73 million. The correct position is that a family with one SIDS death is far more likely to suffer another. This was revealed through one of many sad cases: that of solicitor and mother, the late Sally Clark, accused by Meadow of infanticide, and convicted to life imprisonment. Clark was acquitted on appeal in R v Clark [2003] EWCA Crim 1020, after she had served three years of her sentence.

SBS

In the majority of SBS cases, there is no visible sign of external trauma. Experts infer child abuse by intentional shaking based on evidence of a ‘triad of injuries’ in the brain: subdural hematoma, retinal haemorrhage, and cerebral oedema (Shaken baby syndrome, BMJ 2004;328:720–1).

But in alleged SBS cases, the ‘triad of injuries’ alone now cannot justify a finding of abuse, as demonstrated in R v Harris & Ors [2005] EWCA Crim 1980. Additionally, two British pathologists have found that the ‘triad of injuries’ in SBS can occur in children who have died naturally and not through any abuse. Even where there is evidence of other injuries, it may still be inappropriate to allege abuse. Jayden Wray’s parents were acquitted of murder after evidence showed his fractures could have been caused by his severe rickets due to Vitamin D deficiency.

MSbP

MSbP / FII is a theory and not science. It was originated by Meadow, and if such a syndrome ever existed, even Meadow claimed cases were rare. Post-Meadow, in the case of A County Council v A Mother & Ors [2005] EWHC 31 (Fam), Mr Justice Ryder stated:

‘For my part, I would consign the label MSbP to the history books … I would caution against its use other than as a factual description of a series of incidents or behaviours that should then be accurately set out (and even then only in the hands of the paediatrician or psychiatrist / psychologist). … What I seek to caution against is the use of the label as a substitute for factual analysis and risk assessment.’

The need for change

How or why did the legal process fail? Later it succeeded, but only in some cases. Are the legal systems not dealing with such cases appropriately? Or, once such theories take hold, are lawyers dependent upon experts who, like supertankers, change course only with utmost difficulty once these theories become part of their formal published literature? An NSPCC briefing paper (PDF) published as late as 2011 suggests that MSbP / FII is common, rather than rare, and some of the research cited is by publicly discredited experts. Are expert opinions always dispassionate and objective, or are they sometimes ‘unbalanced, obsessive and lacking in judgment’ (as quoted by the judge in R v Harris & Ors)? The theory-dependence of observation shows that experts may tend to fit evidence to preconception.

Evidentially, we need to know what is true. Lawyers and judges must always question all theories underlying expert testimony, no matter how eminent the expert, or how well accepted such theories might seem. If the expert consensus favours such theories, will the Law Commission’s proposed ‘gatekeeper’ function (for English judges to allow only expert testimony which satisfies a reliability test) ever prevent expert injustice? And do we exclude new theories which may be correct but which are not widely accepted?

Clifford Miller BSc ARCS is a solicitor, a former university lecturer in law, Imperial College, London University, and a published academic on complex technical and medical evidence.

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Getting to grips with evidence

November 15, 2012

[Originally Published 18 June 2012 – For The Law Society Advocacy Section]

Clifford Miller, a solicitor and a former university lecturer, considers modern evidential practice and some new proposals for evidence put forward by the Law Commission.

If you find evidence, its legal rules and how to apply them confusing, you are in good company. The logic can appear tortuous, but mastering it can sometimes make the difference between success and failure on decision-turning facts.

The problems with evidence are compounded by the growth in and need for complex technical, scientific and medical evidence in the modern technological world. As lawyers, we need to be equipped to deal with expert opinion evidence. An expert opinion can now be decisive on the ultimate issue.

The need for change

The philosophical and theoretical bases underpinning modern evidential practice and procedure in the English courts have long been in need of attention. About 20 years ago in his compilation of exploratory essays, Rethinking Evidence (Cambridge University Press), William Twining made a compelling case for a renewed and new approach to the study of evidence, proof and fact-finding in law, recording how evidence scholarship has been, at best, fragmented and spasmodic. Twining noted how Bentham’s Rationale of Judicial Evidence and Wigmore’s Principles of Judicial Proof rank among the major achievements of our scholarly heritage, yet have been largely ignored.

New proposals

Since Twining published Rethinking Evidence, other writers, including Susan Haack and Dr Déirdre Dwyer have been addressing the same issues. Additionally, the Law Commission proposed last year a new reliability-based admissibility test to be applied to most expert opinion evidence tendered for admission in criminal proceedings. The Commission also proposed a rule that expert opinion evidence is admissible only if the court is satisfied that it is sufficiently reliable to be admitted. See the Law Commission Report No 325 on Expert Evidence in Criminal Proceedings in England and Wales (agreed text 21 February 2011).

These proposals follow from the experience in the US of the ‘Daubert rules’. US judges are now ‘gate-keepers’: they are expected to allow the admission of reliable scientific and technical evidence, and to exclude the unreliable before it goes before a jury. The Daubert rules have had a mixed reception in the US, and raise questions that have not been properly dealt with.

Looking ahead

However, proposals of these kinds are considered by many to be a ‘sticking-plaster’ approach to the underlying issue: the need for better developed skills and knowledge necessary to deal effectively with complex scientific and technical evidence in court. And achieving that aim clearly remains some way off.

Clifford Miller BSc ARCS is a solicitor, a former university lecturer in law, at a College of London University, and a published academic on complex technical and medical evidence.

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Today’s Family Court Reforms Will Never Address Systemic Family Court Problems

July 31, 2012

The reforms of the Family Court unveiled today by Mr Justice Ryder are likely to be a case of re-arranging the deckchairs:-

Inquisitorial judges at heart of family reform proposals Tuesday 31 July 2012 by Catherine Baksi

The longstanding problems with the Family Court will never change until control over the Court and its cases is taken out of the hands of Judges appointed from the English Bar and out of the control or influence of their colleagues at the English Bar.

The Family Court has a reputation amongst the public, practitioners, politicians, expert witnesses and journalists for administering injustice. Ryder reform plans will likely not bring about change to that reputation.

We need a new system to break up the incestuous organic and social relationships behind the English Bar’s system of Barristers’ Chambers and appointments to the Judiciary – mainly from its own members.

There is an unhealthy relationship between the Judges, predominantly from the English Bar and their friends and former colleagues at the Bar who appear before them. They in practice control most of what takes place. The problems with the Family Court are systemic and organic. So it is unlikely any judge appointed to deal with the problems will ever go to the heart of the matter.

The Family Court is and will continue to be a Court whose Judges fail to observe basic principles of procedural fairness and justice. The long abandonment of pleadings means issues are introduced on spec in Court instead of being defined in advance. Litigants can be and are taken by surprise and faced with a litany of invention and accusation introduced “on spec” during the course of a case which they have to try to answer and when least fitted psychologically to do so.

This is at the culmination of a long process during which they have been softened up by unpalatable conduct of some lawyers and when they have been are subjected to considerable stress, not knowing what invention and accusation they may face at the next hearing before the trial.

The position is compounded by the Judges of the Family Court who appear to do nothing whatsoever about improper litigation conduct by the lawyers who appear before them as Officers of the Court and who may be their former colleagues, current friends and social peers.

It is a Court system which rewards the wrongdoer and punishes the victim. Those of the lawyers who fail to observe accepted standards of conduct in Family Court cases and routinely act in contravention of their obligations to the Court and under the rules of Court go undealt with, save to the extent they are rewarded with the outcome they seek by such conduct.

The worst aspects of course are when it comes to children and the false evidence presented by social workers from some local authorities and the consequent cases which some members of the English Bar present. There has long been complaint about these abuses and nothing has been done. Ryder will never address that. The litigants cannot do it – it is the lawyers who do it for them and the Judges who make it all happen. And the Judges just let it go on day in and day out.

The Family Court thus operates and maintains a Cheats Charter. Under the auspices of the Court wrongdoers who play the system and break the rules are rewarded and victims of that wrongdoing punished. The Judges do nothing about sometimes rampant impropriety taking place daily within the walls of their Courts and even under their noses. And nor do other members of the English Bar despite it being their duty to report it.

Regrettably of course it is a self-perpetuating system in that those members of the Bar who do operate unscrupulously and unlawfully may eventually be recruited to the ranks of the judiciary. Not all members of the English Bar behave improperly and likely many or most do not, but one too many do and they are allowed to get away scot free by their colleagues and Judges alike. The public as always pay the price and the lawyers collect.

We could clean up litigation in this country in six months if improper conduct were to be dealt with at source at the time in the Court. With the current social and other relationships between Judges and the English Bar that will of course never happen.

We can see from the report in the Gazette yesterday that the claimed high ethical standards of the English Bar are a myth, which go unpoliced by any effective system of regulation:-

“Review slams ‘systemic failures’ in bar’s disciplinary system” Monday 30 July 2012 by Catherine Baksi

Solicitor Judges and Solicitor Advocates are a step forward in breaking up this cosy insidious cartel in British justice controlled by Judges appointed predominantly from the English Bar and by the Bar. But that is hardly even a pin-prick on the carbunkel.

The Bar Council better start looking at its own ranks before it has any standing to attack the only relatively recent phenomenon of Solicitor Advocates.

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Ha Ha. Londoners Come Last In Olympics – “Ha Ha Road Closed” – Official Olympic Road Closure Signs

July 16, 2012

The pictures here are of road closures signs officially placed in London for the 2012 Olympics saying “Ha Ha Road Closed”. Olympic Road Closures took effect from today. These signs were last week at a junction near the The Royal Artillery Barracks in Woolwich South-East London which is hosting Shooting, Paralympic Shooting, and Paralympic Archery at the London 2012 Summer Olympics.

Road closures will cause significant traffic disruption for Londoners. Last week similar pictures were touted to The Sun and Daily Mirror newspapers but were not published. By today the signs have gone – no doubt someone realised the potential public relations impact.

Click on the pictures to seen an enlarged version in a new window.

More information on road closures can be found on Get Ahead of The Games website.

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Who Says The Old Bill Are Flatfoots? Met Police Execute “CSI” Result In Less Than 12 Hours

March 28, 2012

Not even the fictional CSI Captain James (Jim) Brass (Paul Guilfoyle) of the Homicide Division who works with the CSI team and Dr. Gilbert “Gil” Grissom, (Ph.D.) the fictional star character of the original CBS crime drama CSI: Crime Scene Investigation, have done anything like this in less than 24 hours in one of the shows in the successful and popular US TV series, screened also on UK TV screens.

Late last night in a London residential area, acting on detailed information received of a suspected burglary involving the suspected theft of electronic equipment from a London residence, New Scotland Yard’s emergency call centre responded rapidly to calls with the despatch of Metropolitan Police officers in three patrol cars with uniformed officers to seek out the fleeing suspects.

With the assistance of information from the public, and despite rapid flight in the dark of the night and cunning and evasive tactics by the suspects to avoid detection and CCTV, the officers executed one or more arrests of suspect(s) within hours and were processing the paperwork for the case within much less than 12 hours!!

Well done Old Bill. Smart work.

And US CSI scriptwriters, you really must beef up your scripts. Mr Plod over here and Inspector Knacker of the Yard are ancient history. Even your fictional TV crimefighters are not as quick off the mark as the real thing over here. Maybe you should start watching the UK TV series “The Bill” to pick up a few tips from Sun Hill police station, in the fictional “Canley Borough Operational Command Unit” in East London. Ha!!

This blog is making no suggestion that any apprehended suspect is a perpetrator of the suspected burglary. Innocence is presumed until the contrary is proven to the standard of beyond a reasonable doubt.

No further details can be or will be provided. Sorry folks. You’ll just have to read about it in the papers [maybe] one day, if at all. That is up to “Old Bill’s” press office or a lucky local journalist being in the right Court on the right day, if charges are brought and pursued by the Crown Prosecution Service.

POSTSCRIPT 2/Apr/2012: The case was in the local magistrates Court on the Thursday morning. Tuesday night to in Court on Thursday morning must be something of a record for a burglary?

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“Embedding” Images From Third Party Sites In Websites Is Copyright Infringement

January 27, 2012

THIS POST WAS MADE IN 2012 AND HAS NOT BEEN UPDATED SINCE THEN – HOWEVER THE LAW IS NOT THE SAME IN EVERY COUNTRY AND IT DOES CHANGE SO DO NOT ASSUME THIS STATES WHAT THE LAW IS WHEN YOU READ IT.

If you thought it was OK to display an image on your blog or website which you have never copied but include by including a weblink to the image on someone else’s website [embedding] then think again. You could be made liable for damages for copyright infringement.

At least that is the case in Germany today according to the Dusseldorf Court of Appeal [8 October 2011, I-20 U 42/11]. Embedding content now appears to be copyright infringement by making the content available to the public on your website even though you have never taken and kept a copy of the image yourself and even though the image is never “physically” part of your website. The Dusseldorf appeal court overruled the lower Court of First Instance.

The Defendant in the case had included links on his blog to two photographs which appeared on the Claimant’s website. No prior permission had been sought or obtained.

This is a completely different case from that of simply including a link on your blog or website to content which only appears on the site to which you link. Mere linking is not, in Germany, copyright infringement but obviously the person viewing cannot view the linked content on your site or blog but must follow the link to the original site to do so.

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UK Banks Responsible For Direct Debit Scams – Don’t Use Direct Debit Or You Could Lose Your Money

January 26, 2012

If you want to avoid problems with your money and bank accounts, the message has to be “don’t use Direct Debits and don’t let anyone, not even a company you think is reputable, have your bank account details and don’t trust your bank to be honest“. It is clear that as automated payments go, Standing Order is by far the safer bet where you have full control over what is paid out of your bank account.

And does this also sound far-fetched:

National Westminster Bank plc, in particular, part of the Royal Bank of Scotland Group of banks encourages Direct Debit scams and enables fraudsters to take money out of your bank account with non-existent Direct Debits. And when the problem occurs they do nothing to prevent a recurrence. NatWest appears to have no anti-fraud measures regarding Direct Debits and appear to care even less about this problem.

In fact it is not far-fetched and has been going on for a number of years. The problem of Direct Debit fraud is extensive according to research by Liverpool Victoria Insurance which reveals that over 97,000 Britons have fallen victim to criminals setting up fraudulent direct debits from their accounts. An average of £540 goes missing before the customer notices. Direct debit payment fraud in 2010 accounted for around 10.6% of all identity fraud cases. The extent of Direct Debit scamming is set to grow to 41,000 cases a year by 2013, equating to a 57% rise.

But that is only part of the problem. And it is not just “criminals” but what many decades ago might have been considered “reputable” organisations.

It appears that if you have issued a genuine Direct Debit instruction which is later cancelled – so that there is no longer any Direct Debit – money can be and is being taken from bank accounts just like yours under the non-existent Direct Debit.

The research shows that in 2009 £385 million was taken from customers’ bank accounts with obsolete Direct Debits. For those customers who find out, it takes them on average four months to notice and its cost around £190 each time.

No figures or estimates were provided for what this costs customers who do not notice. However, it is clear there is substantial number of people losing considerable amounts of money annually because the obsolete Direct Debit is neither noticed nor recovered.

So how can you not notice? Only one in five customers (21%) confirmed they check their balance once a month. The average customer who does notice takes 4 months to do so. For cases where the loss is noticed but accounts are not checked monthly they lose 10% more [£611 compared to £540 for those who check their bank statements at least once a month].

Another reason this is not noticed by consumers is that some Direct Debits are annual and for small amounts which do not get picked up and corrected.

And is that the end of the problem. No chance. When you contact the bank they will tell you you must contact the company who took the money out of your account to agree cancellation of the Direct Debit before you can get a refund. That is wholly untrue. The express terms of the Direct Debit scheme are that you only need to contact your bank to cancel the Direct Debit. Once it is cancelled it legally no longer exists – there ceases to be a valid Direct Debit. You only need to contact your bank and no one else. The binding legal contractual provision binding on all parties provides:-

…… If an error is made in the payment of your Direct Debit, by …… your bank or building society you are entitled to a full and immediate refund of the amount paid from your bank or building society. ……..

You can cancel a Direct Debit at any time by simply contacting your bank or building society. Written confirmation may be required. Please also notify us.”

And is that the end of the problem? No chance. That previously annual now non-existent cancelled Direct Debit for £85.00 can still be used to take money out of your bank account for years to come or even sporadically some years and not others. It is a crooked company’s dream. If they do this and it is not noticed they gain. If it is noticed you get your money back after your time is wasted but the same company can do the same thing next year and the next and the next.

And is that the end of the problem? No chance. In the case of NatWest they do not even check to ensure there is any Direct Debit at all before taking the money out of your account. The UK’s National Westminster Bank plc, part of the Royal Bank of Scotland Group of banks may not be the only bank which is encouraging Direct Debit fraud but it is one where it is now clear there are no controls against anyone setting up Direct Debits on your NatWest account nor against repeatedly doing so.

Here is what happened to a NatWest business customer in Wales:-

Snowdonia Tourist Services hit by fraudsters by Dan Beavan, Daily Post Apr 27 2009

A TOURISM agency lost hundreds of pounds after fraudsters set up fake direct debits to take cash from its accounts. ….. Hefin and Marian Williams and their daughter Gwen Thomas, 48, were shocked someone had managed to set up the fake direct debits …. they say they’ve been let down by the authorities and have been left with no protection against the same thing happening again …..

Angry Gwen said: “It would appear anyone can do this without us authorising it. If I want to speak to my bank I have to answer eight questions, yet they let just anyone set up direct debits on our account. If you notice an odd direct debit and ask the bank to explain, you’re given the phone number of the company to start sorting it out yourself. Once you’ve convinced that company that you’ve not set up the direct debit, you have to phone the bank back to arrange an indemnity refund. After noticing a number of fraudulent debits on their account this month and last, Gwen said NatWest told her she “shouldn’t worry” because they were protected by indemnity. Gwen said: “But that’s if you notice someone has taken money in the first place.” She’s asked the bank not to allow any direct debits on their account – but the bank said it couldn’t.

A NatWest spokesman said: “ …. It’s not our practice to advise customers when a new direct debit is set up ….”

The writer of this blog item has banked with NatWest for some years and has direct experience of this problem. Every year for over 8 years NatWest has been allowing an organisation to take money out of a business account with a non-existent Direct Debit. It may only be a small amount of money but it is only picked up because of accounting procedures and it takes time every year to sort out – and time is money.

The overall problem of course is the steady and continuing erosion of ethical behaviour in leading financial and governmental institutions. If the Board Directors of RBS or NatWest or their children or other relatives become the victims of crime or do not like rioting and looting like that seen recently on London’s streets, they are in no position to complain. They are setting the moral and ethical standards and the ethos which others copy in one way or another.

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Tags: Clifford Miller, cliffordmiller, Direct Debit, Direct Debit Fraud, Direct Debit Scam, National Westminster Bank plc, NatWest, RBS Group, Royal Bank of Scotland

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Evidence-Based Medicine or Ignorance-Based Evidence

September 28, 2011

New peer reviewed papers published today Wednesday September 28^th 2011 in the International Journal of Person Centered Medicine reveal Evidence-Based Medicine [EBM], the reigning medical paradigm for the practice of modern medicine for the past 30 years, as an inevitable failure from its inception and that the “Gold Standard” of evidence in modern medicine, randomised controlled trials [RCTs] as currently practised should be abandoned. The irony of EBM’s failure is that its proponents over the past 30 years simultaneously claimed the scientific high ground whilst having failed to adopt a scientific approach to EBM’s foundations. EBM is fatally philosophically wounded.

Penston, J (2011). “The Irrelevance of Statistics-Based Research to Individual Patients”, The International Journal of Person Centered Medicine 1, 2, 240-249.

Miller, CG; Miller, DW “The Real World Failure of Evidence-Based Medicine” IJPCM 2011 1,2 295-300

The second of the above cited papers is by Clifford Miller and Professor Donald Miller. It asks whether EBM “may have to be consigned to the wastebasket of medical mistakes, alongside bleeding people in the 17th and 18th centuries and treating syphilis with mercury in the 19th and early 20th centuries”.

This puts in question the reliability of the formal medical journal published evidence base underpinning modern medical research and practice. The impact is on medicine and its practice is at every level internationally. Evidence-Based Medicine was doomed from its inception, lacking logical, scientific and theoretical foundations. Large scale RCTs are used universally to prove the safety and efficacy of new drugs but commonly used to claim “small” treatment effects. This means in that in the majority of recipients, the drugs are shown to have no effect. In only small numbers are effects claimed and those claims are shown now to be based on flawed premises where even the claimed effect may not exist.

Abstracts:-

The irrelevance of statistics-based research to individual patients

James Penston

Abstract

Randomised controlled trials and epidemiological studies provide the grounds for much of clinical medicine and consequently affect the lives of millions of patients around the world. But this statistics-based research offers little to individual patients.

The ability to generalise the results of these studies to the wider population of patients is unsuccessful. External validity is brought into question by the selection involved in the recruitment process and in the participation in clinical trials. Thus, we cannot know with any confidence to whom the results apply and this has obvious implications for individual patients. Yet, there is a further problem: conventional statistical analysis involves the frequentist approach which entails that probabilities only apply to classes. Hence, the results of this type of research are not strictly applicable to individuals.

But even if we set aside the difficulties associated with external validity, there is a more important problem which relates to the size of the treatment effect. Large-scale studies entail that any treatment effect detected will be very small. While this is often hidden by the use of relative risk reductions, once the absolute treatment difference is presented, the paltry size of the benefit becomes clear. This has little importance or relevance to the lives of individual patients and, as is argued, has doubtful meaning.

Current medical practice encourages patients’ participation in decisions regarding their care and this includes providing them with sufficient information to enable them to make informed choices about their treatment. However, were they to be told about the problems with external validity and the true size of the benefit – not to mention the many other problems with statistics-based research – it is likely that far fewer would accept treatment than is currently the case.

Further reference may be had to the recent book by British NHS medical doctor Dr James Penston “Stats.con – How we’ve been fooled by statistics-based research in medicine.” The London Press. London, November 2010.

The Real World Failure of Evidence-Based Medicine

Clifford G Miller, Donald W. Miller

As a way to make medical decisions, Evidence-Based Medicine (EBM) has failed. EBM’s failure arises from not being founded on real-world decision-making. EBM aspires to a scientific standard for the best way to treat a disease and determine its cause, but it fails to recognise that the scientific method is inapplicable to medical and other real-world decision-making. EBM also wrongly assumes that evidence can be marshaled and applied according to an hierarchy that is determined in an argument by authority to the method by which it has been obtained. If EBM had valid theoretical, practical or empirical foundations, there would be no hierarchy of evidence. In all real-world decision-making, evidence stands or falls on its inherent reliability. This has to be and can only be assessed on a case-by-case basis applying understanding and wisdom against the background of all available facts—the “factual matrix.” EBM’s failure is structural and was inevitable from its inception. EBM confuses the inherent reliability and probative value of evidence with the means by which it is obtained.

EBM is therefore an ad hoc construct and is not a valid basis for medical decision-making. This is further demonstrated by its exclusion of relevant scientific and probative real-world decision-making evidence and processes. It draws upon a narrow evidence base that is itself inherently unreliable. It fails to take adequate account of the nature of causation, the full range of evidence relevant to its determination, and differing approaches to determining cause and effect in real-world decision-making. EBM also makes a muddled attempt to emulate the scientific method and it does not acknowledge the role of experience, understanding and wisdom in making medical decisions.

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Tags: Clifford Miller, cliffordmiller, EBM, Evidence-Based Medicine, medical evidence, randomized controlled trials, RCT

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Make Your Own Star Wars Figures – Bad Copyright News For George Lucas and Lucasfilm

August 1, 2011

A recent English Supreme Court decision on copyright in Star Wars merchandise spells bad news for George Lucas and his Lucasfilm companies: Lucasfilm Ltd & Ors v Ainsworth & Anor [2011] UKSC 39 (27 July 2011)

British based Andrew Ainsworth was making and selling copies of the distinctive body armour costumes of the Imperial Stormtroopers used in the highly successful Star Wars films. Between 1974 and 1976 Ainsworth was one of the original creators, responsible for the injection mouldings for the costumes when Mr Lucas had come to live in England while the first Star Wars film was made [at Elstree Studios, Elstree on the outskirts of London (there was also filming on location in Tunisia)].

Lucasfilm however own the intellectual property rights in the designs.

Mr Ainsworth later sold to some customers in the United States costumes that he made in England. In 2005 Lucasfilm sued Mr Ainsworth in the United States District Court, Central District of California, and in 2006 it obtained a default judgment for $20m, $10m of which represented triple damages under the Lanham Act. A “default judgement” is one where the defendant takes no part in the proceedings. The whole judgment remains unsatisfied. Ainsworth is unlikely to be visiting the USA in the near future no doubt. It is also difficult if not impossible to enforce a US judgement in an English Court and vice versa. So Lucasfilm also commenced proceedings in the Chancery Division of the English High Court.

The case was appealed to the English Supreme Court. The only way Lucasfilm could squeeze a copyright infringement claim into an English Court was to claim the costumes were copies of an artistic work and the only artistic work in English copyright law they could try to rely on was a “sculpture”.

The Supreme Court rejected the contention that the original designs for the costumes were sculptures.

George Lucas’ concept of the Imperial Stormtroopers as threatening characters in “fascist white-armoured suits” was given visual expression in drawings and paintings by an artist, Mr Ralph McQuarrie, and three-dimensional form by Mr Nick Pemberton (a freelance scenic artist and prop-maker) and Mr Andrew Ainsworth (who is skilled in vacuum-moulding in plastic). Mr Pemberton made a clay model of the helmet, which was adapted several times until Mr Lucas was happy with it. Mr Ainsworth produced several prototype vacuum-moulded helmets. Once Mr Lucas had approved the final version Mr Ainsworth made 50 helmets for use in the film. These events all took place in England between 1974 and 1976.

The Supreme Court upheld Lucasfilm’s contention that they could sue in England for copyright infringement under US copyright law for sales in the USA.

So it looks like Ainsworth can carry on making and selling the Stormtrooper body armour costumes as long as he does not sell into the USA or any country with copyright law which might prevent such sales. As the US judgement was a default judgement, it is not established between these parties in a contested case that making and selling the costumes in the USA is infringement either. [So if a US lawyer would like to comment here they are more than welcome].

That part of the judgement is of little use to Lucasfilm in any event and is a Pyrrhic victory.

Ainsworth sold goods to the value of US $8,000 but not more than US $30,000 which is hardly worth bothering with in comparison to the publicity generated for Lucasfilm’s lack of ability to prevent copying of the Star Wars Stormtrooper white body armour in the UK and some other countries.

So it looks like the floodgates might be opened up to cheap copies for some kinds of merchandise from blockbuster Hollywood films [as long as no patent or design protection laws apply instead of copyright]. Be warned though. This does not mean registered trademarks can be used – like “Star Wars” to describe the copy products. And be careful. Just in case any other Star Wars merchandise did start out life as something which does qualify as a “sculpture”.

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Tags: Clifford Miller, cliffordmiller, Copyright, Copyright Infringement, film merchandise, Imperial Stormtrooper, Star Wars, Star Wars Stormtrooper, theatrical costume, trademark infringement, white body armour

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Monsanto Sued – GMO Patented Crops – By Organic groups & farmers

April 19, 2011

Organic groups, farmers file preemptive lawsuit against Monsanto to protect themselves from inevitable destruction by GMOs

Reposted from an article from NaturalNews.Com Friday, April 01, 2011 by: Ethan A. Huff, staff writer and a news release from The Public Patent Foundation (PUBPAT). The Public Patent Foundation (PUBPAT) is a not-for-profit legal services organization affiliated with the Benjamin N. Cardozo School of Law [More at end].

(NaturalNews) In order to avoid completely losing their businesses and livelihoods to the predatory business model of Monsanto, 60 family farmers, seed businesses and organic agricultural organizations have collectively filed a preemptive lawsuit against the multinational biotechnology giant. Filed by the Public Patent Foundation (PUBPAT) on behalf of the plaintiffs, the suit seeks judicial protection against the inevitable lawsuits Monsanto will file against non-GM and organic farmers when its genetically-modified (GM) seeds and other materials contaminate their fields.

In the past, Monsanto has successfully sued farmers in both the US and Canada for allegedly violating patent protections. But the truth is that Monsanto’s seeds or other genetic materials have inadvertently trespassed on nearby crop fields, for which any rational person can see makes Monsanto the violator. But Monsanto has someone been able to twist this before the courts to claim that the owners of the contaminated fields were guilty of patent infringement — and shockingly, Monsanto has actually won numerous cases on this illegitimate platform (http://www.sourcewatch.org/index.ph…).

With the recent deregulation of GM alfalfa — and many more GM crops soon on the way — organic farmers and the organizations that represent and fight for them can see the coming storm. If given free reign over agriculture, Monsanto and its “Frankenseeds” will eventually take over the whole of agriculture — and this is a fact. So the plaintiffs are doing the only thing they can, which is to take proactive steps now to protect non-GM and organic agriculture from being completely destroyed by Monsanto.

“Some say transgenic seed can coexist with organic seed, but history tells us that’s not possible, and it’s actually in Monsanto’s financial interest to eliminate organic seed so that they can have a total monopoly over our food supply,” said Dan Ravicher, Executive Director of PUBPAT. “Monsanto is the same chemical company that previously brought us Agent Orange, DDT, PCB’s and other toxins, which they said were safe, but we know are not. Now Monsanto says transgenic seed is safe, but evidence clearly shows it is not.”

Over 270,000 members are represented as plaintiffs in the case, and thousands of them are certified organic family farmers. The case, Organic Seed Growers & Trade Association, et al. v. Monsanto, has been assigned to Judge Naomi Buchwald in a Manhattan, NY, federal district court. You can read a full copy of the suit here:
http://www.pubpat.org/assets/files/…

“None of Monsanto’s original promises regarding genetically modified seeds have come true after 15 years of wide adoption by commodity farmers. Rather than increased yields or less chemical usage, farmers are facing more crop diseases, an onslaught of herbicide-resistant superweeds, and increased costs from additional herbicide application,” said David Murphy, founder and Executive Director of Food Democracy Now!

“Even more appalling is the fact that Monsanto’s patented genes can blow onto another farmer’s fields and that farmer not only loses significant revenue in the market but is frequently exposed to legal action against them by Monsanto’s team of belligerent lawyers. Crop biotechnology has been a miserable failure economically and biologically and now threatens to undermine the basic freedoms that farmers and consumers have enjoyed in our constitutional democracy.”

Sources for this story include:

http://www.cornucopia.org/2011/03/f…

ABOUT PUBPAT

The Public Patent Foundation (PUBPAT) is a not-for-profit legal services organization affiliated with the Benjamin N. Cardozo School of Law.
PUBPAT protects freedom in the patent system by representing the public interest against undeserved patents and unsound patent policy. More information about PUBPAT is available from www.pubpat.org.

CONTACT

Daniel B. Ravicher
Executive Director
PUBLIC PATENT FOUNDATION
Benjamin N. Cardozo School of Law
+1-212-545-5337
press@pubpat.org

Articles Related to This Article:

• Monsanto: The world’s poster child for corporate manipulation and deceit

• Monsanto nation: Exposing Monsanto’s minions

• Monsanto: History of Contamination and Cover-up

• Who and What Is the Monsanto Chemical Corporation?

• The Organic Elite Surrender to Monsanto – What Now?

• South African GMO Crop Failure Highlights Dangers of Food Supply Domination

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Tags: Clifford Miller, cliffordmiller, GMO, GMO contamination, GMO crops, patent infringement, patent infringment, Patent law, Rylands v Fletcher

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New Rolls-Royce Electric Car Heralds UK Tax Disaster

March 2, 2011

The news yesterday of BMW owned luxury car maker Rolls-Royce’s unveiling of its new electric car at the Geneva Motor Show heralds an era of fundamental change to UK tax laws. At 0-60mph in 8 seconds, a 100mph top speed and 125-mile range the new vehicle will cost 2p per mile to run [40p for a conventional Rolls-Royce Phantom] but takes 20 hours to charge its 96 lithium-ion battery cells on a household electricity supply: ROLLS Royce has unveiled its first electric car – a Phantom EX102 at the powerful price of £1MILLION The Sun Wednesday, 2 March 2011

Other car makers have also been unveiling new models at the show. The Engineer reports:

BMW, Land Rover and Rolls-Royce all showed off their latest alternative-powertrain concept cars, while Nissan premiered a fully electric sports car that can achieve 0 to 100km/h in less than five seconds.

While none of the cars are scheduled to go on sale yet, their design marks a shift towards the mainstream for electric vehicles.“

Geneva Motor show highlights battery and hybrid electric cars 2 March 2011 | By Stephen Harris

So what does this mean for tax? If the fuel cost drops from £0.40 to £0.02, then the tax and duty revenue loss to the government will be substantial. Using the 2010 consumption figures from the Office for National Statistics for petrol and diesel estimates of 17 and 24 billion litres respectively can be calculated. With VAT and duty running at £0.80 per litre on current pump prices, this translates into a total government revenue of £33bn. If all vehicles were electric instead and saved as much as a Rolls-Royce electric Phantom EX102 does then government revenue would have fallen 95% to £1.65 billion. This would leave government with a shortfall of ~~nearly~~ at least £31.5bn per annum [in fact much more – as electricity supplies are not taxed on the same basis as petrol and diesel].

TAX IMPLICATIONS

Government cannot offset this by putting up electricity prices. That would be a politically impractical move because it would hit the poorest, including those on benefits, hardest whilst paying for the rich to ride around subsidised by the majority. It might require all electric vehicle owners to have a separate charging meter in their homes or garages. They would then be required to make a return of annual mileage compared to electricity usage on their meters to make sure they were paying the correct amount.

Another approach might be to leave the electricity supply side as it is but instead have a meter built into each vehicle so that a road tax could be levied on annual or monthly mileage.

The most likely scheme will be a scheme which taxes road usage on a pay-per-mile basis, perhaps with a device in each vehicle linked to a tracking system via the mobile telephone network. Whatever happens, the motorist will and has to eventually pay as electric cars become more common.

The alternative of course is to stop Government spending money. That will never happen.

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Tags: carbon tax, Clifford Miller, cliffordmiller, electric cars, energy efficiency, fuel consumption, fuel emissions, HM Revenue & Customs, HMRC, road tax, Rolls-Royce, tax

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You, Snow & The Law – England & Wales

December 21, 2010

What’s the law on snow? How does “snow law” affect you? Are you legally under any duties about snow outside your home?

Read on for more ……

Comments are welcomed [comments link below].

Your Home

You have no legal obligation to clear the public footpath or road outside your home. If you voluntarily clear it make sure you do not obstruct the highway with piles of snow or create a hazard for pedestrians or other road users. Check your home insurance has a sensible level of public liability cover in any event.

If you own or occupy property you owe visitors [including some trespassers] duties under the Occupiers Liability Acts 1957 and 1984 to take reasonable care to ensure that they are reasonably safe. If you know the path to your front door is slippery and that the postman, milkman or others are likely to visit you may need to take reasonable steps to clear it and grit it if necessary. Make sure your household insurance policy has not expired and that it covers Occupier’s Liability.

At Work

Indoor temperatures are set by regulations. The temperature inside the workplace should be a minimum of 16 degrees Centigrade in general. There is no minimum outdoor working temperature. If employees are at risk from the cold employers need to consider their obligations to provide safe working conditions including whether there is adequate clothing and shelter to take breaks and refreshment.

An employee’s obligation in general is to come to work. If you cannot get to work you may not be entitled to be paid for the time off. If you own a business and decide to close it during the bad weather you may still be obliged to pay your employees. To avoid potentialy expensive arguments at employment tribunals you should check your contracts and operational policies to ensure you have a clear position on matters of pay, time off and possibly adverse conditions and lost working days.

If your child’s school is closed then under section 57A of the Employment Rights Act 1996 you have a right to “take a reasonable amount of time off during .. working hours in order to take action which is necessary ….. because of the unexpected disruption or termination of arrangements for the care of a dependant“.

On the Street Or Out And About

If you injure yourself such as by slipping on snow or ice or your car is involved in an accident because of icy conditions then you may be able to make a claim. This could be against your local council if it is the public highway or property of the council like a car park or public open space or council premises. Claims could be brought under section 41 Highways Act 1980, under the Occupiers’ Liability Acts 1957 or 1984 or in negligence. Claims might also be brought against occupiers of private land and buildings which you visit like shops, offices, shopping centres, car parks and associated paths and land. If you are the occupier – check your insurance is up to date and covers public and occupiers’ liabilities.

Also consider reading this post:

Can Councils Be Sued For Not Clearing Snow & Ice

Driving

There is a theoretical and probably very small risk that snow on a vehicle roof might constitute a driving hazard if it comes off the vehicle and an accident results – perhaps from obstructing the vision of another road user. A bogus text message was sent in Humberside that the police were prosecuting drivers with excess vehicle roof snow.

In consequence this advice was issued by Humberside Police:-

Keep your vehicle’s lights, windows and mirrors clean and free from ice and snow, keep your battery fully charged, add anti-freeze to the radiator and winter additive to the windscreen washer bottles, make sure wipers and lights are in good working order and check that tyres have plenty of tread depth and are maintained at the correct pressure. Clear the snow from your vehicle’s roof.

Take into account the fact that it can take ten times longer to stop in icy conditions than on a dry road. Drive slowly, allowing extra room to slow down and stop.

In foggy conditions, drive very slowly using dipped headlights. Use fog-lights if visibility is seriously reduced, but remember to switch them off when visibility improves.

Remember in wet weather, stopping distances will be at least double those required for stopping on dry roads.

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Tags: bad weather, blocked roads, Clifford Miller, cliffordmiller, ice, local councils, snow, Transport Minister

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Can Councils Be Sued For Not Clearing Snow & Ice

December 20, 2010

Fed up with snow blocked streets and icy pavements?
Fed up with your kids not getting to school for days and losing money or holiday allowance having to stay at home and look after them?
Has your business lost money as a result of all of this?

If you run a business that is losing money because of snow blocked or dangerous roads, is there something you can do to get the snow and ice cleared, whether or not you can also obtain compensation?

Can you sue your local Council for not clearing your streets? And can you get compensation?

If you live in Scotland, the answer appears to be “yes” and “may be“, respectively.

If you live in England, Wales or Northern Ireland the answer to the first question seems to be “yes” and to the second can be “yes” in some and “no” in other circumstances.

Mayhem on our grit-free roads: Councils keener to ration supplies than keep the highways safe, says AA – UK’s Daily Mail 20th December 2010 By Colin Fernandez

Lawyers warned that failures to grit could result in motorists and businesses seeking compensation from councils through the courts.

London solicitor Clifford Miller said: ‘There is a question of whether failing to clear roads and keeping schools shut for four days is reasonable. Many people think councils are costing their residents a lot of money and the economy billions in order to save themselves the pocket change it would take to clear the roads properly.’

Read on for more ……

Comments and differing and alternative views are welcomed for the comments section below.

In Scotland

There is a specific legal duty to remove snow and ice. Section 34 of the Roads (Scotland) Act 1984 provides that:

“A roads authority shall take such steps as they consider reasonable to prevent snow and ice endangering the safe passage of pedestrians and vehicles over public roads.“

If someone is injured or their property is damaged as a result of say an accident, they may be able to obtain compensation for the direct loss and damage and may also be able to obtain compensation for consequential financial losses.

But if you suffer only a financial loss and no loss or damage directly to yourself or your property, the position appears to be less clear in England. A Scottish lawyer can tell you more if the position is different in Scotland.

In England

The question of whether local Councils were obliged to clear snow and ice from the highways under their obligation to maintain the highways [under section 41 Highways Act 1980] was considered by the English House of Lords in an appeal decided in June 2000: [Goodes v. East Sussex County Council [2000] UKHL 34]. The case being considered was where black ice had formed over the matter of a few hours in the early hours of one morning and which may have melted soon in daylight.

The result was that the obligation to maintain the highways covered repairing the existing fabric of the highway but did not also extend to clearing snow and ice. Goodes v. East Sussex appears to have decided that a failure to maintain the highway constituted a nuisance, for which there was strict liability, but the obligation could only be enforced by bringing proceedings on indictment in the nature of a prosecution for public nuisance and not for damages.

As the House of Lords was then the highest English legal judicial authority that might seem an end to the matter. But is it?

There is now no doubt there is a duty on local Councils to clear snow from the highways. Since 31st October 2003:-

“ … a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.“
[Section 41(1A) of the Highways Act 1980 as amended by section 111 Railways and Transport Safety Act 2003 (c. 20)]

A special defence, under section 58, applies where the Council has taken “such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic” (which includes pedestrians).

Section 50 of the Highways Act 1980 also specifically imposes an obligation to clear an accumulation of snow if it forms an “obstruction”. If it is not fulfilled anyone may apply to a magistrates court for a order requiring the snow to be removed in such period as the Court considers reasonable [being not less than 24 hours].

So the obligation can be enforced.

Can you claim compensation?

A separate claim in negligence was made in Goodes v. East Sussex but was not pursued. It is not clear from the judgement whether this was a consequence of the Courts below finding that they were obliged to decide [by prior Court decisions] that the duty of Councils to maintain the highways included clearing snow and ice.

Is a claim in negligence possible? “Yes” according to George Pullman QC [who also was considering places like carparks]. And alternatively “normally no but maybe sometimes” according to Jonathan Mitchell of Ropewalk Chambers [when considering highways and not other areas like car parks].

An extract of George Pullman QC’s view:

Negligence at common law was not excluded by the House of Lords in Goodes. It was not excluded because the point was not argued at all. It follows that claims in negligence could be successful if there has been negligence in failing to put down salt and this negligence caused the car to skid.

….

Before commencing a claim in negligence there are several important points to note:

some Highway Authorities are under the mistaken belief that they cannot be liable for claims for personal injury arising from a failure to de-ice their roads. They are wrong if the liability is for negligence not a breach of section 41(1) of the Highways Act 1980;

Injury Law – Goodes – have we got it wrong? 01.05.2003

An extract of Jonathan Mitchell’s view:-

it is worth considering whether or not the action can be framed in negligence, on the grounds that the highway authority has acted positively to create the danger, rather than the negative allegation that it failed to act to remove it, a claim which (it is now certain) cannot succeed.”

Accidents on the Highway – Is Negligence Dead?

A very recent case demonstrates that damages can be obtained for injury and loss if the duty is not met: West Sussex County Council v Russell [2010] EWCA Civ 71 (12 February 2010).

Section 41(1A) now provides a specific obligation to ensure roads are safe from snow and ice. There is no specific remedy for failure to do so. Where a statute provides a specific remedy, a claim for breach of a statutory duty might fail because it may be held that the remedy specified in the statute was the sole remedy Parliament intended. For section 41 there is no such remedy suggesting a remedy in breach of statutory duty is available.

Unless a claim in negligence can be brought, an action to enforce in public nuisance will not also attract a claim for financial compensation.

Section 50 Highways Act 1980 provides a statutory duty to clear an accumulation of snow if it forms an “obstruction” and a remedy to that problem. The “remedy” is applying to a magistrates court for an order to clear the snow. A surface accumulation is not an “obstruction” but a hazard to safe navigation particularly if you can drive on it as is the case for many roads. To suggest someone injured in a road traffic accident could complain to a magistrates court to have the accumulated snow removed is not a remedy for the harm caused.

Can You Get Compensation?

If you are injured or suffer loss or damage to property you may be able to maintain a claim. If you have suffered financial loss only it seems you are unlikely to be able to recover compensation.

But you can still in one way or another force the Council to clear the snow.

Posted by cliffordmiller
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Tags: bad weather, blocked roads, Clifford Miller, cliffordmiller, ice, local councils, snow, Transport Minister

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But there was always a high chance of a short, debilitating life.

Why are there so many unanswered questions?

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Organic groups, farmers file preemptive lawsuit against Monsanto to protect themselves from inevitable destruction by GMOs

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