Friday, 9 September 2011

Commission on the West Lothian Question

A junior minister, Mark Harper, made a written statement to the House of Commons yesterday about the Commission on the West Lothian Question. The statement said this:
"The coalition programme for government set out our commitment to establish a commission to consider the ‘West Lothian question’.

I can now give the House more details on how that commission is to proceed.

The Government are clear that the commission’s primary task should be to examine how this House and Parliament as a whole can deal most effectively with business that affects England wholly or primarily, when at the same time similar matters in some or all of Scotland, Wales and Northern Ireland are lawfully and democratically the responsibility of the separate Parliament or Assemblies. The commission will not examine financing, which is being dealt with separately through various processes led by Treasury Ministers, nor does it need to look at the balance of parliamentary representation, given that Parliament addressed historic imbalances in representation between the constituent nations of the United Kingdom in legislation earlier this year.

Given the commission’s focus on parliamentary business and procedure, the Government believe that the commission should be comprised of a small group of independent, non-partisan experts with constitutional, legal and parliamentary expertise. We will also wish to consult with Mr Speaker and other parliamentary authorities on how the commission can best address this. We will also ensure that there is a full opportunity for the parties to have their say following the completion of the commission’s work.

We will bring forward formal proposals, including the terms of reference for the commission, after the conclusion of this short process of consultation and further deliberation. I expect that this will be in the weeks after the House returns in October."

This statement says virtually nothing. It does not set out the membership of the Commission nor its terms of reference, and says very little that the government has not previously said in written answers that it would do, first by last Autumn, then by last Christmas and then by this Autumn. The main purpose is to get Harriett Baldwin to withdraw her Legislation (Territorial Extent) Bill, a private members ballot Bill which has made unexpected progress and is due for its Report stage today.

It appears that this "Commission" is to be barely a commission at all. It will treat its considerations on the West Lothian Question as concerned only with how the House can "deal most effectively with business that affects England wholly or primarily". If only efficiency rather than issues of democratic accountability and fairness are to be considered, there is a simple answer which does not require a commission at all - leave things as they are. But the West Lothian Question, as devolution itself, is about more than efficiency, and its compass ought to be larger than that of a committee on procedure in the House. It shows that Cameron himself is largely uncommitted to this, notwithstanding his statements before the last election and indeed the Tory manifesto itself.

The statement was odd in another way. It rules out one suggested answer to the West Lothian Question, which is further to reduce representation from the devolved nations in the House, as was done in Northern Ireland after the Stormont Parliament was set up in 1924. I am not too fussed about that, since it seems to me to be a fairly half-baked idea to begin with, but it does show how the government is closing down the options and the commission's remit before even its terms of reference have been decided and it has begun its work.

As readers of this blog will know, in fact I think there is a relatively straightforward answer to this, which is to have a double majority requirement at Third Reading in the House of Commons for any separate Part of a Bill with only limited territorial extent, namely a majority in the whole House and in the territory to which the Part of the Bill extends. In the first instance, while this is being tested out, it could operate as a safety net in the same way that the House of Lords does, by comprising only a power to impose a delay of one Session where there is no territorial majority. This would enable a government to get its business done where it really thinks it needs to. I have previously explored this here, here, here and here.

If I was Harriett Baldwin faced with this I would not withdraw, but a new back bencher under pressure can find this difficult. It looks as if Labour, who are politically advantaged by current arrangements, have decided to talk her Bill out anyway. A private member's Bill is a public Bill debated in government time, and unless she can get sufficient members to attend to force a closure motion, Labour will find it quite easy to talk it out of time.

Update1: Harriett Baldwin has decided to press on because of the lack of detail in the statement. So she will now have to try and get it through Report stage without it being talked out on amendments.

Update2: Labour didn't manage to talk it out, but they won a vote against it 40-24, so it will proceed no further.

Thursday, 8 September 2011

New Labour and service provision

The Health and Social Care Bill passed the House of Commons yesterday and is off to the Lords.

Until this Bill passes the Lords we are still living in the New Labour universe so far as concerns health provision. Without intending to do so, my wider family have recently had to call upon its services on three occasions in the last three months in differing parts of the country (none of them involving me I am glad to say). One concerned a (relatively routine) investigation at a hospital in Hemel Hempstead. On two other occasions the services of acute medical centres at Nottingham and Watford were called upon.

From time to time we read horror stories in the newspapers of failing hospitals with incompetent management delivering bad and disrespectful service to patients, particularly to the elderly. My small sample out of the many hundreds of thousands who call upon the NHS each year is statistically not a sample at all, but it is all I have to go on, and the calls on acute medical services that my family have made have been at both ends of the age spectrum - a young man in his twenties and an elderly lady in her early nineties. In both of these cases the service has been unqualifiedly excellent. I was particularly impressed by the respect offered to elderly patients, and the concern that was taken by the medical staff to ensure that the elderly lady concerned was involved at all stages of the process - her wishes were taken as paramount - and at the follow up care that was offered.

This was at the macro (hospital) end of the process. But I have noticed change at the local scale. My own doctors' surgery have implemented a scheme whereby every patient who rings in for a non-emergency appointment will receive a telephone call the same day from the surgery's duty doctor to discuss the matter and how best to deal with it.

I cannot say that the last of those (the GP level) is due to policies of the former Labour government, and anyway so much depends on the commitment of individuals who decide that they want to make a difference. What I can say is that I have been greatly impressed by the service offered to my family by the NHS.

It is sometimes said that the question whether a society can be regarded as truly civilised is to be judged by the way in which it treats its sick and elderly. If that is the test, then on my small sample things are better than we sometimes fear.

Friday, 2 September 2011

Commoditised software

SCO v Novell

On Tuesday the 10th Circuit of the United States (federal) Court of Appeals gave judgment in the long running case of the SCO Group, Inc v Novell, Inc.

Some readers with an IT background may remember Novell, who were the first company to offer a decently priced and relatively usable networking system for small and medium sized businesses, with their NetWare product. Since the heady days of dominating this market sector, times have been harder for them (others have caught up), but they have been staking their future of late on commoditised software, in particular that offered by open source endeavours such as linux. IBM have also been investing heavily in this new sector.

This is not a small market to tap into. Practically all the automated trading systems of the large financial institutions are now running on linux, and in combination with the Apache web server it occupies a sizable chunk of the web server market, where it offers real competition to windows server products. Mega-sized web operations requiring high scalability and reliability now use linux as a first choice: if you use Google, Facebook or Wikipedia, or indeed read this blog, the services have been running on linux.


Linux is an extraordinary venture. It began in 1991 as the hobby of a certain Linus Torvalds who was trying to write an open re-implementation of the POSIX standard. POSIX is the standard, published by the International Standards Organisation, for unix-like operating system interfaces (I come back to unix again below). The defining feature of this venture was that Torvalds decided to release his computer code ("source code" in computer-speak) for this reimplementation using the General Public License (colloquially known as the GPL). The GPL basically provides that anyone can use and modify the code covered by it as much as they like, and freely transfer it to anyone they like, provided that if they make modifications to it they make the source code to the modifications freely available also. It is a copyright license from the author of the source code which in effect makes a bargain saying "you can use my code without charge, provided that you make freely available also any improvements to it which you develop: you don't have to use my code, but if you do, that is the basis on which you can do so".

This turned out to be a winning formula. Other individuals interested in writing a POSIX re-implementation joined in. Because it was freely available, a number of universities started including it in their courses on computer operating systems. More people started contributing, and it snowballed. When it became a fully usable server environment, a number of companies (including IBM) looking for an alternative to Microsoft Windows, which was at the time gathering to itself something of a monopoly, became involved. And so on it went.


Now back to unix. This was originally a proprietary operating system developed by Bell/AT&T (with a different flavour developed later at the University of Berkeley) in the late 1960s and during the 1970s. Over time, the interface and specification for this operating system became an international standard, POSIX, as later supplemented by the Single Unix Standard (SUS). POSIX is published by ISO and the rather larger SUS standard by the X/Open Group. Although the specification for the unix operating system is standardised and open, most of the implementations of it originally were not. There were and are a number of proprietary implementations of the standard, including those of Sun Microsystems, now Oracle (Solaris), Hewlett Packard (HPUX) and others. Some parts of these implementations were licensed from AT&T and other parts were separately developed by the companies concerned and therefore owned by them. A non-proprietary offering, deriving from the University of Berkeley source code which they subsequently made publicly available with any AT&T code removed, has been obtainable for free for a number of years, now known as BSD; but at that time at least it did not have the breadth of implementation (nor the commercial back-up) of the commercial offerings.

The important legal point here is that rights over copyright are intellectual property rights owned by the author, or a person to whom the author has assigned the rights, preventing copying. In relation to standards such as POSIX and SUS there is no legal preclusion of a re-implementation of the standard by freshly written source code, provided that any fresh re-writing is not done by copying from the original. What are called "clean room" re-implementations, under which the author of the re-implementation is forbidden from seeing the original, are perfectly legal from the copyright point of view.

Novell bought AT&T's unix from AT&T in 1993. They sold some of it on to the Santa Cruz Operation in 1995 (what this "some of it" comprised, later formed the subject of the litigation in SCO v Novell). In 2001 Santa Cruz sold to Caldera Inc whatever it was they had acquired from Novell. In 2003 Caldera Inc changed their name to "SCO" (presumably to make it resemble Santa Cruz Operation), and sued IBM alleging, amongst other things, that IBM had breached SCO's copyright in AT&T unix by copying some of AT&T unix into linux. At the same time, SCO brought test cases against some other companies using linux, claiming that linux infringed their AT&T copyrights by virtue of IBM's contributions and in a number of other ways.

Novell were worried about this. Like IBM, they were starting to get heavily involved in providing linux services to customers who would pay for support and for certain "add-ons" which Novell were providing. They stated that the proceedings against IBM, so far as based on copyright, and the other test cases, were bound to fail because Novell still owned the copyrights which were alleged to be infringed. Novell claimed that the 1995 deal did not in fact transfer to Santa Cruz the copyrights to the AT&T code, and instead only granted to them a right commercially to exploit the code and to add their own improvements. If true, this would kill all the copyright-based claims by SCO stone dead. SCO accordingly sued Novell on this.

SCO's allegations against linux were always going to be difficult to succeed on: SCO never publicly identified the code which they said had been copied, nor did they explain why linux was not an independent fresh creation which, as explained above, would not be constrained by copyright law. In addition, when still calling themselves Caldera, they had themselves marketed a linux product under the GPL so making publicly available the source code which in their subsequent litigation they claimed was still proprietary.

But none of this could get to court if they could not prove ownership of the AT&T copyrights alleged to be infringed, through the 1995 sale to Santa Cruz. They failed to do so. After a tortuous series of events and proceedings, which included SCO filing for bankruptcy protection1, in a federal jury trial in March 2010 the jury decided that Novell still owned the copyrights in question. SCO appealed to the federal Court of Appeals, and in their judgment on Tuesday the Court of Appeals decided that the verdict was to stand.

Commoditised software

The last legal road block to widespread commercial adoption of linux is now to all intents and purposes at an end.

What has happened is that high-grade operating system deployment has now become as commoditised as, say, water or indeed air. Companies such as IBM and Novell charge not for the operating system product itself, but for services they provide on top of the product. Their business model is now very different from that of, say, Microsoft, who derive a large part of their income from sales of the Windows operating system itself and their Microsoft Office products.

What we are likely to see in the future is a market dominated by both linux and Windows, but in differing sectors. Linux will be ubiquitous at the large scale end. Windows will likely hold on to a decent share of the small and medium sized business sector and more particularly the desktop computer, where Microsoft Office reigns and where individual users want the convenience of Microsoft's large range of consumer desktop offerings.

A modest proportion of the smaller business sector will likely also be retained by the other free POSIX implementation mentioned above, namely BSD. (It is also to be noted that BSD forms the basis of Apple's OS X operating system as used on Macs and some other of its devices. The distinguishing feature of BSD is that its licence does not require modifications and improvements to be offered back to the public domain, as in the case of linux, which makes it attractive to specialist hardware vendors such as Apple but unattractive to the service-based business models of IBM and Novell.)

The big battle is now on for mobile devices, namely tablets and mobile phones. Windows has become seriously squeezed in this area by linux-based offerings such as Google's Android, and we will have to see how this all pans out.

In addition, although copyright issues concerning linux are now dealt with, the US patent system allows patents to be issued in respect of software, whereas most of the rest of the world, including the UK, does not: in the EU, under the European Patent Convention "computer programs ... as such" are not patentable except insofar as they solve a "technical problem" (as opposed to a business problem) in a non-obvious way. Patent litigation concerning software will keep lawyers, in the US at least, well employed for some years to come, and the full extent of what is and is not covered by the European Patent Convention is also likely to be explored in future litigation. I may well come back to the last of these in respect of the recently initiated Spotify litigation.


1 The way in which the bankruptcy court allowed SCO to use its creditors' money to proceed with its litigation ambitions is one of the more notable features of this case. Whether this is a particular feature of US bankruptcy law (which is a federal matter) rather than the particular predilection of the bankruptcy judge concerned, Judge Gross, is a matter I leave to whose who know more about US bankruptcy practice.