Those Squealing MPs Are Back!

Isn't it reassuring to see the piggies back from yet more holiday, fighting every effort to have their snouts hauled out of the trough?

My personal favourite is the one squealing about 'subjective judgements' in the legal review of her own expense claims, but not the subjective judgements made in how she actually filed them. As a chief architect of the Nanny State she should've known better. Experience how subjectively angry this makes you feel, by staring at the defiant face below for 30 seconds. Then exercise your own subjective judgement at Power 2010.

John Thain's 10 Lessons of the Credit Crunch

I would summarise the recent remarks of former Merrill Lynch CEO, John Thain, at Wharton Business School in the 10 points below (my adds in italics). But two general observations. First, John says he doesn't believe there could be another bubble as damaging as this particular one, whereas we can't possible know that. It seems a lot safer to assume there will be a more damaging bubble, so we can at least consider what it might be and have some chance of acting to minimise or avoid the consequences. And, second, John is pessimistic that we'll heed these lessons of the credit crunch. So, logically, he would have to concede we're in for a repeat.

1. Loan/mortgage brokers should be incentivised based on loan performance, not just volume;


2. Loan owners who securitise must retain a significant proportion of the equity;


3. Government sponsored entities should be not-for-profit (i.e. they can run at a profit, but can't distribute profits, with an exception here in favour of the Treasury, surely);


4. The issuers of securities need to explain not just the risk in the security, but also what residual risk remains with the issuer and how it plans to cover those risks (this would demonstrate more clearly the inter-relationship between markets for credit and insurance, the use of shadow banks, and related assumptions);


5. Banks must reserve more capital as a proportion of total assets in a rising market, so they can afford to reserve less in a falling market;


6. Private equity firms should not be free of leverage controls (which suggests they need to make the same risk explanation in 4 above to their investors as issuers of other securities, regardless of whether those investors are 'sophisticated' or market counterparties);


7. Financial regulatory structures need to be more logical, less duplicative, less expensive, with no gaps;


8. Compensation should be variable, reflect how earnings are generated, tied to longer-term performance, aligned with shareholders' interests and ultimate financial results;


9. Credit risk management needs to be improved - but the crisis has demonstrated that once toxic assets are on the balance sheet it's tough to get rid of them, so there has to be some recognition that a government guarantee is ultimately necessary to remove them;


10. Financial institutions must pay for their implicit government guarantee, over and above existing FDIC or other financial compensation schemes.

Never Retire

The pensions crisis has dragged on for years now. The hole is £200bn deep, and recent stock market rises have not helped to fill it, because bond yields fell at the same time. In fact some households are now missing 5 years worth of living expenses.

Listening to the experts, there is no plan for getting individuals out of this mess. Meanwhile corporations are busy minimising their exposure as best they can, and the UK courts have (grudgingly) upheld the law allowing employers to require us to 'retire' at 65.

Tempted as I am to campaign to raise the 'retirement age', I think we should forget it. It's only there for our employers' benefit, and they may not last long enough for it to matter anyway. For us, there is no retirement, only age. We have no pension 'entitlements'. The welfare state is dead. Investing for the future is like trying to beat the casino.

Like it or not we're in charge of our own welfare, and we need to take control. Some are calling this process "rewirement", which is nice. 'Work' is not a chore that can ever be dispensed with, simple as that. And we can't rely on a single employer. We need multiple revenue streams in case any one of them dries up. We have to remain alert to opportunities, and be flexible enough to take each one. And so on. Until we drop.

Never Say Don't... Without Saying Do...

Hat-tip to the Financial Services Club for highlighting Newsweek's quotes of the credit crunch. The last one in particular caught my eye. It was taken from a speech by President Obama in New York on 14 September:

“I want everybody here to hear my words. We will not go back to the days of reckless behaviour and unchecked excess at the heart of this crisis, where too many were motivated only by the appetite for quick kills and bloated bonuses. Those on Wall Street can not resume taking risks without regard for consequences and expect that next time, American taxpayers will be there to break their fall.”

Wise words, but beware the power of suggestion when quoting them. The word 'not' only appears twice amidst 67 other words describing how to bring the economy to its knees. Cue vague public agreement from Wall Street, but no real sense of understanding that would help generate change. That's because, despite the context, bankers hear this:

“....go back to the days of reckless behaviour and unchecked excess at the heart of this crisis, where too many were motivated only by the appetite for quick kills and bloated bonuses. Those on Wall Street can resume taking risks without regard for consequences and expect that next time, American taxpayers will be there to break the fall.”

Now I don't mean to suggest that the President is missing a trick when it comes to great orations or political rhetoric. The problem lies in Newsweek's choice of sound bite.

By contrast, I prefer a quote from Lord Turner's recent attacks on the same evils. And the strong adverse reaction of bankers illustrates why it is better to speak in positive terms about change. Not only does the reaction signal that the bankers realise Lord Turner is not suggesting a return to past practices, but also their real anger at the vision of what's expected of them in the new world - they've been launched along the 'change curve':

"...the top management of banks... need to operate within limits. They need to be willing, like the regulator, to recognise that there are some profitable activities so unlikely to have a social benefit, direct or indirect, that they should voluntarily walk away from them. They need to ask searching questions about whether the complex structured products they sold to corporate and institutional customers, truly did deliver real hedging value or simply encouraged those institutions into speculative and risky exposures which they did not understand: and, if the latter, they should not sell them even if they are profitable. They need to be willing to accept the capital and other requirements which will be imposed on activities of little value and considerable risk, rather than deploy lobbying power to argue against such constraints on the basis of a simplistic assertion that all innovation is always valuable."

Another way to explain is to imagine what activity we would see more of, if we were filming a world where the proposed change had occurred, versus what we would see less of. This was a useful tool for change management we used at GE, designed to harnessing the power of suggestion in a positive way. Never say 'Don't...', without saying 'Do...'.

FSA Chairman Shocks City Along Change Curve

Lord Turner has reiterated his assertion that much activity in the City is ‘socially useless' and 'of no real use to humanity’. Why? Because he knows it draws blood:

'Quite honestly I am appalled, disgusted, ashamed and hugely embarrassed that I should have lived to see someone supposed to be held in high esteem and who already commands a senior and crucially important position as effective head of the UK regulatory regime making such damaging and damning remarks.' Howard Wheeldon, senior strategist, BGC Partners, 27 August 2009.

And so it's clear that such remarks from the City's regulator are just the sort of shock the City needs to begin its journey along the curve towards the cultural change the taxpayer wants to see. The anger exhibited by Mr Wheeldon, a 30 year City veteran, is merely a step in that journey. The chart says 'Depression' is next, which may be right in more ways than one...

Gordo Got You Down? Try Power 2010!

If you aren't thoroughly disillusioned with UK politics and hell-bent on doing something about it, I don't know how much more mayhem it will take.

The good news is that even Gordon Brown admits he has to unwind his vast public sector binge of the past twelve years. The chips are really down.

But as the great HST himself said, "when the going gets tough, the weird turn pro".

So now is the time to ensure we get to keep and invest in what's important.

Enter Power 2010, a campaign chaired by Helena Kennedy and funded by the Joseph Rowntree Charitable Trust and the Joseph Rowntree Reform Trust.

Like MySociety, Power 2010 uses the internet to enable you to share your thoughts in a way that politicians cannot ignore without being called to public account. It doesn't matter whether Parliament is sitting or not. The internet is always on, 24-hours of disinfecting sunlight shining into the Westminster pit.

So please share your ideas now, at http://www.power2010.org.uk/page/s/yourideas.

Madoff Victims Should Not Blame The SEC

Something caught my eye in the FT's coverage of the SEC's inspector-general's report into the SEC's handling of the Madoff saga:

"Jacob Frenkel, an attorney with Shulman Rogers, said the report indicated that some SEC staff, “failed to recognise a blazing fire because they were too focused on the smoldering match in their fingertips.... Madoff investors would have been better off and far more skeptical had the SEC never investigated or conducted examinations.”"

While the SEC has a lot of improvements to make, Mr Frenkel's claim just doesn't stack up. Worse, blaming the SEC will mean that Madoff's victims will continue to behave in the way that got them into trouble in the first place.

In my book, victims really only have themselves and Madoff himself to blame, on three counts.

Firstly, the complaints to the SEC only reflect what was being published by the likes of Michael Ocrant in 2001. Harry Markopolos said it took him four hours to spot the Ponzi scheme in 2000, using publicly available documents. And according to the Telegraph, Goldman Sachs banned its asset management and brokering divisions from dealing with Madoff's funds ten years ago, while "a raft of blue-chip financial institutions have suspected something was wrong for years." So there's no reason that Madoff's victims and their advisors should not have detected these concerns with even a little due diligence.

Secondly, from my own observation of the SEC's approach to potentially wrongful activity (e.g. in relation to Prosper.com) it's obvious that it can take several years for the SEC's enforcement machine to engage and eventually produce a settlement or prosecution. And, of course, such proceedings are subject to the usual vagaries of the appeals process (sustaining the doubt about whether viatical settlements are a security, for example, which has in turn left the status of other instruments unclear). While this is hugely frustrating for investors and competitors alike, it is clearly impossible to draw any conclusion from the fact that the SEC may have investigated something, unless and until the SEC issues a 'no action' letter (which can take a year, no joke), or ensuing proceedings are settled or otherwise concluded. So those who bet on the outcome of existing or potential SEC activity do so at their own risk. And clearly many people do make those bets.

Finally, what really seemed to cause Madoff's victims to invest was the bandwagon effect created by Madoff's skilful recruitment of socialites and other high profile names as key investors. This meant that investing with Madoff was more of a social badge than a financial decision. And that is hardly something that the SEC can be expected to do much about.

Diversify More

Great to see a broader debate about where social lending sits in the banking and investment world (most recently summarised on Bankwatch).

It would indeed be very helpful if people could deduct their social lending fees/losses against their income tax, and lend money to each other via their ISAs. Some day common sense will prevail.

Of course, you can already lend money to people (who aren't related to you) via your Self-invested Personal Pension plan with the trustee's consent. I explored that in some detail in 2007 while General Counsel of Zopa, and even obtained FSA authorisation for Zopa to introduce people to a dedicated 'mini-SIPP' that was to be issued by a SIPP-provider exclusively for lending money via Zopa.

On that basis, there's no reason you shouldn't be able to lend money to others through a 'DIY' ISA or stocks/shares component of your normal ISA, especially where the administration and audit-trail is outsourced to a social lending platform such as Zopa (currently the only one in the UK).

But let's go further.

The artificial distinctions between the various investment 'channels' merely confuse the issue of how diversified you really are, and create a needless multiplicity of intermediaries who all have to take their cut from our money. We know what it means not to put “all your eggs in one basket”, but struggle to see or understand the “eggs” and the “basket”, and unwittingly hemorrhage returns in fees and commission.

Consider that you can invest your money in exactly the same managed investment funds directly, as well as via a tax-free 'wrapper' such as an ISA, pension and/or child trust fund. And if your corporate pension is managed as opaquely as mine are, then you have no idea whether your corporate pension trustee has your pension money invested in the same funds you hold via other 'channels'.

As I've pointed out previously, figuring out whether your 10, 20 or 30 different funds actually represent a diversified portfolio, or ultimately all track each other, is no easy task. The existing product providers and IFAs can't really be expected to take a huge interest in your mish-mash of pension and non-pension, taxable and non-taxable investments (and let's not forget the mortgage albatross or any other liabilities you thought were assets). They tend to earn fees simply based on how much of your money they have 'under management'. So if your investments are scattered to the four winds, the revenue they earn from you is disproportionate to the work required to pull all the information together. In fact, it may not even be cost effective to pay the fees for an adviser to do a proper job.

While the FSA has reviewed retail distribution to try to resolve this issue, that review ignored any asset offered by a provider that the FSA doesn't regulate, including all consumer credit (and hence social lending via Zopa). The limited nature of the FSA's remit and resources prevent it from seeing the financial world holistically. Consider, too, that the FSA's own "MoneyMadeClear" website has different tabs for pensions, as opposed to savings and investments - when in both cases you're simply 'investing', and your money could end up in the same place through either channel.

As I've said before, we need a one-stop, low-cost service that allows you to track all your savings and investments, whether in or outside pensions, taxable or non-taxable; understand whether they're up, down or sideways; benchmark them against competing options; assess whether you are really diversified; avoid the pitfalls of transfer fees, dealing charges and other potentially hidden expenses; and cost-effectively trade your way out of any problems.

Remember, you are on your own: pay less, diversify more and be contrarian.

Personal Investing Made Easy?

My anxiety as a personal investor is rising at the same pace as world stock markets, unemployment, public sector debt and house repossessions. And the scale of the pension fund black hole actually seems to have induced one pension trustee to write to me for a second time in one financial year(!) - to remind me I can "change my investment choices". My gut tells me it's all going to get a lot worse and for a long time, before it gets better - and so does Bob Prechter, to name but one of many pundits:

I do my best to keep track of various small investments in numerous pots that have accumulated over the years - several ISAs, pensions (corporate, SIPP and stakeholder friendly) and child trust funds. I even move them around over the flames from time to time, in the hope that at least one or two will ignite. But none has yet paved the way to retirement, let alone a comfortable one.

So what changes should I be making to my investment choices?

The first step in any such undertaking is to figure out exactly what each investment is worth... and whether I'm ahead...... Or not.

And right there the whole personal investment management process comes to a juddering halt.

Because not all of the relevant information is in the one place, and some of it is downright difficult to obtain (when one confronts the different ticker symbols that pension providers use, for example). So there are always a few funds kind of drifting 'out there' that you learn about every 18 months from some forlorn pension trustee somewhere.

And figuring out whether your 10, 20 or 30 different funds actually represent a diversified portfolio, or ultimately all track each other, is no easy task for an amateur. In fact, the pension trustee who wrote to me recently didn't even suggest I try.

The product providers and IFAs can't really be expected to take a huge interest in your mish-mash of pension and non-pension, taxable and non-taxable investments (and let's not forget the mortgage albatross or any other liabilities you thought were assets). They tend to earn fees simply based on how much of your money they have 'under management'. So if your investments are scattered to the four winds, the revenue they earn from you is disproportionate to the work required to pull all the information together. In fact, it may not even be cost effective to pay the fees for an adviser to do a proper job.

The FSA has just spent oodles of time and money reviewing retail distribution to try to resolve this issue, and they've made some progress, but ultimately it seems an impossible task. Consider that the FSA's own "MoneyMadeClear" website has different tabs for pensions, as opposed to savings and investments - when in both cases you're simply 'investing', and your money could end up in the same place through either channel. And the FSA's review basically ignored any asset offered by a provider that it doesn't regulate, including all consumer credit - its remit and resources prevent it from seeing the financial world holistically. It's a fool's paradise, as I've pointed out before.

So let's face it: you are on your own. Pay less, diversify more and be contrarian.

Now I don't think I'm unrepresentative of a good many people over 40 who have a bunch of stray investments that are only going to grow in number, but not necessarily in size, and who know they really ought to be doing something to keep it all under control. I'm aware of services that go part of the way, but no one-stop, low-cost service that would allow you to track all your savings and investments, whether in or outside pensions, taxable or non-taxable; understand whether they're up, down or sideways; benchmark them against competing options; assess whether you are really diversified; avoid the pitfalls of transfer fees, and dealing charges that hammer nails into some apparently cheap options (e.g. I'm told not to trickle money into ETFs); and cost-effectively trade your way out of any holes.

All in a single afternoon.

But here are some examples of the elements that would be worth combining, even if initially that's in something like a Netvibes or iGoogle screen - other suggestions welcome - :

• FT.com - spend days finding the right fund names, ticker symbols and recording all your holdings using data from product provider web sites - remembering to record the trickle of reinvested dividends - and, hey presto, you can track the performance of your portfolio.


• Money Gym - hit the FT's gym to learn the basics of (some) asset classes.


• Yahoo's ETF Glossary - actually a useful repository of most investment jargon.


• Lower cost dealing - the devil's in the pricing detail, and you get no advice so have to know exactly what you're buying and why, but compare Motley Fool, The Share Centre, with those listed here.


• Comment and opinion from some top notch experts too numerous to mention here - not seductive stock tips (because I don't believe anyone should be relying on those unless they're sitting for 12 hours a day in front of 4 trading screens full of data to check them), but broader suggestions on how to view what 'the market' is doing, pitfalls, scams and so on.


• Books from said columnists and others who are aligned with helping you meet the real personal investment challenge.

It's a tough job, but surely one day someone will make personal investing easy.

Fool's Gold, Fool's Paradise

I've literally just finished Gillian Tett's Fool's Gold, an insightful, frank and highly readable account of the credit crunch, explained from the standpoint of the JP Morgan staff who somewhat unwittingly unleashed the Bistro-style CDS derivative into an environment of such stunning irrational exhuberance, greed, negligence, recklessness and downright fraud that it's left even the insiders angered and aghast.

And it ain't over yet. While subprime default estimates continue to be revised upwards, bankers brazenly continue to repackage downgraded debt into yet more CDO's backed by leveraged loans.

Importantly, Gillian Tett's narrative tellingly confirms a string of cultural problems that we're told again and again abound in the capital markets trading "pit": regulators whose remit and resources prevent them seeing the financial world holistically, a commission/bonus-driven sales mentality that often ignores the limits of the hallowed Gaussian 'models', banking groups that merely comprise dysfunctional silos, the cosy social contract banks enjoy with government. It's little wonder that everyone lost sight of the big picture - and that our faith in these institutions is utterly shattered.

Yet none of these factors is about to change. Amidst all the talk and shuffling of deckchairs little is actually being done to avoid or minimise exposure to Black Swan events. Hedge funds scramble to avoid the sunlight, like the swaps world did previously, and the quest for transparency has degenerated into protectionist farce. With an election still a long way off, competing government and opposition plans for the financial sector realistically mean regulatory paralysis throughout the time when structural and cultural reform would have been most achievable.

We're living in a fool's paradise. Enjoy.

Bank Lending To Remain Partially Self-regulated!

From 1 November 2009, banks will relinquish their self-regulatory control over deposit, savings and payments products. That's when the FSA (doomed, say the Tories) takes over from the self-regulatory club known as the Banking Code Standards Board, and we are led to believe we'll get some retail banking regulatory protection with teeth. Banks will be obliged - on pain of fines - to "treat customers fairly", amongst other things, which ought to raise some eyebrows.

However! The good ol' BCSB will not crawl away to die.

Instead, it is to be renamed the "Lending Standards Board" in honour of its role "to provide continued monitoring and enforcement of lending and credit card standards, including those governing the treatment of customers in financial difficulties."

So the same club of banks are to retain self-regulation of lending and credit standards who virtually drank themselves to death on a cocktail of subprime debt and eye-wateringly complex credit derivatives they didn't understand, and who are ferociously challenging the OFT's right to assess even their overdraft charges for fairness.

The FSA has long huffily sworn-off regulating consumer credit. On the surface, a lot of it is provided by non-banks, so they think it has nothing to do with banking. That siloed, blinkered attitude must end, since we have become painfully aware that the whole financial system is inexorably connected and all product providers are either bank group subsidiaries or otherwise obviously rely on bank lines or financial markets funding at some point in the chain. Besides, the Consumer Credit Act and regulations are a nightmarish quagmire of bitter complexity and foolishness, which the Office of Fair Trading has been unable to use to do more than a poor job of protecting the consumer. As noted, the OFT has fared little better in its attempt to use unfair contracts regulation on the banks.

Regulatory plans appear feeble on the consumer banking front. The proposed Financial Services and Business Bill merely heralds the government's long-overdue plans to ban unsolicited credit card cheques. The Consumer White Paper goes somewhat further, calling for a quicker solution to the saga of the bank charges litigation, promising the said ban on unsolicited credit card cheques, and threatening both restrictions on credit card issuers repricing cards after issuing them and the removal of the "negative payment hierarchy" (i.e. ensuring that credit cardholders' repayments are credited towards the most expensive aspect of their card bills first).

But let's not forget that small businesses in the UK are owner-operated by about 4.3m individual people. As regulation - or the threat of it - bites on bank credit products, SMEs are being required to take commercial credit cards that aren't regulated and on which interchange and other fees are much higher than personal cards. Unless these cards are brought within scope, these people will find themselves right back where they started as humble personal cardholders without any regulatory protection... a miserable experience.

Will White Paper Deliver Green Shoots for Consumers?

To clear their desks ahead of the summer (and clutter ours to no useful purpose), UK officials responsible for Business, Innovation and Skills have recently released a white paper outlining the government's approach to consumer policy, presumptively entitled "A Better Deal for Consumers".

It appears the paper has been prompted by the "downturn" and "the way consumer markets are changing because of the effects of globalisation, and the increasing use of technology by consumers and business to buy goods and services." Which should read: "a dog's breakfast of either previously announced or 'new' but belated attempts to help the vulnerable, tinker with consumer credit, and update enforcement powers and some consumer law."

Don't get me wrong. There's some good stuff in here. But it's beyond me, for example, why it's taken until 2009 to call for a quicker solution to the saga of the bank charges litigation (we've owned some of the key defendants for some time), or to begin the no doubt lengthy process of banning unsolicited credit card cheques, restricting the basis on which credit card issuers can reprice cards after issuing them or ensuring that credit cardholders' repayments are credited towards the most expensive aspect of their card bills first. And, while anything to help those who are overly indebted is to be applauded, we've already heard about the £290m of government funded loans in the budget. And, in the vast scheme of things it's hardly worth mentioning that the government "will invest a further £300,000 in free face to face debt advice [which] will give an immediate boost to debt advice capacity for six months and enable the equivalent of 12 full-time debt advisers to help an extra 1,200 people struggling with crisis debt."

The 'meat', if there is any in this paper, is simply a reference to the unfortunate process of gold-plating the Consumer Credit Directive, and "bringing forward, in due course, a new Consumer Rights Bill which will [no doubt gold-plate] the proposed EU Consumer Rights Directive". The latter exercise has of course been rather undermined by the lack of any real evidence of detriment (see the EC's Consumer Markets Scoreboard).

Guess it's a case of hurry up and wait for that better deal.

Here's an extract of the menu in more detail:

Helping the vulnerable:

• Help to support homeowners and social housing tenants in arrears, and better legal protection for mortgage holders and tenants
  

• ”Breathing space” relief for consumers overburdened with arrears on their utility bills and other unsecured debts
  

• A new debtors’ guide to help those with debt problems understand their options
  

• A new self-help debt advice toolkit to support debtors who want to negotiate repayment proposals with their creditors themselves
  

• A Money Guidance service in the North West and North East of England to help people make better financial decisions and avoid problem debt
  

• A new dedicated NHS helpline to offer healthcare support to those experiencing recession-related stress and anxiety
  

• Improved guidelines for health and social care workers to support people with mental health problems and overburdened with debt
  

• Reviews into how effectively energy and water suppliers protect vulnerable customers from disconnection and help customers with problem debt
  

• Swift enforcement action against debt write-off scams and against firms who exploit the vulnerable in debt
  

• Measures to ensure more responsible debt recovery practices by debt collectors and bailiffs
  

• Programmes to reduce household energy bills.

Tinkering with consumer credit:

• A review of the regulation of credit cards and store cards, including a ban on the sending of unsolicited credit card cheques
  

• Ensuring consumers can access impartial support on choosing and managing credit cards and other consumer credit products
  

• [Gold-plating] the Consumer Credit Directive, including new requirements on all lenders:
• to explain their products to consumers adequately before they enter into a contract, including the consequences of any failure to repay
• to check the credit worthiness of consumers before they lend to them to follow guidance from the OFT to tackle irresponsible lending practices
  

• A review by the OFT of high cost credit markets
  

• A continuing programme of reforms to make the credit market work effectively for consumers and lenders.
  

Updating enforcement powers:

• A series of pilot projects to test the use of new powers to deliver compensation for consumers
  

• A new national strategy and specialist team for internet enforcement on consumer issues
  

• A central “Fighting Fund” to tackle rogues operating on a big scale
  

• A new Consumer Advocate who will co-ordinate work to educate consumers and be a champion for groups of consumers who have suffered a loss at the hands of a business
  

• A mechanism for consumers to get money back that has been recovered from overseas scams
  

• Support for product safety testing of imported goods at major ports
  

• Stronger penalties for rogue traders through new banning orders
  

• Simplifying the confusing array of sources of information and advice to ensure consumers can more easily find the support they need
  

• A new Consumer Rights Campaign.
  

Updating some consumer law:

• Developing rules on new “digital” products to ensure the core principles of consumer protection apply
  

• Looking at how the law on misrepresentation and duress can be made simpler, more transparent and accessible to business and consumers
  

• Reforming consumer law and simplifying weights and measures legislation without diluting consumer protection
  

• Modernising Trading Standards powers to help them deal more effectively with modern trading conditions
  

• Bringing forward, in due course, a new Consumer Rights Bill which will [no doubt gold-plate] the proposed EU Consumer Rights Directive, the lack of any evidentiary basis for which is illustrated in the EC's Consumer Markets Scoreboard.
  

Posted via email from Pragmatist's Posterous

Web Filters To Block All Australian Content

The United Nations Safe Internet Committee (UNSIC) announced on Thursday that its web filters would no longer accept any Australian content. A spokesman explained: "The Australian government warned us that it has lost control of Internet content, and we should not accept any further Internet content from its servers until the problem is resolved."

When asked for the Australian government's response to those who believed in an open, neutral Internet, the UNSIC spokesman added, "Talk to the hand".

Posted via email from Pragmatist's Posterous

Digital Britain

I should start my take on the "Digital Britain report" by making one thing clear: the fact that the government has issued the report is itself a Good Thing. The government does have a role to play in fostering and facilitating the growth of the digital world.

In that respect, the most important message in the whole document is this:

"We are at a tipping point in relation to the online world. It is moving from conferring advantage on those who are in it to conferring active disadvantage on those who are without, whether in children’s homework access to keep up with their peers, to offers and discounts, lower utility bills, access to information and access to public services. Despite that increasing disadvantage there are several obstacles facing those that are off-line: availability, affordability, capability and relevance."

However, the terrible news is that the detail of the report is merely a cascade of top-down recommendations to institutional problems, rather than a genuine attempt to clear the obstacles to every one of us seizing control of our dealings with government, banks, utilities, broadcasters and others.

Take the word "relevance" in the above quote, and consider the following passage that Technollama has extracted:

“The popularity of X-Factor and Britain’s Got Talent shows the enduring drawing power of content-creating talent that few people possess. The digital world allows more of that talent to find its way to more consumers and admirers than ever before. But it is not wholly democratic: some have the talent to create content; many others do not. As throughout history, there need to be workable mechanisms to ensure that content-creators are rewarded for their talent and endeavour. And the need for investor confidence is key. User generated videos can be hugely popular, but there remains a healthy appetite for big movies costing many millions to produce.”

It's a sad reflection on the government's understanding of digital Britain, that "X-Factor" and "Britain's Got Talent" are not only seen as "relevant", but also epitomise Britain's "content-creating talent". It is deeply insidious for the government to claim that the digital world is "not wholly democratic". This is view of the online world is simply false. The digital world is much, much more important, relevant and creative than is suggested, and hugely democratic - much more so than this government would like. Television and user-generated video platforms are merely a part of a co-operative mix of many different types of web site that are increasingly inter-linked and intertwined, enabling access to a huge range of content in different formats from different people at different times on different platforms and networks, depending on where people are and what they're doing. "X-Factor" is just one pixel on a much larger screen.

So let's not allow a few television shows to be the Trojan horse for a bunch of protectionist measures for Britain's beleaguered entertainment institutions.

Just because television has "gone digital", does not mean that TV content is a proxy or yardstick for all digital content. Similarly, the fact that a few record companies have made uncorroborated guesses that they'll make £1bn less in CD sales over the next 5 years, must not colour our view of file-sharing or distract us from understanding the value of Net Neutrality. Their digital music sales increased by 28% in 2007, after all. And they aren't the only people relying on the digital media to release music. Furthermore, several studies on the impact of file-sharing appear to negate the assertion that file-sharing adversely affects creativity.

It is great that the government has demonstrated a willingness to foster the growth of digital Britain. But it is also extremely disappointing that the "vision" is for us all to be glued to a screen watching wannabes singing other people's songs.

FYI, I've extracted the government's proposed "Actions" below, and may comment in more detail on some of them later:

• The Government will look to Ofcom to formalise the Consortium of Stakeholders to drive a new National Plan for Digital Participation.


• The Government will ask the Consumer Expert Group to consult and report on the specific issues confronting people with disabilities’ use of the Internet in Digital Britain.


• The Government will write to the Channel 4 Board asking it how it can further contribute to driving Digital Participation.


• In order to ensure the delivery of the Universal Service Commitment, we will establish a delivery body – the Network Design and Procurement Group – at arm’s length from central Government.


• The Caio Report recommended relaxation of regulations on the installation of overhead lines to lower deployment costs.The Government proposes to launch a consultation, by Summer 2009, on the impact of any amendment to the Code governing this.


• The Government intends to consult on the proposal for a general supplement on all fixed copper lines for a Next Generation Fund.


• The Government will have an independently produced guiding technical arbitration on the timing and cost of 900 refarming (and other related issues), paid for by an industry fund.


• The Government will work with manufacturers so that vehicles sold with a radio are digitally enabled by the end of 2013.


• On Digital Radio, the Government has asked Ofcom to consult on a new map of mini-regions.


• Alongside the Digital Britain Final Report the Government is publishing a community radio consultation seeking views on changes to the current licensing regime.


• Alongside the Digital Britain Final Report, the Government is consulting on a proposal to legislate to give Ofcom a duty to take steps to reduce copyright infringement.


• The Intellectual Property Office is considering the scope to amend the copyright exceptions regime in areas such as distance learning and the preservation of archive material and intends to announce a consultation on these later this year.


• The Government launched its copyright strategy


• The Government intends to consult on legislative reform in respect of orphan works.


• The Technology Strategy Board will lead and coordinate the necessary investment for Next Generation Digital Test Beds and has allocated an initial budget for £10m for this purpose.


• The Government will consult openly on the option of a Contained Contestable Element of the Television Licence Fee, carrying forward the current ring-fenced element for the Digital Switchover Help Scheme and Marketing (c.3.5% of the Licence Fee) after 2013.


• We will take the views of the Channel 4 Board on the draft updated statutory remit for C4 Corporation as set out in this Report.


• The OFT will amend its guidance to ensure that in cases relating to local and regional newspaper mergers raising prima facie competition issues the OFT will ask Ofcom to provide them with a Local Media Assessment.


• The Government is inviting the Audit Commission to undertake an inquiry into the practice of local authorities taking paid advertising to support information sheets.


• Commercial public service broadcasting liberalisation, including regional news, analogue licences and advertising minutage


• The Technology Strategy Board has assigned an initial budget of £30 million to advance Digital Britain related innovation.


• The Government will carry out a major test in late 2009 of our ability to manage and recover from a major loss of network capacity.


• The Information Commissioner’s Office plans to consult later this year on a new code of practice in relation to “Personal Information Online”.


• The Government will consult on the penalties that Ofcom is able to impose for contraventions of the Communications Act 2003 and, in particular, the level of the fine it can impose in relation to persistent misuse cases.


• Led by the Contact Council, chaired by the Cabinet Office, Government will take forward proposals for developing a Digital Switchover of Public Services Programme starting in 2012.


• We propose that DCMS, BIS and Ofcom carry out an assessment, to be completed by the end of this year, of the opportunity for bringing together some or all of the delivery agencies either into one body or through a federated structure to achieve economies of scale and greater operational efficiency.

Gold-Plating The Consumer Credit Directive

Yep, the UK's bureaucratic alchemists are at it again, folks. They've taken a leaden, ill-conceived Consumer Credit Directive (2008/48/EC) and extended its application to UK products that are out of scope, "in order to maintain a comprehensive, homogenous set of rules" (see para 1.9), while rigidly interpreting many terms not defined in the CCD to further complicate the awkwardly prescriptive consumer credit regime.

Add to that over 100 pages of impenetrable bureaucratic mumbo jumbo, 68 incredibly complex questions and an implementation deadline of June 2010, and say goodbye to any more retail financial services innovation for at least 2 years while we try to resolve all the uncertainty.

Moreover, the complexity of the one-size-fits-all regime being proposed, save for a 'light-touch' exemption for bank-only overdrafts, will give banks an even greater advantage over non-banks in providing consumer credit. Product development will be constrained by a complex and awkward regulatory regime, leaving many consumers with overdrafts (or loan sharks) as the 'easiest option'. In turn, consumers will be exposed to tighter credit conditions being imposed by banks, who will enjoy an advantage in 'up-selling' their own credit products to the more creditworthy.

Overall, the result will be less choice and poorer value for consumers, and a feast for banks and loan sharks alike.

Gareth Thomas, the Minster responsible, has a lot of explaining to do. But maybe he figures it's all over for him, anyway?

Meanwhile, the so-called "Better Regulation Executive" appears to be sleeping peacefully, secure in the assumption that all this nonsense delivers on a commitment to regulation that is:

• "transparent" - this extended scope was not revealed as the UK's intention when the CCD was consulted upon at EU level.
  


• "accountable" - why should national bureaucrats decide the scope of an EU law?


• "proportionate" - but it goes beyond the scope of the CCD, and is therefore disproportionate.
  


• "consistent" - but it's inconsistent with the CCD, and as such fails to deliver a "harmonised" or consistent cross-border credit market, which the CCD was (misguidedly) intended to catalyse (see Article 22).
  


• "targeted" – far from it, these are explicitly described as a "homogenous" set of rules.

Wakey-wakey everyone...

How To Find An Extra £8bn - Fast!

They've been desperately downing the Kool Aid in Downing Street, those who are left. No more polite chat while queuing for the tea urn during cabinet meetings, cup and saucer in hand. Now they're swarming around it at each serving, ripping the lid off and plunging their cups in.

And while we are highly amused by Gordo's ghastly predicament, we are no longer to be distracted from his latest, clunking sleight of hand.

The TaxPayers' Alliance has all the gory details, but at the heart of the matter is the fact that the UK will now officially have two sets of books, as the FT faithfully reported in mid-May while we were still goggle-eyed by certain accounting matters of a more personal nature.

One set of books will be produced under international financial reporting standards to fulfil the Treasury's "promise" to record PFI projects against government's capital expenditure totals; and another will be prepared under European standards, which doesn't bake in the cost of PFI.

I do not need to point out which set of books the Treasury uses for budgetary purposes... Nor do I need to remind you that even the off balance sheet deals are getting bailed out with taxpayer's money.

So, for a start, 60% of PFI projects will remain off balance sheet. But that's not all:

Nick Prior, head of government and infrastructure at the consultants Deloitte, said: "This clarification is extremely welcome for the future of PFI and PPPs. Government departments should now be able to bring forward projects that have been delayed because of uncertainty over budgetary arrangements."

That's £8bn worth of "uncertainty" to me and you, but not even a line item for Darling, if and when he gets up on his hind legs to deliver the next budget.

Let's hope MPs don't forget to mention the fact...

Parliamentary Reform Must Be A Messy Process

Over on Lords of the Blog we've been debating whether Constitutional reform is the answer to our Parliamentary woes. "Lordnorton" bemoans the fact that "a great many people have reform agenda, but agenda that have little coherence... We need to look at Parliament, and indeed our constitutional arrangements, holistically." He's called for a commission on the constitution, "open to all, not just the usual suspects; new technology provides the means for wide consultation. The main challenge will not be employing the new technology, but rather persuading people to submit their views."

I agree. Yet this holistic process should not be engineered from the top down in a nice orderly fashion. A dynamic, open, democratic approach which encourages broad engagement by all stakeholders cannot realistically appear neat and linear. The Internet affords the opportunity to capture, rationalise and unify apparently messy data contributed by disparate opinion-holders whose views tend to be missed in the current formal processes. Sites like mySociety already play this kind of role.

While it seems almost trite now, the BBC heralded the shift toward an interactive, dynamic political process at the "E-envoy" conference in 2002:

“Currently…we are all used to… top down provision of information …whether it’s [from] a media company or the Government to you the audience or citizen. What we want to move to is this interactive model which has lots of conversations in lots of directions. Not only do we communicate to the users in this model, they can communicate back to us and they can communicate with each other, both through us and actually independently of us… Through digital media, like interactive TV, SMS text messaging and the internet, we can create very new networks of information exchange, ones we haven’t seen before.”

"...[W]hen the [pension] reforms are explained to people
they will see that they are the right thing to do."
Gordon Brown, Financial Times 8.11.05

“He cannot allow them any serious discussion about priorities. His view is that it is just not worth it and ‘they will get what I decide’. And that is a very insulting process. Do those ends justify the means? It has enhanced Treasury control, but at the expense of any government cohesion and any assessment of strategy. You can choose whether you are impressed or depressed by that…”
Lord Turnbull,
Permanent Secretary to the Treasury,
referring to Gordon Brown, in 2002
FT.com 20.03.07

While participation in formal “party” politics has been dissipating, citizens have found alternative ways to assert themselves. Any idea that they have become generally apathetic is a myth, as recent events have shown, and the Power Inquiry noted in 2006:

“There is now a great deal of research evidence to show that very large numbers of citizens are engaged in community and charity work outside of politics. There is also clear evidence that involvement in pressure politics – such as signing petitions, supporting consumer boycotts, joining campaign groups – has been growing significantly for many years. In addition, research shows that interest in “political issues” is high.”

In a long-since deleted press release in June 2007, the Cabinet Office warmly welcomed a report that urged the facilitation of a bottom-up approach to the use of public sector information, stating:

“The Government should work in partnership with the best of citizens' efforts, not replicate them. If we really want to deliver better public services, the best way to do that is bottom up. Change is driven by better feedback, open information and more ways in which citizens can make their voices heard about what matters to them. The challenge is for all public bodies to think about how they can respond to the challenges described here."

Citizens themselves are already helping each other in online communities. If 30,000 parents were meeting in a park or football stadium to share information and tips about parenting, government would take notice. That they are doing it online simply means we have to find different ways to take their efforts just as seriously.”

And George Osborne's remarks in November 2007 have often been quoted since:

“With all these profound changes – the Google-isation of the world’s information, the creation of on-line networks bigger than whole populations, the ability of new technology to harness the wisdom of crowds and the rise of user-generated content – we are seeing the democratisation of the means of production, distribution and exchange. … People… are the masters now.”

Lest anyone doubt that a broad-ranging, grassroots, web-based discussion of policies can result in an engaging, unifying event, they should consider Barack Obama's path to the White House.

By all means list your reform proposals in the comments... here are a few from me:

1. prevent the abuse of secondary legislation as a channel for avoiding substantive debate on legislative measures;


2. wholly elected Lords;


3. 4 year fixed terms, with no government discretion as to the precise election date;


4. publication of expenses, interests, emoluments via Parliamentary web site in a format that readily permits analysis;


5. restraint on MPs/Lords taking roles in the industries they oversaw for at least 6 months after leaving office;


6. no second home allowance (but state funded accommodation in a converted local authority housing block reasonably local to Westminster);


7. requirement for both houses of parliament to approve UK's initial and ultimate responses to proposals for European directives.
   

Swinegate and Consitutional Reform

I've just seen some patronising rubbish in the Spectator about concern over MP's expenses being overkill and somehow bad for the British democratic process.

Swinegate is just the straw that broke the camel's back. At different times, on different issues that each of us cares about, we have all felt that politicians are up to no good in their various machinations. Now we've all caught them, red-handed, pulling the same stunt at the same time. It does not matter that we have merely caught a crowd of them failing to do something as basic as filling out an expense form with diligence and propriety. The panic-stricken response right across the political spectrum is clear evidence that the politicians now know that we know just how opaque and unaccountable Parliament is generally.

The great news is that this has alerted a wider community of people to consider what goes on in Westminster. But these are still early days in this process of awakening. So it's way too early to constrain debate by saying that constitutional reform is not the answer, for example. Let's get the whole sorry parliamentary institution laid out on the table and then figure out how to reform it.

More light, please! We have work to do...

Private Sheriffs in Cyberspace, Counter-Regulation

Last night I attended the lecture by Professor Jonathan Zittrain on "The Future of the Internet: Private Sheriffs in Cyberspace", organised by the SCL organised in collaboration with the The Oxford Internet Institute. Jonathan is a Professor at Harvard Law School, Co-Founder and Faculty Director of the Berkman Center for Internet & Society, a great intellect and a fabulous speaker.

As the title suggests, Jonathan was highlighting the role of private rule-makers in the development of Internet-based services. Helpfully, he suggested a quadrant on which you can place rule-making for all scenarios. On the vertical plane, one considers whether rules are decided "top-down" by a dictator or small group of individuals, or evolve bottom-up amongst all interested participants. On the horizontal plane, one considers whether the rules are handed down and enforced via a single hierarchy or via a polyarchy of different people or agencies. I've re-drawn it here for the purposes of discussion, and hope Jonathan doesn't mind:

You can plot various examples on the chart, with a totalitarian regime being in the upper left corner, and Wikipedia being in the lower right.

Interestingly, Jonathan suggests that the likes of Google, Apple and Facebook are top-down rule makers, because their site terms and policies are all decided by the company and not the users of their services, albeit those companies tend to be very responsive to bottom-up pressures. He cites the exclusion of certain lawful, though potentially offensive, applications from the iPhone and Facebook platforms as examples of decisions that might not be consistent with previous decisions, nor deemed constitutional in the public environment. He queries whether, in time, these might result in some alternate form of regulation and considers what that might entail.

My sense is that this scenario is not quite so clear cut, since the evolution of services or platforms provided by those companies (read iPhone apps in the case of Apple) seems primarily based on user participation, feedback and complaint, rather than board or departmental decision-making. I'm not even sure that, when push comes to shove, those companies necessarily triumph. There are significant instances where - to their enduring credit - each of those companies backed down and modified services and terms in the face of widespread user vitriol.

However, it is true that in general terms, at least before push comes to shove, such firms are the 'sheriff' of their own platforms. And it is conceivable that there could be a substantial gap in time, and a significant amount of individual consumer detriment - mild or otherwise - before any arbitrary, inconsistent or harmful exercise of corporate discretion is corrected by some kind of mass user "action". But of course this phenomenon occurs even in the context of highly regulated businesses all the time - e.g. retail financial services, as Financial Ombudsman statistics demonstrate. Offline retailers and distributors also decide not to distribute certain products on their own whim, or due to informal pressure from certain interest groups.

So the responsiveness of a service provider to its users, and the legality of its behaviour, does not seem to be a function of how that service provider or its services are regulated. But is users' trust or faith in the provider a function of the type of regulation that applies to the service?

Jonathan looks at various models for keeping the private sheriffs honest, e.g. vicarious liability for harmful material of which the service provider is on notice (see PanGloss), public law constraints on municipal authorities and 'due process' requirements. But, crucially, he points out that when users start to feel powerless they look to top-down bodies for help - i.e. towards the top left of the quadrant - when perhaps the online world is demonstrating there are more trustworthy solutions to the lower left and right. To the lower left, Jonathan cites the adherence to the robots.txt exclusion standard, whereby researchers effectively agree not to interrogate certain parts of web publisher's domains. To the lower right, he cites the broad editorial body of interested participants in Wikipedia. Either solution might be safer than entrusting control to, say, government institutions that think nothing of bending or breaking the law under the guise of detecting crime, or the vague notion of "national security".

And here's the crux of the problem. When does a trusted service provider suddenly cease to be trusted to make and enforce its own rules?

To me, this seems to me to be answered by whether the service provider is perceived to be acting in its own interests or that of its users - or when it loses its "human effect", as I think Jonathan put it in answer to a different question. Here, the Wikipedia example is an interesting one. As Jonathan noted there is a constant preoccupation amongst the Wikipedia editorial community about what Wikipedia is and what it means to be a Wikipedian. This has also been touched on in the context of brands striving to be facilitators rather than institutions. Is this human element necessary for rule-makers and service providers to preserve users' trust in them?

As I've mentioned previously in a wider context, the rise of Web 2.0 facilitators that have enabled us to seize control of many of our own retail, political and other personal experiences has been accompanied by a plunge in our faith in our society's institutions. Are they causally related, or inter-related?

In this context, it is interesting to consider a shining example of a service provider and rule-maker that has utterly lost its way, and our respect: the UK's own House of Commons. Weeks of attention on MPs' excessive expense claims - widely viewed as a proxy for their attitude to the taxpayer generally - has forced the nation's legislators to reconsider how they themselves should be governed. And it's worth noting that much of that attention has been brought to bear via the Internet. Ironically, and in line with Jonathan's observation about where we look to when we feel powerless, the MPs are looking to the upper left quadrant in suggesting yet another Quango as an external regulator of their activities - a so-called "Parliamentary Standards Authority". That such a body needs to exist raises huge questions about the ethics of the body it is supposed to supervise.

But who on earth should comprise the members of such an authority? How could it bring about a positive change in the attitude of MPs to us, their constituents?

Which brings us to the notion that the private sheriffs of cyberspace may have a lot to teach their 'real world' counterparts about what it means to act in the interests of their users in order to retain their trust. This is a notion that I explored in an article for the SCL in May 2006, entitled "Counter-regulation" - a term I used to describe when the law requires offline businesses to implement the benefits of successful online business models. So, to borrow from Jonathan, perhaps MPs should be looking to the lower left and right of the rule-making quadrant for an alternative regulatory solution that could begin to restore a human element and raise the level of our faith in Parliament. And maybe our suspicion of Quangos as merely a means to reward government supporters with a nice cushy job would also be eased if the Quango in question comprised a very large, active group of UK taxpayers.

Black Swans and Risk in Retail Financial Services

In a recent speech, the EU Commissioner for Consumer Affairs, Meglena Kuneva, signaled 5 current priorities in relation to retail financial services:

1. Address the way investment products are designed, described and marketed to consumers; and ensure that new proposals in relation to the sale of credit and mortgages "meet the high standards of modern consumer policy".
   


2. Strengthen the strict rules and enforcement on the misselling of retail investment products, in the light of "clear indications that the laws that are meant to protect consumers were insufficient and may have been repeatedly violated."
   


3. Complete by the end of the summer an in-depth study of banking fees and charges to consumers which appear to be unfairly hitting consumers.
   


4. "Start with regulators a new debate on the correct balance of risk and reward on Main Street. It seems that in recent years, risk has been significantly outsourced to unwary consumers. The question is what amount of risk and toxic products are we willing to tolerate in the retail financial market?"


5. Start a serious discussion on the regulatory oversight structure that is needed to generate accountability to consumers and to ensure consumer protection principles are consistently implemented across retail markets.

The nub of all these priorities lies in the highlighted question. I'm equally fascinated by it, even though the answer to it must surely be "nobody knows." It's part of the process of democratising the financial markets. However, as a starting point for the discussion, I'd be more comfortable with the statement that risk has simply landed on unwary consumers (and taxpayers, more importantly), rather than that it was somehow "outsourced" to them, implying intent and activity on the part of someone else. Otherwise we risk focusing on who outsourced the risk, and how, which is necessarily facing the past, not the future. Nailing those who broke the law should not be part of this debate. The fact is, the law failed to protect consumers and taxpayers from risk in the financial markets.

To put it another way, it was a mistake for us ever to have believed that we had successfully outsourced our own personal financial risk to banks, employers and governments.

The credit crunch is a Black Swan event - a surprise event that has a major impact and is [being] rationalised by hindsight, as if it had been expected. Inquiry into the why's and how's is therefore largely academic, albeit tantalizingly so. To take a counterfactual approach, one might ask whether it would have occurred if the CDO had been strangled at birth in 1987. The CDS also played a role, so we might consider the implications of it's death on a whiteboard in 1997. And we might ask the same in relation to Gordon Brown's rhetorical adoption of the so-called Golden Rule - that the government would only borrow to invest rather than to fund current spending, and in doing so it was "prudent" to maintain debt levels below 40% of GDP (implying it was also prudent to borrow up to that limit).

But we will never really know the cause of the credit crunch. And nothing we do will necessarily prevent another one.

Yet it seems likely and perfectly natural that we consumers and taxpayers will continue to rein in our expenditure, and take steps that we believe will maximise the sustainability of our income, for as long as it takes for us to feel we are able to survive another major financial disaster. As markets seem to "recover" in parallel, it will become harder and harder not to become lulled into thinking that our self-discipline is working, and that, at some ominous peak, we are finally safe...

So the real challenge is: how can we ensure that we consumers and taxpayers always understand that each of us personally bears the risk of financial disaster?

You are on your own. Pay less. Diversify more. Be contrarian!