Michael Brown wrote:
People following this thread might be interested to read a page on the DTI's web site that states:
an "undertaking" means any entity which is engaged in economic activities. It does not have to be profit-making so long as the activity carried out is one which in principle has commercial competitors. Charities, universities, research institutions and voluntary entities may be caught within the meaning of "undertaking" if they carry out economic activities. The concept of "undertaking" embraces public sector as well as private sector entities.
Now, the NHS "in principle" has commercial competitors in the form of private health-care providers, doesn't it? This would lend credence to an argument that the NHS *is* an undertaking, full stop.
I have e-mailed the DTI asking for clarification of the above paragraph.
Very much a case of `gotcha'. The OFT is arguing against what the DTI states in black & white is the case. I agree with Nigel regards submitting it to Slashdot. The Register is also worth considering - they quite enjoy bashing MS and the government in no particular order. First it's best to wait for a response from the OFT and then perhaps write it up and mirror it on a few sites or otherwise the one-site will get `slashdotted'. Happy to use my site for the purposes. -- Frank *-*-*-*-*-*-*-*-*-*-* Boroughbridge. Tel: 01423 323019 --------- PGP keyID: 0xC0B341A3 *-*-*-*-*-*-*-*-*-*-* http://www.esperance-linux.co.uk/
On Thu, 15 Nov 2001, Frank Shute wrote:
People following this thread might be interested to read a page on the DTI's web site that states: an "undertaking" means any entity which is engaged in economic activities. It does not have to be profit-making so long as the activity carried out is one which in principle has commercial competitors. Charities, universities, research institutions and voluntary entities may be caught within the meaning of "undertaking" if they carry out economic activities. The concept of "undertaking" embraces public sector as well as private sector entities. Now, the NHS "in principle" has commercial competitors in the form of private health-care providers, doesn't it? This would lend credence to an argument that the NHS *is* an undertaking, full stop. I have e-mailed the DTI asking for clarification of the above paragraph. Very much a case of `gotcha'. The OFT is arguing against what the DTI states in black & white is the case. I agree with Nigel regards submitting it to Slashdot. The Register is also worth considering - they quite enjoy bashing MS and the government in no particular order. First it's best to wait for a response from the OFT and then perhaps write it up and mirror it on a few sites or otherwise the one-site will get `slashdotted'. Happy to use my site for the purposes.
OK. By the way, I tried to send you (Frank) the full texts as you
requested, but got a mail delivery failure back from
On Thu, Nov 15, 2001 at 08:47:03AM +0000, Michael Brown wrote:
OK. By the way, I tried to send you (Frank) the full texts as you requested, but got a mail delivery failure back from
: "Sorry, no mailbox here by that name. (#5.1.1)" Could you check your mail setup? Sorry to everyone else for sending this on a public list, but at least I know this message will get through.
Apologies Michael. I've been setting up FreeBSD on another hard drive in this box and when I came to setting up qmail I fouled up big-style - created all the aliases in /var/qmail rather than /var/qmail/aliases and then ran fetchmail without the keep option thus bouncing and losing a pile of mail. If you could post that stuff again I'd be grateful and I'll try not to bounce it this time ;-) I thought while I'm about it I'd give the list my impressions of BSD at the risk of being pulled up for being OT. Easy to install using the installation guide and I like the BSD way of using disk slices rather than being constrained by the extended/primary partitions nonsense. Subjectively the machine seems a lot quicker although I haven't run any benchmarks and in any case it's on a different HD. Kernel configuration & compilation is easier than linux and all my frequently used apps/tools have compiled without problems (I prefer compilation rather than packages). System setup takes the same amount of time as linux ie sorting out your shell, terminal, name resolution, routing etc. although I tend to do all that stuff by hand so your mileage might vary. Annoyingly generic kernel not compiled with option to read/write ext2fs, so had to re-compile fairly immediately. Boots up & shuts down a lot quicker as a result of not having the System V-type shell scripts under /etc/rc.d, just has /etc/rc.conf & /etc/rc.local, the first of which is obviously parsed a lot quicker than a whole heap of files symbolically linked and written in tortuous and somewhat arcane shell. Although all my hardware is supported my guess is that a lot less hardware than linux is supported. On the whole though very impressed so far with how it all hangs together. -- Frank *-*-*-*-*-*-*-*-*-*-* Boroughbridge. Tel: 01423 323019 --------- PGP keyID: 0xC0B341A3 *-*-*-*-*-*-*-*-*-*-* http://www.esperance-linux.co.uk/ Such a foolish notion, that war is called devotion, when the greatest warriors are the ones who stand for peace.
The Register are running the following story - the author, Drew Cullen (mailto:drew.cullen@theregister.co.uk) may be receptive to the information recently discussed on this list. http://www.theregister.co.uk/content/4/22918.html -- Phil Driscoll
On Mon, 19 Nov 2001, Phil Driscoll wrote:
The Register are running the following story - the author, Drew Cullen (mailto:drew.cullen@theregister.co.uk) may be receptive to the information recently discussed on this list. http://www.theregister.co.uk/content/4/22918.html
I am waiting for the OFT to get back to me at the moment, so when they ring I'll mention that it's about 2 weeks away from hitting the mainstream press (since that's a typical delay for stories that appear on the Register). Michael
The OFT has replied. Attached is a full transcript of communications to date (16KB worth). Essentially, their argument now boils down to: "'The Court has held (in particular in Höfner & Elser) that in the context of competition law the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed. Sickness funds, and the organisations involved in the management of the public social security system, fulfil an exclusively social function. That activity is based on the principle of solidarity and is entirely non-profit making.' As such, the principle of solidarity (i.e. that fact that the services available to a person under the NHS bear no relationship to the amount (if any) contributed by that person to the NHS by way of taxes or National Insurance contributions) and the fact that the body in question fulfils a purely social function is central to the question as to whether or not that body is an undertaking. As such, whether this might involve the purchase of, say, a renal dialysis machine or the necessary computer software services required for the general purpose of helping to run the NHS is irrelevant if the purpose in both cases is to facilitate the overall objective of the NHS - the provision of free healthcare services to society as a whole." As an interesting aside, this could mean that free software projects are also not subject to the Competition Act. After all, a free software project is based on the principal of solidarity: "the services available to a person [from a free software project] bear no relationship to the amount (if any) contributed by that person to the [free software project] by way of [any means]", *provided* that the project group does not offer paid-for consultancy services. Of course, there should be nothing to prevent individual members of a free software project offering private, for-profit consultancy since there are certainly medical professionals who work in both the NHS and private practice. A free software project is therefore an "activity ... based on the principle of solidarity and is entirely non-profit making". So, if any of us ever wanted to set up some anti-competitive deals, all we have to do is: 1. Pay 20ukp to set up a limited company. This creates a new legal person, and avoids any possible problems about what might or might not constitute an 'entity'. 2. In the name of the company, set up a free software project. Spend a day or two hacking together something mildly useful and make it available for download. License it under the GPL or similar. 3. Provide the free software project with a donations facility. You will probably need to open a business bank account in order to do this. Barclays will give you 18 months without bank charges, and I'm sure other banks will do similar offers. Make it clear on the project web page that this facility is purely for donations and that all money received will go towards providing improved facilities for the project: none will ever retained as profit or paid out as dividends to the shareholders. 4. Route any potentially anti-competitive deals through the new company. Explain to the OFT that the company is not an undertaking, preferably by quoting their own words back to them. There you go: how to bypass the Competition Act for only 20ukp... Michael
Michael, I take that you have no objection to your last posting and attachment being freely circulated to interested parties? I have a lug meeting tonight and they might be interested (considering Alan Cox is in the lug)... I must admit that this whole issue disgusts me - 70 million buys a lot of nurses and drastically shortens waiting queues but what the hell - we're only unimportant lesser proles who can afford to wait for legs (etc.) to drop off while our great and wonderfully IT Literate leaders line Microshafts pockets at our expense.... Next election I'm voting for Arthur Scargill - anyone want to joing me? Alan ----------------------------------------------------- Alan Harris Network Manager Bryngwyn School Tel : 01554 750661 Fax : 01554 758255 E-mail: alanh@bryngwyn.carmarthen.sch.uk ----------------------------------------------------- Notes: 1. The contents of this email may be snooped on by interested government parties for unknown purposes! Regulation of Investigatory Powers Act, 2000. 2. The opinions expressed in this email are personal and may not be shared by Bryngwyn School. -----------------------------------------------------
On Tue, 20 Nov 2001, Alan Harris wrote:
I take that you have no objection to your last posting and attachment being freely circulated to interested parties?
No objection. My only request is that the full text gets circulated rather than just extracts. This is, of course, at your discretion since I don't own the copyright on about 60% of the text anyway. Michael
The OFT has replied. Attached is a full transcript of communications to date (16KB worth). Essentially, their argument now boils down to:
"'The Court has held (in particular in Höfner & Elser) that in the context of competition law the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed.
Sickness funds, and the organisations involved in the management of the public social security system, fulfil an exclusively social function. That activity is based on the principle of solidarity and is entirely non-profit making.'
The issue of making or not making a profit is a different issue from the effective management of finances and services though.
As such, the principle of solidarity (i.e. that fact that the services available to a person under the NHS bear no relationship to the amount (if any) contributed by that person to the NHS by way of taxes or National Insurance contributions) and the fact that the body in question fulfils a purely social function is central to the question as to whether or not that body is an undertaking.
As such, whether this might involve the purchase of, say, a renal dialysis machine or the necessary computer software services required for the general purpose of helping to run the NHS is irrelevant if the purpose in both cases is to facilitate the overall objective of the NHS - the provision of free healthcare services to society as a whole."
But would this principle of "solidarity" not mean that there is a duty on the NHS to ensure that it spends money carefully. So as to maximise heathcare provision. -- Mark Evans St. Peter's CofE High School Phone: +44 1392 204764 X109 Fax: +44 1392 204763
On Tue, 20 Nov 2001, Mark Evans wrote:
As such, the principle of solidarity (i.e. that fact that the services available to a person under the NHS bear no relationship to the amount (if any) contributed by that person to the NHS by way of taxes or National Insurance contributions) and the fact that the body in question fulfils a purely social function is central to the question as to whether or not that body is an undertaking. As such, whether this might involve the purchase of, say, a renal dialysis machine or the necessary computer software services required for the general purpose of helping to run the NHS is irrelevant if the purpose in both cases is to facilitate the overall objective of the NHS - the provision of free healthcare services to society as a whole." But would this principle of "solidarity" not mean that there is a duty on the NHS to ensure that it spends money carefully. So as to maximise heathcare provision.
I think that this is more relevant to the National Audit Office than the OFT. Investigating value for money is definitely outside the OFT's remit, whereas it is reasonable to expect them to investigate possible anti-competitive deals. Didn't someone contact the NAO on the value for money issue? What was the result? Michael
participants (5)
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Alan Harris
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Frank Shute
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Mark Evans
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Michael Brown
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Phil Driscoll