Nicola’s Muzzle – 2

Since I last wrote of Nicola Sturgeon’s Bill to ban speech, more immediate events have seized the attention, but on this bandwagon runs. In that time yet more voices have risen against it. Yet Nicola controls in a presidential manner all the levers of state, and weak MSPs ready to do her will. The threat is very real. I chose to leave writing this until I was out of Scotland and outside her reach.


The ‘Hate Crime and Public Order (Scotland) Bill’ is kept relatively short. It has been promoted as a measure against ‘hate speech’, but goes far beyond even the measures Tony Blair left us with.

I previously wrote about the opening, which has been little commented upon, forcing sheriffs to act outside common sense and conscience. The meat of commentary is on Part 2: ‘Offences relating to stirring up hatred’. Now, for a such a Bill to be promoted by a political party built entirely on stirring hatred up against their fellow countrymen, this is chutzpah indeed. The provisions are beyond humour.

It will be a crime to behave in a threatening, abusive or even merely insulting manner, or to communicate insulting material to another, if with the intent to stir up hatred against a defined racial or national group or even if with no intent if it is likely that ‘hatred’ will be ‘stirred up’. It does not say that SNP branch meetings are exempt, but I would not want to be the constable to tries to arrest the unbridled tongues that do just this at every one.

The clause would ban the Daily Mail and half a dozen other papers from distribution in Scotland, as soon as someone alleges that one of their leading articles has stirred prejudice against foreigners. Stirring hatred against journalists or political opponents is not covered.

Secondly, it will be a crime to behave in a threatening or abusive manner, or to communicate abusive material to stir up hatred, or be likely to, against a number of listed identity groups. It does not here say ‘insult’ here, but that will be added later, the moment an advocacy group in receipt of taxpayers’ money claims it is a hole in the legislation. In any case, ‘abusive’ may mean exactly the same.

The groups covered include the usual suspects, including ‘sexual orientation’ and ‘transgender identity’.

It would be a defence (at least in the initial draft – this may come out) for a person charged to show that their behaviour was ‘in the particular circumstances, reasonable’: that is undefined and I pity the advocate who tries to argue it, in professional terms and also because of the hate mobs who would besiege his chambers afterwards. ‘Reasonable’ by whose standards, or to achieve what? This may be interpreted, in the spirit of the Act, that no behaviour may be adjudged a reasonable infringement of the presumptions the Act contains, leaving no defence.

The major trap hidden in the formulaic words is in the key line ‘as a result, it is likely that hatred will be stirred up against such a group’. Consider it for a moment: it does not say how much hatred is t be engendered by the actions in question: it might be one mad, tinfoil-hatted nut on Facebook who reads words and feels hatred growing in his heart, and that has stirred hatred. Had the words said ‘in a significant portion of the population’ it would be bad but not as bad as this: had it said promoting violence against members of a group that would even seem acceptable, but stirring any hatred at all, that is unavoidable in social commentary.

It is worse than the apparent aim of the wording: it can catch anyone with views someone else does not want to hear. Hatred has to be directed at a group – but the Bill does not say that the speaker had to have that group as a target: he might be a Christian preacher with nothing but love in his heart but by saying something that an angry Woke mob does not want to hear, he has stirred the hatred of the mob against him and against Christians, and so he is guilty, and looking at 12 months in Barlinnie.

So much more could be said, and will be.

See also

Law: an abused word

No man has ever been arrested for attempting to break the First Law of Thermodynamics, nor spent time in clink for breaking Murphy’s Law. The idea of lawbreaking and consequent condemnation has burst out with little understanding from commentators, or even from lawyers regrettably. The absolute virtue of the Rule of Law become the worst virtue-signalling when commentators speak of laws which are no laws at all.

Law is the basis of a settled, peaceful, free society in the English-speaking world. It is taken for granted because it has always been this way – it is still a novelty in Europe. Therefore the idea of the Government “breaking the law” brings with it the heartiest condemnation, but it comes from a deliberate misunderstanding.

Covenants, without the Sword, are but Words, and of no strength to secure a man at all. Therefore notwithstanding the Lawes of Nature, (which every one hath then kept, when he has the will to keep them, when he can do it safely,) if there be no Power erected, or not great enough for our security; every man will and may lawfully rely on his own strength and art, for caution against all other men.

Law is a word used in many senses, and Hobbes, who used the phrase “Lawes of Nature” frequently, explicitly denied that these ‘laws’ were any more than as we might use the same phrase today, or such phrases as “the laws of physics”. The essence of law in the sense of the laws of the realm are where he says:

Law in generall, is not Counsell, but Command; nor a Command of any man to any man; but only of him, whose Command is addressed to one formerly obliged to obey him. And as for Civill Law, it addeth only the name of the person Commanding, which is Persona Civitatis, the Person of the Common-wealth.

In short, law properly so-called is the command of the sovereign or sovereign body, which in the case of Britain is the Queen in Parliament.

The Legislator in all Common-wealths, is only the Soveraign…. For the Legislator, is he that maketh the Law … the Soveraign is the sole Legislator. For the same reason, none can abrogate a Law made, but the Soveraign; because a Law is not abrogated, but by another Law, that forbiddeth it to be put in execution

The concept of “international law” is a different concept. As was observed in an earlier article on this site, international law is not law. It cannot be, because it is not made and abrogated by the sovereign. It is a covenant without the sword, which is but words of no strength to secure a man at all.

The courts of the realm have a certain indulgence towards the concept of “international law” in the sense that it is a general set of understandings between states and one might assume that Parliament when legislating does not intend to contradict an important treaty, so Acts of Parliament are interpreted, as far as the language will bear it, in a way that is consistent with any earlier treaty. The courts have also however stamped down on attempts to import treaties as if they were equal to domestic law: if a treaty could rewrite the rights and obligations of the subject, this would allow the Crown to bypass Parliament.

There is also to issue about what this “lawbreaking” would be were it actual law and actually broken (which in this case, I am given to understand, would not be so). In domestic law there are two separate concepts, of criminal law and or civil law (which is not the same as Hobbes’s Civill Lawes, the latter referring to actual law as opposed to the “Lawes of Nature“). Civil law is about debt, trespass, enforcing contracts and trusts, negligence leading to injury and such civil wrongs as this. It is important for the order of society but it does not carry the shame of lawbreaking. It is not what the ordinary man thinks of: if an backstreet yob yells “Run: it’s the Law!”, he does not mean he has spotted the approach of a member of the Chancery Bar.

If departing from a treaty were a breach of “law”, it would be akin to breaching a contract, not coshing a night-watchman. The shock is therefore feigned, and foolish, and in some cases dishonest with the intent to deceive the public.

The Withdrawal Agreement, the proximate cause of the recent pearl-clutching, is part of the law of the realm and so must be followed – but it is only part of the law because an Act of Parliament has made it so, and another may unmake it: the rules of the Agreement may be abrogated, but by another Law, that forbiddeth it to be put in execution. The Treaty of Rome itself, when the United Kingdom was a member of the European Communities then of the European Union, had the force of law only because an Act of Parliament made it so. This is basic stuff. Sovereignty, as Hobbes repeatedly reminds us, is indivisible.

The law that is actual law must be upheld, but it is for Parliament to consider it and at any time may send a Bill to the Queen to change the law, for that is a sovereign act of law-making. Law to govern society should be precise and understood, which those international conventions never can be nor are intended to be, and the law should be open to frequent reform, as international conventions cannot be.

That Law can never be against Reason, our Lawyers are agreed; and that not the Letter,(that is, every construction of it,) but that which is according to the Intention of the Legislator, is the Law. And it is true: but the doubt is, of whose Reason it is, that shall be received for Law. It is not meant of any private Reason; for then there would be as much contradiction in the Lawes, as there is in the Schooles; nor yet (as Sr. Ed, Coke makes it (Sir Edward Coke, upon Littleton Lib.2. Ch.6 fol 97.b),) an Artificiall Perfection of Reason, Gotten By Long Study, Observation, And Experience, (as his was.) For it is possible long study may encrease, and confirm erroneous Sentences: and where men build on false grounds, the more they build, the greater is the ruine; and of those that study, and observe with equall time, and diligence, the reasons and resolutions are, and must remain discordant: and therefore it is not that Juris Prudentia, or wisedome of subordinate Judges; but the Reason of this our Artificiall Man the Common-wealth, and his Command, that maketh Law: And the Common-wealth being in their Representative but one Person, there cannot easily arise any contradiction in the Lawes; and when there doth, the same Reason is able, by interpretation, or alteration, to take it away. In all Courts of Justice, the Soveraign (which is the Person of the Common-wealth,) is he that Judgeth: The subordinate Judge, ought to have regard to the reason, which moved his Soveraign to make such Law, that his Sentence may be according thereunto; which then is his Soveraigns Sentence; otherwise it is his own, and an unjust one.

See also

Books

Last year was so last year, lads

Tension in the Commons, procedural skirmishes, the Lords ready to pounce, rebellion on the government side of the House, all over Brexit. Yet this is not 2019. That annus horribilis was meant to be over and done with when Boris rode back to Downing Street in triumph after the Winter election.

This time the voices are as shrill but it is a matter so petty that you wonder why they bother being so emotional. Last year Brexit itself was in the balance and for all the platitudes about procedure and just securing a deal (which they then voted against) it was about whether Britain would leave the European Union at all, and the entire country knew. Brexit itself was in the balance. Then the election happened, the Zombie Parliament was driven out and Britain sailed cleanly out of the European nightmare.

Compared with all that, this local difficulty is as nothing. It does not concern the grand picture but two lines or so in the Withdrawal Agreement, and with no intention to change them anyway.

The principle of keeping to treaty obligations is generally a good one, but this phase ‘international law’ is lie in a line, and always has been: there is no such thing as international law, or rather it is not actual law, just a way of getting along. The concept is there, but there is also the Second Law of Thermodynamics, and no one has been arrested for trying to break that. The word “law” is a red rag to a Twittermob and many a foolish remark has been heard on the subject. It turns the stomach to hear an adjustment to an administrative arrangement compared to murder or to the Uighur genocide.

This site has observed before the imbalance that the EU negotiators have at every step introduced into negotiations: in several places their proposed treaty provisions have provided for heavy punishment were Britain ever to depart from points in a trade agreement, but no sanction at all for their own breaches. A glance at the EU’s practice over many years shows it to be an unrepentant, serial rule-breaker, so no one should be outraged that our government should seek to prepare for when they do it to us.

Another cause of dissent, and one more comprehensible, is that the role of the House of Commons in supervising all this seems to have been minimised, and MPs want to do the job they were elected for. In fact, the Bill as presented strikes a practical balance. It is good for the government to hear strident voices from the backbenches, and even the weird voices projected from the other side of the House, but ultimately speedy action must come from the executive.

Al this said, the whole thing has been appallingly handled in public relations and diplomatic terms, unless; unless it was a smuggling exercise, but let us pass over that – BEIS knows what that is about and it has been successful if so.

The Bill last night passed in the Commons, unamended though with assurances about the use of the powers and promises of further consultation. The rebellion was small, and the DUP voted for the Bill, as well they might as the clauses fought over are for the protection of Ulster. In the Lords, we can but wait and see what more overblown rhetoric emerges. The margin in the Commons was massive: this is not 2019.

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Books

Statesmanship, a lost art

In my youth I thought that the statesmen of great nations rose by natural superiority and brilliance of mind. Then I started meeting them and was at once disabused of this. Europe has no Talleyrand, no Bismarck, no De Gaulle. They would not have reacted with petulance nor believed the press headline over the reality.  One should not beg for another Bismarck to rise in Europe, but he is needed at this hour.

The forced introduction of democracy to the benighted states of Europe has succeeded in its purpose, of introducing imbecility and thus impotence. The condition appears to have spread also to the smaller states which had previously had forms of democracy. They spit out at the top no statesmen but petty players and énarques.

Taleyrand would not have read the newspaper headline to the exclusion of the reality. (He might have written the headline, to get effect.) Bismarck would leak a faked telegram, or email in our age, but he would not have believed one, nor preferred a Guardian leader over his own analysis. He would have understood, and understood the game. De Gaulle would occasionally make a diplomatic gaffe in exercise of his own greatness (Vive le Quebec…) but his every action was for the good of France and its people.

In the sensible world, beyond Europe, progress is being made on many fronts: a new trade treaty with Japan signed yesterday, and others rolling along towards the finish. That should be a challenge to Europe, but so far they appear just as inward-looking politicians.

It was commented on this blog earlier about the unseemly behaviour we have seen, fighting by press release instead of secret, diplomatic negotiation. Maybe, we may think, it is a symptom of the modern world of open, instant communication aimed at the lowest common denominator. However it has not affected the negotiations carried out elsewhere across the world.

The French Ambassadors to King Henry VIII, those in Holbein’s picture, on whose word turned war or peace, were in their twenties. We can afford elder statesmen these days. It would helpful if we could find some.

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Have we started to win?

The new, revamped Board of Trade has a star name – Tony Abbott no less, former Prime Minister of Australia. His appointment was widely welcomed and his technical nationality was never an issue: the Old Commonwealth is a block of peoples not only not foreign to each other but seeming somewhat bewildered to be considered separate nations, and it outlines that Australians, Canadians and New Zealanders as as home here as on the shores where they grew to manhood. Mr Abbott will do well in his new role.

His position was threatened by a blast from the left which in past years has proven deadly to any candidate for office. The left-wing attack-mob did not get their scalp this time.  Once they get their hooks into you, you’re a dead pigeon, so we have been led to believe, but not this time.  Boris has proven more robust in protecting his appointments from the mob. That is an encouraging development. Theresa May threw Toby Young and even Sir Roger Scruton to the dogs at the whiff of a Twitterstorm in displays of contemptible weakness: Boris Johnson (who has himself been the focus of many such attacks) has started to turn the tide.

Interestingly, the artificial fuss over Tony Abbott distracted attention from the other appointments of advisers to the Board of Trade, from an international field, and so protected those who are less inured to such attacks.

The New Zealand government has privately expressed frustration at the inexperience of the British negotiators trying to create a free trade agreement with New Zealand, and that is no surprise as before Brexit there was no need to develop the talent and experience. Now there is now a team lined up who have that experience and they are to be unleashed upon the world. Who’s on first I cannot say, but Abbot’s name is the most prominent and the best at opening doors.

It is an impressive line-up. The Remoaners would have had a fit at Daniel Hannan being there, had they not been involved in dirty tactics against Tony Abbot, but as Mr Hannan is the founding President of the  Initiative for Free Trade, he has the contacts to bring to bear on the enemy. In fact apart from the ex officio ministers, they are all heavyweights. It would not have happened if Boris Johnson had given way.

We may be winning then, or making the first steps.

The Culture War is not about culture at heart: it is about power. As Hobbes observed, in the first place, I put for a generall inclination of all mankind, a perpetuall and restlesse desire of Power after power. The left-wingers, cultural Marxists, Wokeists, call them what you will, have hitherto enjoyed power. Elections and Parliament mean nothing if feigned outrage and feigned offence force the government to your will, and by the time Mrs May’s ministry had run its course, they were in undisputed control, removing public servants from office at a whim. Then there was the election in December 2019, and it might not have made any difference to the structure of power, and no election for an age has done. Something changed though. The was cultural divide in the nation was made, by Brexit into a yawning chasm, and the revenge of the spurned was seen in the fall of the Red Wall. This was a mandate for change. Boris returned to Number 10 with Dominic Cummings at his side, now with the mandate and majority and manpower to make changes.

The new extremism amongst Cultural Marxists is to be expected; they are outraged that their power has been challenged. The counter-revolution against them is underway.

There has been no change in the Twittermob. People are still persecuted and sacked for transgressing the rules set by extremists. The police still make political distinctions between different groups of rioters, shops still make customers feel unwelcome with lurid rainbow flag displays, and television reporters have still not realised that “far right” does not mean what they have been telling people it does. However that all now though seems to stop at the doors of Whitehall. There is pressure on the Civil Service to align with the programme, and there is even a Tory as Director General of the BBC. There is now open talk of a push back, of fighting the Culture War. How, has not been explained. On our side, the culturally conservative side, we play with a straight bat out of principle, and to avoid accusations of tyranny – the irony is not lost. There are lessons to learn from Hobbes about all this: mankind has not changed in four hundred years, nor indeed in forty thousand.

For now, there is robustness in Whitehall. This may spread. The momentum cannot stop though, because the other side will not stop. The success in giving Tony Abbott the position he has, not as a political gesture but because he is a bonzer pick to do the job, is a good sign for the future.

See also

Books