Closing the web

We now have the long-awaited, long-feared Online Safety Bill before the House of Commons. It is nowhere near as bad as the proposals which preceded it, though that is faint praise: past proposals were repulsive.

In 226 pages of dense-packed text, the Bill will lose you. It is badly written tortuous, self-contradictory, tautologous, recursive: it is written by those who do not know what they are talking about, to be sent out for administration by those who do not know what they are doing. That is just how new law works. A curse lies within its heart; OFCOM, whose name appears some 650 times. This is not law: it is command by apparatchiks.

The Bill is not  the monster presaged by earlier consultations: it does not seek to ban all subjective harm and hand the power to do so to an easily bullied official.  It narrows the scope of this intervention to actual illegality and children’s online safety, both of which are needed.  Then again, the impenetrability of the Bill may hide more than it admits.  There is also “Adults’ online safety”, which could in fact be used to ban anything, as far as anyone can tell.

“Harm” means psychological harm amounting to at least serious distress.

Nadine Dorries has praised the bill as liberal and assertive of free speech. I cannot imagine that she has read it. If she wanted to protect web users from actual online harm, if the Bill just did what she says, it would have been done on fewer than 10 pages, with no power to make codes and regulation, and just one line about OFCOM.

Instead, we have a civil servant’s wildest dream. He who controls OFCOM will control the web, and not just social media, but it can rope in all academic research, commercial marketing and information of any sort. Just thirty years ago, research was carried out on paper, in dusty libraries with whatever volumes a librarian thought to place there. The Web was created initially for academic research, but we could weirdly find ourselves in a position that the paper libraries are the better source again.

Trying to get into the guts, this Bill tries to pin the amorphous web into three categories of services: not “1”, “2” and “3” but “1“, “2A” and “2B“. (Those forest cultures said to have no numbers beyond two are perhaps more advanced than we thought.)  Anyway, these three innumerate categories are of services all of which must be entered on an OFCOM register:

  • “Category 1”: a regulated user-to-user service meeting “Category 1 threshold conditions”;
  • “Category 2A”: a regulated search service or combined service meeting “Category 2A threshold conditions”;
  • “Category 2B”: a regulated user-to-user service meeting “Category 2B threshold conditions”.

Lest you think these are defined, each refers to a preceding subsection, which refers to a Schedule for “threshold conditions”, which contains no definition but hands power to make the definitions to the Secretary of State. Yes – in two years’ time, your internet access could be controlled by Angela Rayner or Diane Abbott.

We have a key definition in Clause 2 that a “user-to-user service” means “an internet service by means of which content that is generated directly on the service by a user of the service, or uploaded to or shared on the service by a user of the service, may be encountered by another user, or other users, of the service.” That is everything on the worldwide web. It is intended to mean YouTube and those sites where teenagers upload indecent pictures, but what it actually covers is every website at all – all are created by users of the web. The DCMS could properly object that it s not intended, that there are exemptions etc, but I challenge them to interpret these. The Bill is keen on definitions, but every one is defined by reference to other definitions found scattered elsewhere in the Bill, each then defined by another, and some of which are, such as the key term “user” are, after several jumps about, found not to be defined at all.

This nonsense shames Parliament. An Act for online safety is needed, but this?  Cut out 99% of it and start again, but otherwise dump it.

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The problem of peace

Why is there any civil peace? Starry-eyed reformers ask why crime happens, but the real question is why anyone obeys the law.

Hobbes knew the problem well, from ‘Warre Of Every One Against Every One’ to peaceful society takes more than simply the existence of a common power to keep them in awe: there is not a policeman sitting in your parlour directing you when to rise and whither to go, or perhaps there is in China or Canada but not in the free world. There must be a constant influence for civic virtue, working against the natural love of immediate advantage and of personal power. Hobbes looked at these:

Love Of Contention From Competition

Competition of Riches, Honour, command, or other power, enclineth to Contention, Enmity, and War: because the way of one Competitor, to the attaining of his desire, is to kill, subdue, supplant, or repell the other. Particularly, competition of praise, enclineth to a reverence of Antiquity. For men contend with the living, not with the dead; to these ascribing more than due, that they may obscure the glory of the other.

Civil Obedience From Love Of Ease

Desire of Ease, and sensuall Delight, disposeth men to obey a common Power: because by such Desires, a man doth abandon the protection might be hoped for from his own Industry, and labour.

From Feare Of Death Or Wounds

Fear of Death, and Wounds, disposeth to the same; and for the same reason. On the contrary, needy men, and hardy, not contented with their present condition; as also, all men that are ambitious of Military command, are enclined to continue the causes of warre; and to stirre up trouble and sedition: for there is no honour Military but by warre; nor any such hope to mend an ill game, as by causing a new shuffle.

And From Love Of Arts

Desire of Knowledge, and Arts of Peace, enclineth men to obey a common Power: For such Desire, containeth a desire of leasure; and consequently protection from some other Power than their own.

Love Of Vertue, From Love Of Praise

Desire of Praise, disposeth to laudable actions, such as please them whose judgement they value; for of these men whom we contemn, we contemn also the Praises. Desire of Fame after death does the same. And though after death, there be no sense of the praise given us on Earth, as being joyes, that are either swallowed up in the unspeakable joyes of Heaven, or extinguished in the extreme torments of Hell: yet is not such Fame vain; because men have a present delight therein, from the foresight of it, and of the benefit that may rebound thereby to their posterity: which though they now see not, yet they imagine; and any thing that is pleasure in the sense, the same also is pleasure in the imagination.

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Books

Righting the rights

We have been promised a reform of the Human Rights Act for the last eleven years. It has been in Conservative Manifestos – now it is in a conference speech, will it actually be done?

Most interestingly is the timing:  the new Lord Chancellor and Secretary of State for Justice is Dominic Raab, a lawyer who has written two books on the need for reform of the area. Now his text may start to find its way towards the statute book.

There are two particular problem with the Human Rights Act: one in the legal realm and one deeply political.  I will look at the legal one: the deep political danger is for another time.

Each of the rights set out in the Convention européenne des droits de l’homme is one which is respected by British common law, so one would think there should be no issue with any of it. The common question from supporters of the Act is a sensible one: ‘which of those rights would you forego’?

The answer?  Not one; but that is not the problem. The Convention rights are in briefest summary, the right to life; freedom from torture or servitude; liberty and security; fair trials; against retroactive laws; privacy; freedom of conscience and religion; free expression; free association; marriage between a man and a woman; the right to an effective remedy etc.

No Conservative would argue with these. One would argue though with the activist interpretation which has been put on some, going far beyond the words, and some interpretations which plainly disregard the words. A second element is the way that it disfigures the culture of law enforcement.

I will leave it to petty editorials in the Daily Mail to list examples of the Act going wrong. It is meant to defend the noble oppressed struggling for liberty; in a land which has freedom as the default setting, it is a remedy of last resort of the scoundrel. The events editorialised to draw the reader’s outrage may be nothing to do with the words of the convention nor the way it has been interpreted judicially, but the way the police or public servants defer to what it might be – an armed criminal with hostages demanding food as a human right and other such things, and the police complying in fear though there is no need.

However, there are genuinely outrageous judicial decisions, arising from the judges of the Convention’s own court, in Straßburg. Their fault is the decision, since 1978, that the Convention is a ‘living instrument’, not meaning what it actually said as intended in 1950, but meaning whatever the judges want it to mean according to the spirit of the times, or their idea of what the spirit of the times should be.

The Convention so read is a jelly. To call it any form of law is to insult the very concept of law. To set British judges to determine such an insubstantial mass  is an insult to their vocation: European judges may have different standards.

If the Convention is a ‘living instrument’ it is not law, and its administrators are no judges.

There is a long history of discontent with the European Court of Human Rights. In the 1970s and 1980s the Strasbourg court handed out a string of judgments against Britain that seemed political; mainly judgments condemning actions taken against IRA terrorists. (Such judgments could only be made in an ivory tower, not by those who had seen their towns shattered by a bombing campaign, not by who wake in sweat in the early hours waiting for a knock and a gunshot.) More recently the discontent is in more personal matters. Wild judgments are , such as the one of a few years ago demanding that prisoners have an equal vote with honest men, is nowhere in the relevant Protocol to the Convention, but is determined by judicial sleight of hand. Other judgments look to force liberal preconceptions by a ratchet effect.

As improper are the cases that clear permit states to trample on freedom by allowing the action under the heading that it may be “necessary in a democratic society”. That is a phrase that can drive  a coach and four through any right with that proviso. Enactments to silence dissent as ‘hate speech’ are becoming commonplace in Europe. In America such a law would be struck down at once by their Supreme Court, but in Straßburg it is more likely to be lauded as a necessity.

How long the European Court of Human Rights will continue as a liberal stronghold is hard to tell, as more conservative-minded judges are being appointed in Eastern Europe. The norms of Austria, Hungary and Poland are not those of Belgium or France.

If there is a pretence that the Court is a court and that the Convention is to be treated there as law, the political bent of the judges should be irrelevant. It is relevant though, for the Convention is like no law the British tradition could understand.

Reform then on these shores need not tackle the wording of the enumerated rights in the Convention itself as written in 1950, or its Protocols 9to the extent they are accepted. It would nail the jelly to the table, and read the rights as they are written.

In Dominic Raab’s book “The Assault on Liberty“, he makes the case for a ‘British Bill of Rights’ that actually resembles law. The timing of the book is important: it was written when he sat in Opposition, in the Blair period.  It was not a demand for Parliament and Whitehall to be loosened from constraint, but a plea to impose more, better restraint upon the overuse of power.  It was Mr Blair who pushed the Human Rights Act though Parliament and he declared himself thus a champion of liberty, but his ministry saw the greatest abridgment of personal freedom since, well, since the previous Labour government. Mr Raab’s called for liberty; and now he is in charge.

Reform is possible, but the Convention on its own may be impossible to save.  Read straight as it was written is a necessary start: even read straight though the Convention is wobbly: that phrase “necessary in a democratic society” is incapable of definition except politically.

Rights restraining subsidiary legislation can be written in. The tendency since Blair’s time is for freedom to be curtailed and government power ever increased under the fig-leaf of the Act (which is a separate article).  A restraint on delegated power is therefore needed. This may be Mr Raab’s ‘British Bill of Rights’, and it would be enforceable with judicial review.

The fuzzy political boundary is still there though and judges should not be pushed into those areas in which politicians must be made to accept responsibility.  There may be a case therefore to tear the judicial element out. We would not have a British version of the Strasbourg court, but perhaps a quasi-judicial figure as a “Superintendent of Conventional Rights”, able to opine, to report and to chide.

See also

Books

Unreasonable Judicial Review

The government’s response to a paper on judicial review, which was my last post here, is good as far as it goes. It holds back from necessary reform though: the first such reform is a restatement of the Wednesbury rules, and specifically the ‘reasonableness’ element.

The Wednesbury rules are set out in a page on this site (Judicial Review: a guide). In essence, a decision must take account of all relevant purposes, take account of no irrelevant purpose, and must not be unreasonable. All these are hostage to fortune: the last is a bear-trap, misused to side-step the rule of law.

The paper does not refer to Wednesbury directly but does give a firm background for it: any power granted by Parliament has explicit limits, but may also have implied limits. The Wednesbury rules are implied, unspoken limits. For example, Parliament may grant councils an explicit power to licence certain businesses, but it must not use the power to favour councillors’ family businesses and suppress competitors: that will not be set out in the Act but is implied. The paper contains a stern reminder that these limits are only implied, and not a universal truth, and Parliament could disapply them, and has done.

‘Reasonableness’ is a problem though. In Wednesbury and later cases it has been explained: unreasonableness is insanity: a decision made by someone who has lost his power of reason.

Decision-makers are rarely clinically mad though, so impliedly it is an evidential question: ‘Was the decision so devoid of reason that no sane man could have made it? If so, and assuming the decision-maker was not mad, it must have been made without regard to the genuine factors or for an improper purpose.

The word ‘reasonableness’ has other meanings though in everyday life, and these have been used by some judges to widen their remit. It can be used by a judge to usurp the decision-making process so that the judge substitutes his own reasoning a the mete-rod of ‘reasonableness’. That, negating powers and discretions given by law, subverts the rule of law.

The Government paper is sound on all these points as a restatement of the strict law. However, it is only a government paper – it is not an Act of Parliament nor a legal judgment: it has no force of law whatsoever. The Ministry of Justice may feel they have done will in preparing this paper, but no judge could take it into account. It needs an Act of Parliament to give direction.

A lurking instability are that the Wednesbury Rules themselves are found in no Act of Parliament. They were deduced by the Court of Appeal in 1948, in Associated Provincial Picture Houses, Ltd v Wednesbury Corporation. That in itself may tempt an judge with a sense of a good cause to determine that some other implications are yet to be found by a judge with his own perspicacity.

The idea of reasonableness in Wednesbury is strictly limited though, and Lord Greene knew it could be abused:

It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation   [1926]  Ch  66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.

…….

I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose.

To set this strict definition out in black-and-white law may be a challenge to the sesquipedalian legal draftsmen of our day, but it is quite simply when boiled down.

To retain the requirement of ‘reasonableness’ is consistent with what Parliament must have intended and so supports the rule of law. To extend it to allow a judge to strike a decision down by applying his own standards of reason and preference would discard the rule of law entirely, in favour of the rule of lawyers.

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Books

A start to fixing judicial review

A very encouraging government response in the review of judicial review suggests that the system will be made to work better. It is still the start of the process.

The Law Society fell over themselves to find something to object to, which they would have done irrespective of the outcome: in fact the government’s paper is everything the Law Society could have wanted.

Some of the problems found in the current judicial review process are set out in the paper, but only some. The main reforms proposed are encouraging, as a start, and on their own they would make the system work better for everyone, not to stop judicial review of administrative decisions but if anything to make it a remedy more available for genuine cases, while providing a mechanism for remedying decision-makers’ faults. It is not a wholesale reform, but it sets the tone.

The headline points are short. The first of them seems very niche: reversing the ruling in Cart. That (and I had not heard of it either) was a decision allowing parties to challenge the Upper Tribunal if it does give them leave to appeal. It was pointed out that the Upper Tribunal is a senior judicial body that was never meant to be amenable to judicial review in this way and those appeals are the biggest single type of judicial review; 779 a year on average, with a miniscule success rate. It discredits the system, ties up judges in pointless work and wastes resources to no benefit.

The second-biggest set of appeals is one highlighted here before, namely immigration challenges. While this is not covered in the paper, eliminating those challenges by giving the Home Secretary complete discretion to do her job would knock out about as many cases again.

The second reform is interesting in terms of legal philosophy; the classical conception of judicial intervention would not countenance it, but modern conditions are far from the original conception. The classical formulation is that a decision made beyond authority is a complete nullity from the beginning, and therefore the court’s only role is to declare it so. In modern practice, decisions are very rarely quashed for being wholly outside the decision-maker’s powers, but for procedural inadequacy, such as failure to consult in the way laid down in a regulation, if that is a condition of action. In such a case, the court might in future be empowered to suspend the decision so as to give the errant decision-maker a chance to put right the procedural flaws. The challenge then is to allow that latitude to genuine correctable oversights and not extend it to actual exceeding of authority.

(The example of the latter given in the paper is if Parliament were to create a tribunal empowered to hear only tax cases but the tribunal started handing out murder convictions. That sounds wild, but it is exactly the sort of thing that used to happen back in the day, right up to the Revolution of 1688, and caused the Court of King’s Bench to issue many a writ of certiorari against lesser courts.)

A third string to the government’s paper is another one which has been highlighted here: the High Court’s blatant disregard of ouster clauses. Here the Law Society become vocal: “We need to consider carefully government proposals to change rules that would put some ministerial decisions beyond the reach of the court – so-called ouster clauses – but the guiding principle must be that the government, is, and must remain answerable to the law – just like the rest of us” – but that is a dishonest reading of the paper. Ouster clauses are rare, and there is no suggestion that they would become more common. Where they are needed to give finality to decisions, Parliament orders it, and to disregard the plain words of an Act of Parliament is the very antithesis of the rule of law: it is Parliament which makes the law.

If ousters become commonplace, then there would be an objection, but that is not suggested. What the paper actually discusses, if not in so many words, is “How to we stop judges from using sophistry to ignore the plain words of an Act of Parliament whenever they want?”

The narrative to the report, aside from the actual recommendations, is of as much interest in setting the tone. The golden thread is the rule of law. That is also the ideal championed by those cynical of the government’s motives.

It is right that Labour and the LibDems and the Law Society should be sceptical. It is right that they should voice suspicion of the government’s move. A government is not to be trusted with the delimitation of its own powers. Parliament is the trustee of that restraint. Care must be taken of a government looking at the limits of its powers, but in this case the writers of the report have trodden carefully.

The rule of law is here accepted, and whatever right and proper suspicions are expressed by the Opposition or the Law Society, when it comes down to it, the Conservative benches in the Commons have more respect for the restraint of government power than may be found opposite, simply by ideology.

One word mysteriously missing from the whole paper is “Wednesbury”. The Wednesbury principle is the foundation stone of modern jurisprudence on judicial review. It is placed in fact in the paper, not by the name ‘Wednesbury’ but as a reminder that basis of the modern rules is not to empower judges but to reflect the intentions of Parliament:

“while the standard grounds of Judicial Review are default conditions that Parliament intends to apply to the exercise of any power, these are just defaults and Parliament is completely free to add to or remove from them in specific cases.”

The actual rules in question have been discussed before. The originals have shrunk in the imagination to one: reasonableness. That word is open to misinterpretation, often deliberately. The meaning of “reasonableness” will be the next article on this subject.

To go back to the paper, it refers to ‘the tendency in the contemporary debate to see terms such as “the Rule of Law” as coterminous with the application of a range of moral and normative values’ and observes, correctly, that:

“there is a significant difference between defining the Rule of Law as the idea that the powers granted by Parliament or through the prerogative should be enforced by the courts (or another body) according to Parliament’s intent, and the idea that the courts should apply as a matter of course another source of authority such as their own concept of fundamental rights”

That is the fundamental trespass that activist judges can make. Judicial review is there to restrain officials from exceeding their lawful jurisdiction. It is not based on idea that judges are all-wise and ministers and officials are foolish so a judge would make a decision better.

There must be limits to ministers’ and officials’ powers, or freedom can be extinguished, and the courts will enforce those limits. However, the law is not just about limits: it is about actual powers granted, and they are granted for the benefit of the public. For a judge to invalidate a power actually given, because he has other ideas, that is to disregard a command of the law, and thus is a contempt for the rule of law.

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Books