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.

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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.

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The UK Internal Market consultation

Little heralded perhaps, but important, the Department for Business, Energy and Industrial Strategy has issued a White Paper entitled “UK Internal Market” and the need for it shows how far we have come, backwards mainly that this is an attempt to fix it.

It is a symptom of the regulatory state that we even have to consider the subjects in the White Paper, but as our commercial life is mired in bureaucracy and unlikely to crawl out any time soon, the effect of that bureaucracy to impede business is being looked at, in the context of a possible fragmentation of rule-making that could stop seamless operations of business across the United Kingdom, as has been enjoyed since 1707, and 1801.

Britain left the European Union, thank goodness, on 31 January this year, and the co-ordinating rules of its Single Market are dropping away. At the same time, those political parties which campaigned to keep powers in Brussels, now demand that those powers be handed to the devolved authorities, so they can make a right hash of it, but more to the point, the paper raises the point that a divergence of standards and licensing regimes would lead to companies’ having to produce different goods or labelling in different parts of the country, or limit their business to one corner of the land.

The worst aspect politically is that devolved authorities, being controlled by hostile opposition parties, will be driven to differ from the rules in England for political reasons and despite the interests of those affected by the rules – businesses and consumers. The paper only hints at that, but we can read between the lines.

It is a paper of 105 pages, largely because it constantly repeats itself, but that should not be harsh criticism, because after the many opening pages of fluff (which I would have written very differently), it comes to the main points for action: a non-discrimination principle and continual input by affected businesses. Both are excellent principles. Both should be used not only to squash future divergent burdens but also existing ones.

Four questions are raised, summarised as:

  1. Should the government seek to mitigate against both ‘direct’ and ‘indirect’ discrimination in areas which affect the provision of goods and services?
  2. What areas do you think should be covered by non-discrimination but not mutual recognition?
  3. What would be the most effective way of implementing the monitoring of the Internal Market and business and consumer engagement and should particular aspects be delivered through existing vehicles or through bespoke arrangements?
  4. How should the Government best ensure that these functions are carried out independently and are fully representative of the interests of businesses and consumers across the whole of the UK?

They are good questions. The fact that these questions even have to be asked is worrying, but they do.

The questions need input from those who understand their own businesses, and by all accounts the government will actually listen to them (which will be a Cummingsesque shock to the Civil Service, if they do not find a way to frustrate it). The White Paper indeed contains examples and quotes from businesses showing that a good consultation has already begun.

There is little time to respond, with observations and even ideas. This should be shaped by the reality of business – I was going to write “and not ideology”, but that is impossible.

These subjects may have to be the subject of more articles on this site, adding to those previously published.

Link to the White Paper

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The Constitution, mice and “yes but”

The word “reasonable” is an enemy: it acts as a codeword opening any decision to challenge. Parliament may think that it is creating wise structures and granting powers to those entrusted with the task, but a structure which has within it “reasonable”, or any one of a number of such tripwire words, is as if the bricks were mortared with porridge.

This is not a subject of grand constitutional reform, but it is what will cause reforms to fail. The pettiest words concealed within an Act or Statutory Instrument can hobble the constitutional intent, so the practices which insert those words are indeed constitutional in their effect, and a consideration of constitutional reform must look at reforming the practices of draftsmen.

Discussion of the topic must sound like a rank about minutiae, but while the intent reformers build mighty edifices, it is these mice which undermine the whole, so if what follows sounds like a rant, so be it.

Taking one popular bugbear as an exemplar: the immigration and nationality rules. The relevant part of the Act of Parliament concerning the grant of British citizenship starts robustly enough, saying that no one is entitled to citizenship unless they have lived in the United Kingdom for three years, and that it is for the Home Secretary to decide whether to grant citizenship. If it went no further then the system might actually be robust. However the wording goes on in a worried tone, and has a “yes but”; the decision must take account of X and Y and Z, that there must be no discrimination of nationality (or the usual list).  That was well meant, but it puts such a wide crack in the Home Secretary’s alleged discretion that any decision is turned over to the courts, such that the rule is not “if the Home Secretary is gracious to grant it” as the plain words say but in effect “always grant nationality after three years unless the Home Office has a rock-solid reason against this individual”. Therefore a small proviso has reversed the meaning of the section.

The word “reasonably” is not a convenient throw-away line:  it means there must be reasons and reasons that will be examined in court.  “In her reasonable discretion” is not “the Home Secretary may decide” but “she must follow a quasi-judicial procedure”.

If a decision shall be made “in all the circumstances of the case”, that is not a fluffing wording: it is an instruction that the decision-maker must be prepared to prove that they looked at all possible relevant considerations, or for any missed point their action will be struck down.

If we broaden our view away from Marsham Street, Acts of Parliament which deal with administrative matters are mountains of pushme-pullyou, granting powers and then taking them away with the same hand. Where politicians express despair at the way courts too readily quash acts done in good faith, the first place they should look is their own practices in authorising them only half-heartedly.

It is not (always) the fault of the judges.  If an Act of Parliament leaves the door open, the lawyers will wander in and help themselves to the larder.

All that said, limitations on powers granted are justified. If you give councils the power to close a road, they must be required to tell the residents, and not to block both ends.  If they have power to impose parking restrictions, it must be for the purpose of easing congestion, not to raise revenue. Councils have power to decide planning applications, but that power is greatly restrained, so that they must act quasi-judicially, must exercise their power with a liberal mind and for proper reasons and according to expectations, because this goes to the heart of rights of property and enterprise. In that case you must expect planning powers to be exercised with excessive care and to be challenged in court, as they are.

Where a statute does give exercisable power, it is given and its limits are defined to ensure the public benefit, but those entrusted with that power will not be able to exercise it to the full extent it is given, because they must be sure of the legality, after advice from a worried lawyer. That betrays the breadth of the original authorising statute.

Some statutes, as I observed, must be curbed around with limits. In other cases though, vague or cautious wording in an authorising statute can mute the powers it is trying to give. If the Home Secretary is to be empowered to control immigration and to grant or withhold citizenship, the wording must be tight and not subject to provisos, however well meant, in order that she can exercise that power or refuse to exercise it, at her complete discretion.

I will at before too long get on to more meaty constitutional topics. I would urge as an integral step though a brutal review of the drafting practices applied in Westminster and Whitehall.

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The Constitution: mice undermine the wall

A Constitution, Democracy and Rights Commission is a thing around which many projectors will orbit with their ideas, but the brief outlined in the Conservative Manifesto was short, and from Number 10 the challenge is finding what a commission with such a grand name is to do, and what it will not.

There are some big headline issues, like the Fixed Term Parliaments Act, an questions about reducing the number of members of Parliament (the latter already kicked into the long grass). Reducing the House of Lords and winnowing its membership may be discussed. Reform of judicial review is on the cards, but even that is a limited intervention. I have written about that subject before. and will again, but I want to think about the subjects beneath the headlines and which underlie, or undermine, all that stands above them.

There are many points to look at in other articles, but since a frequent topic of concern is judicial review, I may start by looking at the failings which make judicial reviews happen.

As I have observed before, judicial review is rare and applications are rarely successful – about 1% get to and succeed at trial. If it were not for bulging teams of lawyers crawling over every proposed action, there would be more. However it should be worrying that a public authority, having been granted powers for the public benefit, cannot actually exercise those powers without being supervised by a costly legal team. It is as if to grant the power and then take much of it back again.

The issue is a constitutional one: power legally granted yet being hampered by other constitutional reasons. The fault though is not constitutional as such: it is the way in which powers are granted half-heartedly by Parliament, and that is a fault in part from bad habits encrusted over the generations, but also from timidity. Those who prepare Bills and SIs live in fear of criticism if they think too much, and the politicians live in fear of criticism if they leave any gap through which blame may fall. Wee, sleekit, cow’rin, tim’rous beastie, O, what a panic’s in thy breastie! Between these, faltering instructions are given which stifle innovative practice and leave decision-making uncertain unless the decision-makers play safe, which contradicts the width of the powers given.

I will return to this with more particularisation later.

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