A new programme, and how to mend it

The list of Bills announced in the Queen’s Speech is tired and uninspiring. Much has been promised before and the question must be why it has taken so long. My concern though is where some of these measures could go awry, and whether they should be neutered or tipped into the long grass.

The Online Safety Bill is a revival of one which has been discussed here before. They could get it right, but so far it has been all wrong. This is a pity, because a good, limited law could be a benefit to vulnerable people, in particular teenage girls and flaky young men, of which there are many.

The Bill is meant to have a mechanism by which consumers may challenge an online forum which blocks them, though it is always open to a platform to set its own rules:  you would not expect for example a forum for vegetarians to allow me on there to promote the health benefits of beef.  However there are competition issues, and these should be a matter for government concern:  if a social media platform wants to limit discussion on any issue, it may do so as a private company, and the consumer’s remedy is to go off to another platform, but if all the main players adopt a common position, that is a restrictive trade practice.  This is a real risk: Twitter could legitimately block Donald Trump when they chose, but when other media companies blocked the operation of an alternative forum that he used, that was a restrictive practice. The sorts of things said by vengeful ex-presidents may turn the stomach but there cartels may not build a wall to prevent legal expression. Can the Online Safety Bill or the Media Bill deal with these competition issues? They should do.

My attention was drawn recently to action by the British Board of Film Classification imposing an ‘Adult Content’ filter on a website (conservativewoman.co.uk) – a site too much given, I must say, to irresponsible vaccine conspiracy ideas, but ‘Adult Content’? Surely not. It may be the section in the Board’s rules on ‘discrimination’, which is wide open for activists to abuse. Mobile companies en masse use the BBFC blacklist, and if such a cartel is tolerated then it must again be subject to rules to prevent anti-competitive practice.

The Renters Bill has been looming for years, and I have discussed its ideas before.  They are bad ideas, which will hurt the very people they are intended to benefit. If tenants cannot be removed, landlords will get out for the game, there will be fewer flat available and rents will rocket. Furthermore, a landlord will be unable to empty his property to improve it and get a better rent, so the quality of homes will decline.  Only slum landlord’s with thugs ready to enforce their word will thrive.

There is also the benevolent promise of an ombudsman for disputes. This position will fall to institutional capture by activists.

On the other hand, the bill, we are told, will “reform possession grounds for landlords” – maybe the right to remove tenants to improve the property can be retained.

Whatever the government have in mind, they must cast out the demon whispering in their ear – Shelter, an organisation which once did good and is now, regrettably a fake charity pushing a malevolent political agenda.

The Bill of Rights would take a series of articles on its own. The Grauniad has condemned it unseen as a tyrant’s charter, as it would: the Grauniad‘s enmity is generally a promise of a good thing. We shall see.

A programme of increasing individual freedom might have been expected as a reward for sitting out the intolerable lockdowns, but there is little sign of it here, yet.  There may be ways to mould these bare titles and proposals so that we end up more free.

 

Governing locally and its frustrations

Our tiring system of local councils was created in a political accident. Lord Salisbury wished to replace the Metropolitan Board of Works with an elected body like a giant municipal council, but had a minority in the Commons, and the Liberal Unionists would only support him only if he would erect elected councils across the whole country, from Cornwall to Zetland, which was done in 1888-9. They had other ideas to push too – the district councils that followed, just to ensure there is no escape from politics.

The system which preceded this revolution is perhaps better looked at in a separate article, but placed local administration in the hands of justices of the peace. These magistrates when sitting spent most of their time dealing with malefactors, and the rest on roads and bridges, policing and anything that had not been handed to public health boards, poor law unions and so forth. By all accounts, separating government from law enforcement was a tangled task and magistrates still sat as councillors and vice versa often in the same building. The system had been creaking and starting to break for decades so Salisbury’s accident had to happen at some point in some way.

It was not the first time the national government has tried to reform local government and found it created a monster. Hobbes recounts a reform by Cromwell:

The Protector, being frustrated of his hope of money at Santo Domingo, resolved to take from the royalists the tenth part yearly of their estates. And to this end chiefly, he divided England into eleven major-generalships, with commission to every major-general to make a roll of the names of all suspected persons of the King’s party, and to receive the tenth part of their estates within his precinct; as also to take caution from them not to act against the state, and to reveal all plots that should come to their knowledge; and to make them engage the like for their servants. They had commission also to forbid horse-races and concourse of people, and to receive and account for this decimation.

… Between the beginning of this year and the day of the Parliament’s sitting, which was September 17, these major-generals, resided in several provinces, behaving themselves most tyrannically. Amongst other of their tyrannies was the awing of elections, and making themselves and whom they pleased to be returned members for the Parliament; which was also thought a part of Cromwell’s design in their constitution.

– Thomas Hobbes: Behemoth

You can almost feel Cromwell’s frustration at lack of control. It is the eternal tension between needing to give power to local bodies, and then being annoyed that they are not your clones, and keep they making their own decisions. Legislation even today goes in a yo-yo between praising localism and then cursing and stopping it. The major-generals have not been called back, to ensure puritan rule, but Whitehall is pretty effective at the same job  nevertheless.

(The next ruler who tried to muzzle local magistrates was James II in 1688, and that was a move against established local power which saw him driven from the throne.)

The modern system is a frustration to central bureaucrats, but I think that is the point.

Voters may thinks Whitehall’s inner Cromwell is right to try to abolish councils wherever it can, as the constant elections are a bore. The weary electorate may wish the old system of unelected magistrates had continued. It  would make for unresponsive, distant administration with little care for the interests of those they are meant to serve, but it would mean we are no bothered by village politicians hammering on our doors. Those trudging endless streets with leaflets and a forced smile may agree.  In the cold as it is getting dark and yet another letterbox is hidden behind a bush or jammed, know that the Liberal Unionists are to blame.

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Deposing our heroes

It is a celebration, but Palm Sunday may be the most uncomfortable date in the Church calendar for what it tells us about ourselves, and that we do need telling.

It is an odd Sunday in the Church of England, with the vicar getting us all to wave branches – few palm-leaves in our leafy shires but anything from the garden will do – as an imitation of the adulation shown to Jesus as he rode humbly and as a king down to Jerusalem. The hymns, uplifting and triumphant (and if I stay silent in my pew it is not for any disapproval of the  soaring hymns but that they insist on demanding a vocal range far outside what I can manage).

The triumphal procession down the Mount of Olives touches on many  and various ideas, each mind bringing its own ideas into what must have been a clamorous event.  Hobbes even used it as an illustration of sovereign authority:

the Kings word, is sufficient to take any thing from any subject, when there is need; and that the King is Judge of that need: For he himselfe, as King of the Jewes, commanded his Disciples to take the Asse, and Asses Colt to carry him into Jerusalem, saying, (Mat. 21. 2,3) “Go into the Village over against you, and you shall find a shee Asse tyed, and her Colt with her, unty them, and bring them to me. And if any man ask you, what you mean by it, Say the Lord hath need of them: And they will let them go.” They will not ask whether his necessity be a sufficient title; nor whether he be judge of that necessity; but acquiesce in the will of the Lord.

We can wave a branch from the garden in pale imitation of the excitement of that day, but what does it says of us that we should imitate those who cried ‘Hosanna’, knowing that the words turned within a week to ‘Crucify!’; and there is no separating the two, so the readings begin in triumph and end in torment. It would be comforting to believe the voices that said each were different, but looking about us and within us, we know they were not.

Anything about us and even the great affairs of state, the wars, the weeping, the justice and the peace, are petty compared with those days. They reflect us all the same. We are ready to raise up heroes and repose in them our hopes and trust to do what we have not done for ourselves to transform the kingdom or the world – but no man or woman in that place can please all his supporters’ expectations, and in Congreve’s words “Heaven has no rage like love to hatred turned”. Now for writers hailed as champions, or celebrities or politicians, being raised up is just the ready the beginning of a fall into being the subject of the worst execration from acolytes feeling betrayed.

If they could reject even the Son of God, who can stand? They did not crowd the hill slope to worship the revealed Christ but to press upon him their own expectations, each individual’s, as we seek to make God in our own image.

That he was saluted King when he entered into Jerusalem: That he fore-warned them to beware of all others that should pretend to be Christ: That he was taken, accused, and put to death, for saying, hee was King: That the cause of his condemnation written on the Crosse, was JESUS OF NAZARETH, THE KING OF THE JEWES

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Judicious review

The Judicial Review and Courts Bill is in trouble; mauled by the Lords over half-understood principles. Proper consideration is needed of a constitutional issue, but the Lords’ objections are mistaken, as the rhetoric does not engage with the actual proposals.

The argument is one where one side demands the rule of law and that unlawful decisions can be challenged, while the other argues for the rule of law, and that unlawful decisions be open to challenge. Somewhere someone is missing that they are both on the same side. That, alas, is what counts for reasoned politics today, and has done for much of a century. We used to think better of the House of Lords, but since the Earls were driven out to transform the chamber into the House of Quangocrats, its qualities of sagacity have evaporated.

Certain lobbying groups have roused their followers to oppose the Bill by telling them that the Bill will allow the government to evade challenge: this is untrue and plain dishonesty.  Not a line in the Bill excludes government action from challenge – this would appear to be outrage prepared in advance on the assumption that something very different would be proposed, or good, old-fashioned political mendacity packaged for conspiracy theorists.

Firstly, the Bill is more than the headline and mainly concerned with court procedures in practical terms.  The Judicial Review element is just two clauses, labelled as Part 1.  These two clauses have been the focus of the outrage.

Part 1 feeds on work by the Policy Exchange’s Judicial Power Project, which is to be commended. The Clauses do not encompass all the work of that project, and indeed the main conclusions it reached were that the law is essentially all right and it is rogue judges who bring it into disrepute. Latterly, judges in the Court of Appeal have been firmer in slapping down their less senior brethren. The number of wild judgments may be reduced.

Judges are not the main problem: a judge, however, keen on mischief, can only throw down a government action if the law leaves a hole through which it can fall, and Parliament fills its Act with holes. The principal reform in judicial review therefore would be a revolution in parliamentary draftsmanship.

Back to those two clauses, Clause 1 adds new judicial review remedies, and Clause 2 ends ‘Cart‘ appeals. The ‘Cart‘ rule is named after a Supreme Court decision but it is an appropriate name as it allows the High Court to drive a cart and horses though the finality of the Upper Tribunal’s decisions. If the Upper Tribunal were to make a mad order outside its jurisdiction, say locking someone up or judging on something outside the scope of the tribunal system, then that should be challengeable. If the challenge is just that a decision is unpalatable, with a claim that it might fail a narrow Wednesbury test, that is very different. The Supreme Court shot itself in the foot with their ruling in Cart, as it ended up clogged up with petty tribunal appeals for which the Upper Tribunal is meant to be the final decision-maker. The wheels must be taken off Cart.

Clause 1 is the main novelty. For those unfamiliar with the principles of judicial review, it is essentially that the powers of any official, council or lesser court are limited to those explicitly granted by law, and if they purport to do something beyond that power, an ultra vires act, then the court can step in to declare the act void; to quash it. A decision is either valid or invalid, so a court will either dismiss a challenge or quash the purported decision, declaring it a nullity from first to last. That is the legal principle.  Clause 1 of the current Bill seeks to introduce a grey area, requiring the High Court to consider just suspending a decision.

The idea of a suspended decision sounds bizarre in the context of the legal principle: if an action was invalid then that is that. The Law Society raised its objection on this ground. Practicality bites though: this is not the Jacobean Age, and impugned acts are not the overreach of an arrogating tyrant. Instead, decisions likely to be challenged will be so for petty procedural reasons.

Say a council resolves to paint yellow lines on a road: if this is challenged on the basis that the council has no such power, or it is  a private road, or it is a conservation area where the law forbids such lines, then the decision is dead in the water and must be quashed unconditionally.  Mostly though, it is simply that a council officer has failed to advertise it in time or to record every layer of bureaucratic paperwork laid down as a precondition: if the latter then it a slip which can be remedied. Quashing the decision sends it right back to the start of the mille-feuilles of procedural demands, and may require that those half-painted yellow lines be scrubbed up, when really the Council just needs to get its paperwork in order and it can get on with the job it is empowered to do.  I would say that in those circumstances quashing the decision opposes the rule of law: it frustrates a legal function. The proposal in Clause 1 is to allow the Queen’s Bench Division to suspend an inchoate act or impose a condition, to allow the authority go back and get it right, and then to exercise its authority.

I would say that a suspended or conditional quashing order should only be justified if the failing is a remediable one. Many are.

The real guilty party in these cases is not the court or the council, but Parliament for making the rules so complicated that mistakes are made.

Another objection heard is that the government wish to take it upon themselves to overturn court decisions they dislike. That is also a dishonest objection: no such proposal is found in the Judicial Review and Courts Bill. The objectors on this ground are thinking of another proposal, that each year Parliament could pass an Interpretation Act to amend the law where a court has interpreted it in an unexpected way. It is hard to see the principle of this objection – Parliament makes and unmakes the laws, not lawyers who think they know better. That is why we have the rule of law, not the rule of lawyers.

Parliament is sovereign and if it messed up the wording of its own Acts, Parliament needs to clear that mess up. It will be busy, for the statute book is very badly written.

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Fantasy islands

Who would not want to sail a ship into the heavens and watch a war between the creatures of the Moon and the Sun, to find and conquer a world hidden within a whale and sail behind a curtain to talk with heroes of old in their rest?  The world is too narrow for all the stories our imaginations want to tell.

Dreams take us into impossible places (although for me, my tutored mind intervenes in the dream and insists on putting it into a logical narrative).

Whenever I see a sign labelling “Part time traffic lights” my fancies wander to where the lights might go on their time off. I always imagined they would sit around somewhere, perhaps in company with occasional tables. Lucian thought the same in the Second Century AD, giving us his City of Lamps, which he visited according to his ‘True Story’ while sailing the cosmos. It is a pretty invention that has charmed may writers since – including Margaret Cavendish, a friend and scholar of Hobbes.

Fantasy works are usually pulp nonsense to embarrass a bookshelf, but not all: the Odyssey is a fantasy book, and it is a foundation work of European culture. Science fiction is a rich branch of fantasy, rooted in Homer’s pen.  If it is to become literature, the author must have the audacity to write without apology and create a world which is for a moment believable and desirable.

Lucian’s humour came from the familiarity of the genre he spoofed, and his own inventiveness. Romans would read books of distant travels and wanted to believe there really were men with heads in their chests or with wings, and lands where centaurs roamed, and if the reality is too dull, why not be released from the need to pretend it is true and have an open fantasy? Homer was too serious, as if he wanted to be believed.

Lucian is to Homer as Spaceballs is to Star Wars; a loving tribute to the work it played upon. The morality of the Ancient Greeks was different from ours, but surely Homer saw a problem with Odysseus’s behaviour with certain nymphs and demi-(clad)-goddesses on those fantasy islands? It took Lucian though to portray Odysseus in his eternal rest in the Isle of the Blessed creeping away from Penelope at night to slip Lucian a love-note to take to Calypso.

The Isle of the Blessed episode is full of crackers, showing the heroes of ancient times as just as flawed and more so than mortal men – they need a law court for when Helen’s husbands argue over whose wife she is for eternity, and when Alexander and Hannibal argue about who was greatest general. The Platonists, we are told, are not on the island, as they are still trying to devise their own state.  Here too Lucian meets Homer and badgers him with all those questions that scholars had been debating about him – which shows that lit crit is as ancient as literature itself, and as tedious then as now.

That city inhabited by lamps, which live in fear of being extinguished if they do not do their duty, comes from the heart of a householder fed up with guttering oil lamps. (In the City of Lamps Lucian encounters his own house lamp and discusses with it matters at home – he says nothing about an occasional table.)

The squabbling worlds on the planets and the zodiac, the lost islands of the sea, the kingdom in a whale’s belly and the giants rowing islands to hunt it, are exercises in audacity just the right side of silliness.

I was musing on that here recently about ancient works that have been called ‘Sci-Fi’ which are not really, but which are fantasy as grown-up literature. Defining ‘science fiction’ is a whole topic on its own, and as a good Hobbesian I must feel the necessity to define it:

For the errours of Definitions multiply themselves, according as the reckoning proceeds; and lead men into absurdities, which at last they see, but cannot avoyd, without reckoning anew from the beginning; in which lyes the foundation of their errours.

Not now though. I just wish to appreciate that works of fantasy can be literature, even if the majority of them have given the genre a bad name. How they become literature is another question.  It is not by modelling a tale on the fancies of dreams as they are personal and dependent on the day’s experience or internal distempers as Hobbes explains:

divers distempers must needs cause different Dreams. And hence it is, that lying cold breedeth Dreams of Feare, and raiseth the thought and Image of some fearfull object (the motion from the brain to the inner parts, and from the inner parts to the Brain being reciprocall)

To be any good, a story must speak to a wide audience who are not all in on the internal workings of the writer’s own brain. I would go further: a really good book should work even if you strip the fantasy element out, and leave just the personalities and their deeds. The Romans called Homer’s hero Ulysses, and built more robust stories around him.  Following their lead, if you take the wanderings of Ulysses out of the fantasy islands and the mythical age and place him in, say, Dublin in 1904, it will work very well indeed.

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