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.


Closing the web – 2

The Online Safety Bill causes more despair as I plough through it. The thing is, I actually want to see a workable law against online harms; but this is not it. It means well and it tries, but whoever wrote it was not up to the task.

I wrote before that the Bill is badly written tortuous, self-contradictory, tautologous and recursive. If this were resolved, it might become legible and so be considered properly. (This could be done by handing it to a half-decent commercial lawyer: they produce water-tight documents that are more complicated in concept every day.)

It cannot even agree with itself on what that key concept, “harm” means: at one point it is “psychological harm amounting to at least serious distress” (Clause 150, about a new offence of “Harmful communications”) and at another it is “physical or psychological harm”, followed by a tangle of subjective provisos (Clause 187).

Part 3 and 4 contain duties of care, which are not actually too bad – impossible day to day for anyone but a major company, but that is whom it is aimed at, and it cuts two ways – protecting vulnerable users, but also protecting free, democratic engagement, and user empowerment. That will be interesting.

The proposed offence of “harmful communication” in Clause 150 should be struck out at once.  Nadine Dorries has expressed repeatedly her opposition to the cancel culture and wokeist attacks on free speech, but she is now giving them a perfect weapon. It will make a criminal of anyone who says online anything another person seriously does not want to hear: if a man has built his whole outlook on life through the filter of socialist preconceptions, showing him the folly of those ideas will destroy him, so that will be a crime. Those who built their lives on more personal fantasies, quite fashionable these days, are never reticent about how “harmful” it is to be challenged or doubted.

An important principal is contravened by this Clause:  no criminal offence should have indeterminable boundaries based on criteria entirely subjective to the whim of a magistrate or civil servant. No one can then know if he or she is a criminal.

I have more sympathy with the “fake news” offence in Clause 151. It will make  crime of many party political materials, but perhaps that is for the best.

The real problems, for all the positives, come from the incoherence and incomprehensibility of the Bill, and how open it is to abuse in the detail of the delegated powers.  A real, probable risk is that service providers faced with the illegible duties will ban and bar as a default in order not to be caught. Crippling fines for allowing “harm”, where there is no fine for banning the innocuous, must lead to a supercharging of online cancel culture.

See also

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.

See also


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.

See also

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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