What is law?

Lovely post by Conor Gearty on the British Academy’s blog:

Law is a technical subject, without doubt, but it courses through with large questions about the kind of world we live in and how best to protect the values that we as a society hold dear. The biggest, most extraordinary thing about law is something that we wouldn’t even have remarked upon just a few years ago, but at this time of ‘fake news’ and feelings about stuff driving policy is worth saying – and celebrating. Law is about reason – argument, logic, facts and evidence are its daily bread and butter. Now of course, behind that reason will often be the power of conservative reaction, willing and able to deploy the force of authority to crush dissent. Law will always be, and almost by definition is, wedded to preservation of the status quo. That said, it is surely a wonderful thing that, for all its faults, there is at least one remaining space in our political culture where words still matter and where promises made in the form of written undertakings (‘laws’) have consequences. A society that stops being governed by the authority of law and reverts to that of the ‘populist’, the priest or ‘the people’ is not a place where freedom will long survive.

Full text of Article 50

Since the UK Supreme Court has started its deliberations on the government’s dubious procedural antics, it might be worth considering what Article 50 of the Lisbon Treaty says. Here it is, in all its succinct glory:

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

  2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218 (3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

  3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

  4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

  5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

Note the phrases in bold type. (My emphasis.)

Why the tech industry has to change

From danah boyd’s acceptance speech on being given the 2019 Barlow/Pioneer award:

“Move fast and break things” is an abomination if your goal is to create a healthy society. Taking short-cuts may be financially profitable in the short-term, but the cost to society is too great to be justified. In a healthy society, we accommodate differently abled people through accessibility standards, not because it’s financially prudent but because it’s the right thing to do. In a healthy society, we make certain that the vulnerable amongst us are not harassed into silence because that is not the value behind free speech. In a healthy society, we strategically design to increase social cohesion because binaries are machine logic not human logic.

The Great Reckoning is in front of us. How we respond to the calls for justice will shape the future of technology and society. We must hold accountable all who perpetuate, amplify, and enable hate, harm, and cruelty. But accountability without transformation is simply spectacle. We owe it to ourselves and to all of those who have been hurt to focus on the root of the problem. We also owe it to them to actively seek to not build certain technologies because the human cost is too great.

Constitutional hypocrisy

Terrific — and disconcerting — New Statesman column by Helen Thompson. Her argument is that many of the opponents of Brexit in Parliament are doing so in bad faith.

This country’s accumulated constitutional customs ultimately uphold the idea that power rests on the consent of those who are governed. Any sober reflection on the UK’s history will show that overturning a referendum result before it has first been implemented would be a precipitous act. Consequently, members of parliament who ran for parties with a manifesto promise to implement the referendum result and who have since expended considerable effort to prevent Brexit are taking tremendous constitutional risks. Members of parliament who have passed laws purportedly to realise Brexit but in practice to buy time to thwart it are being similarly cavalier, as have those who – by signalling to the EU27 that parliament would obstruct no deal or prevent Brexit all together – have impeded the executive’s ability to negotiate an orderly withdrawal that parliament could accept.

That’s not to say that Boris Johnson is a constitutional saint either. But,

in terms of constitutional prudence, the government’s errors, illusions and inflammatory rhetoric do not compare with treating the referendum result as disposable. The referendum allowed voters to express a view on EU membership uninhibited by party voting habits or what anyone in parliament thought. That is what referendums offer, even if governments who pursue them hope voters will treat them as confidence votes. This one had been a long time coming. There was an issue about the UK’s consent to the EU that politicians had suppressed with referendum promises that were never realised.

It was a momentous decision when the House of Commons finally agreed to take the risk of asking the electorate whether it consented to the part of the constitution defined by EU membership. Parliament cannot, with any semblance of constitutional responsibility, now exercise judgement as if it did not.

The only weakness in this argument would emerge if the Referendum result were to be declared invalid because of distortions caused by the shenanigans of the two Leave campaigns. I’m pretty sure that both camps broke electoral laws, but in itself that doesn’t prove that the vote was invalid.

The United Kingdom of Absurdistan

Lovely Irish Times column by Fintan O’Toole:

One thing that still unites the warring factions in England is the belief that Westminster is “the mother of all parliaments” and the envy of the democratic world. Well, it sure looks like the mother of all something right now, but it’s not parliamentary democracy. Consider what has happened. Boris Johnson was elected leader of the Tory party by 92,153 people. He was then appointed prime minister by a hereditary monarch with no parliamentary involvement whatsoever. Since July 24th, when he became prime minister, he has appeared just once in the House of Commons to answer questions. And he has now used those monarchical powers to prorogue parliament and make himself even more unaccountable to it. The one virtue of Johnson’s brazenness is that he has surely made obvious to his compatriots what outsiders can see – that the system in which all of this is possible is a democracy built around a solid core of feudalism.

To grasp the absurdity of this spectacle, we might turn to one of England’s great minds, Jonathan Sumption. He is simultaneously one of his country’s most distinguished lawyers, recently retired from the UK’s supreme court, and one of its leading historians, whose superb ongoing multivolume history of the Hundred Years War is much better than Game of Thrones. Last week, the London Times asked him to pronounce on the legality of Johnson’s prorogation of parliament. “I don’t think what the prime minister has said he is going to do is unlawful,” he said. But he added: “It might be considered unconstitutional in as much as it might be argued to be contrary to a longstanding convention of the constitution.”

So what Johnson is doing is probably unconstitutional but probably not unlawful. I don’t think most people in England have any idea how utterly nonsensical this seems to all the rest of us. It’s like saying that a man is almost certainly dead but nonetheless in quite good health. In any other democracy, if it’s unconstitutional, it’s unlawful. Only in the United Kingdom of Absurdistan can it possibly be otherwise. And the heart of the absurdity is that great tautology, the “unwritten constitution”.

Wonderful!

Game theory for Dummies

Lovely comment by the Guardian’s John Crace on Boris Johnson’s Downing Street speech yesterday:

A speech that was muddled and half-arsed, whose only obvious purpose was to put the blame for any imminent general election on everyone but himself. “Pifflepafflewifflewaffle,” the prime minister mumbled, sounding rattled and lacking his usual sense of entitlement as he struggled to make his voice heard above the protesters just down the road.

He was on the verge of getting a great Brexit deal. It was just that neither he nor the EU had a clue what that deal was. So he didn’t want parliament getting in the way of the thing he didn’t know how to do. Largely because it was impossible. But we were still leaving on 31 October with or without a deal, even if parliament decided otherwise. And that was it. All he asked was that no one told the EU what the UK’s negotiating position was. Just as well Johnny Foreigner can’t understand English.

Johnson went back inside feeling strangely deflated. It somehow felt as if, in his first major standoff with his MPs, he had been the one to blink first. Still it must have been the right thing to do, he supposed, because Dominic Cummings had told him so…

Is this Britain’s ‘Reichstag Fire’ moment?

Sobering assessment in Prospect by Richard Evans:

But if Hitler’s rise teaches us anything, it’s that the establishment trivialises demagogues at its peril. One disturbing aspect of the present crisis is the extent to which mainstream parties, including US Republicans and British Conservatives, tolerate leaders with tawdry rhetoric and simplistic ideas, just as 
Papen, Hindenburg, Schleicher and the rest of the later Weimar establishment tolerated first Hitler and then his dismantling of the German constitution. He could not have done it in the way he did without their acquiescence. Republicans know Trump is a charlatan, just as Conservatives know Johnson is lazy, chaotic and superficial, but if these men can get them votes, they’ll lend them support.

Weimar’s democracy did not exactly commit suicide. Most voters never voted for a dicatorship: the most the Nazis ever won in a free election was 37.4 per cent of the vote. But too many conservative politicians lacked the will to defend democracy, either because they didn’t really believe in it or because other matters seemed more pressing. As for rule by emergency decree, few people thought Hitler was doing anything different from Ebert or Brüning when he used Hindenburg’s powers to suspend civil liberties after the Reichstag Fire on 28th February 1933. That decree was then renewed all the way up to 1945. In this sense, democracy was destroyed constitutionally.

Which is exactly what’s going on in the UK at the moment.

The lesson, says Evans,

seems to be that to prevent the collapse of representative democracy, the legislature must jealously guard its powers. Can we rely on that happening today? It doesn’t help that the British parliament, as was its counterpart in Weimar, has become more or less paralysed on the most important issue of the day. As in Weimar, the only majorities are negative ones—against, for example, Theresa May’s Brexit deal as well as, so far at least, every available alternative.