Should Britain have a written constitution?
Should Britain have a written constitution? Actually, while there are unwritten bits such as royal prerogatives and parliamentary conventions, most of it is indeed written. There is the 1215 Magna Carta, bits of which are still in force (though limitations on the monarchy started earlier, with measures such as the 1100 Charter of Liberties). And there is the 1689 Bill of Rights that limited the monarch’s ability to raise arbitrary taxes and interfere in justice and elections. There are various Acts of Parliament that are accepted as constitution, such as the 1689 Act of [religious] Toleration, the 1689 Habeas Corpus measure, the Reform Act of 1832, and more recently, the devolution measures. Not to mention various EU laws.
But no Parliament can bind its successor, so in theory any of these measures could be ripped up at any time. That is hardly a constitution at all: one of the points about a constitution is that, once it is agreed, it should be hard to change. Yet simple majorities in Parliament have proved enough to change our fundamental relationship with the EU, to change radically the composition and powers of the House of Lords, to reorganise local government, to limit access to trial by jury (too bad, Magna Carta), regulate free speech in newspapers (sorry, Bill of Rights), to hold suspects for prolonged periods (ho hum, Habeas Corpus) and much more.
It is an old but true adage that hard cases make bad laws. Until recently, we have maintained the principle of free speech, reckoning that even though it may be abused, on balance we gain more from people being able to speak their mind. But nasty cases such as racial abuse and phone hacking have torn up that long-held part of the constitution, and in the blink of an eye.
Some 95 members of the House of Commons (and 45 members of the Lords) are part of the payroll vote – ministers, whips and other government officers. Another 95 would probably love to be part of it, and there are equal numbers of aspirants for office on the Opposition side too. Parliament was originally set up to protect the public from the Executive, but now at least half of it is part of the Executive, or the shadow Executive. How can we then expect Parliament to limit Executive power over our lives?
Or limit itself, for that matter? There are no limits on government spending, deficits, debts, or on the ability to create new and arbitrary taxes (such as the 50p top income tax rate, which proved to be not just an envy tax, but a counterproductive envy tax)?
Answers on a postcard please. We could probably start by moving the Executive out of Parliament entirely. After all, we have set up a Supreme Court across the square from the House of Commons (another change in governance that the public were not asked about), so why not confine ministers to their ministries and only allow them out to be grilled by Commons committees? Then perhaps Parliament would revert to its original role, of protecting us from government power, rather that extending it.
Dr. Eamonn Butler is author of Foundations of a Free Society.
This is all so depressingly obvious about censorship of the internet, isn't it?
It was only last week that I was musing, elsehere, on the subject of the censorship of child pornography. Not that I'm against such censorship but rather than the methods that David Cameron insisted on using were somewhat dangerous. For he was insisting that ISPs and search engines had to be the people who barred people from finding such images. Rather than the more freedom loving and liberal process of hunting down and punishing the little scrotes who create, distribute and consume such imagery. I worried, gently, that at some future time perhaps this same tactic would be extended to other subjects. Oooh, I dunno, political extremism perhaps, racism, depending upon who is in power perhaps feminism or, if the House goes the other way, anything deemed anti-feminist.
The government is to order broadband companies to block extremist websites and empower a specialist unit to identify and report content deemed too dangerous for online publication. The crime and security minister, James Brokenshire, said on Wednesday that measures for censoring extremist content would be announced shortly. The initiative is likely to be controversial, with broadband companies already warning that freedom of speech could be compromised.
Ministers are understood to want to follow the model used to crack down on online child abuse. The Internet Watch Foundation, which is partly industry-funded, investigates reports of illegal child abuse images online; it can then ask service providers to block or take down websites. The prime minister, David Cameron, is understood to favour a similar model for terrorist content. A government-funded body, possibly within the counter-terrorism referral unit, will order companies including BT, TalkTalk, BSkyB and Virgin Media to block websites, according to industry sources.
Could somebody please remind me why we don't rise up and slaughter them all? It's only taken them a week, a short 7 days, to go from finding a method to control something we all abhor, that child pornography, to applying that method it to an Englishman's birthright, that free speech that insists he's allowed to make a fool of himself by expressing his most deeply held prejudices. And yes, extremists do indeed have free speech just as us more moderate types have. Subject only to the usual two caveats, those of libel and of incitement to immediate violence.
And the reason we run the system this way is because there is no possibility of determining what is allowable extremism and not allowable extremism that is not just the outcome of personal prejudice on the part of that person doing the determining. Thus the only possible method of preservig any semblance of freedom and or liberty is to allow all speech, in all its glorious cacophony, and prosecute those who are either libellous or incite immediate violence.
And what really worries is that you'd expect Tories to understand this sort of point. But apparently not....
The foundations of a free society
I have just published Foundations of a Free Society with our colleagues at the Institute of Economic Affairs. It was intended to describe the working principles of a free society to those who, unfortunately, don't live in one. Trouble is, that as I started sketching out all the essential foundations of a free society – freedom, property, trade, justice, toleration, moral rules, incentives, rights, and limited government – it became obvious to me that none of us really lives in a free society, and that very few of us understand it.
We all accept that democracy is a good thing, for example. And so, we are told, we should have more of it – that more and more of our lives, right down to what we eat, drink and say, should be prescribed by law. And how we run the rest of our lives and businesses should be regulated too. We simply forget the joy and necessity of human diversity and the power of competition to regulate business.
Trouble is, as readers of another of my IEA monographs, Public Choice – A Primer know full well, political decisions are in reality interest-group decisions. They call the shots in elections. And politicians and officials have their own self-interest too. So off we go, ambling down the Road To Serfdom, imagining it is all being done for our own good, when it is done for theirs. And most of us do not know enough about the underpinnings of the free society to dig in our heels before it is too late.
The free society is not a random collection of selfish individuals. It is something complex and organic, and based on deep values – not values that challenge other moral systems but values that make cooperation and social harmony possible.
It is no easy task to build a free society out of an unfree one. The institutions of today's free (or more-free) societies have grown up over hundreds or thousands of years and reflect local history and circumstances. There is no blueprint we can give people to build their own. But we can at least give them a rough outline of the sorts of foundations they need to build freedom – or, in the case of those of us in the supposedly free West, to rebuild it.
Post-mortem on migration debate
Last night I went to Bristol Freedom Society to debate Ryan Bourne, of the Centre for Policy Studies, over whether the UK should have open borders. It was very enjoyable, and while I won very marginally, convincing one person to switch sides from closed to open borders, I thought it was extremely close, and Ryan was certainly a very fluent and convincing speaker.
My main case was (a) restricting migration restricts extremely important rights, like the freedom to take a job you are offered and the freedom to offer a job to a desired applicant, (b) when we curtail these sorts of freedoms we need to have a preponderance of evidence that the costs are very high, (c) the economic evidence says immigration is pretty good for the recipient country, very good for the source country, and amazingly good for the migrant themselves, (d) the magnitude of the social/cultural impact (i.e. the effect of migrants on our institutions, customs, etc.) is unclear, (e) therefore, we ought to have open borders (or something very close to open borders).
Ryan's counterargument centred on the claim that the benefits of restricted migration would not extend if it was unrestricted or close to unrestricted, because migration of certain amounts undermines the institutions that cause migration to benefit people at all. (It was more complex, but this formed the nub of the debate). As is suggested by my point (d), I think there is some plausibility to this argument, but I also think it is under-studied. I suggested this when we were able to discuss the points we'd made in our opening statements a bit more, and we had a lot of back-and-forth over the issue, but we didn't resolve our disagreement. Without trying to guess at Ryan's position or put words in his mouth, I will stake out three claims I think we must accept to have the debate within a rational framework.
1. All positions are on a continuum from complete open borders (as much gross immigration as non-natives wish/can afford) to complete closed borders (no gross immigration). Perhaps the best way of accurately describing positions is by how much migration they favour. Open borders advocates favour something close to 100% of the amount that would occur under open borders. Everyone else is somewhere on a spectrum from no gross migration to the 100% open borders case (past societies have also had forced immigration, i.e. slavery, so these aren't the only theoretical positions, just the only persuasive ones.)
2. The supposed socio-cultural problems of migration come from particular numbers of migrants. No one thinks 5,000 migrants a year to a country the size of the UK will fundamentally undermine its customs, laws, institutions and so on. Many people think 5,000,000 migrants per year would. So to be anti-open borders you implicitly have to have an estimate of how much migration you think is going to occur. If open borders only led to 5,000 migrants per year, then almost no one would be against it. It is because open borders would be expected to lead to too much migration that people oppose it. This doesn't change if it's a question of probability distribution—then migration is opposed because it raises the chances of too much migration occuring to too high a level. Everyone must (at least implicitly) have an expected level of migration to oppose open borders.
3. Any claim that migration should be kept to a particular level, because of the risk of undermining British institutions, implies an assumption about how much damage the marginal immigrant does or will do (reliably or with some probability). One cannot cop out of the question, you need to have an answer. But no one has yet set out good evidence about exactly how much damage to institutions the marginal immigrant does or will do—typically arguments in this area depend on anecdote or things that people feel they "just know". This won't do when the benefits to immigration are so high. We cannot simply assume the cost to our institutions outweighs the other benefits.
I think once these three points have been accepted, there is a lot of room for good empirical work. But until they have, a lot of the migration debate will be unclear, vague, and people will be talking past one another.
Fortunately there's really not that much slavery in the UK
Having even one person in slavery here in the UK would be one person too many of course. Having anyone anywhere in slavery would be entirely terrible but we are rich enough and liberal enough that we should have none at all. Fortunately, there's a new report out that shows us that while the problem is real it's small.
United Kingdom Estimated number enslaved 4,200 – 4,600
That puts us as rank 160: no, the higher the number the better the rank and we scrape into the top 10 of the nations they've studied here.
But this of course creates a problem. For who can forget Dennis MacShane telling the House of Commons that there are 25,000 slaves just in the sex industry? Or Harperson alleging much the same thing? Julie Bindel and her friends at the Poppy Project insisting that there are vast tribes of women held as sex slaves, there only to be repeatedly raped for the benefit of others?
Well, the solution to this problem is that this report is actually defining slavery properly:
1 Recruitment, transportation, transfer, harboring or receipt of persons. 2 By means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person (these means are not required in the case of children). 3 With the intent of exploiting that person through: Prostitution of others; Sexual exploitation; Forced labour; Slavery (or similar practices); Servitude; and Removal of organs. (UN Trafficking Protocol, 2000).
Note that trafficking requires all three. For example, transportation, with their consent, of people into the sex industry does not count as trafficking nor as slavery. And odd as it may sound there are indeed people entirely willing to offer up a short term rental of their bodies for the sexual gratification of others. And, unsurprisingly, they'd rather like to do this in a high wage country like the UK than in the perhaps low wage countries of their origin. Thus they migrate for the work.
There is indeed a small problem with slavery in the modern UK. One that we should indeed be doing out best to combat. But the larger numbers bandied about are the result of either hysteria or political manipulation. As Operation Pentameter showed us there's no perceivable instances of sex slavery going on: why on earth would there be given the willingness of some to do the work anyway?
Sunday working: a reasonable compromise?
I never heard back from the BBC. They called me to ask if I might go on the radio to talk on Sunday trading. But there was a twist: Celestina Mba, a devout Christian, lost her job at Merton Council because she refused to work on a Sunday. So she is arguing before the Appeal Court that employers have a legal duty to "reasonably accommodate" such religious views. If successful, people of other faiths could win the same rights. And not just councils but all employers could find themselves obliged to make special provision for devout workers.
So what did the BBC want me to say? "We thought you would be on the side of business," they asserted confidently. That is, employers could set whatever working conditions they wanted.
Well, I am on the side of business, a much-oppressed minority these days. And I do want this case thrown out – but not for the reasons the BBC imputes to me as a "business supporter". My view is that working conditions are a matter for negotiation between employers and employees. If they cannot reach agreement, then it's no deal: the employer has to look elsewhere for staff and the employee has to look elsewhere for a job. If the labour market is properly competitive, there are lots of other employers and employees out there.
This argument is consonant with my libertarian prejudices. Yet the world is not as tidy as this. Employers and employees are not necessarily equal when it comes to negotiations. The loss of an employee is of minor consequence to a large employer; but the loss of a job can be devastating for a worker, particularly in times like these when other jobs may be hard to find. In this, as in other parts of life, the common law has always sought to ascertain and uphold what is "reasonable": we have discovered that if we all act "reasonably", we have fewer disputes and less violence.
Is it "reasonable" that businesses should respect the rights of religious workers? Plainly. But what exactly is "reasonable" depends upon the specific circumstances. In the case of religious days, a large firm may be able to accommodate everyone's preferences; a small firm may not; and the common-law courts are fully aware of that and would not expect anything different. Sadly, there is a growing tendency for politicians to intervene at this stage, taking one court ruling and applying it as general policy for everyone and across everything – a single rule, law or regulation that takes no account of the particular circumstances of each case. Which means that in many cases, the law is not at all "reasonable" but is repressive.
Laws, power, tax and servitude
One of the least well known British classical liberals was Thomas Hodgskin, who flourished in the early nineteenth century. I have been reading about him in George H Smith's new book, The System of Liberty. Something of a precursor to the Public Choice School thinkers of the twentieth century, Hodgskin critiqued the political process and despaired of getting much liberal change out of it:
Rapidly...as the gentlemen at Westminster work, making three or four hundred laws per year, repeating their tasks session after session – actively as they multiply restraints, or add patch after patch, they invariably find that the call for their labours in continually renewed. The more they botch and mend, the more numerous are the holes. Knowing nothing of natural principles, they seem to fancy that society...derives its life and strength only from them. They regard it as a baby, whom they must dandle and foster into healthy existence; but while they are scheming how to breed and clothe their pretty fondling – lo! it has become a giant, whom they can only control as far as he consents to wear their fetters.
But of course the legislators have something with which to buy that consent – their ability to raise money through taxation and spend it on the noisiest complainers:
One of the first objects then of the law, subordinate to the great principle of preserving its unconstrained dominion over our minds and bodies, is to bestow a sufficient revenue on the government. Who can describe the disgusting servility with which all classes submit to be fleeced by the demands of the tax-gatherer, on all sorts of false pretences...? Who is not acquainted with all the restrictions placed on honest and praiseworthy enterprise...? What pen is equal to the task of accurately describing all the vexations, and the continual misery, heaped on all the industrious classes of the community, under the pretext that it is necessary to raise a revenue for the government?
Thomas Hodgskin, The Natural and Artificial Right of Property Contrasted (1832).
The "Papers, please" immigration bill
In today's City AM I highlight some of the worst parts of the government's Immigration Bill. The Bill forces private citizens like landlords, nurses, wedding registrars and others to become de facto state informants, reporting anyone they suspect of being an illegal immigrant to the authorities:
But “papers, please” could soon become government policy. Whatever your perspective on migration, the Immigration Bill currently being debated in Parliament would turn thousands of private citizens into state agents, forced to report anyone they suspect of being an illegal immigrant. Almost every provision in the Bill will deputise some group of British citizens in this way, and would subject others to invasions of privacy.
Private landlords will have to run immigration checks on tenants, and will be at risk of prosecution if they fail to comply properly. The crackdown on “sham marriages” will expose more Britons to investigation. Marriage registrars are already required to report “suspicious” marriages to the state, but this Bill will double the period during which couples are under threat of being reported. Any Briton hoping to marry a non-EU citizen is open to investigation, and there will inevitably be mistakes that remove protections from legitimate couples.
Though concerns about health tourism are legitimate, the actual cost is tiny:
This week, it was reported that the NHS spends £2bn on treatment for temporary migrants in the UK. But most of this is on those, like students and temporary workers, who are already paying tax here.
The cost of actual health tourism – people coming to the UK specifically to get health treatment – is estimated by the government to be £70m, or 0.06 per cent of the NHS’s annual budget. Enforcing tighter controls may seem attractive. But if the cost is greater than the amount of money it saves, it doesn’t make sense.
Read the whole thing. I'd be interested to hear people's views in the comments.
Banning the burqa would be illiberal and un-British
The tabling of Philip Hollobone MP’s Face Coverings (Prohibition) bill — which aims to ban the burqa in public places — has reginited the debate surrounding this controversial issue. Commenting on similar bans in Belgium and France, Thomas Hammarberg (the Council of Europe's commissioner for human rights) has described such legislation as “capitulation to the prejudices of xenophobes”. It is indeed arguable that the burqa issue has been used as an ideological weapon with which to criticise immigration and associated issues.
It's worth examining the tangible consequences of such a ban in other countries, rather than the motivations behind those who advocate it here. In the case of France, banning the burqa was followed by a wave of verbal and violent attacks on Muslims: some estimates suggest that physical attacks on women wearing the niqab increased by as much as 34% after the introduction of the ban. Such vehement hatred of Muslim custom doesn’t seem to be as prevalent in the UK, but state-sanctioned discrimination would likely encourage similar hate crimes. Tensions in France spilled over on the Muslim side too, with riots in Trappes earlier this year sparked by a scuffle concerning the removal of a face veil.
Proponents of the ban say that gender equality is the goal of such legislation. Yet, by banning the burqa, women pressured into wearing full-face veils by their religious leaders or husbands will be placed under virtual house arrest, whilst those who actively want to wear them in everyday life will be prevented from doing so. This is hardly in keeping with British values of individual liberty and tolerance, as Mohammed Shafiq, chief executive of the Ramadhan Foundation has said: “We take great pride in the United Kingdom's values of individual freedom and freedom of religion and any attempt by illiberal male politicians to dictate to Muslim women what they should wear will be challenged."
The truly liberal approach is the moderate one, taking both property rights and individual choices into account. One section of the Face Coverings (Prohibition) bill goes some way to acknowledging this sentiment:
"…where members of the public are licensed to access private premises for the purposes of the giving or receiving of goods or services, it shall not be an offence for the owner...to request that a person wearing a garment or other object intended to obscure the face remove such garment or object; or to require that a person refusing a request...leave the premises."
If the ‘burqa ban’ were simply the above recognition of the rights of property owners to exercise their own discretion – undeniably beneficial in the case of banks and airports – then it would not be a problem. But to use the blunt instrument of a universal public ban would be fundamentally illiberal, and profoundly un-British.
This isn't very liberal is it?
We've just spent a couple of centuries enshrining in the law the idea that consenting adults can do, in matters sexual, pretty much whatever consenting adults wish to do. This is one of the great liberal victories. Yes, it's easy enough to point to those who make something of a mess of said freedoms but no one ever said that freedom and liberty were perfect, only that their presence is better than their absence.
At which point we get this proposal:
A shake-up of the law to give extra legal rights to unmarried couples who separate is set to be backed by the Liberal Democrat conference. Supporters of the move say it is a widespread myth that cohabiting couples enjoy the same rights as if they had married. There are almost three million cohabiting couples in Britain. The Law Commission suggested six years ago that former partners who have lived together for two years should be able to make a financial claim if they break up. The amount awarded could reflect whether claimants suffered a financial loss – by giving up a job, for example – as a result of the relationship.
Last time I looked the Lib Dems were at least claiming to be something of a liberal party. So what is this illiberality? Why must cohabitation lead to financial rights? There's a perfectly good government mandated contract to take care of those issues if consenting adults should wish to use it. Called marriage and it's open to every possible legal pairing of a couple in matters sexual. Why must those who do not wish to avail themselves of this contract be corralled into something very similar just because they wish to have sex with someone for a few years?
It's a decidedly illiberal idea and goes entirely against the grain of everything that liberalism has managed to achieve in the sphere to date.