In the UK is Democracy Dead
Segment # 422
The combination of COVID, a terrible immigration policy, and globalism has put the UK in a very difficult position. We will also cover Germany suffering the same problems recently gleefully covered on 60 Minutes.
The United Kingdom is in serious danger of replacing democracy with totalitarianism, one of Britain’s most distinguished legal minds, Lord Sumption has warned.
Lord Sumption — author, lawyer, and former Supreme Court Justice — made his devastating critique of government policy at the Cambridge Freshfields Annual Law Lecture, delivered by Zoom.
He began:
During the Covid-19 pandemic, the British state has exercised coercive powers over its citizens on a scale never previously attempted. It has taken effective legal control, enforced by the police, over the personal lives of the entire population: where they could go, whom they could meet, what they could do even within their own homes. For three months it placed everybody under a form of house arrest, qualified only by their right to do a limited number of things approved by ministers. All of this has been authorised by ministerial decree with minimal Parliamentary involvement. It has been the most significant interference with personal freedom in the history of our country. We have never sought to do such a thing before, even in wartime and even when faced with health crises far more serious than this one.
Many of the measures forced by the government, Sumption maintains, were probably illegal. He notes that the government has claimed to derive authority for its most draconian measures from the Public Health (Control of Disease) Act 1984, as amended in 2008. But this Act grants magistrates the rights to quarantine, isolate or disinfect infectious people. It makes no provision, he says, for the control of healthy people.
There is no specific power under the Act to confine or control the movements of healthy people. To interpret it as conferring such a power would not only be inconsistent with the principle of legality.
Even the lockdown itself was, at least initially, illegal.
In his televised press conference of 23 March, the Prime Minister described his announcement of the lockdown as an “instruction” to the British people. He said that he was “immediately” stopping gatherings of more than two people in public and all social events except funerals. A number of police forces announced within minutes of the broadcast that they would be enforcing this at once. The Health Secretary, Mr. Hancock, made a statement in the House of Commons the next day in which he said: “these measures are not advice; they are rules.” All of this was bluff. Even on the widest view of the legislation, the government had no power to give such orders without making statutory regulations. No such regulations existed until 1 p.m. on 26 March, three days after the announcement. The Prime Minister had no power to give “instructions” to the British people, and certainly no power to do so by a mere oral announcement at a Downing Street press conference. The police had no power to enforce them. Mr Hancock’s statement in the House of Commons was not correct. Until 26 March the government’s statements were not rules, but advice, which every citizen was at liberty to ignore.
He is concerned too about the ‘remarkable discretionary powers of enforcement conferred on the police’. The police, he notes, have ‘substantially exceeded’ even these ‘vast powers.’
In the period immediately after the announcement of the lockdown, a number of Chief Constables announced that they would stop people acting in a way which the regarded as inessential, although there was no warrant for this in the regulations. One of them threatened to go through the shopping baskets of those exercising their right to obtain supplies, so as to ensure that they were not buying anything that his constables might regard as inessential. Other forces set up road blocks to enforce powers that they did not have. Derbyshire police notoriously sent up surveillance drones and published on the internet a film clip denouncing people taking exercise in the Derbyshire fells, something which people were absolutely entitled to do. When I ventured to criticise them in a BBC interview for acting beyond their powers, I received a letter from the Derbyshire Police Commissioner objecting to my remarks on the ground that in a crisis such things were necessary. The implication was that in a crisis the police were entitled to do whatever they thought fit, without being unduly concerned about their legal powers. That is my definition of a police state.
The British public, he concludes, has been frightened by government propaganda into demanding authoritarian protection – in the name of ‘safety’ – which it will come seriously to regret.
The British public has not even begun to understand the seriousness of what is happening to our country. Many, perhaps most of them don’t care, and won’t care until it is too late. They instinctively feel that the end justifies the means, the motto of every totalitarian government which has ever been. Yet what holds us together as a society is precisely the means by which we do things. It is a common respect for a way of making collective decisions, even if we disagree with the decisions themselves. It is difficult to respect the way in which this government’s decisions have been made. It marks a move to a more authoritarian model of politics which will outlast the present crisis. There is little doubt that for some ministers and their advisers this is a desirable outcome. The next few years is likely to see a radical and lasting transformation of the relationship between the state and the citizen. With it will come an equally fundamental change in our relations with each other, a change characterized by distrust, resentment and mutual hostility. In the nature of things, authoritarian governments fracture the societies which they govern. The use of political power as an instrument of mass coercion is corrosive. It divides and it embitters. In this case, it is aggravated by the sustained assault on social interaction which will sooner or later loosen the glue that helped us to deal with earlier crises. The unequal impact of the government’s measures is eroding any sense of national solidarity. The poor, the inadequately housed, the precariously employed and the socially isolated have suffered most from the government’s measures. Above all, the young, who are little affected by the disease itself, have been made to bear almost all the burden, in the form of blighted educational opportunities and employment prospects whose effects will last for years.
Democracy, he says, may now be finished in the United Kingdom.
What will replace it is a nominal democracy, with a less deliberative and consensual style and an authoritarian reality which we will like a great deal less.
Enacted in 2023
The Online Safety Act — A Wholly Unconvincing Argument
In the OSB Explanatory Notes, the Government states:
The Online Safety Bill establishes a new regulatory regime to address illegal and harmful content online, with the aim of preventing harm to individuals.
We are immediately faced with two separate, undefined concepts: illegal content and harmful content. While illegal content is also harmful content, harmful content is not necessarily illegal content and is supposedly distinct from it. However, we should note that, for the purposes of the proposed Act, the aim with regard to sanctioning both "illegal" and "harmful" content appears to be one and the same: preventing harm to individuals.
This will become crucial later on. Please bear it in mind as we progress.
Leaving aside the lack of definition, we find that three subcategories of harmful content are covered in the OSB: illegal content, content that is harmful to children, and content that is harmful to adults.
There are also two types of services in scope of the legislation. User-to-user services means the social media platforms, like Facebook and Twitter; search engines means Google, Bing, etc. We are also told that some of these online service providers will meet the threshold for being a Category 1 service. That threshold isn't defined.
We then get to the claimed justification for the imminent Online Safety Act:
The prevalence of the most serious illegal content and activity online is unacceptable, and it threatens the United Kingdom’s national security and the physical safety of children.
The Government claims that, under the proposed Act, it will be illegal content and activity that becomes unacceptable. This is clarified further as the Government states that the regulator will have:
Powers in relation to terrorism content and child sexual exploitation and abuse (CSEA) content.
This, then, suggests itself as the content which the Government considers "illegal", as indeed it undoubtedly should be. In regard to potential harmful content, the Government states:
The Bill also imposes duties on such providers in relation to the protection of users’ rights to freedom of expression and privacy. Providers of user-to-user services which meet specified thresholds (“Category 1 services”) are subject to additional duties in relation to content that is harmful to adults.
In addition to illegal content, the Government claims that the major social media platforms will also have—at this stage unspecified—"duties" in relation to content that is deemed to be "harmful to adults". The Government claims it will also protect freedom of expression (including free speech).
As we shall see, this is a self-contradictory claim by the Government. The duties that will be imposed by this legislation will obliterate online freedom of speech and expression.
This has caused consternation among some legal experts. Ultimately, the OSB states that some of this content harmful to adults must be taken down by the user-to-user services. What's more, the OSB creates a powerful role for the responsible Secretary of State (as advised by the relevant Ministry), who will effectively decree what content is to be taken down.
Legal professionals have struggled to reconcile how this can possibly be done for content that is not illegal, while protecting important freedoms. CyberLeagle notes:
The Secretary of State is able (under a peculiar regulation-making power that on the face of it is not limited to physical or psychological harm) to designate harassing content (whether or not illegal) as priority content harmful to adults […] Content is non-priority content harmful to adults if its nature is such that 'there is a material risk of the content having, or indirectly having, a significant adverse physical or psychological impact on an adult of ordinary sensibilities' […] [T]he ‘non-priority content harmful to adults’ definition […] appears to have no discernible function in the draft Bill […] if it does have an effect of that kind, it is difficult to see what that could be intended to be.
Perhaps CyberLeagle can see it but just can't believe it. There is no commitment in the OSB to protect freedom of expression or speech. Non-priority content "harmful to adults" and priority content "harmful to adults" are indistinguishable in the wording of the Bill, and both are treated the same as "illegal content". Once this is understood, the intent of the OSB becomes evident.