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Adam Smith, the Scottish intellectual figure most famous for his Wealth of Nations (1776) book, would, I like to think, have been deeply unamused by the abominations coming from the Scottish Parliament in recent times. The Adam Smith Institute, the UK think tank bearing the great doctor’s name, writes the following article. I pray the indulgence of the reader, and ASI, in quoting the article in full. I hope that this appalling Scottish piece of legislation fails, that those who seek to enforce it are humiliated and mocked.
Three and a half years ago, the ASI published a position paper and draft law proposing a “UK Free Speech Act” which would, if enacted, forever remove the regulation of nonviolent political discussion from the remit of law enforcement in the United Kingdom.
The censorship provisions of the Hate Crime and Public Order (Scotland) Act 2021 (the “Hate Crime Act”), entering into force this week, are deeply offensive to freedom of expression, and the only way to stop them is to implicitly repeal these new rules with UK-wide protection for freedom of speech.
The Hate Crime Act contains three provisions in particular – “aggravation of offences by prejudice,” “racially aggravated harassment” and “stirring up hatred” – which are, at least as-described, descriptions of the sort of speech that most members of polite society would rightly oppose as a personal, moral matter.
However, if we look at the substance of the language employed by the new laws and its derivation from similar, viewpoint-neutral English rules – in the case of the stirring-up offence and the “racially aggravated harassment” offences, the “alarm or distress” language from the English Public Order Act 1986, and in the case of the stirring-up offence only, the historic “threatening, abusive, or insulting” language from that same law – we know that these rules have proven capable of extremely overbroad application in England, and these new rules will prove just as terrible, if not more so, if allowed to stand in Scotland.
The position, outlined in a 2020 paper for the ASI, and the applicable English legal rules, remains entirely unchanged. It suffices for present purposes to note that existing English laws, which are nowhere near as intrusive as the new Scottish ones, have already been used in England to, variously:
· threaten a schoolboy with prosecution for nonviolently holding up a sign calling the Church of Scientology a dangerous cult;
· arrest republican protestors in the vicinity of King Charles’ coronation for nonviolent picketing;
· convict a protestor for nonviolently saying David Cameron had “blood on his hands” for cutting disability benefit at an event where the then-PM was speaking;
· convict protestors against the war in Iraq for nonviolently expressing their points of view in front of soldiers of the British Army returning home from that war;
· arrest students for nonviolently saying “woof” to a dog;
· arrest a woman for nonviolently praying silently; and
· arrest a preacher for nonviolently reading from the Bible, in public, verbatim.
The existing rules should have been repealed years ago, but few UK lawyers, being unaccustomed to an American perspective on free speech jurisprudence and thus unable to see that the frog was starting to boil, seemed to notice very much as the English judiciary lost its way after issuing its landmark, pro-free speech decision of Redmond-Bate [1999] EWHC Admin 733. In a few short years, the English courts went from protecting controversial speech to routinely acquiescing to the criminalization of what, pre-1999 at least, would have been entirely lawful, if somewhat controversial, expression (see: Norwood v DPP [2003] EWHC 1564, Manchester Crown Court ex parte McCann [2002] UKHL 39 and Abdul v. DPP [2011] EWHC 247).
The provisions of Article 10 of the European Convention concerning freedom of expression, enshrined in domestic law by the UK Human Rights Act, are little better than window-dressing. They have been of no assistance whatsoever in protecting English speakers of controversial ideas since that law’s enactment; indeed, the Human Rights Act may have harmed the cause of free speech in the country by formalising the broad derogations from that right permitted under Article 10(2) which have been abused, time and again, to stifle discourse.
Put another way, our experience with the English rules, in particular the Public Order Act 1986 but also the Malicious Communications Act 1988, and Section 127 of the Communications Act 2003, is that their application, especially in the last 25 years, has been subjective, unpredictable, inconsistent, politically-motivated, sometimes capricious, and thoroughly chilling to speech.
The Scottish law turbocharges all of these problems by abandoning viewpoint-neutrality and expressly targeting “culture war” issues around questions of identity within the four corners of the statute. This is particularly the case when we look at the “aggravation of offences by prejudice” law, which states that age, disability, national or ethnic origin, sexual orientation, and transgender identity are all to be considered when sentencing people in Scotland for criminal offences.
The problem with this, of course, is that merely talking about these issues and causing offence is already capable of constituting a crime under the Public Order Act 1986, both in England and in Scotland, and the Public Order Act was being abused in both England and Scotland to suppress speech even before the Hate Crime Act entered into force.
Only last month transgender activists sought to have J.K. Rowling arrested there after English prosecutors declined to prosecute her for prior “gender critical” remarks. The Hate Crime Act now requires Scottish judges to take into account Rowling’s motivations when judging her speech, which we think would be fairly described as emanating from the identitarian, and therefore definitionally “prejudicial,” ideology known as second-wave feminism, and would require, in a Public Order Act 1986 prosecution for those feminist remarks, for a Scottish judge to consider a sentencing enhancement.
It makes no sense to criminalise these conversations. Indeed it makes sense to expressly legalise them, given that national politics seems, increasingly, to cluster around identity issues and, in a democratic society, require their open discussion in order for these disputes around the proper ordering of society to be satisfactorily resolved.
On the gender theory question, in particular, the debate seems to be between, on one side, critical theory-informed intersectional activists who seek to view all power relationships through the lens of what they call immutable characteristics, and on the other, we see a coalition of classical liberals and religiously-minded traditionalists from the usual suspects like the Catholic Church but also newly aggrieved groups such as traditionalist Muslim parents of schoolchildren. As the fact that the Prime Minister himself felt the need to chime in on these matters this week plainly evidences, identity issues, whether we like it or not, now sit squarely at the centre of contemporary UK political discourse.
We take no view on the merits of either “side” here, because taking a viewpoint does not matter and, in any case, is inadvisable, to the extent anyone here at the Institute plans on ever setting foot in Scotland again. This is because it is now quite unsafe, legally speaking, to take a vigorously-defended public position on these questions in Scotland from any perspective, as long as there is a hearer who is offended enough to file a police report against the hearer’s perceived political enemies, or calculating enough to pretend to be so offended.
To see how the Hate Crime Act potentially cuts in all directions, we need look no further than criminal complaints which have already been made under the new law. See, for example, the fact that Scottish First Minister Humza Yousaf, the law’s primary advocate and promoter, was immediately reported by the Indian Council of Scotland to the police for thoughtcrime contained in a speech he himself delivered in Scottish Parliament in 2023 as soon as the Hate Crime Act entered into force. Under the new regime, even the First Minister will need to take care not to express those same thoughts in the same manner again.
There are not many reasonable people who wish to live in a country where the first response to any political disagreement is to call for a speaker’s arrest. Nonviolent speech should never warrant a violent response. Yet, as was proven on day 1 of this new law, we already see that the Scottish law will be used, and is being used, to call down state-sanctioned violence, namely arrests and imprisonment, to suppress broad swathes of viewpoints from all political quarters.
To the few back-benchers who are engaged by this pertinent issue: This is the hill to die on. Rishi Sunak, the Prime Minister, has said he opposes the Scottish law.
Push the Prime Minister to back up that opposition with decisive action. Permanently abolish political censorship enforced at gunpoint. Enact the UK Free Speech Act.
So there you have it from the ASI. I endorse every word.
From a Bloomberg article entitled UBS Banker’s Frustration Exposes Cracks in World of Climate Finance
The article makes it clear that banks are struggling to deliver on credible “decarbonisation” financial policy and remain profitable concerns. Considering how Western taxpayers spent billions bailing out banks more than a decade ago, it would be extraordinary if banks were to deliberately restrict their earnings streams through going full “dark green”.
More:
“Banks are living and lending on planet earth, not planet NGFS,” Berkey told the group in an impassioned speech, alluding to the Network for Greening the Financial System, a collection of central bankers that creates model scenarios for how the energy transition may evolve. Details of what transpired at the meeting hosted by the Financial Stability Board — a coordinator of global regulations — came from people who were in the room but asked not to be named discussing private talks. Berkey confirmed his participation, declining to say more.
The UBS banker’s outburst, which got little pushback from those present, exposes the cracks emerging in a multitrillion-dollar transition finance project, and taps into what’s rapidly becoming one of the most contentious issues in the global banking industry. In private, senior bankers in sustainable finance divisions in London, New York, Toronto and Paris grumble about unrealistic expectations from regulators, civil society and climate activists around the industry’s role in getting the planet to net zero.
“Outburst” – translation – telling it like it is.
The standoff that’s brewing is setting the stage for a showdown at the heart of the ESG movement, where environmental, social and governance considerations are being pitted against old-fashioned capitalism.
Not really “old fashioned capitalism”. Just “capitalism”. We had more than a decade of ultra-low interest rates via quantitative easing. During this period, the business case for eliminating fossil fuels and powering a modern economy via solar, wind and happy thoughts appeared viable. With interest rates at their more normal long-term levels, some of the more fanciful projections don’t add up. This is called “reality”. Capitalism, which hinges around private property rights, voluntary exchange, and the desire to maximise the use of scarce resources that have alternative uses, is based on reality. Elsewhere, the article alludes to how capitalism produces “negative externalities” (carbon emissions) that must be controlled. What the article doesn’t stop to consider is that there are “positive externalities” from a prosperous world: more resources to fix problems, more wealth, higher living standards, more resilience, etc. (This is the broad thesis of the excellent book by Alex Epstein, Fossil Future, which totally debunks the alarmist case. See this video also featuring Epstein and Bryan Caplan, among others.)
Banks that had enthusiastically committed to align their entire operations with net zero goals are having second thoughts as the real-world ramifications of acting on those pledges become painfully apparent.
That’s what happens when you sign up to something that appears fashionable. Ditto with DEI (diversity, equity and inclusion, or, as I read the other day, “Didn’t earn it”).
Some of the world’s biggest lenders, including Deutsche Bank AG, HSBC Holdings Plc and Bank of America Corp., are adding caveats to their restrictions on financing coal, the planet’s most-polluting energy source.
Very wise.
BlackRock Inc. Chief Executive Officer Larry Fink says he has stopped using the term ESG and emphasized the world’s largest asset manager’s work with energy firms in a letter to investors this week. The firm has scaled back its participation in international climate investing alliances.
Fink is now more likely to focus on the imminent retirement crisis of the US and the developed world. Some of that has been brought around as birthrates have fallen. But hang on a minute, I thought having kids was bad for the Earth?
It is tough being green, isn’t it?
In political theory, an idea that got going in the 18th Century was that of the “social contract”, and to this day, writers can sometimes raise the idea that there is an implicit/explicit “deal” that we enter into (stay with me, dear reader) to give up certain qualities or freedom of action in return to some greater overall result. An example used to justify the “Nightwatchman State” of minarchist dreams might be the “contract” in which citizens give up the ability to go after criminals, or those they think are criminals, and instead submit to the powers of policemen and women to do this, or to sub-contract this role to approved private police, etc, and with all the due process of a legal system (details don’t matter, it could have juries, or not, investigative magistrates, or not). The police, so the argument goes, go after suspected wrongdoers and also deter wrongdoing, and the citizens pay a tax to the police, and the territory in which this operates is safer and more tranquil than would otherwise be the case. (Not all liberals/libertarians like the social contract theory, such as Jacob Levy. Robert Nozick did not show much time for it in his Anarchy, State and Utopia, if I recall.)
Well, like all contracts, there can be a point at which one side has so abandoned its side of the deal that the contract loses its legitimacy.
Example from today’s Daily Telegraph (£):
Police have failed to solve a single burglary in nearly half of all neighbourhoods in England and Wales in the past three years despite pledging to attend the scene of every domestic break-in to boost detection rates.
It’s unsurprising that those who can afford it are buying more elaborate security, that domestic household insurance rates are rising fast, and so on. As with the dysfunctional National Health Service, I wonder at what point the penny drops on a lot of the public that they are being defrauded on this “contract”, and demand change?
Here is an explicitly libertarian take on policing.
Slightly off-topic from policing, is a reminder of this book from more than a decade ago, by Joyce Lee Malcolm, about the UK, US, and the very different approaches to handguns and self defence over the decades.
Nothing to see here sir, please move along:
From Richard Tice’s X/Twitter feed. Tice is leader of Reform, the right-of-centre party started a few years ago:
To suggest that a parliamentary election in this country has not been truly free and fair is a very serious allegation indeed.
Unfortunately however, the behaviour of certain candidates and their supporters in this contest fell very far short of this our traditional democratic standards. What we have witnessed and experienced in Rochdale is deeply disturbing.
In recent weeks, Reform UK’s candidate and campaign team has:
– been subjected to death threats
– suffered vile racist abuse
– been refused entry to hustings in a public building
– had to be relocated for their own safety
– suffered daily intimidation and slurs
In one incident, Reform UK business supporters were threatened with a firebomb attack if they distributed our leaflets. Menacing behaviour was a feature of the entire campaign, including outside polling stations on the day of the election itself. In this ugliest of contests, we are also concerned by the sudden increase in the size of the postal vote, which has jumped from 14,000 to some 23,000 in this constituency since the last general election.
The results of the Rochdale by-election should act as a stark wake up call to those in power – and the entire electorate. This is Britain. We are supposed to be a beacon of democracy. This shameful contest has been more characteristic of a failed state.
Unless something dramatic changes, our fear is that it will be repeated in dozens of constituencies across the UK at the general election. By Christmas, we face the prospect of numerous extremist anti-Semitic lawmakers in the House of Commons.
I thought the existence of voter ID was supposed to render the need for postal voting less necessary, or something. I have performed jury duty in London, and I recall that I had to submit a fair amount of information in order to be eligible. Voting is, or should be, a serious business.
The UK prime minister, Rishi Sunak, did something he should have done a long time ago about where public life in this country is going.
The new Rochdale MP, George Galloway, is one of those PT Barnum chancers in public life who has a most interesting history, as demonstrated by this Reuters (yes, Reuters) story about his involvement in Iraq.
Rochdale has, in a way, sent a guttersnipe to Westminster, bad even by the often flaky standards of MPs.
“Power doesn’t often age gracefully. It clings and expires in a labored rush, devoured by another generation, hungry for its time in the sun. Washington can’t long remain a country for old men: Democrats will either replace Mr. Biden in a putsch at their convention in August, or voters are likely to do so in November.”
– Alex Castellanos, Wall Street Journal ($).
As an added point, it is worth reminding ourselves that Mr V. Putin of Russia is not getting younger, either, although he appears to remember what day it is – at least for now.
“It is telling that Beijing and Hong Kong are more afraid of their own people than Hong Kong’s British colonial government ever was.”
– Wall Street Journal, editorial comment. ($)
“[A] wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.”
– From Thomas Jefferson’s first inaugural address.
“For so many people to resile from what would once have been their natural responsibilities is an unprecedented social phenomenon and no one in public life appears to know what to do about it. The thing they agree on is that it is not a simple problem of management. It is damaging the country’s economy in catastrophic ways and it has moral dimensions that few politicians would dare to confront. In other words, it requires just the sort of large visionary message that has gone out of fashion.”
– Janet Daley, Sunday Telegraph (£), 18 February.
“Net zero has turned into a Chinese weapon aimed right at the heart of Western competitiveness. If we don’t wake up and recognise soon that we have to figure out a better way of combating climate change our industries are about to get wiped out.”
– Matthew Lynn, Daily Telegraph (£).
“If I were prosecuting Mao, I’d further cover my bases by pointing out that he gave explicit orders to literally enslave hundreds of millions, then invoke the felony murder rule. However you slice it, Mao was a monster – and it’s high time for China to tear down his remaining posters and replace them with monuments to his victims.”
– Bryan Caplan, EconLog.
His article refers to a new study of the terrible famine, wrought by collectivisation of the Chinese economy. Communists tend to be very, very bad at farming. Property rights, incentives, etc – they just don’t get it.
Until such time as China takes a full, objective reckoning of the monster that Mao was, I don’t see much that is benign about that nation, even though this isn’t meant to be a sweeping statement about all Chinese people, of course.
“Most voters don’t want tax cuts. They don’t want personal responsibility. They don’t want limited government. Britain was already in a dirigiste mood going into the lockdown. But, since coming out of it, it has been downright authoritarian.”
– Daniel Hannan.
Hidden deep below the headquarters of the United Nations’ aid agency for Palestinians here is a Hamas complex with rows of computer servers that Israel’s armed forces say served as an important communications center and intelligence hub for the Islamist militant group.
Wall Street Journal. ($)
Part of a warren of tunnels and subterranean chambers carved from the Gaza Strip’s sandy soil, the compound below the United Nations Relief and Works Agency buildings in Gaza City appears to have run on electricity drawn from the U.N.’s power supply, Israeli officials said.
A Wall Street Journal reporter and journalists from other news organizations visited the site this past week in a trip organized by Israel’s military. A tunnel also appeared to pass beneath a U.N.-run school near the headquarters.
The location of a Hamas military installation under important U.N. facilities is evidence, Israeli officials say, of Hamas’s widespread use of sensitive civilian infrastructure as shields to protect its militant activities. Tunnel complexes have also been found near or under some of Gaza’s largest hospitals.
Someone kindly explain to me the utility, at any level, of the United Nations. Take all the time you need.
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Who Are We? The Samizdata people are a bunch of sinister and heavily armed globalist illuminati who seek to infect the entire world with the values of personal liberty and several property. Amongst our many crimes is a sense of humour and the intermittent use of British spelling.
We are also a varied group made up of social individualists, classical liberals, whigs, libertarians, extropians, futurists, ‘Porcupines’, Karl Popper fetishists, recovering neo-conservatives, crazed Ayn Rand worshipers, over-caffeinated Virginia Postrel devotees, witty Frédéric Bastiat wannabes, cypherpunks, minarchists, kritarchists and wild-eyed anarcho-capitalists from Britain, North America, Australia and Europe.
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