We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Samizdata quote of the day

A defendant who makes the wrong choice will wind up in jail; a prosecutor who charges improperly will suffer little, if any, adverse consequence beyond a poor win/loss record. Prosecutors are even absolutely immune from lawsuits over misconduct in their prosecutorial capacity.

So I think we should give prosecutors some skin in the game. Let juries be informed that they may refuse to convict if they think a conviction is unjust — and, if that happens, let the defendants’ attorney fees and other costs be billed to the government. Also, let juries be informed that, if they believe the prosecution itself was malicious or unfair, they can make that finding — in which case the defendants’ costs should come out of the prosecutor’s budget. (If you want to get even tougher, you could provide that the prosecutors involved should be disqualified from law practice for a year or stripped of their immunity from civil suit. But I’m not sure we need to go that far).

Glenn Reynolds

Samizdata quote of the day

Public regulation is static by principle. According to his knowledge of the past, a regulator will define conditions for the presence. However, she cannot know what will come in the future. By definition, innovation represents the direct opposite. Innovator cares not about what people did in the past or what the current situation is. Innovation is a projection of the future. The issue arises when these two concepts collide in a concrete case. The regulators then judge the innovation on the basis of the old standards and the innovators judge the regulation based on their own vision of the future.

Today the static barriers of government regulations are exceeded by new technological innovations and new entrepreneurs. Therefore, it is necessary to take a step back and look at these issues from a broader perspective. We can also look at this problematics simplistically and see if the new technology fits into the official regulatory box, or not. And if it, by chance, doesn’t fit, we ban it automatically.

Robert Chovanculiak

The pitchforks are out for Count Dankula

“M8 Yer Dugs A Nazi.” That link takes you to a video in which a man who wished to annoy his girlfriend trained her cute pug to lift its paw in a “Nazi salute” in response to Nazi slogans. Well, it used to. At present for me it takes me to a video of a black screen saying “This video is not available in your country”. Mark Meechan, the man who made the video, is from Scotland and I am in England, but I do not think that explains it.

From the Telegraph‘s account and even more from a swing round Mr Meechan’s “Count Dankula” YouTube channel, it does sound as if his humour tends towards the crass and tasteless. But do these words from the beginning of the video sound to you like the voice of a man committed to the triumph of Nazism?

The court heard that at the start of the clip, he said: “My girlfriend is always ranting and raving about how cute and adorable her wee dog is so I thought I would turn him into the least cute thing I could think of, which is a Nazi.”

In the video, the dog is seen perking up when it hears the statements and appears to lift its paw to the “Sieg Heil” command in the video, which has now been viewed more than million times.

Mr Meechan is currently on trial at Airdrie Sheriff Court for committing a hate crime. If convicted he faces up to a year in prison. The verdict was due two days ago but has been delayed for reasons unknown.

One of the more detailed reports on the case came from the Washington Post:

The dog is also seen watching a Hitler rally during the 1936 Olympic Games in Berlin. The dog appears to raise its paw when Hitler proclaims “Sieg Heil.”

“Who’s a good wee Nazi?” Meechan praised the dog.

The video ricocheted around the Internet and has now been viewed more than 3 million times. Some found it amusing; others feel it was crude and anti-Semitic, including a woman who Meechan says confronted him, then spread dog feces on his front door.

Prosecutors say it’s a hate crime.

That April, soon after the video was posted, police knocked on Meechan’s door in Coatbridge, a town in North Lanarkshire, Scotland, he told Alex Jones. The officers told him that he was being charged with a hate crime and that the video could be seen as promoting violence against Jews. They told him to change his clothes, took pictures of his apartment and hauled him off to jail.

He spent a night there and is now on trial for violating the Communications Act of 2003, which prohibits using public telecommunications to send discriminatory religious messages.

Samizdata quote of the day

This was a real threat to the press, and our #FreeThePress campaign urged citizens to say No to both prospects. Section 40 would mean strong-arming newspapers into signing up to a press-backed regulator – ending centuries of a (relatively) free press. What’s more, the only press regulator that has been approved by the Leveson-created Press Recognition Panel is Impress, which is staffed by snobbish ‘hackademics’ and funded by tabloid-loathing millionaire Max Mosley.

Naomi Firsht

When offering your employees a pay rise violates their human rights

Of all the crimes against humanity that one can imagine, it may seem hard (or perhaps all to easy) for the visitors to this parish to imagine that, if you are an employer, offering your employees a pay rise can be regarded as legally actionable under principles of Human Rights law, and give rise to a claim for compensation. But such is the law in the United Kingdom, in defined circumstances. Those circumstances being where an employer’s principal or only motive for making an offer (regardless of it being accepted) is to get 2 or more employees to forego their rights to collective bargaining.

The situation was recently highlighted in a case involving a UK branch of a German engineering company, Kostal UK Ltd.

The employer had a ‘recognition agreement’ for a group of its workers with Unite (the UK’s largest Trade Union). This agreement is described as ‘binding in honour only’, and under it, the employer agreed to negotiate terms of employment for those covered by the agreement with the Union, rather than with the employees directly. it was not, by itself, legally enforceable. However, despite this ‘agreement’ being unenforceable as such, the Union’s ‘right’ to negotiate on behalf of its members is protected by a specific piece of legislation which prevents employers from making offers of different (including better) terms to two or more of its employees if they are (or are proposing to be) covered by a (non-binding) collective agreement between the employer and a Trade Union, if the employer’s motive is to go over the heads of the Union to reach an agreement with the employees represented by the Union.

Under this law, it is, of course, for the employer to prove what its motive was for making any offers to its employees in these circumstances, and if the motive (or main motive) is benign, there is no liability. And the risk? An award of £3,907 per employee for every offer that is made. In the Kostal case, it came out at around £422,000 per some reports, as the employer made two offers to around 57 employees. For some bizarre reason, apparently to do with its German parent company, its first offer, made in December, included a Christmas bonus, but its second offer, made in January did not, so two offers were made and two lots of compensation (at the time £3,800 per offer) was due, twice penalising what was essentially a single course of conduct.

Why is this ‘law’ in force, you may ask. The answer is that it is to protect the Human Rights of the workers, as, if an employer gets fed up dealing with a Union on pay negotiations, and tries to bypass it, so that the terms of employment of two or more employees covered by a collective agreement are no longer decided in line with that agreement, this is, according to the European Court of Human Rights, a violation of the right of freedom of association.

As the judgment in this case puts it:

…under Article 11 of the Convention, which provides:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary to a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others…”

The judgment goes on to explain the ‘reasoning’ of the European Court of Human Rights (the Strasbourg Court):

“In other words, the Strasbourg Court held that states have positive obligations to secure effective enjoyment of Article 11 rights; and if direct offers outside the collective bargaining process can be made and would lead to less favourable treatment of workers who do not accept, that acts as a disincentive to the exercise of Article 11 rights and allows employers to undermine or frustrate a trade union’s ability to strive for protection of its members.

So, lest an employer find a Union is asking for Mars and it can only offer the Moon, and it offers the Moon to Alphie and Bill, Charlie’s right to claim Mars is protected by making the employer pay compensation to Alphie and Bill for having the temerity of trying to cut them a deal, or even if the deal for Alphie and Bill is Venus plus Mars. And, lest you ask, if Alphie and Bill accept the offer, it is still enforceable against the employer.

Having met someone who went through the gates of Belsen at its liberation, it is hard not to think that Human Rights law is a sick mockery of the dead.

I am not saying that this judgment is outwith legal principles, it is starkly in keeping with them as they stand. With this as ‘law’, the UK has a long journey back to a Common Law that can be deduced from reason.

Samizdata quote of the day

There is no inconsistency here. Just as we would support a gay baker’s right to decline to convey a homophobic message, we support this Christian baker’s right to decline to celebrate a same-sex wedding. That is because Masterpiece isn’t really about religious liberty – apart from claims that the Colorado Civil Rights Commission itself treats the religious and nonreligious differently, something that concerned the swing Justice Anthony Kennedy at oral argument – but about freedom of speech.

Marian Tupy

Be a trendsetter not a follower

It is always nice to be reminded that history has no direction. The Times reports,

Austria will scrap ban on smoking in restaurants, Freedom Party declares

Austria is to break with a global trend in health policy by abandoning plans to ban smoking in bars and restaurants.

Full smoking prohibition was due to come in next May but will be shelved at the insistence of the far-right Freedom Party as a condition of joining a coalition with the Austrian conservatives.

The Freedom Party (FPO), which came third in elections in October, is in talks to form a government with the Austrian People’s Party (OVP).

Heinz-Christian Strache, leader of the FPO, made overturning the ban, agreed in 2015, a top campaign pledge.

“I am proud of this excellent solution in the interests of non-smokers, smokers and restaurant owners,” Mr Strache, 48, a smoker who has tried to quit, said.

“The freedom to choose lives on. The existence of restaurants, particularly small ones, has been secured. Thousands of threatened jobs have been saved,” he said.

Some of the Times commenters say that their dislike of smoke is so strong that they will not be returning to Austria as tourists unless the ban is reinstated. That is their choice, although it does seem to me that their understandable preference for a non-smoking restaurant could be satisfied at a more local level than that of an entire nation.

The state is not the sex worker’s friend

These new disintermediated internet marketplaces can have interesting effects.

Last month, MPs launched an inquiry into the apparent rise of so-called “pop-up” or temporary brothels. The phenomenon, where sex workers use Airbnb, hotels, or short-term holiday lets as a work base, has caused concern among politicians and the police.

It is not all good news, though:

But the pressure to make back the cost of the hotel meant she ended up booking clients she would not otherwise have seen. “There’s something – for me anyway – that felt quite bleak about rocking up in a hotel,” she said: “You get a ‘spidey sense’ and you’re like ‘I’m not sure about this one’… you do end up taking more risks.”

Apart from cost, there are other advantages to setting up a more permanent shop:

With CCTV and a panic alarm, she says the more permanent setup means she has better security measures: “I honestly can’t imagine working any other way now and it astounds me that what we’re doing is technically illegal.”

Reducing risks from clients brings more risk from state interference.

“At the moment, I have absolutely no trust in the police whatsoever,” she says. “You can literally go from being the victim, to being the criminal in a matter of minutes.”

Is it time to end the war on some consensual sex?

Never mind Damian Green, do you want the cops to have this power over you?

David Davis, the Secretary of State for Exiting the European Union has threatened to resign if Damian Green (the First Secretary of State, effectively Deputy Prime Minister) is sacked unfairly. Why, you may ask, is Davis – a Brexiteer – willing to put Theresa May’s already shaky government at risk for the sake of a Remainer like Green?

The Guardian link above explains it better than I can:

The Brexit secretary believes his cabinet colleague is the victim of a police vendetta and made it clear to Theresa May that he would be willing to leave the government if he felt Green had been unfairly treated.

The threat emerged only hours after a former Metropolitan police detective came forward with fresh claims implying that Green himself had been viewing pornography found on his workplace computer when police raided his Commons office in November 2008.

Green was a shadow Home Office minister at the time and was under investigation because he had received a series of sensitive Home Office leaks. He denies viewing pornography on his parliamentary computer.

At the time, the Conservatives were fighting some of the Labour government’s law and order measures on libertarian grounds and Davis was a strong backer of Green’s work.

Mark Wallace of Conservative Home writes,

Whether Green did what is alleged or not, the behaviour of the police in his case is appalling

Lewis is speaking out because he disapproves of what he claims he found. But on what authority is that his job, his responsibility, or his right? He gained access to that computer as a police officer, not as a self-appointed moral arbiter. The powers granted to police officers are given on the condition that they use them for specific purposes only. He was meant to be looking for evidence of crimes, not legal things which he could tut about. Separate to whether the Cabinet Office finds his or Green’s account to be true, is this really how we want former police officers to behave? If the police were to search your home or office or person, but fail to find evidence of any crime, is it acceptable that years down the line the officers involved could publicly embarrass you by claiming they found legal pornography, or anything else legal that they personally find morally icky? That’s an awful precedent, which would harm trust in the police and worry a lot of innocent people that private information might be being held over them. In a society under the rule of law we should all have a right to expect that the police do their job, but do not exploit their professional positions for personal grandstanding or moralising at a later date.

I took a look inside the College of Policing Code of Ethics: A Code of Practice for the Principles and Standards of Professional Behaviour for the Policing Profession of England and Wales.

Under “Standard of Professional Behaviour” section 3.1.7, “Confidentiality”, it said:

I will treat information with respect, and access or disclose it only in the proper course of my duties.

7.1
According to this standard you must:
• be familiar with and abide by the data protection principles described in the Data Protection Act 1998
• access police-held information for a legitimate or authorised policing purpose only
• not disclose information, on or off duty, to unauthorised recipients
• understand that by accessing personal data without authorisation you could be
committing a criminal offence, regardless of whether you then disclose that personal data.

Do we want to set the precedent that if in the course of a search a police officer finds evidence of behaviour that is legal but frowned upon they can make it public?

Naming no names for the present

The Telegraph reports that the inexorable progress of the Scottish National Party’s “Named Person” scheme has proved exorable after all. That’s two pieces of good news. One, with any luck its opponents will now be able to wear away at this horrible scheme until it falls apart. Two, there is such a word as “exorable”.

SNP ‘state guardian’ plan delayed for months after Holyrood committee withholds approval

The SNP’s controversial plans to assign every child a ‘state guardian’ have descended into chaos again after a cross-party Holyrood inquiry concluded that it could not recommend that MSPs give their approval.

The Scottish Parliament’s education committee said it was impossible to scrutinise how the Named Person scheme would work in practice until John Swinney, the SNP Education Minister, provides an “authoritative” code of practice for those filling the role.

In a move that threatens to delay its implementation by at least six months, its members said the code should reflect changes in data protection law being made by the UK Government in April or May next year.

Samizdata quote of the day

One claim by campaigners is that this will ‘help the poor’, who are disproportionately more likely to suffer from alcohol-induced ill-health. How making poor people poorer will improve health is a real head-scratcher. This is typical of the missionary attitude of public-health zealots – imposing policies that poor people don’t want ‘for their own good’. Neither will minimum pricing do anything to solve the problem of weekend revellers ending up in A&E – bars already charge way above the minimum price. Instead, this new policy will target those trying to relax with a cheap drink at home.

Rob Lyons

“Due to officer safety it was not safe or legal for them to enter the site”

What are Cambridgeshire police for?

“Police find stolen caravan hunt too risky”, reports the Times:

An owner was forced to retrieve her stolen caravan from a traveller site after police refused to enter, claiming that it was unsafe.

Officers from Cambridgeshire police were called by Helen Cox, 44, after her family caravan was taken from a farm near her home in Ely.

The force told her that they had spent five hours trying to gain access to the site, in which the caravan had been spotted by a local farmer, but that the travellers “wouldn’t let them in”.

Instead, Mrs Cox’s mother arranged for a microlight to fly overhead and capture images of the caravan hidden by some trees. She gave the photographs to police but officers still refused to enter, claiming that they had too little information to obtain a warrant.

In the end, Mrs Cox launched a social media campaign to try to retrieve her property. Several people said that they had seen the £9,000 Hobby Excellent caravan, and shortly afterwards it was found dumped in a nearby field. Mrs Cox said that a dozen travellers had surrounded her when she went to collect it.

The same story was reported in the Mirror:

“Woman tracks down her stolen £9,000 caravan to travellers’ site using microlight after police ‘too scared’ to enter camp”

…She [Ms Cox] added: “I had posted the stolen caravan all over Facebook and that is why I have it back.

“In the words of the PCSO who accompanied us to the caravan, ‘I’ve never seen a caravan returned to its owner in x number of years’.”

A Cambridgeshire Police spokesman said: ‘Officers attended the location of where it was believed the stolen caravan was and also used a drone to look over the site, however these attempts were unsuccessful.

“Due to officer safety it was not safe or legal for them to enter the site.

“There was insufficient information for officers to be able to obtain a warrant to access the site, however the caravan has since been recovered and returned to its owners.”

A masterful use of the passive voice there. “Has since been recovered and returned to its owners.” A reader who did not know the whole story might even think Cambridgeshire Constabulary had something to do with it.

I won’t add an extract from the Daily Mail story (“Caravan owner is forced to track down her stolen £9,000 vehicle to a travellers’ site with a MICROLIGHT after police refuse to send officers fearing for their safety”), as it is almost identical to that of the Mirror and very similar to that of the Times. (Despite the demonization of the Mail as “fake news”, this similarity is not uncommon.) Both the tabloid newspapers quote a comment on social media from Larry Locke, who said, “I would like to know what we are paying the police for […] if that had been in my house they would soon be in, even if I said you could not come in. Is there a law for one and not for another?”

That bewildered question has been heard in this context for a while now. Back in 2011 in a post called Guardian readers hate gypsies and travellers”, I wrote, “If you want to poison a human soul with racial hatred, just do that. Tell him that the laws that burden him do not apply to them.”