Tuesday, 15 January 2019

Licence to Bill

When someone sets up a practice or an organisation that can charge others for what it purports to offer, what may appear to be a private matter becomes a public issue. What if the body in question deceives people about what is available and charges exorbitant prices? What if the goods and services offered are directly harmful or have dangerous side-effects? How can society protect itself if such an organisation threatens to undermine its stability?

The practice of granting a conditional licence to operate a business originated from the sovereign power setting out the terms for private actors to make gains for themselves in return for benefits rendered to the public realm. In England, the practice could be traced back to Henry VIII who would grant individuals a licence (or charter) to form a company to carry out certain activities (from trade to exploration) that would enable them to take advantage of conditions made possible by past or future actions of the state. The licence was conditional upon the company in question serving the interest of the country, and could expire when its time limit had been reached or be revoked if in practice it led to damages to the common good.

In the US, after independence from Britain was obtained, individual states adopted a similar approach to the granting of corporate charters to individuals wishing to set up companies that would give themselves protection while carrying out transactions with others. These charters forbade activities that would go beyond what were necessary to fulfil their chartered purpose; and the permission granted would be revoked if the companies abused their power or caused public harm. By the late 19th century, however, large companies were able to use their growing influence to undermine the model. Following the Supreme Court case of Santa Clara County v Southern Pacific Railroad (1886), which ruled that corporations should be treated no differently from individual citizens, state power to make corporations publicly accountable began to wane (Grossman & Adams, 1993).

It is time to revive the use of conditional licences because corporations can do so much that can affect the lives of others, but cannot be adequately held in check by the general rules that apply to individuals. Legislatures should begin to draw up licences to operate that will set specific conditions that large corporations must comply with if they are to continue to wield the powers they have.

Any failure to fulfil any of the conditions set out in the relevant licence should lead to clear cut penalties, including in the case of serious violations, the complete revocation of the licence. Major tax evasion, for example, should not be followed by behind the scene bargaining over how much to pay back, but should mean that the full unpaid amount must be handed over plus a penalty that is equivalent to, for example, twice or three times what is owed so it is a genuine deterrent. Threats to proceed with environmental degradation should be met with an immediate suspension of any previously granted right to operate in the threatened area.

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Note: For more on this Licence model and other recommendations to strengthen public accountability and civic parity in a democracy, see Chapter 10 of my book, Time to Save Democracy. Find out more at: https://policy.bristoluniversitypress.co.uk/time-to-save-democracy

Tuesday, 1 January 2019

The Unholy Alliance

In the 1920s, many wealthy business people and substantial landowners gave financial support to far-right agitators, which enabled fascist extremists to take power in the 1930s. Why did they do that? Some of them realised that prevailing policies left many people in dire poverty, and believed far-right ideologues would be the ones to prevent any socialist government from tackling social injustice by tilting the balance in favour of the poor. Some were enticed by vast government contracts promised by far-right politicians if they should win office. Others simply shared a kindred spirit with demagogues who were racist, sexist, jingoistic, homophobic, full of petty prejudice, and driven by hateful intolerance. The result was the end of the rule of law, the beginning of a dark reign of terror, arbitrary arrests and executions, and the invasion of other countries.

A century later, will the 2020s take us down the same horrific path again? The signs are ominous. With wealth inequalities rising back to the level last witnessed in the 1920s, and far-right sympathisers (and many enthusiastic advocates) holding power or gaining influence across Russia, the US, and many countries in Europe and Latin America, the unholy alliance of plutocracy, bigotry and authoritarianism is clearly on the march.

The vast majority of people would recoil from the agenda behind this vile alliance, if they could see through its façade of fake patriotism and empty promises. And exposing their lies is the key to halting their advance.

Responsible politicians, community leaders, civic educators, should make it their priority to highlight at every opportunity the following:

People’s Livelihood: beware of empty promises, because for all the talk of more jobs and better pay, the unholy alliance will just defend the mistreatment of workers, make employment even more precarious, and drastically cut public service so that people will be left extremely vulnerable to homelessness, hunger, and unable to access healthcare.

Real Friends & Foes: the unholy alliance will pretend to be friends of the people, when their actions are always designed to increase their own wealth and power at the expense of others; and the scapegoats they relentlessly attack – such as migrant workers, progressive politicians, trade unions, dedicated public servants – are the ones who help make life better for everyone.

Protection by the Rule of Law: leaders of the unholy alliance will always dismiss rules and regulations as misguided or biased, except when they can use them to safeguard their own position; and they are determined to brush aside due process and impartial scrutiny so that they can intimidate and attack anyone they consider a threat (or an inconvenience) to them.

Weaponised Uncertainties: it needs to be much more widely understood that a common unholy alliance tactic is to stir up problems, dismiss evidence for solutions, and use the ensuing uncertainties to exploit people’s sense of insecurity. They promote anti-vaccine propaganda, accelerate climate change, destabilise the economy, launch wars, so they can benefit from the chaos they cause.

The unholy alliance of the 1920s and 1930s led to the Second World War. It was eventually defeated, but in recent years it has been coming together again in the guise of xenophobic ‘populism’. To avoid another global catastrophe, its true intent must be exposed and its advocates held to account.

Saturday, 15 December 2018

Five Categories of Irresponsible Communication

‘The freedom of expression must never be restricted’. As with most short-hand slogans, this one short-changes the truth.

Even US lawmakers, constrained by a constitution that explicitly declares under its First Amendment that ‘Congress shall make no law … abridging the freedom of speech, or of the press’, have no doubt that legal action is necessary against irresponsible communication when certain conditions are met. There are at least five distinct categories where there is long established consensus that government intervention is required.

The first category concerns the lawless effect that is likely to be caused by the communication in question. Since Brandenburg v. Ohio (1969), the US has relied on ‘inciting or producing imminent lawless action’ as the criterion for intervention. So if someone urges others to beat up someone walking by, or provokes others to react violently, that may warrant intervention. However, the impact has to be ‘imminent’, which means that if an extremist is setting out why people should look for opportunities in the future to inflict harm on certain groups, that may be permissible. Furthermore, since racist abuse is considered protected under the First Amendment in the US, anyone spreading such abuse is safe from the law so long as the victim does not react immediately with violence (or some other ‘lawless action’). Ironically, this means that those who are hurt by racist abuse but bear it stoically will thereby render the act beyond legal action, and the only way to bring it into the scope of state intervention is if one is ready to engage in some lawless action in retaliation straightaway. By contrast, in England and Wales, any hate speech targeting a person's colour, race, disability, ethnic or national origin, religion, or sexual orientation is forbidden by law.

The second category covers communication that is unacceptable in itself – because it is deemed by contemporary standards to be obscene or offensive. At first glance, it may strike many that this is one category of communication that should have no restriction whatsoever. As Justice John Marshall Harlan once wrote (Cohen v. California, 1971), ‘One man’s vulgarity is another’s lyric’. Social attitudes change over time. And what one religion declares as blasphemous or profane, may be perfectly acceptable to another, let alone to those who subscribe to no religion at all. The US has from its inception kept religious disagreement out of the government’s jurisdiction. Belatedly, the UK abolished in 2008 the criminal offence of blasphemy in England and Wales. However, it would be fallacious to leap from the lack of common judgement in some areas, and the changes of standards in others, to the conclusion that there are no general standards at all for acceptable communication. To take just one example, there is total consensus in enforcing against the circulation of paedophilic ideas and images.

The third category deals with attempts to communicate what belongs to others. Patented ideas, written materials with copyright protection, confidential commercial documents, and a wide range of intellectual property cannot be passed without restriction in the name of free expression or communication. But even where commercial infringement may not be an issue, people are expected to have their privacy respected, so that their private conversations, their personal documents, their own records, etc. are not something others can pass on without satisfying particular legal conditions. In the UK, for example, apart from defined groups such as accountants, solicitors, or journalists who are discharging relevant professional duties, anyone seeking to obtain and pass on information about others without their permission must first apply for a Security Industry Authority licence, or else their activities would be illegal.

The fourth category draws the line against the communication of false information. With the spread of groundless scepticism and a resurgence of fundamentalist rejection of objective evidence, it may be easy to forget that the distinction between truth and falsehood remains key to the rule of law. Some allowances ought of course to be made for the unintentional sharing of false information. If despite the best of one’s intention, the information one puts forward turns out to be false or misleading, the infringement may be excusable. For example, the US Supreme Court ruled in New York Times Co v. Sullivan (1964), that action should not be taken against the press on reporting false information unless those responsible knew it was false, or held the issue of truth with ‘reckless disregard’.

The final category targets any communication that is damaging to national security. Two factors would have to be weighed in practice. One is whether there is a genuinely serious threat that needs to be avoided, or might disclosure cause nothing other than embarrassment to someone in government. The other is that, granted there is a risk that aspects of the country’s security might to some extent be compromised, whether suppression of the information could give rise to a high risk of some other core aspect of the country’s wellbeing being badly damaged. For example, revealing the identity of security personnel involved in covert operations may put them and their mission in danger, but if they are responsible for torturing and killing people who are innocent bystanders, keeping it a secret may enable those activities to continue and put the safety of many more people in jeopardy.

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Note: The above piece is based on materials from my book, Time to Save Democracy. Find out more at: https://policy.bristoluniversitypress.co.uk/time-to-save-democracy

Saturday, 1 December 2018

Mistaken Group Identity

Why do people project unpleasant characteristics to a whole group when that simply cannot be justified? In some cases, it’s because people are angry and upset, and they want to lash out at everyone who resembles someone who has wronged them. In other cases, there are people who deviously want to stir up resentment and hatred against a targeted group that can then be treated as scapegoats for the offences committed by a few with similar characteristics.

But whatever the motive, it is unacceptable to accuse any group of wrongdoing when that is only true of some who possess a number of features associated with that group. Just think of the groundless reproachful generalisations fired off against: “All you foreigners …”, “All you women …”, and the same can framed around people with a certain religion, having to claim benefits, stranded as refugees, etc., when there is absolutely no basis for suggesting that all who fall under the group description in question behave like a number of individuals who happen to fit that description.

It is disingenuous as it is obnoxious to attach blame to every member of these groups. And to recognise this means we should be aware that it applies to all group generalisations with equally shaky foundations. Take phrases that open with “All you white people …”, “All you men …”, “All you police …”, and countless others; unless there is a firm basis for attributing a negative characteristic to all who can be classified under the group cited, such an attribution should not be made.

Women or men; black/white/any ethnicity; one nationality or another; it is as fallacious to claim that some vile feature is to be found in all the members of one or the other of these broad groups. Furthermore, any attempt to criticise people for the violations committed by others is likely to have at least three unfortunate consequences. First, attention is diverted from the real wrongdoers, who are either merged in public perception with others who have actually done no wrong at all, or they escape censure altogether. Secondly, it breeds resentment from the innocent who, quite rightly, are riled by innuendos, or even direct attacks, that they are at fault. Thirdly, and worst of all, it will push some of those who are groundlessly lambasted towards a sense of misguided solidarity with those who are actually guilty. It is not unheard of that some people repeatedly grouped with others as convenient targets end up feeling they should stand together against such targeting – even with those who deserve to be censured.

Of course, there will be cases where membership of certain groups is a ground for collective criticism. For example, voluntary membership of a group dedicated to intimidating and hurting vulnerable people is enough for indicting anyone belonging to such a group. But with most of the critical generalisations around, rarely is there much evidence at all that ‘All the Xs’ are disposed to commit the same wrong as this or that individual X.

If we genuinely want to tackle prejudice, discrimination, and thoughtless abuse, we should start by avoiding them ourselves when it comes to applying mistaken group identity.

Thursday, 15 November 2018

Democracy & the 2016 Referendum

One of the most curious things we hear a lot of these days is “it would be undemocratic to go against the result of the referendum”. But if a political process is, in its conception and execution, detrimental to democracy, then to abide by it would be truly undemocratic. Let us look at a few key facts about the 2016 EU referendum:

[1] Parliamentary Democracy, not Plebiscite
The legislation setting up the 2016 referendum made it clear that it was an advisory process. The UK has a parliamentary democracy. All legislative decisions are made by Parliament, unless it has been explicitly passed to a devolved body or local government. The referendum result was thus never intended to be binding, and democratically the ultimate decision was to rest with Parliament. MPs have the right and the duty to make that decision in light of the views registered in the referendum, the impact of different options, and the changing circumstances facing the country. This is not to say the UK cannot give up parliamentary democracy in one or more cases, or agree to a binding plebiscite for specific decisions. But that did not happen with the 2016 referendum. To insist MPs must vote in line with the referendum result, and not take any other critical factor into account is to defy our system of parliamentary democracy.

[2] Fake Options
If dodgy sales people give lots of misleading descriptions of their product to get people to sign a contract to buy it, public concerns would not be on how to force the buyer to pay out, but how to expose the deception and hold the con merchants to account. In the case of the 2016 referendum, the leading campaigners repeatedly stressed that leaving the EU would not mean leaving the Single Market; and they kept citing the Norway model as a desirable way to move forward: https://www.youtube.com/watch?v=0xGt3QmRSZY Yet, after the referendum, they were adamant that people voted to leave the Single Market and reject the Norway model (when they themselves had urged people to back leaving the EU because it would not mean leaving the Single Market).

[3] Deception and Rule Breaking
In addition to what was on offer in the referendum being routinely misrepresented, the campaigns involved were also full of illegitimate moves that were designed to undermine democracy at every turn. Democracy cannot function if people were pervasively lied to about the issue they were voting on, and the arrangements to ensure fairness and transparency were brushed aside. From propagating false figures about the costs of EU membership to covering up all the risks and damages that would arise from leaving, people were misled about what they should make of the UK being part of the EU. If a jury trial was conducted with so many attempts by one side or the other to submit misleading evidence, the judge would stop proceedings or even order a retrial. Furthermore, campaign rules which were to underpin the democratic legitimacy of the referendum vote were broken through a range of financial violations (to the extent that these are being investigated by the National Crime Agency). Some Leave campaigners had tried to defend their position by arguing that no one could prove that the breaking of the rules played a crucial part in securing the overall majority for Leave. But that is to forget that cheating in exams or sports is in itself sufficient for disqualification.

[4] The Absence of a Threshold
Any government seeking to change the fundamental constitutional and economic structure of the country by means of a direct binding vote would set a threshold for any proposed changes to go ahead. The greater the consequences and more extensive the disruption, the more critical it is to set a threshold. Even on issues which may impact on people’s lives on a much smaller scale, any direct vote may lead to a threshold being set. For example, the Conservative government introduced legislation to require at least 40% of the eligible voting members of a union to vote for strike action in relation to an important public service, before any strike action can take place – on the grounds that such a decision can cause disruption to people’s lives. As any decision to withdraw the UK from the EU can have far more drastic consequences for the whole country, it follows that there ought to be a requirement for an even higher threshold – say, 50% or two-thirds of all eligible voters. But the government set no threshold at all, and on the basis of 37% of eligible voters opting for ‘Leave’ (below the threshold it set for strike action to be authorised), it refuses to subject that decision to parliamentary democratic scrutiny. It is worth remembering that Nigel Farage himself said in an interview before the referendum (referring to % of votes that might be cast for either side): "In a 52-48 referendum this would be unfinished business by a long way. If the remain campaign win two-thirds to one-third that ends it." https://www.mirror.co.uk/news/uk-news/nigel-farage-wants-second-referendum-7985017

[5] Timescale and Democratic Responsiveness
Democracy cannot be sustained by any government declaring that it can take a decision that will be binding for all time. If a government wants to treat a referendum-based policy decision as irrevocable for a specified period of time, then it needs parliamentary approval in order to establish that as part of the referendum vote. However, nothing of the sort was put forward for the 2016 referendum. That means that just as after the previous (1975) referendum on the UK’s EU membership, there can be another referendum on the subject, it is legally and democratically coherent to have a third referendum. To claim that to run another referendum would be against the ‘will of the people’ is to overlook the democratic fact that the overriding will of the people is that they are allowed to change their mind. Above all, it is the Leave campaigners who have most ardently stressed that what ‘Leave’ means is fundamentally disputed – some of them insist it means leaving the EU (but keeping the benefits of the Single Market), some maintain it means leaving the EU and any form of customs union, and others argue that it means just leaving the EU (regardless of what other changes may or may not take place). Since those who back ‘Leave’ cannot agree what it should mean in practice, it would be wholly undemocratic to hand the power to decide the matter to an executive which is unlikely to command majority support in parliament.

Thursday, 1 November 2018

In Defence of Cooperative Communities: 7 points to note

Those who promote prejudice, conflicts, and irrationality are getting more emboldened every day. They thrive on lies, reject science, celebrate bigotry, deny exploitation, endorse pollution, and blame scapegoats at every turn. We are aghast at what they do, but we need to be united ourselves to push back effectively.

We can begin by focusing on the kind of communities we seek to develop, and the key threats and obstacles that we must tackle. Below are seven points to note:

[1] The Real Political Divide
We should not be deflected by devious rhetoric or subtle misdirection, and remind ourselves and others of the real dividing lines between those of us who want to build more cooperative communities that foster mutual respect and genuine collaboration, and those who want to have greater power to exploit and oppress others in society. The former seek to foster solidarity, the latter try to con others into subservience.
[Read more at: https://henry-tam.blogspot.com/2018/04/the-real-political-divide.html ]

[2] The Cooperative Community Paradigm
We do not need to invent a new philosophy. The ideas from centuries of progressive, civic republican, and communitarian reflections have shaped the cooperative community paradigm, which distinguishes the kind of rules, customs and relations that should be promoted for the sake of all, as opposed to the attitudes and arrangements that ought to be urgently reformed.
[Read more at: https://henry-tam.blogspot.com/2018/01/paradigm-lost.html ]

[3] Cooperative Problem-Solving
A vast amount of work has gone into developing the theory and practice of cooperative problem-solving. It is an approach that is known to have facilitated consensus building and conflict resolution. By drawing on the available evidence-based guidance, we can take forward more initiatives to support the development of cooperative communities.
[Read more at: https://henry-tam.blogspot.com/2012/10/cooperative-problem-solving-key-to.html ]

[4] Degrees of Reciprocity
In society, there is a spectrum that goes from those of us who take the Golden Rule of reciprocity seriously, to others who are driven by egoistic and authoritarian tendencies. In between are people with varying dispositions. It is not ethnicity, gender, religion, or any other ‘identity’ factor, but how an individual’s outlook has been shaped that influences the person’s receptivity to cooperative working.
[Read more at: https://henry-tam.blogspot.com/2013/08/the-reciprocity-test-pros-cons.html ]

[5] Progressive Lifelong Learning
The more people develop pro-reciprocity dispositions – which may be termed their Cooperative Gestalt – the more likely they will interact with each other with reason and respect. Through progressive lifelong learning, they are more able to assess and share ideas on what is to be believed in an on-going, provisional manner that is open to anyone to contribute, question and revise.
[Read more at: https://henry-tam.blogspot.com/2013/11/the-cooperative-gestalt.html ]

[6] The Pathology of Marginalisation
Oppressors and exploiters con people into joining their cults, gangs, and extremist groups, especially by preying on those who feel marginalised by society. They turn those vulnerable to manipulation into followers who will inflict harm on themselves as well as others, and dismiss any contrary evidence as ‘fake news’. We need to understand such vulnerabilities to be able to expose the con tactics more readily.
[Read more at: https://henry-tam.blogspot.com/2016/10/the-pathology-of-marginalisation.html ]

[7] The Cult of Thoughtlessness
The politics of manipulation depends on promoting thoughtless attitudes and behaviour. People are easier to con if they are less inclined to think critically. To counter it, educators in all fields have a vital role to play in advancing civic thoughtfulness – with its empathic, cognitive, and volitional elements.
[Read more at: https://henry-tam.blogspot.com/2017/02/the-cult-of-thoughtlessness.html ]

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For detailed expositions of why and how we should defend the ethos of cooperative communities, the following books may be of interest:

Time to Save Democracy: how to govern ourselves in the age of anti-politics: https://policy.bristoluniversitypress.co.uk/time-to-save-democracy

What Should Citizens Believe: exploring the issues of truth, reason & society: https://www.amazon.co.uk/What-Should-Citizens-Believe-Exploring/dp/1548183105

Communitarianism: a new agenda for politics and citizenship: https://www.amazon.co.uk/Communitarianism-New-Agenda-Politics-Citizenship/dp/0814782361

Monday, 15 October 2018

Four Threats of the Counter-Enlightenment

The Enlightenment has always been about advancing mutual respect, empirical reasoning, and inclusive governance. Contrary to narrow chronological accounts, it has continued to exert its influence through cooperative and progressive development beyond the early 1800s right down to our own time. However, in parallel, the counter-Enlightenment has also been active throughout – tirelessly denouncing intellectual and political progress as inimical to ‘true’ values, while constantly reviving attachment to an assortment of misguided goals.

In the decades following the Second World War, it was thought that with the defeat of fascism, the Universal Declaration of Human Rights, wider access to education, social security expanded for all citizens, the establishment of the UN and the EU, and responsible regulation of a market economy, the Enlightenment ethos was safely in place. But malicious manoeuvres to overthrow it did not abate, and by the 2010s the resurgence of the counter-Enlightenment has reached crisis point:

Dismissing Science
Evidence-based examination of truth claims is at the heart of the Enlightenment’s championing of empirical rationality. It supports scientific procedures, which are essential in resolving contested assertions when these arise in legal, policy, or other disputes. Objective expertise and systematic investigation provide the basis of impartiality. Counter-enlightenment advocates therefore dismiss science at every turn. They claim that science should be ignored because it is not infallible, even though they know it is far more reliable than any arbitrary alternative they may call on to back their own claims. The more people buy into the dismissal of science, the more easily vital facts can be brushed aside.

Inciting Discrimination
When counter-Enlightenment advocates attack moral universalism as empty, or savage the cosmopolitan-minded as citizens of nowhere, they are targeting the Enlightenment’s defence of mutual respect amongst humankind. Against the ill treatment of people with different customs or racial backgrounds, the subordination of women, and the neglect of the poor and powerless, the Enlightenment has always called for equality in esteem and fairness in treatment for all. But its enemies prefer to stoke prejudice and hatred against ethnic minorities, anyone vulnerable to stigmatisation, and women who refuse to tolerate abuse or marginalisation. Their goal is to legitimise disdain and discrimination.

Subverting Government
One of the greatest achievements of Enlightenment thinking was to replace arbitrary authoritarian rule by democratic government tasked with serving the public. Like science, democracy is not perfect, but it can be counted on to act in the public interest incomparably more than some narcissistic and unaccountable leader. Yet counter-enlightenment advocates want to see government taken over by an irresponsible elite that will cut protection for the general population, hand more resources and power to the wealthy, feed the prejudices of fundamentalists, weaken if not dismantle public accountability, and threaten dissidents with subversion of the judicial and law enforcement arms of government.

Hijacking ‘God’
Last but not least, while the Enlightenment has helped us realise that people should be left to believe in their own God or none, so long as that would cause no discernible harm, its enemies insist that their ‘God’ is the only true one, and they alone can speak on behalf of ‘God’ in declaring what is right or wrong. They thus try to cloak themselves with ‘divine infallibility’, and condemn all who oppose them as heretics who deserve to be punished unreservedly. Henceforth, anyone disputing their claims, because of their secular outlook or the different faith they hold, are to be castigated as daring to challenge ‘God’, and treated with righteous contempt.

Society has far too long neglected to teach the merits of the Enlightenment. Let us hope it’s not too late to alert everyone to the dangers of the counter-Enlightenment.