Fake news and fake vicars…

The furore over the ‘fake vicar’ on Newsnight has caused a lot of trouble – but some of the most important aspects of the story seem to have been missed, lost in amongst the anger, defensiveness, accusations and counter accusations. For some it is a storm in a teacup, for others evidence of conspiracies, for still more evidence that others believe in conspiracies. Lord Adonis suggested the BBC paid the ‘fake vicar’ as an actress, Emily Maitlis accused Lord Adonis of spreading fake news, and the official BBC News PR team denied everything – everything, that is, except what people were really bothered about. The idea that the BBC actually paid the fake vicar to appear as an actress playing the part of a panellist was never the real point of the story – and it’s so unlikely as to be a genuine conspiracy theory, and is therefore very easy indeed for the BBC to deny. There are, however, much bigger questions with much more disturbing possible answers that the story brings up. Were the BBC ‘played’ by the fake vicar? Were they careless in their research when recruiting her for their panel? And why, in the face of all this, do they find it so, so hard to admit to any kind of mistake, apologise, and help rebuild our trust – at a time when trust in the BBC hangs by a thread, and is of more importance than it has ever been?

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‘Lynn’ appeared as a panellist on Newsnight, dressed, as can be seen, as a more or less traditional vicar – and yet that really was not who she was. As people on the internet quickly discovered, she was an actress – who incidentally had appeared a number of times on BBC programmes – who was also a ‘pastor’ of an obscure and distinctly dodgy internet-based church (the ‘Seeds of Wealth’ church). She also had pretty extreme views on Brexit, Islam and related subjects. What she clearly wasn’t was a vicar – and the Seeds of Wealth church does not appear to use old-fashioned C-of-E-style dog collars or anything like them. She was, to all intents and purposes, wearing a costume and playing a part.

Does this really matter? Why shouldn’t people of unusual and extreme views be allowed to be on panels on Newsnight? Here are the seeds of the problem. It’s not that she shouldn’t be allowed on Newsnight, and it’s not that extreme views shouldn’t be presented – but that deception should be avoided. This is where the ‘fakeness’ comes in, and where it fits with the pattern of fake news in general – part of what I research in my academic work. There is a chapter about it in my recent book, The Internet, Warts and All, and another academic piece just released about Facebook’s role in the fake news problem. One of the key lessons to learn from the study of Fake news is that it is rarely about things that are totally false, and rarely about trying to change people from one thing to quite another. It’s about ‘nudging’ and persuading, about taking nuggets of truth and distorting them, changing the focus, and gradually shifting people’s views or the intensity with which they hold those views. This is an old technique – Evelyn Waugh explained one aspect of it very well in his seminal novel about journalism, ‘Scoop’, in 1938:

“I read the newspapers with lively interest. It is seldom that they are absolutely, point blank wrong. That is the popular belief, but those who are in the know can usually discern an embryo of truth, a little grit of fact, like the core of a pearl, round which have been deposited the delicate layers of ornament.”

In this case, the little grit of fact was that Lynn was a pastor. Dressing her up as a conventional vicar is just a little shift, but changes the story. Having an obscure, weird, internet-church pastor say that she’s right behind Theresa May’s Brexit plan is one thing, having a respectable-looking middle-aged vicar say so is quite another. The details can be defended – indeed, the BBC has defended them quite vigorously – the overall story, however, is far harder to defend. Lynn was a fake vicar. In effect, she was a fake panellist. Newsnight, knowingly or unknowingly, was part of a fake story.

This fits with a pattern for the BBC – and for Newsnight in particular. Appearances matter, whether in the dog-collars of panellists or in the choices of backdrops. When Newsnight portrayed Jeremy Corbyn in front of the Kremlin, there was a similar fuss, but it similarly missed the point.

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The focus of the attention on this picture was generally ‘was his hat photoshopped to look more Russian’, and again the BBC could and did vigorously defend itself on this point, and indeed provided evidence to back themselves up. This wasn’t a fake hat, just his usual hat in profile. And yes, they’d done a photo of Tory minister Gavin Williamson with the same Kremlin background in a previous programme. The difference was more subtle. Williamson was pictured away from the actual Kremlin, on the other side of the screen. He was wearing a suit, not looking in the slightest bit Russian – and of course the association between left-wing Corbyn and old-fashioned Communism makes the link much stronger.

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Move on to Stephen Yaxley-Lennon – better known by his activist name of Tommy Robinson. In this case, they used one of Yaxley-Lennon’s own PR pictures as the basis of their backdrop for their special feature on him: a picture specially designed to suggest that the issues around him were about ‘gagging’ and restricting free speech, rather than contempt of court and other related issues. The debate was automatically framed by the picture.

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In all these three cases the actions of the BBC are defensible – and defended – in the detail, but the overall effect is quite different, and much harder to defend. Appearances matter, as anyone involved in television must know. The big questions to ask are why these things happen – and this is where the conspiracy theories start to kick in. Personally, I do not subscribe to conspiracy theories often. Cock-up is generally far more likely than conspiracy – particularly where the BBC is involved. In relation to the fake vicar, I suspect it is much more to do with underpaid and overworked researchers not doing their job properly – and being ‘played’ by the fake vicar herself. As anyone involved in this kind of a programme will know, there are plenty of weirdos and extremists who work very hard to get on programmes like Newsnight, Question Time and so on – and plenty of people working to get their supporters on such programmes. They can be very persistent, they can work their contacts and so on. It’s entirely possible that this is what happened here. Lynn wanted to be on TV, and in particular on a programme like this. She wanted to get her views across, she wanted them to be taken seriously, and she found a way to do this.

The BBC somehow let her – and we will probably never find out how or why – because they will in all probability never admit what actually happened.  Acknowledging mistakes, misjudgments, or having been played seems to be something that the BBC finds unbelievably hard to do. Instead, as in all three cases above, they defend on the detail and refuse even to pay lip service to the bigger picture or the bigger issues involved. That is both sad and unhelpful, because it fuels exactly the conspiracy theories that the BBC should be opposing. If no errors are ever acknowledged, people find it easier to believe that the BBC is doing all this intentionally – and it erodes the trust that people still have in the BBC.

This last part is particularly important. In the era of fake news, what we need more than anything else is real and reliable news to counter it. The BBC could and should be a part of that, a place that fake news and conspiracy theories can be countered, an anchor point in a sea of misinformation and disinformation. At times of political turmoil this is critical – and it would be great if the BBC could find a way back from the edge. A starting point would be just to say ‘sorry, we got it wrong’. For the BBC, however, sorry seems to be the hardest word.

A few words on Freedom of Movement…

Early on in the Brexit ‘debate’ I was asked by someone ‘why do you care about freedom of movement? Why is it something that bothers you so much?’ It’s a question that has come up again and again ever since – and though I answer it as often as I have the energy it feels as though it will keep on coming up. It’s usually followed by a number of follow-up questions or statements that, if only those people saying them realised, explain exactly why I care about it, and why it bothers me. Rather than being, as people often suggest, a middle-class, privileged thing, it’s a critical right particularly for the working class, something of benefit to all. Rather than a tool for the neo-liberals to oppress the workers, to shunt people around Europe at a whim, it is a vital workers’ right and fits well into the long history and struggle by workers. It shifts power from the rich and powerful, the multinationals and the exploitative employers, to the workers. It’s something that those on the political left should support, not oppose.

Nothing to do with open borders

First and foremost, it needs to be clear that freedom of movement is not about open borders. Indeed, people might notice that in yesterday’s political declaration about the future relationship between the EU and the UK just two paragraphs after proclaiming the end of free movement, the aim of ‘visa-free’ travel for short term visits is declared.

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Even then, it wouldn’t have meant open borders. We have never had open borders in the UK – with the grand and vital exception of the border in Ireland – and freedom of movement has never meant that. We have always controlled our borders (again with the noted exception). Anyone who’s ever been on holiday abroad via airport, seaport or the channel tunnel knows that. The queues at passport control have never disappeared. That would have been so with Schengen, but we have never joined Schengen. So, no, freedom of movement isn’t about open borders.

Not a middle-class indulgence

‘You’re just upset because it’ll make your holidays in the South of France harder’, or ‘it’ll just stop Tarquin and Felicity going interrailling on their gap years’ or ‘you just want a villa in Tuscany’ are just a selection of the dismissive comments I’ve heard when I’ve defended freedom of movement. None of that is even close to the truth. It won’t make holidays in the South of France harder – it’s nothing about that. The rich and privileged have always been able to travel – money gives you that power. Even if visas become an issue, the rich know how to get them. The systems have always been designed to let them find a way. Bureaucracy works in their favour. Money talks. They have the knowledge and the contacts to work the systems – and the systems are weighted in their favour too. The upper classes have gone on ‘Grand Tours’ to Europe for centuries – and sent their daughters to ‘finishing schools’ in Switzerland and so forth since well before the idea of the EU had even been conceived. ‘Ex-pats’ can be found all around the world – whether freedom of movement exists or not.

It’s not just a neo-liberal thing

Another regular complaint – particularly from the left – is that freedom of movement is a tool of the neo-liberal right, to shunt workers around the world at a whim. In practice, this is the reverse of the truth. Removing freedom of movement will give the multinationals more power – the freedom of movement transferred their power to workers. This may seem counterintuitive. It needs to be thought through. What freedom of movement, in its EU form, does is give the individual worker the right to live and work in any of the member states. They don’t need a work visa, they don’t need a job offer, they don’t need to go through any special bureaucracy – just the ‘right to work’ checks that people will be familiar with when they apply for any job in the UK now. Show your passport or similar form of ID. That’s putting power in the hands of the worker.

Bureaucracy favours the rich…

If you don’t have that, then you have to institute some kind of bureaucratic procedure. The two most common aspects are points-based systems and the need for a job offer. Both of these are effectively anti-workers. Points-based systems are naturally biased depending on how the points are determined. They favour people who are more educated, for example – but they also favour people who are better at working their way through bureaucracy – form filling is never simple, as anyone who has ever claimed benefits should know. It puts people off. It’s used as a barrier, and has a ‘chilling effect’. It also puts more power in the hands of employers or agencies. ‘We’ll sort out your visa’ or ‘we’ll work the system for you’, so long as you accept our terms and conditions. Our lower wages, shorter terms etc etc. Gangmasters are empowered, not workers. And if the barriers are in place, this also empowers illegal gangmasters. If you can’t get in legally, then there’s more incentive to work ‘on the black’. If you fail to get a work visa, you’ll be more likely to seek out the criminal element. All round, removing freedom of movement is disempowering for workers, and empowering for the worst kind of employers.

Coming over here…

‘But it helps undercut wages and takes our jobs’. No, it really doesn’t. The evidence suggests that in the past it has been mainly beneficial to wages, except at the very lowest end – and this latter effect (described as infinitesimal by the author of the one report often cited by Leavers) is in itself very misleading. First of all it has come at a time when government policy has been very much anti-worker – if we had freedom of movement and a left wing government, those effects could be negated with stronger and better enforced employment laws. Higher minimum wages (and potentially rules linking executive pay to wages at the bottom end etc), stronger union rights and so forth could outweigh this effect. Moreover, the other consequences of removing freedom of movement – losing full access to the single market, raising prices etc – would mean that even if wages at the bottom end rose a little the cost of living for those earning those wages would increase even more, leaving those workers worse off.

Freedom of movement doesn’t hit jobs either – to think so is to fall for the ‘lump of labour fallacy’, that there is some fixed amount of work that needs to be divided up between however many workers are available. That isn’t how it works in practice, Immigration boosts economies and creates more jobs, both directly and indirectly. Immigrants are employers as well as employed. They consume, they use services, they live. They fill gaps in the market that make our economy more efficient – to the benefit of everyone overall. They’re not ‘coming over here, taking our jobs’ as often as they are ‘coming over here and doing the jobs that need to be done’.

Exploiters gonna exploit…

None of this is to suggest that exploitative employers don’t take advantage of freedom of movement. Of course they do. That’s how they operate. That doesn’t mean that shutting down freedom of movement will help – they’ll exploit the lack of freedom of movement just as much as they currently exploit its existence. They’ll work the systems, putting workers in a worse position. Again, history and understanding of the struggle for workers’ rights should show how this works. Removing the workers’ rights because of exploitative practice by employers isn’t just perverse it simply won’t work. What is needed is better protection for all workers from exploitation. Work on the employers, don’t take away the rights of the employed. Again, things like raising minimum wages and forcing better conditions and union rights are the key, not removing freedom of movement.

So why oppose freedom of movement?

Given all of this, why do people still oppose freedom of movement? This is why I get the most frustrated – and why this really is an issue that matters to me. The potential reasons for rejecting freedom of movement are all bad. One is that you don’t really understand what freedom of movement is. You equate it with ‘open borders’ and believe that open borders are a bad thing (the reasons for that may be even worse). You don’t believe the evidence that it’s not bad for wages and jobs – and policy based on a rejection of evidence is the worst of all. If you reject evidence, you should ask yourself why you reject it. Faced with two potential stories, and without the expertise to evaluate the two sources accurately, people tend to fall back on which of the stories fits with their presumptions. Their prejudices. That brings into play some other damaging myths.

Freedom of movement, benefits and the NHS

The two most common – and most depressing – are those of ‘health tourism’ and ‘benefits tourism’. The idea that people are ‘coming over here’ to take advantage of the NHS or to live of our ‘soft’ benefits system. Neither are true, and both are based on prejudice. Health tourism is minimal – and the NHS benefits massively from immigration and freedom of movement in particular, It’s critical to the staffing, and without it the crisis in the NHS will get far, far worse. Benefits tourism is similarly small – and freedom of movement rules allow member states to restrict it almost completely. That either health tourism or benefits tourism are significant problems are damaging myths pushed primarily by right-wing politicians and newspapers. And yet people believe them, even on the left of politics.

Freedom of movement and xenophobia

This, in the end, is the bottom line. Faced by strong evidence in favour of freedom of movement and evidence against freedom of movement that is questionable at best, why would people choose to believe the latter? The only obvious conclusion is that they generally don’t like foreigners and immigration. That means, in the end, xenophobia. Why would it matter that you get a British nurse rather than a Slovakian one, or a British plumber rather than a Pole? They’re not taking ‘our’ jobs, or lowering wages, they’re not costing us money in benefits or putting a strain on the health service, or even in education. Our housing problems are caused by chronic failure to build and a dysfunctional housing market, not on immigrants – and to solve that, surprisingly enough, we need to build more houses. The construction industry uses immigrant workers more than most – and if we want to build more houses this is likely to continue.

And anyway…

All of this misses the point overall. Freedom of movement is a reciprocal right – people seem to tend to forget that it’s not just about people coming to the UK but about UK people being able to live, work, love, marry and more in the rest of the EU. It’s a positive thing. It’s a freedom. By removing it we’re making ourselves less free. We’re taking something away from ourselves. We’re narrowing rather than broadening our horizons – and all for either a misunderstanding of the concept or a misinterpretation of the evidence – or worse, from xenophobia.

So yes, I care about freedom of movement. I want more of it. I want to expand and extend it beyond the EU – and this brings me to the last and perhaps most pernicious of myths, that freedom of movement within the EU is somehow unfair on the rest of the world. ‘Queue jumping’ as Theresa May put it. There are so many problems with this argument. Firstly, the EU has nothing to do with our immigration policies with the rest of the world. The limitations on Indians coming to the UK, for example, are imposed by us, not by the EU. Secondly, to believe that each immigrant from the EU coming here means one fewer from outside the EU should be allowed is to fall for another fallacy closely related to the lump of labour fallacy. It presumes we have a fixed capacity, that we’re nearly ‘full’. We don’t, and we aren’t. We’re not close to being ‘full’ – our population density isn’t even that high, and immigration can actually help us as the population grows, filling gaps where needed. Social care is just one example. The problems associated with our ageing ‘native’ population are made worse by restricting immigration.

And, last of all, look at the human element. Freedom of movement has enabled so many wonderful human stories. So many wonderful people coming to the UK – and wonderful people from the UK going to other places. So many love stories. So many cultural experiences. So much general enrichment. Why can’t we embrace that rather than making it a red line….

 

The Internet, Warts and All: Free Speech, Privacy and Truth

My new book, the Internet, Warts and All, has just been published. The subtitle – Free Speech, Privacy and Truth – gives and indication of its subject matter and scope: this is a wide-ranging, broad-brush book covering a great variety of different subjects, from some of the theoretical background to free speech, privacy and truth to specific subjects – there’s a chapter on surveillance, another on trolling, and one whose main subject is fake news.

The idea for the book originally came to an extent out of frustration: why are governments so bad at dealing with the internet? Why are their laws so often counterproductive, their policies incoherent, and their politicians’ speeches so full of rubbish? Why is it so difficult for people to see the consequences of their ideas – things like ‘real names’ policies or demanding back-doors for encryption? Why do they think it would be easy for tech companies to ‘deal’ with trolls if only they put enough effort into it? It isn’t only governments of course – the media, academia and the technology industry itself is often just as guilty.

The Internet, Warts and All attempts to cut through some of this. The basic premise is that we need to be better at seeing the bigger picture – and understanding that the messy, flawed, confusing and paradoxical nature of the internet is not something that can be ‘sorted out’ by more law or more effort. It’s part of how things work. It’s a strength of the internet, not a weakness.

The Internet, Warts and All is to a great extent intended as a ‘myth-busting’ book – many of the chapters take common assumptions about their subjects head on, from broad ideas like the permanence of material on the net and the ‘balance’ to be found between privacy and security (spoiler: it’s not a balance) to specifics such as the ‘organic’ or ‘neutral’ nature of Google search or Facebook’s ‘platform’. Some of the examples used may be quite familiar – laws like the Investigatory Powers Act, the trolling tale of GamerGate, the farrago that was the NHS’s care.data – others less so, such as the mess that was Samaritans Radar and the tragic story of Brenda Leyland. They will, however, demonstrate that what is being discussed in the book isn’t just academic theory, but an observation of the reality of the internet as it is, and something about why that matters.

By its nature, The Internet, Warts and All, is very broad-brush, but it points to some of the excellent work done by academics in particular areas – researching the book has led me to read and appreciate the work of many great scholars even more.

The book is published by Cambridge University Press, and can be found here: http://admin.cambridge.org/academic/subjects/law/intellectual-property/internet-warts-and-all-free-speech-privacy-and-truth

I shall be talking about the book – or at least some aspects of the book on a number of occasions in September:

Informally, at the SLS conference at QMUL (Sept 5-7)

At the wonderful GiKii in Vienna (Sept 13)

At New Scientist Live at the Excel Centre in London, on Sept 21st https://live.newscientist.com/speakers/paul-bernal

At a public lecture for The Register at the Rugby Tavern, London, on Sept 27th https://www.theregister.co.uk/AMP/2018/08/13/the_register_lecture_accepting_the_internet_warts_and_all_trailer_2

I hope at least some of these will be interesting – and I probably won’t be able to stop myself talking about the book on many more occasions.

Guest Post: Upskirting and Human Rights

Chope 

(Source: Wikipedia)

Guest post by Matthew White

First of all, I’d like to apologise for the image used for this guest post. I’m sure you can imagine why.

Background:

This began whenGina Martin (@beaniegigi) was victim to upskirting, where an up-skirt photo or video is taken without permission/consent. Gina went to the police, but nothing happened. Gina decided to campaign to make upskirting a specific sexual offenceas has been argued by Clare McGlynn and Erika Rackley. An excellent summary of Gina’s campaign and the law surrounding voyeurism can be read at RightsInfoby Natasha Holcroft-Emmess (@NHEwrites), but essentially, Gina, her lawyer, Ryan Whelan (@ryantwhelan) and Liberal Democrat MP Wera Hobhouse (@Wera_Hobhouse) worked on a Private Members Billto make upskirting a sexual offenceunder the Sexual Offences Act 2003. This was formally supported by Ministers/Government.

But today, Conservative MP Christopher Chope, who has a marvellous history of being an absolute turd, blocked the Private Members Bill and set it back for another attempt on 6 July. If you’re reading this blog post, I don’t think I need to redirect you to the criticisms of this man, because you’ve probably already read them. Gina did notethat she will meet and discuss the Bill with Christopher Chope MP, but the human rights implications are still a live issue.

A Human Rights Issue?

Article 8

This was touched upon by Natasha Holcroft-Emmess in her post for Rights Info. But Article 8 of the European Convention on Human Rights, the Conservatives favourite Convention Right says that:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.

Article 8 is usually a ‘please leave me alone’ right, where the State should do just that (negative obligations). Article 8 does not have an exhaustive definition (Bărbulescu v Romania, (para 70)), but it can encompass many aspects such as one’s physical and moral integrity, including of one’s sexual life (X and Y v Netherlands, (para 22)). It also encompasses one’s psychological integrity (Pretty v UK, (para 61).

Not only should States generally leave us alone, there are circumstances where they should intervene, this is called a positive obligation. The European Court of Human Rights(ECtHR) summarises this:

The Court recalls that although the object of Article 8 (art. 8) is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (X and Y v Netherlands, (para 23)).

In X and Y, the ECtHR found a violation of Article 8 because there wasno lawin place that allowed complaints to be made on behalf sexually abused mentally (who do not have the capacity to complain themselves) handicapped people (para 28-30). Where essential aspects of private life are at stake, efficient criminal law is required (KU v Finland, (para 43)). Requiring criminal law does not require the seriousness of the occurrences in X and Ybecause upskirting is not trivial, it is criminal (KU v Finland, (para 45)). This is more important as the ECtHR recalls that:

[S]exual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives (KU v Finland, (para 46)).

Given that upskirting has affected girls as young as 10, criminal sanction becomes more pressing. And so because Christopher Chope MP decided to be a supreme turd, he has put the UK at divergence with its obligations under the ECHR.

Article 14 you say?

Is there another issue under the ECHR that might be relevant to this discussion? Possibly. Article 14 is the anti-discrimination right and is only relevant when a substance Convention Right (i.e. Article 8) is applicable(which it is). The ECtHR has said that Article 14 does not:

[P]rohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (Stec and Others v UK, (para 51)).

The factual inequality here is that upskirting primarily affects females. This is not to say that the Bill should only create an offence where only women can be the victims of said crime. I’m saying that the reality is that it is primarily women who are affected by this crime, and by doing nothing, primarily women will suffer. To ignore this inescapable fact is to remove the utility of Article 14.

Conclusions:

Simply put, the actions of Christopher Chope MP in denying criminalising upskirting is an affront to human rights. It’s a violation in terms of the violation of Article 8 rights of females, especially the young as the State’s protection of them is paramount. It’s a violation of Article 14 combined with Article 8 because it ignores the reality that females are the targets of this crime.

Guest post: Data Retention: I can’t believe it’s not lawful, can you? A response to Anthony Speaight QC

Guest post by Matthew White

Introduction:

Ladies and gentlemen, Bagginses and Boffins. Tooks and Brandybucks. Grubbs! Chubbs! Hornblowers! Bolgers! Bracegirdles! Proudfoots. Put your butter away for I am about to respond, rebut, rebuke and more to a recent blog post for Judicial Power Project, by Anthony Speaight QC on data retention.

Blanket data retention is unlawful, please deal with it:

Speaight starts off by referring to the recent Court of Appeal (CoA) judgment in  Tom Watson and Others v Secretary of State for the Home Department [2018] EWCA Civ 70 and how the Court of Justice of the European Union (CJEU) has created problems and uncertainties with regards to data retention. As David Allen Green would say, ‘Well…’ Well, just to be clear, the position of the CJEU on blanket indiscriminate data retention is crystal clear. It . Is . Unlawful . It just happens that the CoA took the position of sticking their fingers in their ears and pretending that the CJEU’s ruling doesn’t apply to UK law, because its somehow (it’s not) different.

Just billing data is retained? Oh really?

Next, Speaight recaps the data retention saga so far, in that telecommunications companies have always recorded who uses their services, when and where, often for billing purposes. A long time ago, in a galaxy far, far away (a few years ago, and anywhere with an internet connection) this position was a robust one. But the European Commission (Commission) in 2011 highlighted that:

[T]rends in business models and service offerings, such as the growth in flat rate tariffs, pre-paid and free electronic communications services, meant that operators gradually stopped storing traffic and location data for billing purposes thus reducing the availability of such data for criminal justice and law enforcement purposes.

So, in a nutshell, data for billing purposes are on the decrease. This would explain why the Data Retention Directive (DRD) (discussed more below) affected:

[P]roviders of electronic communication services by requiring such providers to retain large amounts of traffic and location data, instead of retaining only data necessary for billing purposes; this shift in priority results in an increase in costs to retain and secure the data.

So, it’s simply untrue to refer to just billing data when talking about data retention, because this isn’t the only data that is or has ever been sought.

It’s the Islamists fault why we have data retention:

Speaight next points out that it was the advent of Islamist international terrorism that made it advantageous to place data retention obligations on companies. Oh really? Are we going down this route? Well….. demands for data retention can be traced back to the ‘International Law Enforcement and Telecommunications Seminars’ (ILETS) (6) and in its 1999 report, it was realised that Directive 97/66/EC (the old ePrivacy Directive) which made retention of communications data possible only for billing purposes was a problem. The report sought to ‘consider options for improving the retention of data by Communication Service Providers.’ Improve? Ha. Notice how 1999 was before 9/11? Funny that.

It doesn’t stop there though. A year later (still before 9/11), the UK’s National Crime and Intelligence Service (NCIS) made a submission (on behalf of the Mi5/6, GCHQ etc) to the Home Office on data retention laws. They ironically argued that a targeted approach would be a greater infringement on personal privacy (para 3.1.5). Of course, they didn’t say how or why this was the case, because, reasons. Charles Clarke, the then junior Home Office Minister, and Patricia Hewitt, an ‘E-Minister’ both made the claim such proposals would never happen (Judith Rauhofer, ‘Just Because You’re Paranoid, Doesn’t Mean They’re Not After You: Legislative Developments in Relation to the Retention of Communications Data’ (2006) SCRIPTed 3, 228; Patricia Hewitt and Charles Clarke, Joint letter to Independent on Sunday, 28 Jan 2000) and should not be implemented (Trade and Industry Committee, UK Online Reviewed: the First Annual Report of the E-Minister and E-Envoy Report (HC 66 1999-2000), Q93).

Guess what? A year later Part 11 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA 2001) came into force three months after 9/11 (Judith Rauhofer, 331). The Earl of Northesk, however, pointed out that ‘there is no evidence whatever that a lack of data retained has proved an impediment to the investigation of the atrocities’ on 9/11 (HL Deb 4 Dec vol 629 col. 808-9). What this demonstrates is that data retention was always on the cards, even when its utility wasn’t proven, where the then Prime Minister Tony Blair, noted that ‘all the surveillance in the world’ could not have prevented the 7/7 bombings. It’s just that as Roger Clarke succinctly puts it:

“[M]ost critical driver of change, however, has been the dominance of national security extremism since the 2001 terrorist attacks in the USA, and the preparedness of parliaments in many countries to grant law enforcement agencies any request that they can somehow link to the idea of counter-terrorism.” (Roger Clarke, ‘Data retention as mass surveillance: the need for an evaluative framework’ (2015) International Data Privacy Law 5:2 121, 122).

Islamic terrorism was just fresh justification (7,9) for something that ‘the EU governments always intended to introduce an EC law to bind all member states to adopt data retention.’ Mandatory data retention was championed by the UK during its Presidency of the European Council (Council) (9) (and yes, that includes the ‘no data retention from us’ Charles Clarke (who was accused of threatening the European Parliament to agree to data retention (9))) and described as a master class in diplomacy and political manoeuvring (Judith Rauhofer, 341) (and they say it’s the EU that tells us what to do!!). Politicians goin’ politicate. Yes, the DRD makes reference to the Madrid bombings, but the DRD was not limited to combating terrorism (6), just as the reasons for accessing communications data in UK law under s.22 of the Regulation of Investigatory Powers Act 2000 (RIPA 2000) were not solely based on fighting terrorism. There is nothing wrong with saying that data retention (yeah, but not blanket, of course) and access to said data can be important in the fight against Islamist terrorism, but would you please stop pretending that was the basis on which data retention was sought?

Data retention was smooth like rocks:

Next, Speaight points to the ‘smooth operation’ of the data retention system. Smooth how and in what ways? Harder to answer that is, yess! Well….. in 2010, the Article 29 Working Party (WP29) pointed out that ‘the lack of available sensible statistics hinders the assessment of whether the [data retention] directive has achieved its objectives.’ The WP29 went further pointing out that there was a lack of harmonisation in national implementation of the DRD (2). This was, the purpose of the DRD (harmonising data retention across the EU), and it didn’t even achieve what it set out.

What about its true purpose? You know, spying on every EU citizen? Well the European Data Protection Supervisor (EDPS) responded to the Commission’s evaluation of the DRD. WARNING: EDPS pulls no punches. First, the EDPS reiterated that the DRD was based upon the assumption of necessity (para 38). Secondly, the EDPS criticised the Commission’s assertion that most Member States considered data retention a necessary tool when conclusions were based on just over a third (that’s less than half, right?) of them (para 40). Thirdly, these conclusions were in fact, only statements (para 41). Fourthly, the EDPS highlighted there should be sufficient quantitative and qualitative information to assess whether the DRD is actually working and whether less privacy intrusive measures could achieve the same result, information should show the relationship between use and result (43).

Surprise, surprise, the EDPS didn’t find sufficient evidence to demonstrate the necessity of the DRD and that further investigations into alternatives should commence (para 44). Fifthly, the EDPS pretty much savaged the quantitative and qualitative information available (para 45-52). A few years later, the CJEU asked for proof of the necessity of the DRD. There was a lack of statistical evidence from EU Member States, the Commission, the Council and European Parliament, and despite that, they had the cheek to ask the CJEU to reject the complaints made by Digital Rights Ireland and others anyway (ibid). Only the Austrian government were able to provide statistical evidence on the use (not retention) of communications data which didn’t involve any cases of terrorism (ibid). The UK’s representatives admitted (come again? The UK admits something?) there was no ‘scientific data’ to underpin the need of data retention (ibid), so the question begs, wtaf had the DRD been based upon? Was it the assumption of necessity the EDPS referred to? Draw your own conclusions. The moral of the story is that the DRD did not operate smoothly.

Ruling against data retention was a surprise?

Speaight then moves onto the judgment that started it all, Joined Cases C‑293/12 and C‑594/12, Digital Rights Ireland in which the CJEU invalidated the DRD across the EU. According to Speaight, this came as a ‘surprise.’

I felt a great disturbance in the Law, as if thousands of spies, police, other public authorities, politicians and lawyers suddenly cried out in terror, as the State were suddenly unable to spy anymore. I fear something terrible has happened.

So, who was surprised? Was it the European Parliament who had initially opposed this form of data retention as they urged its use must be entirely exceptional, based on specific comprehensible law, authorised by judicial or other competent authorities for individual cases and be consistent with the European Convention on Human Rights (ECHR)? Was it a surprise to them when they also noted that that ‘a general data retention principle must be forbidden’ and that ‘any general obligation concerning data retention’ is contrary to the proportionality principle’ (Abu Bakar Munir and Siti Hajar Mohd Yasin, ‘Retention of communications data: A bumpy road ahead’ (2004) The John Marshall Journal of Computer & Information Law 22:4 731, 734; Clive Walker and Yaman Akdeniz, ‘Anti-Terrorism Laws and Data Retention: War is over?’ (2003) Northern Ireland Legal Quarterly 54:2 159, 167)?

Was it a surprise to Patrick Breyer who argued that data retention was incompatible with Articles 8 and 10 of the ECHR back in 2005 (372, 374, 375)? Was it a surprise to Mariuca Morariu who argued that the DRD had failed to demonstrate its necessity (Mariuca Morariu, ‘How Secure is to Remain Private? On the Controversies of the European Data Retention Directive’ Amsterdam Social Science 1:2 46, 54-9)? Was it a surprise to Privacy International (PI), the European Digital Rights Initiative (EDRi), 90 NGOs and 80 telecommunications service providers (9) who were against the DRD? Was it a surprise to the 40 civil liberties organisations who urged the European Parliament to vote against the retention of communications data?

Was it a surprise to the WP29, the European Data Protection Commissioners, the International Chamber of Commerce (ICC), European Internet Services Providers Association (EuroISPA), the US Internet Service Provider Association (USISPA), the All Party Internet Group (APIG) (Abu Bakar Munir and Siti Hajar Mohd Yasin, 746-749) and those at the G8 Tokyo Conference? Hell, even our own assistant Information Commissioner, Jonathan Bamford, back in 2001 wouldn’t be surprised because he said ‘Part 11 isn’t necessary, and if it is necessary it should be made clear why’ (HL Deb 27 Nov 2001 vol 629 cc183-290, 252). Was it a surprise when prior to Digital Rights Ireland:

Bulgaria’s Supreme Administrative Court, the Romanian, German Federal, Czech Republic Constitutional Courts and the Supreme Court of Cyprus all [declared] national implementation of the DRD either invalid or unconstitutional (in some or all regards) and incompatible with Article 8 ECHR?

Was Jules Winnfield surprised?

The point I’m trying to hammer home is that (you’ve guessed it), the CJEU’s ruling in Digital Rights Ireland should come as no surprise. Still on the issue of surprise, for Speaight it was because it departed from decisions of the European Court of Human Rights (ECtHR) and the CJEU itself. Ok, let’s look at these ECtHR cases Speaight refers to. The first is Weber and Saravia v Germany, a case on ‘strategic monitoring.’ This is a whole different kettle of fish when compared to the DRD as this concerned the surveillance of 10% (I’m not saying this is cool either btw) [30, 110] of German telecommunications, not the surveillance of ‘practically the entire European population’ [56]. Ok, that may have been an exaggeration by the CJEU as there are only 28 (we’re not so sure about one though) EU Member States, but the point is, the powers in question are not comparable. The DRD was confined to serious crime, without even defining it [61]. Whereas German law in Weber concerned six defined purposes for strategic monitoring, [27] and could only be triggered through catch words [32]. In Digital Rights Ireland, authorisation for access to communications data in the DRD was not dependent upon ‘prior review carried out by a court or by an independent administrative body’ [62] where in Weber this was the case [21, 25]. Apples and oranges.

The second ECtHR case was Kennedy v UK, and it’s funny that this case is brought up. The ECtHR in this case referred to a previous case, Liberty v UK in which the virtually unfettered power of capturing external communications [64] violated Article 8 of the ECHR [70]. The ECtHR in Kennedy referred to this as an indiscriminate power [160, 162] (bit like data retention huh?), and the UK only succeeded in Kennedy because the ECtHR were acting upon the assumption that interception warrants only related to one person [160, 162]. Of course, the ECtHR didn’t know that ‘person’ for the purposes of RIPA 2000 meant ‘any organisation and any association or combination of persons,’ so you know, not one person literally.

And this was, of course, prior to Edward Snowden’s bombshell of surveillance revelations, which triggered further proceedings by Big Brother Watch. A couple of years ago, in Roman Zakharov v Russia, the ECtHR’s Grand Chamber (GC) ruled that surveillance measures that are ‘ordered haphazardly, irregularly or without due and proper consideration’ [267] violates Article 8 [305]. That is because the automatic storage of clearly irrelevant data would contravene Article 8 [255]. This coincides with Advocate General (AG) Saugmandsgaard Øe’s opinion that the ‘disadvantages of general data retention obligations arise from the fact that the vast majority of the data retained will relate to persons who will never be connected in any way with serious crime’ [252]. That’s a lot of irrelevant data if you ask me. Judge Pinto de Albuquerque, in his concurring opinion in Szabo and Vissy v Hungary regards Zakharov as a rebuke of the ‘widespread, non-(reasonable) suspicion-based, “strategic surveillance” for the purposes of national security’ [35]. So, I’d say that even Weber v Saravia is put into doubt. And so, even if the CJEU rules that data retention in the national security context is outside its competence, there is enough ECtHR case law to bite the UK on its arse.

Probably the most important ECtHR case not mentioned by Speaight (why is that?) is that of S and Marper v UK, this is the data retention case. Although this concerned DNA data retention, the ECtHR’s concerns ‘have clear applications to the detailed information revealed about individuals’ private lives by communications data.’ What did the GC rule in S and Marper? Oh, was it that blanket indiscriminate data retention ‘even on a specific group of individuals (suspects and convicts) violated Article 8’? Yes, they did and it was S and Marper to which the CJEU referred to on three separate occasions in Digital Rights Ireland [47, 54-5]. Tele 2 and Watson (where the CJEU reconfirmed that blanket indiscriminate data retention is prohibited under EU law) is just the next logical step with regards to communications data. And so far from being surprising, the CJEU in Digital Rights Ireland and Tele2 and Watson are acting in a manner that is consistent with the case law of the ECtHR.

The CJEU case law that Speaight refers to is Ireland v Parliament and Council which was a challenge to the DRD’s legal basis, not whether it was compatible with the Charter of Fundamental Rights, so I’m not entirely sure what Speaight is trying to get at. All in all, Speaight hasn’t shown anything to demonstrate that Digital Rights Ireland has departed from ECtHR or CJEU case law.

You forgot to say the UK extended data retention laws:

Speaight then rightly acknowledges how the UK government replaced UK law implementing the DRD with the Data Retention and Investigatory Powers Act 2014 (DRIPA 2014) in lightspeed fashion. What Speaight omits, however, is that DRIPA 2014 extended retention obligations from telephone companies and Internet Service Providers (ISPs) to Over-The-Top (OTT) services such as Skype, Twitter, Google, Facebook etc. James Brokenshire MP attested that DRIPA 2014 was introduced to clarify what was always covered by the definition of telecommunications services (HC Deb 14 July, vol 584, 786). This, of course, was total bullshit (5), but like I said, politicians goin’ politicate.

Claimants don’t ask questions, courts do:

Speaight moves onto the challenges to DRIPA 2014, we know the story already, the High Court (HC) said it was inconsistent with Digital Rights Ireland, whereas the CoA disagreed, blah, blah. Speaight points out that the claimants had no issue with data retention in principle, which is true, but so what? Speaight also points out that the CJEU went further than what the claimants asked by ruling that blanket indiscriminate data retention was not permissible under EU law. Wait, what the fark? It’s not the bloody claimants’ that ask the CJEU a question on the interpretation of EU law as I’m pretty sure it was the Swedish referring court (via Article 267 of the Treaty on the Functioning of the EU, you know, a preliminary reference) that asked the CJEU:

Is a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime (as described [below under points 1-6]) compatible with Article 15(1) of Directive 2002/58/EC, 1 taking account of Articles 7, 8 and 15(1) of the Charter?

And the CJEU said no. End of discussion.

The ends don’t always justify the means and for clarity, the CJEU didn’t reject shit:

Speaight also says that the CJEU in Tele2 and Watson rejected AG Saugmandsgaard Øe’s advice that the French governments found access to communications data useful in its investigations into terrorist attacks in 2015. Such a position however, falls victim to several questions, such as under what circumstances was the data sought? Was it accessed as a consequence of the legal obligation to retain? Or was it already retained for business purposes? What were the results of the use of that data? Could the same results have been achieved using less intrusive means? Saying it is useful tells us nothing as the ECtHR has plainly said necessity (in a democratic society) is not as flexible as expressions such as ‘useful’ [48], and as the CJEU rightly noted, a measure in and of itself, even in the general interest cannot justify general indiscriminate data retention [103]. This demonstrates that the CJEU didn’t reject anything, they didn’t even refer to the French government’s evidence, they just said as fundamental as fighting serious crime may be, and the measures employed, cannot by themselves justify such a fundamental departure from the protection of human rights. Just because you can, doesn’t mean you should. A certain ECtHR said something similar in Klass v Germany in that States ‘may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate’ [49].

The CJEU doesn’t have to answer what it wasn’t asked:

Speaight then whines about the CJEU not addressing the issue of national security, well they weren’t asked about national security in Tele2 and Watson, were they? Like I said, even if the CJEU doesn’t have competence to rule on national security based data retention, Roman Zakharov is watching you from Strasbourg (he’s not actually in Strasbourg, I don’t think, but you dig).

What’s your problem with notification?

Speaight also bemoans the obligation to notify saying this requirement could damage investigations and surveillance and went beyond what the claimants had asked. Well, again, the claimants weren’t asking the questions, ffs, and the CJEU made this point by referring to previous case law, notably, Schrems [95]. The CJEU made very clear that notification should be done ‘as soon as that notification is no longer liable to jeopardise the investigations being undertaken by those authorities’ [121]. This is consistent with the ECtHR’s stance. Both courts are aware that notification can defeat the purpose of the investigation, and sometimes even after it has concluded, notification may still not be appropriate. But Speaight seems to omit this crucial detail.

Lawyers getting mad:

Speaight notes that criticism of Tele2 is not confined to Eurosceptics. Sure, but you don’t have to be a Europhile to defend it either. He also noted that it was roundly condemned by all the participants at a meeting of the Society of Conservative Lawyers. Well, no shit to my Sherlock, the name kinda gave it away. He also notes that the former Independent Reviewer of Terror law, David Anderson QC, said it was the worst judgment he knew of. Wait til Anderson reads the ECtHR’s case law on this matter then, which if anything, on proper reading goes further than Tele2. Speaight also points out that Demonic Grieve QC MP was pissed and that a well distinguished member of the French Bar, Francois-Henri Briard basically saying we need more conservative judges to trample on fundamental rights. If a judgment that protects the fundamental rights of all EU citizens pisses off a few lawyers, so be it.

Conclusions:

I’ve spent way too much time on Speaight’s post, and the really sad thing is, I’ve enjoyed it. It’s hard to have a conversation about data retention when you first have to sift through a load of bollocks, and there was plenty of bollocks, just to make your point. And by the time you’ve cleared through all the falsities and misleading or exaggerated points, you run close to 4k words without actually saying what your position is. So, my position for this blog post is, we should always shoot down rubbish when it shows its ugly face or else it festers. Actually, the point is, I can believe that blanket indiscriminate data retention is unlawful.

A few words on the University strike…

It takes a lot to get academics up in arms. It takes even more to bring them into even a semblance of unity – we spend most of our working life arguing with each other, and trying our best to demonstrate that our arguments are different from those of our peers. ‘Originality’ we call it. The result of this is that organising academics is a bit like herding cats.

There are, however, a few things that can bring about both action and some degree of unity. Academic freedom is one – the threat of political interference with our work, as in the brief appointment of Toby Young to the Office for Students, and what is likely to lie ahead in that government continuing plan to corral the universities into obedience. Another is our pensions – the reason for the current strike.

Why do we care about our pensions so much? There are a couple of connected reasons for that – as far as I can see, and of course I only really speak for myself. For one thing, we really don’t want to be spending our working lives designing a career based upon how we can generate the highest income. It would be pointless, for most at least, as salaries across academia except at the highest levels and in some very specific fields, do not really vary that much. More importantly, because of the nature of our work, we want to choose our careers based on the people we can work with, the courses we are expected to teach, the calibre of the students, and so forth. These are academic considerations, not financial ones, and there is not necessarily a correlation between them. The most interesting jobs may well not be the best paid – and in academia, the work being interesting is the most important point.

The second reason is that in academia we are actually not that well paid – when our abilities, qualifications and potential are considered. Most of us could – and some of us used to – earn much more outside academia. In my case, I earned more in real terms as a 26 year old accountant than I do as a 53 year old academic. I am far from alone. And it is not just in a few fields like law and business studies that academics could earn more outside the Ivory Towers. Scientists are in demand in industry. Linguists in a wide range of areas. Communications and media scholars in the media itself, in politics and indeed in business. Mathematics is critical to IT. Historians and others in the humanities, as well as scholars of English have huge amounts to offer many businesses. Indeed, scholars who specialise in periods such as 17th century France or 15th century Eastern Europe could have taught the Internet giants a lot about the nature of the current ‘fake news’ phenomenon. What’s more, we’re all now expected to produce ‘impact’ (an effect on the outside world) and ‘engagement’ (involvement with the outside world): it’s very hard to get promoted or a new job without it. The idea that academics are a bunch of badly-dressed eggheads who don’t understand the real world at all is very, very far from the truth.

What we actually do is *choose* to work in academia, though the rewards are lower than what we could earn elsewhere? Why? Partly for the intellectual challenge and the academic freedom. Partly because at its best it is an immensely satisfying job. Partly, though, because the package of rewards we get – including a decent salary and a decent, reliable pension – matches the commitment that we put in. Few of us can generate enough income outside our academic work to provide a supplementary pension – and few inherited enough wealth to make that irrelevant. All careers have some kind of a bargain involved – that has been the academic one, and it has worked.

That’s one of the critical points here: our universities have worked very well. We have far more world class universities than other nations of a comparable size. If there are attacks on the ‘value for money’ offered to students that is primarily a reflection of the ridiculous and artificial fee rate chosen by our recent governments’ twisting of the financing of higher education than of the way our courses are taught. You can argue how it should be done – funding it centrally from government, making universities generate their own income or look for rich donors or generous alumni – but what should be clear is that the current fee level is artificial, so any ‘value for money’ calculations based upon it are equally artificial. Moreover, none of those made publicly take the other values of the universities into account. Their role in society. The use of research. In the days of ‘fake news’, the need for institutions with the skills and resources to examine what is actually happening is particularly important.  We need the universities more in the current climate than we have ever done.

That makes the current pension plan even more pernicious. To make it clear, the plan for universities’ pensions is to make a monumental shift – effectively from ‘defined benefits’ (where retirees know what they will receive) to ‘defined contributions’ (where what you receive depends on the stock market) – that will in all probability make most academics far worse off in retirement. This monumental decision is being made at a time of massive uncertainty, on the basis of very contentious calculations using a huge number of assumptions, the centrepiece of which is a snapshot of the market value of the scheme’s assets, again at a time of massive uncertainty. I would not call myself an expert, but I have a degree in mathematics from Cambridge and I used to be a Chartered Accountant – and as an auditor I specialised in financial services, including pension schemes. What I do know is that making such decisions in such circumstances is what Sir Humphrey would have called ‘bold’. To do so to the massive detriment of the academics and support staff in the scheme is truly awful (for a good analysis of the problems with the analysis, see here), and smacks of taking advantage of the situation by the Vice Chancellors and others who are behind this move.

So this is why we are on strike. To protect something hugely valuable. To stop an awful decision with massive ramifications being made at a wholly inappropriate time. In the end, to help the students of the future – because with this change, many good academics will leave, taking their transferrable skills to places where they are more appreciated, whether that be academia abroad (where many of the best would be welcomed) or outside academia entirely. It is for our own future, of course – but it is for more than that. And though we, like all people, are selfish and self-centred a lot of the time, there really is more to this than selfishness. I hope those outside academia can appreciate this. Indeed, I hope the Vice Chancellors appreciate this – and at the very least come back to the negotiating table without preconditions. The nature of the pension scheme has to be on the table – it’s the whole point. If that is not understood, it suggests the Vice Chancellors have very little understanding of the institutions they are supposed to be in charge of.

 

Free speech, safe spaces and hypocrisy

The unedifying ‘scuffle’ at Jacob Rees-Mogg’s appearance at the University of the West of England has provoked a great deal of reaction – some of it distinctly over-the-top. Precisely what happened, who started the fight and why, remains a little unclear – and is not the topic of this post. It is Theresa May’s reaction, to suggest a new law to protect MPs against intimidation, that is more interesting for those of us who are interested in freedom of speech – not only in its practice but its purpose.

The need for a new law is at best contentious – there is already plenty of law to deal with threats and intimidation, public order law, law to protect against harassment and much more – and it is entirely possible that nothing will materialise from Theresa May’s pronouncement other than a few headlines in the Daily Mail. The reasons behind the desire for the law, however, reveal a lot about Theresa May and those who share her views. Effectively, though she and they would be very unlikely to use the words, they’re looking for a ‘safe space’ for MPs. This, coming from the same people who have been actively campaigning against ‘safe spaces’ in universities for others, has more than a whiff of hypocrisy about it. It is, however, remarkably familiar. Many – perhaps most – of those who claim to be great champions of free speech are often very keen on protecting the free speech of people like them, or of people who share their views, but far less keen on providing the same protection for those they disagree with.

Safe Spaces can be a good thing

What the supporters of a law to protect MPs from intimidation might understand, if they thought a little further, is that safe spaces can be a good thing. If we want a civilised debate, if we want people not to be intimidated into silence, if we want to encourage those whose voices are rarely heard, then a supportive – or at the very least not threatening – environment really helps. Theresa May understands that for MPs – because she understands MPs, and supports them in that role. That much is easy – making the leap to understand that others need that protection and that safety too seems to be much harder.

Safe Spaces can be a bad thing

On the other hand, if the creation of a ‘safe space’ is to stop particular voices being challenged, it is not so clearly a good thing – and that may well be what happens at times. For debate to function, challenging needs to be possible – banning hecklers and protestors is not always a good thing. Drawing a line is not always easy – as the UWE fracas showed. The initial protest, and indeed Jacob Rees-Mogg’s first response to it, seemed relatively civilised and harmless. Protest is a critical part of freedom of speech – the vehemence with which authoritarian regimes deal with it should at least give pause for thought. The idea that Donald Trump might only visit the UK if Theresa May stops protests is not something we should accept, for example.

Safe Spaces for whom?

What should give us even more pause for thought is who we need to provide safe spaces for, and why – and this is where the idea that we should legislate for safe spaces for MPs whilst actively working against safe spaces for others feels particularly wrong. MPs already have plenty of ‘safe spaces’ to air their views. Parliament itself, for one. The studios of all the TV and radio broadcasters. Columns in major newspapers and magazines. Others – particularly vulnerable or marginalised people and groups – have almost no access to these. They have neither freedom of speech in practice nor safe spaces in which to hear others. They don’t have powerful friends and allies to open doors, provide platforms – or bring in legislation.

That is the thing about rights – and human rights in particular. The main need for those rights is for the relatively weak, to protect them from the relatively strong. People with strength and power already have many means to protect themselves – in free speech terms, they have many ways to express themselves and a ready audience to listen. For others none of that is true – and that is what we need to remember.

Free speech is not simple – it is messy and complicated, nuanced and difficult to find our way through. That complication needs to be taken on board – because free speech is also really important. We should be particularly wary of those proclaiming themselves champions of free speech – what they are championing is often at best an oversimplification, and often a complete distortion. In Theresa May’s case, it may be even worse. The kind of law envisaged would not support free speech – it would support the powerful against the weak. It should be thoroughly resisted.