The Weasel Words Principle that underpins British law-making

The current Parliament of the United Kingdom [is] one of the oldest legislative bodies in the world, which means that it has more time than most to perfect the art of making laws. Over the years it has developed its own distinctive approach: weasel words.

The Weasel Word Principle of lawmaking is a very clever device. It allows politicians to pass highly controversial laws while avoiding all responsibility. The principle is simply to move that responsibility elsewhere, most usually but not exclusively to the judiciary. Consider the highly controversial Digital Economy Act. Its prime purpose is to keep Murdoch happy – which explains why neither the Conservatives nor Liberals were willing to scupper it in wash-up. Despite claiming to be strong on civil liberties and promising to roll back the database state and create a Big Society, neither party was willing to risk Murdoch’s ire in the weeks leading to a general election. (The ire of Murdoch could lead to a repeat of the Sun’s apparent election-swinging headline of 9 April 1992, “If Kinnock wins today will the last person to leave Britain please turn out the lights”.)

But Murdoch’s main reason for wanting DEAct is not the stated wish to reduce music and software piracy. We all know that firstly the law will not stop illegal downloads; and secondly, even if it did, it wouldn’t lead to any great increase in legitimate sales. The primary reason for DEAct is as a weapon Murdoch can use against the big search engines Google, Yahoo and Bing, and especially YouTube. His stated intention to charge for online news simply will not work when people can use the search engines and YouTube to get free alternatives or direct copies.

So here we have a law that is required for political expediency, but one that is universally disliked for many different reasons. It is politically expedient to pass the law yet remain at arm’s length from its effects: hence, The Weasel Word Principle. Firstly, actions under this law will not be brought by the police (ie, government), but by Murdoch and his colleagues; and secondly, judicial oversight means that no innocent person can possibly be punished. Quite simply, if anything unpopular happens, it will be the fault of big business and the judges – it will not be the fault of Parliament. (Conversely, if anything popular happens, it will be because of Parliament.)

But DEAct is a particularly clever use of the Weasel Words Principle, because as a bi-product (and obviously never for one moment part of the initial design) government gets the ability to censor almost anything it wants on the grounds of national security but via the use of copyright laws. Let’s say that WikiLeaks has a couple of damaging documents leaked from CESG (UK) and DGSE (France). Copyright will clearly belong to the two agencies. European legal co-operation could allow DGSE to demand that British ISPs block access to the WikiLeaks document (the process is obviously reciprocal). British ISPs could refuse, but would then have to justify their refusal in court. Indeed, the whole thing could easily escalate until the courts are asked to block access to all of WikiLeaks on the grounds that it publishes mostly copyrighted material – which of course it does.

This is the cunning of weasel word law-making. The action against WikiLeaks wouldn’t be instigated by the UK Government and there would be nothing it could do to prevent it because of European law. And anyway, it would be the judiciary and not the government that would decide if WikiLeaks is guilty of breach of copyright, and whether ISPs need to block access. Notice that it is irrelevant where WikiLeaks is geographically located. There is no attempt to take down the WikiLeaks site, merely to block access to it.

The ISPs would almost certainly agree to block access on demand because this clever law forces them to pay any legal costs if they refuse – and they certainly could not afford to fight what would rapidly become a whole stream of blocking demands.

Indeed, only one UK ISP has publicly stated that it would fight such demands from the rights holders (Murdoch and the entertainment industry for piracy, government for censorship). That ISP is TalkTalk. But could it win? Only one costly failure would force it to abandon its policy.

“Publicity is the very soul of justice,” said Jeremy Bentham. This generally lauded principle, that openness is good and secrecy is bad, lies behind the American constitutional right to freedom of expression. Most Europeans have a warm fuzzy feeling that something similar is enshrined in the European Convention on Human Rights. But is it?

ECHR Article 10 does indeed state that

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

That sounds good, but it is not unlimited.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

You could say that the limitations pretty well nullify the rights.

It seems to me, using the example of WikiLeaks, any attempt by TalkTalk to fight a blocking demand will fail in the courts either ‘in the interests of national security’ or ‘for preventing the disclosure of information received in confidence’. It might be worth a try, but…

And that’s the cleverness of the UK Parliament’s Weasel Words Principle. Unpopular action would be instigated by big business or foreign governments (and we hate all of them anyway), and confirmed by the judiciary as being in conformance with Human Rights. The UK Government, despite its best endeavours and proffered desire to protect the free speech of sites such as WikiLeaks (and possibly YouTube in the future) would be unable to do anything to defend them. It’s the law.

But the Digital Economy Act is one Weasel Word Law too far. It provides the potential to shroud the world in secrecy. Bentham again: “In the darkness of secrecy, sinister and evil in every shape shall have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate.” The Digital Economy Act is an evil and cowardly act. It must be repealed by the next Government.