A UK refererendum … on the EU’s Patent Court?

The Danish and Irish governments have announced that they expect to hold refendums on their countries’ participation in the new European Unified Patent Court. Why hasn’t the United Kingdom done likewise?

Denmark and the Republic of Ireland are burdened by written statutory constitutions, and these documents happen to require special permission before their parliaments can validly hand over power to a foreign body. In the Danish case, this is because the constitution says that outright, whereas Ireland has an American-style ban on delegating legislative or judicial authority, and since the Crotty judgment in the 1980s this has been recognised as requiring that the constitution be amended to achieve any delegations of power.

The Danish system requires a parliamentary supermajority of 5/6ths or a referendum. Amending the Irish consitution requires a referendum. So both countries are having one.

The UK, on the other hand, has a written, non-statutory constitution (it’s spread across hundreds of documents). The UK’s law, under the European Union Act 2011, requires a referendum when powers are transferred to the European Union, in various senses of “transferred”. Effectively, this is when the EU Treaties are formally amended conferring new powers on the EU. There are lots of tricky ways of doing this, and ways of the achieving the same result, particularly by removing vetoes or changing voting requirements, and the 2011 Act goes to absurd lengths trying to categorise all of these. The Act is basically a list of all the ways the EU’s treaties can be amended by the back door. Well, almost all.

Unfortunately, the EU’s own constitution (its treaties) combines the worst features of French and British constitutional practice: the countries share a tradition of not really allowing the courts to “strike down” legislation, and Britain has a constitution which overtly is not contained in a single document (most countries’ constitutions are not really contained in a single document. The UK has never adopted this pretence), and can evolve as a result of covert political activism by politicians, civil servants and the courts. A lot of the powers enjoyed by the EU have really been arrogated to it by European court in Luxembourg. A bunch of lobbyists decide to get a directive passed which slightly oversteps the limits of the EU’s powers; so long as it has been passed by the correct legislative procedures (and the Luxembourg court is very fair on this), the Court will allow it to stand, just as the British courts let an act of Parliament stand, even if it breaches human rights.

People think the EU has an American style supreme court which strikes down legislation, but this is nonsense.

Accordingly, powers can be acquired by the EU other than by treaty amendment. The 2011 Act does not protect against this with a referendum lock. In the case of the common European patent system, the measures are being adopted slightly outside the EU’s machinery anyway, and the 2011 Act only really covers formal EU matters arising from particular Treaty articles.

The Irish and Danish rules are defined in terms of who is losing power, not how it is being lost, and so cannot be circumvented by the courts or enhanced co-operation.

This is not to say that there shouldn’t be a referendum in the UK about this, just that the legal argument that there has to be is by no means an open-and-shut case, and given that even discussing it involves discussing the fact that the 2011 Act is a sham means it’s not likely to get discussed much.

Substantively, the patent policy is a bad one. Patents do not and should not have their own court system. The experience of the United States has been that the creation of a parellel court system for patent cases has unbalanced the patent system in favour of particular economic interest groups. Removing patent litigation from the general business of the Luxembourg court (however dishonestly that court might be interpreting the treaties) is the policy of rent-seekers.

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Science is not Maths

Scientific and mathematical reasoning are much more different from each other than people intuitively realise: they differ in what sort of ideas they start with, what consequence erroneous reasoning has, and the structure of the network of ideas they create.

Science starts with a very small set of assumptions, basically that the whole of the observable universe behaves in a regular, mechanical fashion. New scientific knowledge is created when we make a set of observations and infer a general rule to which these observations conform. The inputs are mostly facts about the observable world around us, and existing scientific theories. The direction of inference is inductive, from the specific to the general. This means that if enough of the specific observations are for some reason wrong, then the generalisation inferred from them could be wrong too.

That is not how maths works: you start with a set of assumptions and without any observations. Indeed: there is no observation you can make of the physical universe which can help you prove or disprove a mathematical theory. Maths starts and ends with objects and concepts which are not physical things we can observe. There is, however, a much more important distinction: mathematical reasoning generally proceeds from the general to the specific, and is like a chain, rather than a rope: if a single assumption or inference is wrong, everything which depends on it is probably wrong too.

People who let their political views get in the way of their ability to think often exult when a theory they dislike is disproven. We don’t know what level of academic fraud and incompetence exists, and occasionally the mainstream media covers mistaken results in, e.g., climatology or economics. These disciplines, whatever their status within the sciences are sciences, not branches of maths, yet highly intelligent people seem to believe that some disproven major claim in one of these disciplines invalidates large swathes of results elsewhere in them. That’s not how non-mathematical knowledge is structured: it’s a rope with many plies, not a chain as weak as its weakest link.

(I’d include theological reasoning alongside maths, as starting from a set of assumptions (e.g., the contents of the Bible), and legal reasoning, at least in the common law and Sharia, as being more like science)

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How little does the word “based” mean?

I think the word “based” has become debased. Too often does one find “X is based on Y”, particularly, “X is based on the principle of Y”, though the misuse of the word “principle” deserves an article its own.

“based” could mean all sorts of things, which I shall illustrate by examples taken from the first few pages of Google hits for “is based on”. Derivation: “Ubuntu is based on Debian”; Logical dependency: “critique of ethanol is based on flawed findings”; many things in between, and a sort of relationship I find it hard to characterise: “Newborn’s face recognition is based on low spatial frequencies”.

It’s the “many things in between” which it’s hard to deal with. For example: “Islam’s horror of homosexuality is based on Koranic misinterpretation”. “Modern `Commercial Law’ is based on Ancient Babylonian Codes”. With these two assertions, some sort of relationship is asserted between a contemporary phenomenon and a rule written down centuries ago and authoritative for some community in the Middle East. Is it that the old rule entails the new phenomenon, or that the new phenomenon somehow incorporates it in part? And if we get to the bottom of that, what do we make of facial recognition’s relation to frequencies? Or “America’s trade is based on protectionism”, “Restorative justice is based on community involvement”, “Atheism is based on faith”, “Anti-Stalinism is based on Nazi Lies”, “Quantitative easing is based on discredited economics”? In particular, if the thing which is the basis turns out to be false, or gets destroyed, etc, what is the implication for something which is “based” thereon?

Obviously, no sort of logical dependency is intended by the author of “trade is based on protectionism”, after all trade is an activity and protectionism is a set of normative propositions. If protectionism is taken to refer to the practice of protectionist policies, then what would it mean for trade to be “based” thereon? Does it mean “benefit from in part”, “necessarily require”, “possess as historical antecedent”? And which of these sense of “based on” accounts for those other four examples? In the case of quantitative easing, what are we to make of it? A policy might work in practice, even if undertaken by people motivated by some incorrect theory, yet this possibility is easy to discount, as by the use of two simple words one may contrive to say, “X is logically dependent on, or historically derived from, or necessarily requires Y”, which entails that any practice whose success cannot currently be explained may be discredited by a conflation of its historical or logical antecedents.

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Software continues to overwhelm judiciary and legislators

Anyone watching the Microsoft anti-trust or SCO litigation would have concluded that competition policy and the judicial system are so slow as to be ineffectual. Now they are slow because they have to be; to be faster would involve undermining the legitimate interests of citizens, communities and companies. In effect, the general Turing machine and the Internet have combined such that the existing mechanisms of vindicating people’s legitimate interests no longer operate.

Consider this case. That it has even got so far in the system shows that the laity (that is, people outside the new priestly elite that understand how to programme a computer) are just not equipped to do their own jobs anymore, as the specialist subject matter on which they have to make and interpret rules is too far outside their understanding.

The legal system itself is Turing complete, and is harnessed to the commercial interests of the sort of miscreants mentioned in the article. It’s not remotely clear that it can operate in its current form in the current technology environment.

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Unflattering photos of Nigel Farage now licit

Once a celebrity falls out of favour, the media start using unflattering photos of them. This happened after David Davis bombed in the Tory leadership election in 2005, and to Kate Middleton as then she was, when she briefly separated from Prince William, as I noted at the time.

Now the fix is in for Nigel Farage (shown).

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Let’s re-criminalise bicycle theft in London

Once again, my bike has been stolen. That is the fifth bike in ten years; I’ve spent more than £2000 on bikes over that time. It’d be cheaper to rent a bike from the sodding criminals, the way I top my Oyster card (except Transport for London purports to be running a legitimate business).

The bicycle is not a viable mode of transport in London currently: you need to live somewhere where you can keep it indoors (effectively impossible if you live in a tiny flat up four flights of narrow stairs), and you can only cycle to places where you can also lock it indoors. If you don’t live somewhere you can lock it up, and use the bike for any sort of casual transport rather than commuting to a single location, it’ll get nicked. Effectively, you have to have a car, or use public transport. I simply will not accept this.

There is an inexhaustible supply of bike thieves and bikes: small-scale organised crime and junkies will always be with us, but the price per kilogramme of a bike is so low that large scale organised criminals are not interested. The problem is that the police, the courts and the Crown Prosecution Service have decriminalised bike theft: unbelievably, thieves are let off with a caution, the courts apparently are not handing down custodial sentences even when someone is caught with twenty stolen bikes, so understandable the CPS doesn’t bother. The real problem with the CPS is that they don’t economically model the effects of their enforcement decisions: they decide “can I win this case?”, not “what level of prosecutions is necessary to prevent the country slowly descending into anarchy?”.

What can be done?

We need to crowdfund private criminal prosecutions of bike thieves. If the thieves know that there’s a large group of hostile cyclists literally choosing cases to prosecute at random, and automatically demanding custodial sentences, the ones who are not drug addicts will diversify into other activities.

We need much better datasets about bicycle theft. People do not report thefts to the police because it is a waste of time; that means the data is not captured at all: private initiative can at least capture some of this data, even without a view to enforcement. The datasets will allow serious apps (like the tongue-in-cheek iSteal) to help cyclists minimise the incidence of crime.

Cycling campaigns need to adopt a much more critical attitude towards the police. Currently, bicycles in London have been de facto removed from the system of private property. This is arguably a violation of the ECHR, but don’t expect Shami Chakrabarti to mount the barricades over it any time soon. Basically they’ve nationalised our bikes and given them away to the bad guys; whatever will they think of next? Oh yeah, our medical records.

The police’s discretion to caution bike thieves needs to be revoked; I think this can be done by making theft of bikes chargeable only by indictment. I used to object to instrumentalisation of the criminal law, and advance this proposal as an example of what principled people start to think once we head down this slippery slope. If “first-time” offenders can get off with a caution, that doubles the number of bikes at risk.

It may be viable to establish commercial bicycle-theft rapid response and investigation services.

Whatever the case, it is not acceptable in a democracy for a small group of criminals to steal a hundred thousand bikes a year and effectively deny a large group of citizens a healthy and environmentally sound lifestyle choice.

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Do legislators still know enough to reform legislatures?

In yesterday’s Irish Independent on Sunday there’s an article by Senator John Crown, member in the university interest of the Seanad Éireann, the upper house of the parliament of the Republic of Ireland, which currently faces abolition. The Seanad comprises several groups of individuals, most of these groups selected by various
appointment panels representing agriculture, industry
and so on; Sen Crown’s proposal is to extend the provisions relating to the only elected one of these groups to embrace most of the other groups, while remaining within the various harder-to-change constitutional rules establishing the general setup (like the existence of these groups in the first place).

His idea is to replace the appointment panels with normal elections, and each elector gets to choose which of the panels’ senators to vote for (under multi-member STV):

Every adult citizen will be able to vote in any “panel” constituency, but only in one of them.

This is a good example of why legislators should leave reform of the legislature to the experts, by which I mean me and my friends. It turns out that the idea of letting people choose their own constituency for upper house elections has been considered and rejected before: if there’s no statistical difference between the constituencies, you get the same result. Therefore if you assign upper house constituencies at random, then the same party (under FPTP/AV) or proportion of parties (under STV) wins in each constituency. Letting people choose their constituency opens the system up to being gamed by the political parties.

Now I think the Irish Senate’s composition is a dreadful thing, because it faithfully implements a formally corporatist approach to political and social organisation. This idea is commended in the papal encyclical Quadragesimo Anno (which is not a reason in itself to oppose something – they might have had a stopped clock moment and recommended a good thing for bad reasons). This kind of reasoning, the idea that we should support or oppose a constitutional feature because of who promoted it and why, decades after the fact, was much in evidence at Robin Archer’s talk at the Menzies Centre last week (which was very interesting but somewhat wrong, and which I shall blog about tomorrow).

I confine myself to noting that if these upper houses are supposed to have some sort of expertise unavailable to democratic bodies, how many more software developers should be in them?

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Intellectual debt

Software projects can accumulate technical debt: the work you need to do to fix the work you’ve already done.

I think it’s possible to accumulate “intellectual debt”. Thoughts and ideas that you’ve had, worked on, developed, talked about, but have not written up and published. You can have an idea, but until you’ve tried to write it up properly such that someone else could read and criticise it, you can’t be sure that it actually makes sense. Of course, there can be a mistake in your write-up, but the process of writing up will force you to confront a lot of the potential problems with any idea.

Having huge amounts of intellectual debt means that you’re sitting on a bunch of ideas which may not be correct, and that no-one has proper access to thoughts you probably wanted to share. Ideas are composable: one can depend on another, and if your unpublished ideas depend on a vast chain of your other unpublished ideas, you could be compounding your mistakes. Additionally, you could be rendering your thought too far from the mainstream: if you’re right but radically different because people haven’t assimilated your earlier ideas, considered and criticised them, then your bigger ideas, composed from the earlier ones, will be harder to promote.

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Coordination costs and EU integration

There’s recently been controversy over the extent to which EU laws are written by lobbyists, and some enterprising souls have produced a web portal about it. The egregious Malcolm Harbour MEP shows up as one who takes quite a few amendments from the lobbyists; I still treasure a letter from him in which he forgot to fill in the losses due to IP infringment, which were stated to be “£_____ million per year”.

Worse than this fill-in-the-blanks politics on autopilot is the disparity European integration causes between the influence of interest groups. J H H Weiler makes the point that national legislatures are well integrated with civil society and business networks and the media, whereas the European institutions are much less so.

Consider the problem of concentrated benefits and diffuse costs, in rent-seeking.

The price of lobbying is partly a matter of transaction costs, that is, the cost of organising information. It is cheaper for a group of 10 people who all stand to lose £1000000 to coordinate their lobbying than a group of 1000000 people who stand to lose a £10 each, or, as Malcolm Harbour would put it, £__ each. The cost of coordination might be worse than linear, e.g., N.log(N) in the size of the group, or N.(N-1)/2 or something similarly hideous.

Thus the integration of multiple polities into a single polity can alter the relative costs of citizens’ representation. Twenty-seven groups of citizens lobbying against better concentrated interests is cheaper, relatively than one much larger group of citizens against a still small group of companies. It is no excuse to point out that both situations are costly to the citizens; what matters is that they differ in cost.

European integration on the current model exposes citizens needlessly to a relative diminution in the cost of their representation compared with more efficiently organised cross-border interests.

(See in particular the work of Benvenisti on Sharing Transboundary Resources)

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The Internet has fallen apart

The internet used to be a social network.

You used to be able to email people you didn’t know: you’d see an article about a topic in which you have some expertise, and you might want to email its author.

Basically, you can no longer do this: you might be able to leave a comment on the article, which is no good if you want to write in private, and in any case this nowadays involves signing up with some awful third-party identity integration service like Disqus or WordPress or Gravatar or whatever, and your message can get lost in the fray of utter bilge in the comments section, whereas it might have got read and led to a discussion if it had gone by email.

Your other option is sending a message on Twitter, but that’s got all the same problems as the above, but limited to 140 characters.

We’ve certainly lost some of the original benefit of the Internet as a facilitator of discussion, at least between strangers.

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