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.

Doctor Who, the story so far


(Originally written 1999; updated for 2013).

I've been told I need to "lighten up", so this blog post is a departure from my usual stodgy subject matter of the law-technology-politics interface, instead covering another thing which has fascinated me since I was a child: Doctor Who; I'm posting now, having almost finished work for the day, as in about an hour, they could well Spoil the show by revealing the Doctor's name.

The last time this was about to happen was in the late 80s, when the Doctor was taunted about his identity by his enemies, and then asked by Ace who he was, and began "I am ...". But then the credits rolled. This episode, "Silver Nemesis", was apparently supposed to end with the Doctor saying "I am Rassilon", namely the co-founder of his planet's society, and the writer for that episode didn't know much about Doctor Who and thought the Doctor was God. Interestingly just before "Silver Nemesis" ends, the Doctor is playing chess, and lays down his king in resignation. This scene was paralleled last year in "The Wedding of River Song", when again the Doctor is playing chess and strategically lays down his king. In the first story it was supposed to be an allegory for the crucifixion.

Who is the Doctor, and what is the Doctor?

Doctor Who as a story has lasted as long as it has because of its peculiar economics: the main actor playing the character can be killed off and replaced with someone else. The stories can be set anywhere and any time. This means stories in particular settings don't need to introduce fresh characters each time, as we have the Doctor and his companions. There are a couple of other shows which work this way: the Goons and Blackadder spring to mind.

The other relevant economic aspect of the old series of the show is that it didn't have a very large budget; this was part of its charm, but it also meant it couldn't afford top flight producers, directors, writers, actors etc. Practically no-one involved in the old series is remembered for anything other than their connection with that series, except for the first producer, Verity Lambert, and Douglas Adams, who was script editor in the 1970s.

Inventing new characters and monsters and so on is expensive, and so the show gradually re-used monsters from its past (culminating in its 25th anniversay season where it did this every episode). You'd often notice a newly introduced monster, character or location would be back next season, and returning writers would bring their favourite monsters back with them. Eventually a couple of grand narratives emerged from the stories, and the show went on so long that three separate continuities can be identified:

  • the initial setup: we discover that the Doctor is not human, that he is instead a Time Lord living in exile and battling the Daleks and so on
  • in "Genesis of the Daleks" the history of the Daleks is rewritten, and the more interventionist part of the Time Lords' government uses him as a somewhat willing agent advancing their agenda against the Daleks and other enemies; the Time Lords turn out to be rotten
  • from "Silver Nemesis" and "Remembrance of the Daleks", it transpires that there is something special about the Doctor himself and not as he seems, but the show went on hiatus at this point

Beyond all this space opera tracery, what was fairly constant about the Doctor was that he would do what was right. He is supposed to be the good guy, and even when he is contemplating effective genocide (in "Genesis of the Daleks") or murder (of the Daleks' creator in a subsequent Dalek-related story), he was always clearly and thoughtfully doing what was morally right; the Third and Sixth Doctors were truest to this, often lecturing and hectoring people on moral grounds. In the original series, he always shown as fearless, though this is not true of the renewed series, which also gives him some sort of romantic life.

Politically, the Doctor seemed to have be a bit of a neocon, not the lefty that the media seems to have thought he was in "The Happiness Patrol".

The new series has changed a lot of things: the production values are much better, particularly the writing, and the Doctor has fear and romance. What also seems to have changed is that there is supposed to be something special about the Doctor himself, as distinct from the Time Lords. He now seems to be of cosmic significance, which loses some of the original charm of the show, "but Doctor, the landslide will destroy the whole village!". The new producer, who made the 1990s Comic Relief spoof of Doctor Who (in which the Doctor is played by Richard E Grant, and a woman ...) loves getting characters to give long speeches saying why the Doctor is so great; these speeches are in "The Curse of Fatal Death" just as much as "Last of the Time Lords", where they seem to have some sort of magical effect. Sydney Newman, one of the show's co-creators, who'd never read Hamlet despite running BBC Drama, always said an serial should have only one unbelievable thing in it, and the new series depart from that seriously. The show needs to keep one foot on the ground.

There's a much better environment now, too: the show was derailed in the 1970s by Mary Whitehouse. This censorious woman was engaged in a culturally destructive crusade, and stooped to bringing a criminal prosecution for sexual assault against a theatre director on the basis of eyewitness evidence obtained from someone sat in the back row. The BBC feared her, and she used her clout to get Doctor Who's producer moved onto other projects. The show had been on a high, and never really recovered.

I hope the question marks remain about the man, and we don't find out his name, or that Clara is the Doctor or is River Song or something, but we'll see in a few minutes ..

First steps with Metametrik


Last weekend I attended the Open Economics sprint about Metametrik, which is an OKF project to help computers read the statistics in academic journal articles. Guo Xu posted a rough outline of what Metametrik should look like a year ago, but not much had been implemented.

We took an approach which turned out to be fairly similar to Guo's recommendation: create a JSON schema capturing the basics of a regression result (the dependent variable, the goodness of fit, the sample size, standard errors and effect sizes of results), and then make tools which produce and consume data in this format.

So far, we have a tool which generates Metametrik format data, and a tool which reads this into a database. What's needed next is web UIs that produce this data (for articles already published) and allow you to search it.