Daniel Hannan: If a restaurant can refuse to serve you, Amazon can refuse to host Parler

20 Jan

Daniel Hannan is a writer and columnist. He was a Conservative MEP from 1999 to 2020, and is now President of the Initiative for Free Trade.

Trump’s Twitter ban is being treated as a free speech issue, but it isn’t. Properly understood, it’s a free association issue. The First Amendment to the US Constitution does not give Americans the right to say whatever they want in whatever forum they please. What it says is that “Congress shall make no law” abridging the freedom of speech or of the press.

In other words, provided you stop short of direct incitement to criminality, you can legally say whatever you like. But, though the government can’t shut you up, there is no obligation on anyone else to provide you with a microphone. You have the right to free speech, but everyone else has the right to free association. A restaurant can refuse to serve you because you’re not wearing a tie. A hotel can turn you away because it doesn’t cater for children. An online platform can reject your custom because it doesn’t like your opinions.

Whether a platform is wise to exercise that right is a different question. When I was an MEP, Facebook, Google and the rest used to fall over each other to assure us that they had no editorial control, and therefore could not be held liable for anything that appeared under their banners. That argument is now redundant, and I suspect the big tech companies will come to regret the shift. But, as a matter of broad principle, our starting assumption should be that a private company can set its own terms and conditions and pick its own customers.

Freedom of assembly and association is, or ought to be, as fundamental a right as freedom of speech and expression. We talked a great deal about the loss of our liberties in 2020, but it wasn’t our right to worship, speak out or cast a ballot that was suspended. The heaviest constraint, the one we all felt, was being unable to congregate as we pleased.

You might think that the lockdowns would have made us appreciate a liberty that, in normal times, we take for granted. That, though, is not how politics works. In practice, every age sacralises certain values, lifting them above the run of normal debate. In mediaeval Europe, the works of the ancient philosophers were judged, not by their accuracy or logic, but by their compatibility with Christian orthodoxy. In our own day, it is the tenets of identity politics that have been sacralised.

Thus, instead, of having an abstract conversation about the value of free expression in a manner that John Milton or J S Mill would have recognised, we start by asking whether it is ok for people to say racist things – an odd way to settle a general principle.

Likewise, when it comes to free association, lots of people see the debate solely through the prism of whether an imaginary private club would be allowed to exclude someone on grounds of ethnicity – a scenario that could come about, I suppose, though it would surely be very rare in this day and age. Hard cases make bad law, goes the saying; and hard putative scenarios make bad general precepts. The correct way to determine our position on human rights is to start from first principles and then see how those principles apply to specific cases rather than the reverse.

What should our first principles be here? Most obviously, a presumption in favour of liberty and property. If people are to be prevented from getting together in whatever combinations they please, there needs to be a good reason. An epidemic might be such a reason. The expectation of equal treatment as a citizen might be another.

In balancing the competing claims of private property and non-discrimination, many countries draw a distinction between ordinary businesses and companies defined as utilities, diluting the rights of the owners in the second category. We might, for example, say that the owner of a small café has the right not to serve her ex-husband, but that she would not have an equivalent right to refuse his custom if she owned an electricity company. We might say (indeed, the law broadly does say) that a religious baker should not be compelled to decorate a cake with a message celebrating gay marriage, but that a railway could not withhold its custom from gay people.

Obviously, people can reasonably disagree about where to draw the line. But wherever we draw it, it should then apply to everyone equally. Equality before the law means precisely that. Either the café owner has the right to refuse someone service or she has not. “Laws” as Hayek said, “must be general, equal and certain”.

Where does that leave us with Twitter banning Trump, Amazon banning Parler and the rest? Well, either they are defined as utilities or they are not. If they are, then regulators can tell them whom to serve. If they are not, then they can ban anyone they like: Republicans, Protestants, left-handed people, cartwrights. It’s one or the other.

There may be an immediate test of the principle as the lockdowns end. The Government has, quite rightly, said that it will not make vaccination compulsory or issue immunity certificates. But what if a cruise ship wants proof of vaccination before you board? What if a gym requires a certificate as a condition of membership? I reckon that free association gives them the right to set their own terms. But, either way, the law must be general, equal and certain.

Peter Aldous: If the Government is to deliver on climate change, it needs better Parliamentary scrutiny of trade deals

19 Jan

Peter Aldous is the Conservative MP for Waveney.

With its departure from the European Union, the UK has the opportunity to develop its own trade policy for the first time in nearly 50 years, enabled through the Trade Bill returning to the Commons for ping-pong this week. Now that we have left the EU, we must put in place new arrangements for scrutinising trade deals to ensure our future ones carry public support and fully represent British interests.

Trade deals have changed radically since the Government last had competency in this area nearly 50 years ago, and modern deals are likely to have implications on almost all spheres of public policy. Indeed, over the last two years, debates on this Bill in Parliament have raised an expansive breadth of concerns – from protecting British food and animal welfare standards, to using trade and investment policy to achieve sustainable development goals, to securing workers’ rights across supply chains and safeguarding creative and cultural assets.

Of particular importance is the impact trade policy will have on the UK’s ambitious climate and environmental agenda. Climate change can only be tackled on a global level, and free trade agreements present opportunities for the UK to promote ambitious environmental standards abroad and strengthen its economic competitiveness through exports of low carbon goods and services.

This is significant as the UK’s low carbon economy is estimated to grow by 11 per cent every year to 2030, by which date the global market for low carbon goods will be worth more than £1 trillion a year. Trade measures can also play a role in preventing “offshoring” of emissions, by providing a level playing field to protect domestic industries innovating in the green economy and in doing so creating jobs across the country.

Alongside the opportunities, under current precedent trade deals also pose often unintended but acute risks to the ambitions of our climate and environmental agenda. These include UK environmental and climate standards being diluted by provisions to reduce regulatory barriers, the competitiveness of innovating British industries being undermined by lower standard imports, and a rise in the unsustainable use of natural resources/emissions in exporting countries.

To respond to this challenge, UK trade policy must set an ambitious precedent, which promotes a race to the top for environmental standards. Looking ahead, UK trade policy needs to be aligned and integrated with the most urgent climate- and environmental-related priorities: reaching its net zero emissions target by 2050, reversing the decline of its natural environment within a generation and supporting the competitiveness of UK businesses during this transition.

The need to obtain parliamentary approval would give negotiators an additional argument to support their objectives. Indeed, both US and EU negotiators utilise the requirement of Congress and EU Parliament respectively to vote on trade deals to underline their red lines. This strategy will not be accessible to UK negotiators if Parliament cannot reject the deal outright, as is currently the case. Additionally, lack of public trust in trade negotiations outcomes have contributed to the failure of major trade negotiations, including the US-EU trade deal (TTIP) – in part due to environmental concerns.

It is crucial that MPs have the opportunity to fully consider the wide ranging implications of the UK’s trade policy. The Trade Bill currently misses the opportunity to give Parliament the ability to fully consider the opportunities, risks and transition impacts that trade agreements can have on big businesses, SMEs, civil society and consumers. I therefore will be supporting the Purvis amendment on Parliamentary approval of trade agreements, and believe it is essential for ensuring future UK trade policy has sufficient democratic oversight.