stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

Lord Howarth's logical fallacy (updated)

Stop43 co-founder Paul Ellis writes:

Early in the morning on Thursday 7th March I took a call from a lawyer friend who said: “It looks to me as if you’ve just been slandered under Parliamentary privilege.” He was referring to a speech made the previous evening by Lord Howarth (1), (2) during the Report debate about the copyright clauses in the Enterprise and Regulatory Reform Bill.

I read the speech, and it appeared to me that Lord Howarth was deploying a familiar tactic when an inconvenient truth is revealed: the combined faux straw man/ad hominem ploy of plainly stating the truth you wish to hide, and then discrediting the truth-teller in order to discredit that truth by association.

In his speech, among other things Lord Howarth appears to me to contend what I think is a statement of fact, namely that secondary legislation is not subject to the full scrutiny of Parliament. He also appears to me to imply that he disapproves of ordinary, unfunded private citizens campaigning or lobbying at their own expense to protect their interests and rights. After reflecting for a while I decided to write to him, and my letter follows below.

I have also written to Lord Stevenson, the Labour lead on the ERRB in the Lords, asking him for his answers to the following questions:

  1. Do you or your Party hold the view that Statutory Instruments constitute legislation which has been subject to the full scrutiny of Parliament? and:
  2. Do you or your Party hold the view that private individuals should not campaign or lobby the government in their interests and for their rights?

Other photographers have written to Lord Stevenson asking him the same questions. Some have received replies. I have yet to receive a reply from him, or from Lord Howarth.

* Updated 17 March 2013: It seems Lord Howarth did not receive my email. Via his daughter, photographer Sophie Howarth, I have made contact with him and we have arranged to meet to discuss this further.

I have still yet to hear from Lord Stevenson.


Dear Lord Howarth

I was astonished to see yesterday that you have immortalised me in Hansard. I would be most grateful to you if you would allow me to comment on your remarks.

You said:

“I also hope that the report will inform us as to how the Intellectual Property Office seeks to gather views and reconcile different interests and points of view. I have very much sympathy with it in the very difficult and sensitive task that it has to carry out.” I agree with you. You then went on to say:

'"The world's largest news agencies have delivered a Letter Before Claim to the UK's business secretary Vince Cable in what is described as the first step in the process of initiating a Judicial Review - a formal legal challenge to governmental planned legislation".

The article [
in the British Journal of Photography] goes on to suggest that the Government are proceeding quite improperly. It challenges the Government's plans to introduce their proposed changes through what they were pleased to call "Henry VIII clauses" - secondary legislation which is not subject to the full scrutiny of Parliament.’

The view that the Clauses are Henry VIII clauses is held not only by the Tier One intellectual property lawyer who drafted this briefing paper on the Bill (and its more than seventy signatories), but also by other legal experts to whom I have spoken. I, a layman, defer to their expert judgement.

You go on:

“That is not very complimentary to your Lordships. We are engaged in quite serious and intensive scrutiny of this legislation. We certainly will be when we have the regulations in due course.”

It is my understanding that the regulations will be enacted as statutory instruments; that SI's are not scrutinised and debated by the full House; that they cannot be amended but must either be accepted or rejected as they are; and that the last time an SI was rejected was in 1979, concerning the price of paraffin. So I consider the statement 'secondary legislation which is not subject to the full scrutiny of Parliament' to be true, but am perfectly happy for my view to be demonstrated to be false.

You then say:

“What was completely bizarre was then to read a quotation in the name of Mr Paul Ellis of the Stop43 organisation:

"The technology, academic and cultural heritage sectors want to be able to use other people's copyright property without having to ask or pay for it, and view copyright law as an obstacle.’”

This is a pure statement of truth. They do consider copyright law to be an obstacle - there is a profusion of evidence to support this view - and the legalised 'use of other people's copyright property without having to ask or pay for it' is the precise purpose of these Clauses.

You continue: ‘”Under their intense propaganda and lobbying onslaught several governments have fallen for this line and are trying to introduce laws that weaken copyright, such as the Enterprise and Regulatory Reform Bill now going through Parliament’.”

Again, there is abundant evidence in support of this statement. Last year the French government very seriously weakened authors' rights; the Chinese government is considering far-ranging 'orphan works' and ECL measures; the US government is once again considering 'orphan works' legislation which will be harmful to authors' rights and markets based upon them; and of course most evidently the EU has introduced an Orphan Works Directive. All weaken copyright. I could go on, at length.

You say:

“He then goes on to denounce, "these lobbying-driven legislative attempts to confiscate our property”.”

I most certainly do. Here is a report of an example. Again, I could go on, at length.

You conclude: “It seems a bit of a case of the pot calling the kettle black. The serious point is that the IPO is very vigorously lobbied from a multiplicity of sources and by a multiplicity of powerful commercial interests…”

The IPO most certainly is 'very vigorously lobbied from a multiplicity of sources and by a multiplicity of powerful commercial interests', but it may surprise you to learn that I am not one of them. I am not a lobbyist, but a low income unfunded private individual campaigning in his spare time to try to retain his property and human rights. I have no more than a laptop and an Internet connection. In contrast the British Library and the BFI both have staff whose functions amount to that of full-time lobbyists, and if you read the article at the link above you will see the multiplicity of guises in which Google lobbies for the weakening of copyright. If you would like to understand why they do, I can recommend the documentary 'Google and the World Brain', recently broadcast by the BBC, which provides a very good introduction to the background of all of this.

I was astonished to be conflated with 'powerful commercial interests' and their well-funded lobbyists, and would be grateful for an explanation of the equivalence of professional lobbying and unfunded campaigning, because to me your statement implies that private individuals should not lobby at all. Is this really your view?

And if the IPO (an entire Government department) cannot withstand me and my efforts, and quails under the onslaught of an unfunded citizen carrying out his Athenian duty, then I wonder what it is made of. Perhaps it has lived rather too cosy and sheltered a life.

I would be most grateful for the opportunity to discuss this further with you before the next debate, if you can spare the time for this. Thank you, Lord Howarth.