Comment by exasperaited
1 day ago
But this is how the law works? Even in the USA, the Supreme Court doesn't act on hypotheticals. They wait until someone brings an actual case.
Ofcom haven't ruled Wikipedia is Category 1. They haven't announced the intention to rule it Category 1. The Category 1 rules are not yet in effect and aren't even finalised. They aren't pointing any gun.
Wikipedia have a case that they shouldn't be Category 1 if that happens. But they went fishing in advance (or to use an alternative metaphor, they got out over their skis).
What else is the court to do but give a reassurance that the process will absolutely be amenable to review if the hypothetical circumstance comes to pass? That is what the section you are quoted says.
First, it's a statutory instrument that ministers will amend if it has unintended, severe consequences.
Second, the rules in question have not been written yet and they are being written in conjunction with industry (which will include Wikipedia). Because Ofcom is an industry self-regulation body.
That's not how lawmaking works in the UK.
I remember an example where the UK Government decided it's OK to rip CDs you own (no, really, it wasn't legal until then), and codified that in law. The parasites that run the UK Music trade organisation appealed and found that the UK had not sufficiently consulted them before deciding to make the law.
https://www.bbc.co.uk/news/newsbeat-33566933
So - ripping is completely illegal in the UK. Always has been, always will be. Never rip a CD, not even once. Keep paying all your fucking money to the UK Music member corporations and never think you own anything, not even once.
But it illustrates that the UK's law-making is subject to judicial review, and government cannot make laws or regulations without consulting those affected by them how much of a hardship it constitutes to them. The judge here is merely saying we haven't seen the harm yet, and Ofcom can keep threatening indefinitely to cause harm, Wikipedia only have a case when they do cause harm. By contrast, passing the law making CD ripping legal, UK Music argued, using an absolute load of bollocks they made up, that it immediately caused them harm.
It's not that simple. The law the BBC article is referring to[1] was a regulation, i.e. secondary legislation, passed by resolution. Had it been primary legislation, the courts wouldn't have been able to overturn it (Parliament is sovereign).
[1] https://www.legislation.gov.uk/ukdsi/2014/9780111112700
> But it illustrates that the UK's law-making is subject to judicial review
This is misleading. Actual primary legislation isn't subject to judicial review. The only exception to that is a Judge can declare legislation incompatible with the ECHR - but even then that doesn't actually nullify the law, it only tells the government/parliament they need to fix it.
The bit that is subject to review is _secondary_ legislation, which is more of an executive action than lawmaking. It's mostly a historical quirk that statutory instruments count as legislation in the UK.
> government cannot make laws or regulations without consulting those affected by them how much of a hardship it constitutes to them
This is at best disingenuous.
There is no general requirement on government to consult. It is often referred to in various Acts, which are binding. There is a common law expectation that if the government has made a clear promise to consult that they have to.
But since the Glorious Revolution, parliament has proved to be supreme. It may have to be explicit in the laws it passes, but it can literally overrule itself as needed. Pesky EU human rights legislation is just a mere vote away from being destroyed.
A lot of what you are posting is not true. Take for instance your claim that "Ofcom is an industry self-regulation body"
Ofcom is a government-approved industry regulator, strictly speaking.
It is what in the UK gets called a Quango. A quasi-non-government-organisation.
It is not a government body. It is not under direct ministerial control.
It gets some funds from government (but mostly through fees levied on industry):
https://assets.publishing.service.gov.uk/media/5a7c8eec40f0b...
But it operates within industry as the industry's regulator, and its approach has always been to operate that way (just as the other Of- quangos do).
Here is what appears to be their own take on it.
https://www.ofcom.org.uk/siteassets/resources/documents/cons...
This seems pretty consistent with what I said -- it is essentially a self-regulation body, promoting self-regulation but backed by statutory powers/penalties.
Now what else is untrue?
ETA: rate-limited so I am not able to properly respond to the below. Bye for now.
Your claim that Ofcom is in any way a "self-regulation body" is untrue. And frankly also a straight-up insane thing to say, sorry.
Ofcom was created by the UK government for the sole purpose of enforcing laws passed by the UK government [and sometimes interpreting those laws]. It acts on behalf of the State at all times, and is not empowered to do otherwise under any circumstances EVER.
You appear to be confused about what being a "quango" actually means in this case. "Quasi-NGO" means that while it appears to be a non-governmental organisation, it is not one. Ofcom's at arm's length because the majority of its daily legal obligations are closer to judicial than administrative, and it is UK custom (rightly) to not put judicial functions inside government departments.
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Quasi-autonomous, to be completely accurate. They consult regularly with the industry and ministers but the Office of Communications Act established Ofcom to be independent of both Government and industry. They're accountable to Parliament.
>Even in the USA, the Supreme Court doesn't act on hypotheticals.
Yes. To rephrase it, they cannot act until it's already too late, and the damage has already been done.And we wonder why things are so broken.
What alternative would you propose? How much additional workload would it create for the court system and how would you manage it considering their existing responsibilities?
I'd propose that Parliament bind itself and say "UK Government cannot create THESE types of law".
The courts can then adjudicate on whether Government did or didn't stray into self-prohibited territory.
This already exists in the Scottish Parliament, which has the power to legislate on devolved matters, but not reserved matters and excluded matters. If it does legislate in these latter areas, or the UK Government thinks it has legislated in these areas, off to the Supreme Court they go.