Day: September 15, 2023

From The Daily Sceptic

BY DR DAVID MCGROGAN

The U.K.’s Members of Parliament returned from their summer holidays last week to give the final nod to the Energy Bill 2023. It is a leviathan piece of legislation in every sense of the word. It is 427 pages long. It has 15 parts and 330 separate provisions (many of which have lots of sub-provisions), not to mention another supplementary 22 schedules. Its full title alone consists of 130 words. It covers everything from the licensing of carbon dioxide storage to hydrogen grid trials to offshore energy production. And in every aspect it aggrandises the power of the State and gives sweeping executive authority to Government ministers. As law-making, it is a travesty. As policy, it is inexcusable. As an illustration of the indefensible way in which Western societies are coming to be governed, however, it is exemplary.

Explaining the substantive content of the Bill in full would take a long time, and it is not my intention to do that here. (There is absolutely no doubt in my mind that the complexity of the Act and its consequent opacity to the lay reader and sheer unwieldiness for the commentator is deliberate. But that’s a subject for another post.)

Instead I wish to highlight some key features, and explicate what the Bill tells us about how we are currently governed and are likely to be governed in the future. I will also elucidate the negative consequences of this governing style. To achieve this, I’m afraid that I will have to touch upon a subject which even most legal philosophers think of as arid and sterile, namely the morality of law. But before doing this, let’s back up and sketch out the changing nature of law in modernity.

From Rules to Regulation

Once upon a time, law could be thought of as primarily consisting of rules that are applied to facts. Bob intends to kill, and kills, Graham; he has committed murder. Sarah’s contract with Chris was entered into on the basis of a misrepresentation, and therefore the contract can be rescinded. Etcetera. This is how laypeople still tend to think of law, and it is how law students are still generally taught: ‘thinking like a lawyer’ means being able to approach a set of facts concerning a dispute, and apply legal rules to determine the likely legal outcome.

Rules, of course, still exist, are still created, and are still applied. But the fashion, really ever since the birth of the administrative state in the late 19th and early 20th centuries, has been to deploy law in a more regulatory way. Legislatures legislate, not primarily to make rules for ordinary people to follow, but to delegate power to administrative agencies or technical experts (or politicians advised by such agencies and experts) to make ad hoc, flexible rulings; to issue guidance and recommendations; to publish codes of conduct; to give and revoke licences; and so on as and when they see fit – often with a very wide discretion.

Roger Brownsword, an eminent legal scholar, gives us a useful shorthand for understanding this change, describing it as the transition from “Law 1.0” to “Law 2.0”. It represents, in essence, a move away from law understood chiefly as comprising rules per se, to law understood as policy. Legislation is not created simply to order the conduct of otherwise free citizens. It is created in order to give effect to governmental purposes. It is used not to make clear rules, but to delegate the authority necessary to effect desired changes of some kind within the economy or society, usually to the state’s ever-growing administrative bureaucracy (but also to private companies).

This is a plausible way of describing the history of legal developments over the past century and a half or so. And it has been frequently observed by people concerned with such matters that modern governance is a matter of – as Foucault put it – “tactics rather than laws”:

[Modern governance] is not a matter of imposing law on men, but of the disposition of things, that is to say, employing tactics rather than laws… I think this marks an important break… the end of government [is] to be sought in the perfection, maximisation or intensification of the processes it directs, and the instruments of government will become diverse tactics rather than laws.

The medieval concept of the sovereign as the upholder of the law (and, indeed, of good governance itself as being a matter simply of upholding the law), has thus gradually eroded over the course of modernity such that we are in the position in which we now find ourselves, with law simply being a tool to help the state manage society. It is not that laws are no longer made – legislation is still enacted and enforced – it is just that the point of legislation is no longer merely to make rules but to achieve purposes. And this very frequently means that legislation essentially delegates executive power to technicians, managers and what are inevitably referred to as ‘stakeholders’.

The Energy Bill 2023 is in many respects an example par excellence of the ‘Law 2.0’ mode of governance. To take one example, Part 5 of the Bill will when enacted create something called the Independent System Operator and Planner, a legal person (“likely a company“), which will do all sorts of vaguely-defined but important things, like “co-ordinating and directing the flow of electricity onto and over transmission systems”, “carrying out strategic planning and forecasting in connection with… the conveyance or supply of electricity [and] the conveyance and supply of gas”, “providing advice or information” to Government ministers, and so on. And the Bill also mandates that it shall do these things in view of three requirements: to achieve Net Zero, to secure energy supply, and to promote economy and efficiency. In other words, the Bill creates an independent entity (“likely a company”, remember, meaning it will have limited liability) with sweeping powers and wide discretion to regulate electricity and gas supplies as it sees fit in line with certain objectives.

The Emergence of Law 3.0

You will be with me so far. And if this kind of thing was all that the Energy Bill 2023 did, it would not be particularly noteworthy. It would simply be another depressing example of the way in which decisions of the most profound political importance are nowadays determined not by our elected legislatures, but by a penumbra of technical ‘experts’ and managers, acting either directly (through agencies and regulatory bodies) or through ‘advising’ Government ministers who then issue rules accordingly.

But this is not all that the Energy Bill 2023 does, and here we come to a fresher development in the relationship between law and the state. Importantly, Brownsword has recently been suggesting that we are rapidly advancing into the next iteration of law – Law 3.0 – in which law becomes essentially self-executing through technology and, indeed, the very exercise of subjecting human conduct to rules becomes subsumed by technological management. Here, the creation of rules itself will become seen as archaic, with technology providing us with better – more efficient, more rational, more effective – forms of justice than those available to the flawed system of law which we currently respect. The end result (the apotheosis of Law 3.0, as it were), will be the merging of technology with law, such that the requirement for rules to exist will disappear and human conduct will be more or less entirely managed by technology.

The example Brownsword uses – and it is an example used almost everywhere in the literature on this topic – is that of golf carts. We are invited to imagine the following scenario: a golf club buys in a new fleet of golf carts for members to use. But members keep driving them on the greens. The golf club could make it a rule for members not to drive on the greens, but, of course, there is no guarantee that such a rule would be complied with. Would it not be better, those referring to this scenario typically suggest, if there could be a technological solution instead? Would it not be better if the golf club just bought golf carts which, through the awesome power of digital tech, automatically stop working if they are about to go on the greens? Would that not be more efficient, and would it not achieve a more perfect result than simply making a rule?

The golf cart example is often invoked, one suspects, because it seems so benign. Who could object, the implication seems to be, to such a neat solution? Nobody would be harmed by golf carts which simply can’t be driven onto the greens. And everybody would benefit because there would be 100% achievement of the desired end. What would be the problem with this?

As is so often the case when blithe, abstract reasoning of this kind meets the real world, however, and we start to think about the implications in detail, the idea of law’s final union with technological management is revealed to be a genuinely terrifying prospect. This is because it will have two inevitable sets of consequences.

From Golf Carts to Energy Smart Appliances

The first set of consequences is bad enough, and will be obvious to anybody who has been paying attention. We already inhabit a scenario in which legislatures chiefly govern by authorising administrative agencies, regulative bodies, quangos, licensing authorities and so on to issue decrees and edicts as they see fit or to advise Government ministers to do likewise. Now imagine that said administrative agencies, etc., can make such decrees and edicts self-executing through technology, thus rendering non-compliance not simply illegal but impossible.

The tyrannical implications of such a mode of governance are so obvious that it really ought to go without saying. Golf carts are one thing, but given that our future seems to be populated almost exclusively by ‘internet of things’-connected ‘smart’ artefacts (fridges, cars, mobile phones, TVs, watches, even doors), and given the apparent lack of any principled limit on the purview of government in modernity, things begin to look increasingly dystopian when the implications of Law 3.0 are properly thought through.

And sure enough, sections of the Energy Bill 2023 give one pause when considered in the light of all this discussion about the union of technological management and law. Consider, for example, Part 9 of the Bill, which allows the Secretary of State to make regulations about something called “energy smart appliances and load control” (with this type of regulation being referred to as an “energy smart regulation”).

What is an “energy smart appliance”? Well, it’s “an appliance which is capable of adjusting the immediate or future flow of electricity into or out of itself or another appliance in response to a load control signal” (clause 234 (2)). What’s a “load control signal”? It means “a digital communication sent via a relevant electronic communications network to an energy smart appliance for the purpose of causing or otherwise facilitating such an adjustment [i.e. to the immediate or future flow of electricity]” (clause 234 (4)).

What does this Part of the Act therefore seem to entail? Well, without going into vast detail, it seems to empower the Secretary of State to make regulations concerning the sending of load control signals to energy smart appliances (which do things like “refrigeration”, “cleaning tableware”, “washing or drying textiles”, and “heating”) in order to adjust the flow of electricity to them, and to control who has a licence to send such signals. Yes, if you’re keeping up: this appears to create the legal infrastructure to permit the Secretary of State (advised, of course, by the ‘experts’) to issue regulations concerning the flow of electricity into fridges, dishwashers, washing machines, and so on, and to delegate the issuing of load control signals themselves to approved licensees – presumably utility companies.

The explanatory notes to the Bill suggest this will be done to “help consumers save money on their energy bills” by “shift[ing] electricity usage to times when it is beneficial for the energy system” and thus “smart[ly] and flexib[ly]… control consumption”. Sceptics may wonder if this is the only reason why it will be done – and will also have their eyes unavoidably drawn to clause 237 (5) of the Bill, which will “allow enforcement authorities to impose requirements by written notice on persons to… make appliances compliant with energy smart regulations” (i.e., to ensure that their dishwashers, washing machines, etc. can receive load control signals). These sceptics may, if they are capable of parsing modern Parliamentary drafting, also have their eyes drawn to to clause 235 (4) (c) and clause 236 (3) of the Bill, which seem to give the Secretary of State the power to ban the sale of non-smart appliances.

Why would the Secretary of State need to ban the sale of non-smart appliances if their only purpose was to “help consumers save money on their energy bills”? Why would he or she need to require people to make sure their appliances are “energy smart”? I won’t insult your intelligence by spelling it out, but I don’t think “helping consumers save money on their energy bills” is the end of the story.

Setting aside the substance of the Bill itself, what I wish to emphasise here is its character. If Parliament wished to legislate in order to control energy consumption through clear rules (“each household may only use X number of kWH of electricity per day”) that might be authoritarian, but at least it would be clear – and at least it would then be subject to open debate. But that would be to govern through the creation of quaint old Law 1.0. We’re now in the era of Law 3.0, and we don’t even see rules of general application appearing at all. Instead we see legislation delegating authority to a Government minister to appoint licensees to issue “load control signals” to “smart appliances” on a “smart and flexible” basis in order to control energy consumption. The law, in other words, will self-execute through the technology itself, and non-compliance will become impossible – because our machines themselves will simply respond to the load control signals which they are sent. (And because we will have to use such machines, because the sale of others will be banned; ironically, we see here a vestigial role for Law 1.0 after all.)

The substantive purpose of the legislation is not really the issue here. You may agree entirely with the goal of reducing carbon emissions and you may agree with the goal of achieving ‘Net Zero’ by 2050. I reiterate: the problem is the indefensible way in which all of this is being realised – surreptitiously, and through what is effectively executive power wielded by unaccountable managers deploying technological methods which cannot be gainsaid and which are designed to achieve 100% compliance through making non-compliance physically impossible.

Law’s Inner Morality

This is just the first negative consequence of the deployment of ‘Law 3.0’, though. The second is, to my eye, worse, and it concerns the effects of all of this on human subjectivity and indeed on our capacity to act ethically in the first place. To explicate this, we need to turn briefly to the subject of what the legal philosopher Lon Fuller, writing in the 1960s, called ‘the “inner morality” of law.

Fuller, like many postwar legal theorists, was interested in the phenomenon of law exercised within the context of totalitarian regimes. The curious thing about Nazi Germany and the Soviet Union was that, for all that they were brutal dictatorships, they still had the trappings of functioning legal systems: constitutions, courts, judges, advocates and all the rest. This raised a vexed question. We normally think of ‘the rule of law’ as a good thing. But Nazi Germany and the Soviet Union, while appearing to have legal systems, hardly resembled the kinds of states that we think of when ‘the rule of law’ is mentioned. How, then, does one distinguish between societies which are governed by the rule of law from societies which are governed by purported legal systems but which are in fact oppressive and authoritarian?

Fuller’s answer was that law had an “inner morality” – which was distinct from matters of “external morality” (such as whether a given law had a morally right or wrong outcome). He asked us first to consider eight ways in which a lawmaker could “fail to make law”. These were:

1. Producing no rules at all or making only ad hoc decisions
2. Failing to make rules public
3. Using retroactive rules
4. Producing unclear rules
5. Producing contradictory rules
6. Producing rules with which it is impossible to comply
7. Changing rules too often
8. Deciding cases in such a way that outcomes bear no relation to the rules

Failing to make law, in these terms, was a violation of law’s inner morality, and a legal system which regularly and consistently failed to make law in any or all of these ways was therefore not to be thought of as comprising laws at all, but something else. And since legal systems in autocratic and totalitarian regimes very often violate law’s inner morality in these ways, this is why we are qualified to distinguish their purported laws from those which prevail in states where law’s inner morality is generally upheld.

Why did this matter so much, though? What’s so good about being governed by legal systems which have rules, where the rules are public, where they do not apply retrospectively, where they are clear, where they are not contradictory, etc.?

Here is one of those occasions in which it is beneficial simply to quote the man himself, in a passage of prose which ought to be reproduced as the compulsory PC desktop background of every legislator in every democracy in the world:

[Legal morality] cannot be neutral in its view of man himself. To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults.

Every departure from the principles of law’s inner morality is an affront to man’s dignity as a responsible agent. To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey to him your indifference to his powers of self-determination.

Governing human conduct by rules, in other words, is to treat the people who are subject to the rules as conscious, free-willed, sensible agents who are capable of understanding the world around them and accepting responsibility for their decisions. We are capable of knowing, for instance, the speed limit on a given stretch of road, and we are also capable of making the decision to go faster in full awareness that there may be negative consequences of doing so – which we accept. The speed limit does not compel us: we can choose to abide by it, or not. And this, most crucially of all, means that we have moral agency. We can choose to do right or wrong.

Fuller would not have put it in these terms, but he would therefore have agreed with Foucault’s observation that “freedom is the ontological condition of ethics”. Acting ethically requires the freedom to choose. If one does not have the freedom to choose, because one is compelled to act morally, then one’s moral conduct is not really moral at all. One is simply robotically doing what one is told, and one is in moral terms therefore indistinguishable from a robot. It seems tautologous to point out that this denudes us of one of the central characteristics – perhaps the central characteristic – of humanity: the capacity to choose to act morally, or not.

Law 3.0 was a development which Fuller could not really have foreseen. And it therefore introduces a ninth way of failing to make law to his list: one can fail to make law by making it impossible not to comply, through the deployment of technology. And in its way, this is the worst affront to the dignity of man out of them all, because it destroys the very conditions of moral agency. I reiterate: if one does not have the freedom to choose, because one is compelled to act morally, then one’s moral conduct is not really moral at all. The Energy Bill 2023 is therefore not only bad law because it is unclear, because it mostly delegates authority to make ad hoc decisions rather than rules, and so on. It is bad law because it seeks to automate compliance.

I would say that this has the effect of putting the subjects of the law into the position of children, but this would be to underplay the affront considerably. Children’s conduct (provided they have good parents) is subject to rules which are clear and understandable and with which they have the choice to comply, and children – as any parent knows – are masterful negotiators, adept at carving out exceptions to rules as required. Really, it puts the subjects of the law more into the position of rats in a Skinner Box, and here Fuller was prescient in warning us that once the inner morality of law is routinely violated, social order would have to be enforced through other, behavioural means: “Instead of telling men to be good, we [will] condition them to be good”, and instead of “judg[ing] a man, we [will] act upon him”. The mode of lawmaking which the Energy Bill 2023 exemplifies is one in which our legislators create the conditions for us to be simply acted upon.

We are not going to like where that leads. Having our energy consumption governed through ad hoc micromanagement of the electricity flow to our compulsorily purchased energy smart appliances on a moment to moment basis is dystopian enough. I invite you, though, to consider the other areas of life – both public and private – which are currently likely being eyed up by our legislators for the Law 3.0 treatment. It’s not about, and never has been about, mere golf carts on greens. It is about the fusion of law and technology in every sphere of our lives, and everything that will entail.

Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. This article first appeared on his Substack. You can subscribe here.