SoSaturnistic: The ‘fair playing field bill’ is not only redundant, but it threatens public services

When the Libertarian Party unveiled its new Fair Playing Field In Commerce Bill, the average person would have figured it would have few ramifications beyond the campaign to end subsidy for co-operative firms. Most people have figured as much, making the bill a debate over whether or not co-operative firms should or should not have a leg-up in the market. However, due to its construction as a statute which explicitly binds all future legislation, it potentially has wide-ranging implications for all aspects of the state.

The essential portion of the bill is s 1 which grants a “right to equitable treatment”.

No Parliament, legislature or minister shall make or enforce any law, order or regulation which shall abridge the privileges, or rights of its citizens to liberty or property without due process of law nor deny to any citizen or body corporate within its jurisdiction the equal access to any funds or opportunity provided by law, order or regulation for any reason other than merit.

There are dual components within this right. There is one portion focused on protecting the right to property and another on restricting the state’s behaviour.

The commitment that the state shall not “abridge the privileges, or rights of its citizens to liberty or property without due process of law” is drafted similarly to section 1 of the American Constitution’s 14th amendment. This portion is meant to limit the expropriation and control of property without appropriate compensation and fair procedure, as has been seen with rail for example.

The author’s implication that there is not a safeguard against this sort of action is flatly incorrect however. Article 1 of the First Protocol of the European Convention on Human Rights, included within the current Human Rights Act 1998, already protects against this. Expropriation without compensation is already prohibited except in very narrow circumstances, such as confiscation in the proceeds of crime.

While it is puzzling that not one of the millions of people who have invested in British rail firms complained about this, it’s not the current law’s fault. In fact, the integrity of the ECHR is monitored far more effectively than this bill would be if it were enacted as there are many private and public entities exclusively focused on ensuring that Convention rights are upheld. This new bill offers no new recourse or remedy to those wronged that the ECHR currently does not. Given that the protection of private property is already secured in a superior manner, this portion of the new right is redundant.

The second component of the new “right to equitable treatment” is that public authorities may not exclude any citizen or body corporate from “funds or opportunity” beyond reasons of “merit”. The bill does not attempt to clearly define “merit” however, instead only broadly declaring that a particular form of corporate organisation cannot be meritorious in and of itself. While the debate has largely settled on this dispute, the fact of the matter is that the extremely broad application of this bill opens up an avenue for challenges from multiple directions.

What happens when a private entity sees the state’s performance of a function as being unfairly exclusive? It is certainly possible to argue that state services, from those provided by the NHS to functions undertaken by the British military, could be performed more efficiently by a private entity than the state. In making this case it is possible to say that there is more “merit” in taking the monopoly of service provision out of the public’s hands. Such arguments aren’t particularly new after all and these services have been contracted out before to various degrees in the past.

If a court were to agree with such claims then that would open up a variety of public services to private entities seeking to take over public functions at public expense. While some might agree with the privatisation of some or all of these services, even the most ardent privatisation proponents usually agree that it should be done in a planned and well-thought out manner, not in a way which is suddenly triggered by a court judgment.

Even if a court disagreed with such a claim and construed “merit” in quite broad terms, it would still be a wasteful exercise. Litigation has real costs for the public, already numbering in the billions of pounds each year. There is little reason to open up the public to this exercise when a more efficient option for the Libertarian Party is possible. No, the libertarian answer here cannot be more rules and laws which trigger ever more public expense for little material change.

Instead I would propose to the Libertarian Party that they draft a more narrowly-tailored bill which focuses exclusively on the issue they actually care about, which is the matter of subsidies for co-operative firms. There would be reduced potential for any unexpected consequences. As of now, however, their current bill is either going to be worthless or open up public services in a slapdash way, and neither of those scenarios are desirable or appropriate for a party which has recently tried to portray itself as a force for competence.

SoSaturnistic is the leader of the Social Democratic and Labour Party.