Category Archives: Review

A Reply to Rodney Harrison on the GCSB Bill

One of our members, Colin Hunter, presents an opinion piece and reply to the talk we had by Rodney Harrison QC on the GCSB bill.

The following is my reply to a talk given by Rodney Harrison QC, who was discussing the Government Communications Security Bureau and Related Legislation Amendment Bill. What I want to do is flesh out a few of the technical points Harrison referred to and also discuss some of remedies and ethical questions he posed.

For those that are not familiar with the ramification and specifics of the bill I would recommend this article from Tech Liberty.  From what I can tell it seems to accurately describe the issues. I would also encourage people to read the actual legislation and bill that amends it here. In my opinion the Tech Liberty article accurately describes the amendment bill, but for those who really want to read, go ahead and read the actual bill text.


One of the key questions around the GCSB bill is about how the courts will interpret the legislation. This is because the law is not just what the bill says, it is how the courts interpret it. I asked Harrison about some of these issues, which you can see in the question and answer part, but what I wanted to do is explain how this actually works in the context of a bill.

The Courts are the interpreters of law. They have a number of mechanisms at their disposal that allow them to determine what a statute actually means. Generally speaking the ordinary meaning of a statute is a good guide, so non-experts should be able to read the statute and determine what it means, most of the time. However when it comes to legislation that violates a fundamental right, the courts tend to interpret that law differently than they might any ordinary statute.

Law comes from two places (primarily); from statute law and there is the common law, which is the law that judges make. It is important to understand that in New Zealand there is a doctrine called Parliamentary Supremacy and that means that when push comes to shove, the intent of Parliament always triumphs, which is to say, statute law is superior to common law. Paradoxically, Parliamentary Supremacy is itself common law (but lets not think too hard about that). Some common law has to do with interpreting legislation (statute law). The “Principle of Legality” is one such mechanism and it says that so far as the courts are able they assume that Parliament did not intend to override a fundamental right. This means the courts will try to limit the meaning of section of a statute that breaches a fundamental right, when they interpret that law, as long as it does not frustrate the purpose of the act.

Statute law is important here too. Perhaps the most important statute to be aware of is The New Zealand Bill of Rights 1990 or NZBORA (here). That is the document which outlines many of our basic rights and freedoms. Included in the NZBORA is “s 21 Unreasonable search and seizure Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.” This is the primary right that is argued has been breached by the GCSB. So the courts have developed a method of dealing with rights breaches in R v Hansen.

The first thing the court does, is it looks at whether on the ordinary meaning of the statute there is a conflict with the right. It seems this is the case here.

If that is the case they adopt the Oakes test that Harrison referred to determine if under s 5 of the NZBORA whether it is a reasonable and justified limit. “ Justified limitations Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

There are actual criteria that you can go through to determine this. They are, as outlined in R v Oakes, as restated in R v Hansen: 1. “The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. 2. Assuming that sufficiently important objective has been established the means chosen to achieve the objective must pass a proportionality test; that is to say the must: 1. be ‘rationally’ connected to the objective and not be arbitrary, unfair or based on irrational considerations; 2. impact the right or freedom in question as ‘little as possible’; and 3. be such that their effects on the limitation of rights and freedoms are proportional to the objective.”

The answer must be yes to all these questions, that is if it fails a single step then it is not a reasonable limitation on that right. Now obviously such things are subjective, although judges will look at past judgments and various sub criteria for determining this, but it is important to understand, that most professionals other than Attorney General and the Crown Law office think that at least one of these answers is no, if not several. While Harrison was guarded in the talk about speculating too much with regards to the Supreme Court’s likely stance, I think it is likely that the legislation would fail a s 5 Oakes test.

Once this is established the next stop is s 6 “Interpretation consistent with Bill of Rights to be preferred Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.” This where the courts have the most room to manoeuvre. If they can read the offending provisions down, which is to say give them less meaning, they are required to do so. Remember that “Principle of Legality”, well here it is written into statute, it is best power our courts have to limit rights infringing legislation. I asked Harrison about how likely the courts would be to read down the legislation. He was guarded, as it is pure speculation, but he mentioned the court is generally conservative and places a lot of weight on that aforementioned Parliamentary Supremacy. However in cases like R v Poumako the courts have been willing to read down, significantly, legislation which is particularly egregious. In my opinion though, the GCSB bill is nowhere near as bad in terms of violating rights and principles of law as the home invasion legislation contained in that case.

If the courts cannot reasonably give the section a meaning consistent with the rights, then s 4 will apply. “Other enactments not affected No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),— (a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or (b) decline to apply any provision of the enactment— by reason only that the provision is inconsistent with any provision of this Bill of Rights.”

This will mean that the enactment will be given effect despite the fact it is an unreasonable restriction on a right.

Section 4 of the NZBORA is the reason that the courts cannot actually strike down legislation, unlike many other common law countries. As such we have no defence against a bill other than the power conferred in s 6.

The Problems

Harrison pointed out I think correctly, that the issue is knowing your right is infringed. You see it may be that the courts will take a look at the legislation and might even read the enactment down, but given that the actions of the GCSB are secret, there is no ordinary way to know whether a right is infringed or not and whether you could get the courts to even read down the provisions. So it may well be that the courts would be willing to read down a provision, if a case came before them, but if you never know if your right is infringed and are never able to bring a case before the courts, they will not be able to rule (and thereby direct the GCSB in future cases) on the issue.

There is one potential solution to this problem and that is that a interpretive judgment could be pursued in the High Court. Someone (presumably a wealthy private citizen) could pay for such a judgment, which would then give instructions to the GCSB about how their powers under the act. I am not sure how plausible this is, but Harrison did discuss the possibility.

Warrants and Judicial Review

One of the other aspects that is worth considering is the issue of Judicial Review. This is when the courts examine the decision making powers of the executive, more specifically here the issuing of warrants. There are various grounds for such action illegality, procedural impropriety and irrationality. This allows the court to potentially overturn warrants and directions issued by the Minister and appropriate executive members. While this is not an ability for the courts to overturn any old decision, it can mitigate against the harshest and most flagrant abuses of power. Technically Judicial Review is not supposed to look at the content of such decisions, merely whether proper procedures have been followed. In practice there is a very limited ability to look at content, if ‘no reasonable decision maker could have come to that conclusion’. However courts are very hesitant about using this power unless it is obvious the decision maker is acting outside the scope of the power conferred.

Again however the difficulty here is getting Judicial Review, because everything is secret, there is no ability to know if a warrant has been obtained or not. So it makes it difficult to prevent in theory. Furthermore Judicial Review cannot give damages, it can only quash decisions and order them to be reviewed. This means that if a decision has already been made and your private communications were already looked at, nothing can be done. It is worth noting a couple things here. The warrants are the most worrying aspect of the whole bill, they are issued jointly by a former High Court Judge and the Minister, but given there is no real ability for oversight I think this is a major concern.


This is a popular topic at the moment. The difficulty is that the law is incredibly unclear with regards to this, there is not much to say, again we can hope the courts will give clarification.

Political Issues

Harrison brought up a few a few political issue that bear some consideration. The first of these is the idea that the s7 report from the NZBORA requires that there is a report issued with regards to right breaches in legislation. “ Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights Where any Bill is introduced into the House of Representatives, the Attorney-General shall,— (a) in the case of a Government Bill, on the introduction of that Bill; or (b) in any other case, as soon as practicable after the introduction of the Bill,— bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.”

Harrison brought up the problem that while a bill is prepared it is not independent as the Attorney General is a member of cabinet and also there is no binding nature on Parliament to implement its recommendations. He pointed out that in this case no report was issued, because it was determined there were no unreasonable breaches of rights. While I agree with Harrison that this seems odd in this context, it is not true that the reports are always in favour of the government’s position. In fact the Attorney-General does enjoy some independence in this role. Having said that in this case I would bet serious money, that it was made known that given the politically contentious nature of the decision, that it should be viewed as not breaching rights. Anyway that is just conjecture, but it is worth noting.

Furthermore Harrison also discussed that Parliament itself is bound by the NZBORA, when legislating. This is true in a technical sense, but there is no ability to review this. The courts have turned their face from interfering in the matters of Parliament because of the doctrine of Separation of Powers and Parliamentary Privilege (which prevents the courts looking at Parliament). This means that functionally Parliament is not bound by the NZBORA, since there is no one to hold them accountable. I believe Harrison was more making the point that Parliament is ethically obliged, rather than legally, which I would not dispute.

The issue of MP’s voting against their parties was brought up. MMP government has meant MPs have less power to do this, although traditionally it has been very rare when such action has been taken. This is a wider question for discussion and not one I hold an opinion on, but it is worth considering I suppose.

Other Questions

Some of the questions were of interest as well. One of the considerations was whether an entrenched constitution without s 4 of the NZBORA would alter the landscape. It seems likely that an entrenched constitution with courts that have an ability to strike down laws, might indeed help prevent abusive laws such as the GCSB Amendment Act. However this is a greater constitutional debate. I personally am not in favour of an entrenched Constitution, as I think rights based approaches are themselves ethically bankrupt, because they end up still resulting in hierarchies of legitimacy. Having said this if your desire was to safe guard a right to privacy, then I think an entrenched constitution with a corresponding power allowing the courts to strike down laws would probably offer protection from bills such as this. One thing to consider is whether we would in such a scenario have a constitution similar to the USA, where rights were absolute or one where we had a set of “reasonable” rights, such as what exists in Canada, where rights are allowed to be infringed, so long as they are reasonable. This is closer to what we currently have.

My Opinion

As I alluded to above, I am reticent about discussions of rights. This stems from a more fundamental ethical basis, that I think absolutism, is not a good way to make policy. I do not want to have that whole debate here in this article, but I think there are a few issues that are worth considering. It is all well and good to appeal to a right and attach some moral worth to that right, but at what point should that right over come arguments of utility? Is it really that rights are simply a short hand way of maximising utility anyway? Or is it the case that rights have some moral worth beyond the utility the provide? Is it possible that having a structure of rights, end up being oppressive, as it outline various default positions, that exclude those who fall outside the definitions of rights? If your moral object is not classified as a right, should that give it less force? Does it make it any less wrong? What I want to think about is whether rights discussions are even the best way for us to engage with the issues. Clearly that is how our established institutions deal with them, so perhaps we have little other recourse, but I see danger, even in the need to appeal to such institution for us to determine what is and is not ethical.

Furthermore I think that even if we were to accept a rights discourse as a legitimate way of discussing such things, there seem to be far more serious breaches of rights, that we stay silent about. I do not mean that we should not complain about the GCSB bill, far from it, but what I would encourage us to do, is think about some of the other Acts that the current government have passed or are intending to pass that seems to be far more egregious, or at least as questionable.

This is probably the best example, other than perhaps the Canterbury Recovery bills, that really were much more objectionable from a rights perspective.

The Public Health and Disability Amendment Act 2013 Legitimises a discriminatory practice of paying people less if they care for family members who are disable, even if doing the same job of some one who is paid more and not a relative. – Breaches right to be free from discrimination s 19 NZBORA. See Ministry of Health v Atkinson for a fuller discussion on this. Removes access to the courts to challenge any of the provisions – Breaches Right of Natural Justice and access to the courts – NZBORA s 27 – considered one of the most important of all rights (along with freedom of torture, double jeopardy, right against retrospective legislation and right to life) – see Ex Parte Witham for a fuller discussion on right to access the courts. There are many other rights infringing bills that have been passed and it is something that is not as rare, perhaps as it should be, but if you have an interest in such things, then I would suggest looking hard at such legislation, particularly anything that prevents challenges in court.

I personally do think the GCSB legislation is a bad idea, but I do not think it is quite as important as is made out. I just do not care that much ultimately, I am much more concerned about legislation that is discriminatory to those on benefit (such as the recent changes to the benefit scheme making it mandatory for parents to register children with doctors) or the Public Health and Disability Amendment Act 2013 or the proposed changes around child abuse and those with sexual convictions. I would must rather see us focus on other issues. None of this of course makes this legislation right and I guess I am glad at least that people have taken notice of something, but I must admit, my heart just is not in this one.

– Colin Hunter, RSS Member

Considerations AGAINST same sex marriage

On the 18th Sept we hosted a debate on legalizing same-sex marriage.

Here is one RSS member’s considerations against.

“If marriage is important, an understanding implicit in State recognition, we need to be clear about what it is. Those who believe that all relationship types should be equal in the eyes of the law ought to promote not same-sex marriage, but rather the abolition or privatization of marriage. Some will say that the current move is just a first step to a wider reinvention of the institution, while it is also claimed that the proposed shift could only strengthen marriage in NZ – but these cannot both be true. I suggest that marriage is rationally limited to male-female pairs, and that no compelling alternative view of marriage is on offer in the public debate.

“Marriage is a pre-political institution that arises across the world in a range of slightly different forms as a result of the biological realities involved in producing children. In NZ it is shaped by norms of monogamy, fidelity, and love, as a result of the universal intrinsic link to children and our culture’s belief in the equality of the partners. Only a pair from the opposite sex can share life together fully (socially, economically, physically) in a union that can result in children. Extending marriage fails to recognise why the institution currently has the form it does. In jettisoning the biological family unit as its basis, along with biblical statements which reinforce the relevant norms for many in NZ, we are left floating in a relativistic soup.

“The primary public good of marriage is families, including children; it is a good for children to be raised by their biological parents where possible and the State may appropriately choose to provide benefits to the kind of union where that can occur. But there are ancillary goods too, which helps to explain the legitimate inclusion of many couples without children. It is a good to have models of the kind of union that in many cases produces the primary good. It is good for society for members of the opposite sex to share life together fully, with commitment. The government is not interested in the fertility of individual couples but does have an interest in promoting opposite-sex parenting as the ideal. Not recognising the value and form of this institution shaped around children’s wellbeing would be a failure by the State.

“The proposed law discriminates against a number of relationship forms; 15 are listed in Schedule 2 of the Bill. Having divorced marriage from both biology and biblical norms, justifying the particularly contours seems left to tradition or accidents of history – poor bases for law. It also has the potential to discriminate against those whose religious beliefs do not allow recognition of unions between people of the same sex as a ‘marriage’, as explained in the legal opinion of Ian Bassett, available online. Some support the Bill on the basis that society has changed, and that democracy requires the shift, even if there are inconsistencies. If you believe that, let your MP know that you want this issue put to a national referendum, and let the debate play out in public.”

Considerations FOR same sex marriage

On the 18th Sept we hosted a debate on legalizing same-sex marriage. 

Here is one RSS member’s considerations FOR. 

“Marriage has been a traditional social institution in multiple forms predating reliable recorded history and our current limited definition by a considerable period of time.  Some of these traditions included marriages of same sex couples which were overwritten by a limited Judaeo-Christian derived definition conceived in a period of extreme homophobia.  That tradition should now be overwritten by an egalitarian one that recognises a relationship on its own merits.  The truth is that marriage was a legal contract used for commercial gain and/or power consolidation between the upper classes.  It progressed into an expression of love that provides legal rights for those in it; it is simply time that it progresses further.

“Gay marriage equality parallels that of the struggle of interracial couples in USA in the 1960’s.  Many of the arguments against selectively extending this right to include interracial couples are the same, including it being unnatural and children are worse off in interracial families.  All are based on a combination of irrational fear, logical fallacies, appeals to tradition and empty claims about the public good.  The data does not back any of these arguments, if it did the opponents to gay marriage would be able to produce independent studies supporting their point but just the opposite is true. The legal option obtained by opponents to the current bill has been thoroughly debunked.  There is no risk that ANY individual or Church will be forced to recognise or hold same sex unions, just as they are not forced to hold or recognise interfaith or racial unions now.

“The average gay relationship is identical in every way to the average straight relationship with the sole exception that the couple cannot have heterosexual sex, so cannot produce children.  If we are going to legislate policy on the bases of what type of sexual acts a couple preforms in the privacy of their own bedroom we are on very shaky ground. Additionally many straight relationships do not produce offspring, either by choice or by infertility problems; if this was to be the reasoning then these relationships should be excluded from marriage as well.  Furthermore, gay couples have the same desire to be parents and do so via the same means as many couples with an infertility barrier.  There has been no evidence that they are unfit parents. If marriage between loving couples provides the best environment for children then we should not be punishing those with gay parents.

“Same sex couples share their lives as completely with each other as straight couples do and with that comes the need for legal protection. Civil unions were a step forward but they are not a copy/paste of all the rights and privileges of marriage nor are they recognised globally.  Even if they were, “separate but equal” is not a message we want to send.  Due to all of this it is in the public good to be egalitarian unless we can find an objective reason why we should not.  Harm is caused by discrimination while there has been no evidence presented of actual harm in extending marriage to be inclusive of gay couples.”

Review of “Richard Easther on Fine Tuning”

Fine tuning the universe: the review

It is frequently suggested that the fundamental laws of physics must be “tuned” to ensure that the universe can permit the existence of life.  So we got in Prof. Richard Easther from the department of Physics to discuss some of these purported tunings in cosmology and fundamental physics, ask how they might be explained, and get his take on their implications.

Richard started off with what do we really mean by fine-tuned?  There are currently four forces in the standard model of Physics (electromagnetism, the strong and weak nuclear force and gravity) but could a universe exist with less or more forces? Are the values for these for forces fixed or could they vary?  It seems that although we do not know for certain we are getting close! So the question is why do we see a universe like this one? One that is apparently tuned for life.

From one perspective, the universe is not as tuned as we would be lead to believe.  Out of the very large volume that the universe contains, only the smallest fraction of it can support life as we know it.  If you were an entity creating a universe for life you would think you could tune it to be a little more life friendly.  Also the term, “life as we know it”, has an important distinction. If the universe did have a different set of rules which would not allow “life as we know it” to form, there is no guarantee that life would not pop up in another form, a form that could not survive in a universe with our current set of rules.  So the question becomes, why the universe has the observed set of rules rather than another.

Well it appears that in quantum physics the multiverse proposed by our favourite sci fi flicks may not be so far off from the truth.  String and M theory are models that are predictive in their power to explain the Phenomena that we see in the universe round us. It turns out that many cosmological theories are built on a set of equations that end up predicting multi universes as a natural and necessary by-product of their other predictions.  Each of these other universes has its own potentially unique set of rules, some maybe the same, some just slightly different rules to our universe.  To be clear, a new one is not created every time you make a choice, rather normal quantum fluctuations start the inflation of a new universe at another location.  If these happened close to our own universe just after our own big bang we may even get to see their impacts on the cosmic microwave background but we will have to stay tuned for that.

Just as we may have asked the question a 1000 years ago, “Why is our world so fine tuned for life?” and the answer being “it is not, it is just one of many possible planets” we are now getting to understand that the answer is the same for our universe. It is not.

By Josh

Review of “David Krofcheck on the Higgs Boson”

New Zealand at CERN and the Discovery of a new Particle: The Review

In July the physics world was rocked by the discovery of a new particle that looks suspiciously like the long hypothesized Higgs boson. The announcement was met with huge excitement and extensive media coverage. We all knew that something significant had been discovered, but what exactly? To the non-physicist it all sounded pretty perplexing. What exactly is a Higgs boson, Higgs field and why is it important? With these questions in mind we invited Dr. David Krofcheck from the department of physics to discuss the recent discovery. David and his NZ team are part of CMS collaboration at CERN, so he was able to give us a fascinating first-hand account of what goes on at the CERN laboratory.

David began by explaining how, much to the embarrassment of physicists everywhere, there are lots of really basic unanswered questions in modern physics. For instance our best theories for understanding matter and its interactions only describe 4% of the known “stuff” in the universe. There is good reason to believe the rest of the universe is composed of (as yet) unidentified dark matter, and even more nebulous dark energy. We don’t know why there is matter in the universe at all, and more fundamentally we don’t even know what mass is! The Large Hadron Collider (LHC) was built to try and answer some of these questions.

From these motivating questions David went on to summarize what (we think) we know: the standard model of particle physics. The standard model divides the world into two types of particles, fermions and bosons. Fermions are the building blocks for protons, neutrons and all of the other “normal matter” in the universe. Bosons are the particles that mediate the known forces e.g. photons are bosons which carry the electromagnetic force. In a sense the standard model is a bit like the periodic table in chemistry. It is a carefully structured table of the fundamental “ingredients” of matter which you can combine in different ways to build more complicated particles/substances.

Although the standard model has worked exceptionally well in making successful experimental predictions, for decades there has been one major missing piece in the puzzle: the Higgs boson. The Higgs boson is conjectured to explain “what gives particles mass”, but what exactly does this mean? David presented us with an analogy to help us understand the theory. Consider a room full of uniformly-distributed journalists, and suppose that an especially famous person (e.g. Margaret Thatcher) enters the room. As she tries to cross the room, she will of course be swamped by journalists that impede her progress and slow her down. The more famous the person, the more they are slowed down inside the room as more journalists “clump” to them. In this analogy the journalists represent the Higgs field, and famous people crossing the room are particles with mass: the more famous the person, the greater the mass of the particle (and the more they are slowed down by Higgs field/clumping of journalists). The Higgs field permeates all of space such that particles everywhere are slowed down and thus appear to have mass. If there were no Higgs field every particle would move at the speed of light since nothing would impede their progress. The Higgs boson can also be understood via this analogy. Sometimes it doesn’t even take the presence of a famous person for journalists to clump together; they may excitedly clump together at the mere mention of a famous person. This represents the idea that given enough energy, the Higgs field may be excited to a state whereby massive particle spontaneously form from the field itself (no particle is required – the field spontaneously ‘clumps’ into its own particle). Although it is the Higgs field that is of interest from a theoretical perspective, we cannot measure the Higgs field directly. Instead we try to observe the Higgs boson, and in doing so test the existence of the associated Higgs field.

David then went on to explain how exactly the LHC is being used to test for the existence of the Higgs boson. The LHC accelerates protons to extremely high speeds and smashes them together inside huge particle detectors. The NZ team plays a fairly crucial role in this process. They are responsible for the construction and operation of the Beam Radiation Monitor, a device that detects if the beam of protons start to drift off target. If the beam were allowed to drift this could be disastrous as super-high energy particles would collide with fragile multi-million dollar electronic equipment. The Beam Radiation Monitor acts as a warning system: if the particles begin to drift off target the beam is safely dumped into a solid wall.

How exactly then is the LHC being used to test for the existence of the Higgs boson? During a collision of two protons, the massive kinetic energy of the protons is converted into new particles which stream outwards in all directions and are detected by large particle detectors. If the energy of the incoming protons is sufficiently large, a Higgs boson may be among the new particles created by the collision. Theory describes how often we should see certain particles created at different energy levels. If we perform many collisions we can compare the experimental frequency distribution (of particles created in the collisions) to the theoretical frequency distribution. In particular if the Higgs boson exists, we expect a slight blip in the frequency distribution at a particular energy level, and indeed such a blip has just been observed. Interestingly some of the characteristics of the distributions suggest that the observed Higgs may not quite have the same properties as the simplest Higgs model predict, which opens the door to a potential family of Higgs particles and exciting new physics beyond the standard model. We await further results from the LHC with great anticipation.

By Josh

Review of “Free Will and NeuroScience” Talk

Robert Nola on Philosophy, Free will, and Neuroscience.

Review and Questions for reflection.

Cartesian Theatre:
Am I the same thing as my brain?

Nola began by first asking “What is free to be predicated of?” Do we want out actions to be free, or our decisions, or both? We can have free actions by being able to act as we chose (Nola calls this “first level freedom”), but there is a further question as to whether we can want and desire as we choose. We may want a beer because we are an alcoholic, but we might not want to want a beer. Nola suggested that a second level of freedom – freedom of choices and desires (or what some might call “the will”) – could perhaps be attained by critical reflection on ones beliefs and desires. Of course, the obvious objection to this thought is that perhaps our beliefs and desires that lead us to question our beliefs and desires are not free either!

Nola then asks us to consider an experiment by Libet and Feinstein (1983). A subject is told to move their finger when they feel the urge to do so. They are also asked to take note of when they felt the urge. A 200 millisecond delay was found between the awareness of the urge and the movement itself, but, more interestingly, the EEG electrodes attached to the scalp of the subject registered a signal in the brain up to (approx) 500 milliseconds before the action! This signal is called the readiness potential, or “RP”. Our folk intuition is that we decide to act before our brain begins to prepare for the action, but this experiment seems to suggest that it is the other way around!

More recently, in BBC Horizon’s “The Secret You” (2009), Haynes (BCAN) took a scan of du Sautoy’s brain while he was asked to push one of two buttons as soon as he felt the urge. The neuro-imaging showed that certain regions in the brain become more active when du Sautoy will chose left, and others when he will chose right. Amazingly, this happens up to 8 seconds before du Sautoy consciously feels the urge and pushes the button!

So, if Haynes can predict the likelihood of du Sautoy pushing one button or the other, up to 8 seconds before he pushes it, is du Sautoy still performing a free action? Nola points out that he correctly predicted we’d all sit down when we came to his lecture, but we still seem to think that we freely chose to sat down. Du Sautoy asks if he is a hostage to his own brain, given that his brain decides before “he” does what action to perform (think Karl Pilkington, the onion, and the shopping list). Such a question however only makes sense if one takes a dualist position in which “you” are not the same thing as your brain.

In a similar experiment, Trevena and Miller (Otago 2009) played a tone to a subject who was to then decide to either push a button or not. They wanted to remove the “urge” feature of Libet’s experiment, and instead replace it with a command to decide. It is important to note that there is a distinction here between not deciding (as is the case before the tone is played), and deciding to not push the button. T&M found that the RP was present regardless of the subject’s decision to push or not push the button! This suggests that the rising RP does not correlate with an action. Does it perhaps instead correlate with a conscious decision? Or something as simple as the brain paying attention? It is not clear.

So does Trevena and Miller’s experiment undermine Libet’s? Are they testing the same thing but in a different way, or are they really testing something else? What is the causal relationship between the RP, the urge/decision to act, and the action itself? Does the RP cause the awareness of the decision or urge to act? Does the urge cause the action, or is it the RP that causes that action (except when it is vetoed)?

This brings us on to vetoing. In another experiment, subjects were asked to record when they felt the urge to move their finger, but to not act on that urge. It was found that there was an RP build up before the urge, but that the subject was successfully able to veto that brain command. This might suggest that while the unconscious mind “decides”, as it were, to perform the action, the conscious mind can freely(?) decide to veto the action. It has been suggested therefore that perhaps we are not free to chose to do something (our brain decides for us), but we are free to not do something once our unconscious has decided to do it – we have “free won’t”. But why should it matter that the action to be initiated by the conscious rather than the unconscious brain?

How should we define free will – do we want it to be the ability to do otherwise, that a causal chain is initiated in the conscious brain, or simply that we make a decision and can act on it? If my brain decides my actions, is that “me” deciding, or am I different from my brain? Should I mind if Nola, God, or anyone else for that matter, can predict (or even know) my future actions? Do I really want free will, or will “free won’t” suffice, and is there a difference?

By Talia

For further reading/viewing:

Trevena and Miller (2002) Cortical movement preparation before and after a conscious decision to move.

Trevena and Miller (2009) Brain preparation before a voluntary action: Evidence against unconscious movement initiation.

Psychology Today: Free Won’t: It May Be All That We Have (or Need).

Stanford Encyclopaedia of Philosophy. Free Will. 

Wikipedia. Neuroscience and Free Will.

Karl Pilkington, the Onion, and the problem of Free Will.

Exert from BBC Horizon’s “The Secret You” (2009).