Should we ban “banning” things?

The political addiction to mere prohibitions.

We all want to ban something. It is a staple of our political culture. All of us are perhaps one moment away from seeking to ban what someone else is saying or doing. The nod-a-long responses of "it shouldn't be allowed" or "there should be a law against it" are the common solutions to many perceived problems.

However, to "ban" something is not actually to eliminate it, whatever "it" is. The "it" is not extinguished; the "it" may just be attended by some different consequences. The legalistic prose in a solemn document is not some magic spell which banishes horrors by invocation. To say there should be a law against a thing is often no more than saying there should be a spell against it.

In fact, "banning" things often creates new problems. In its correct legal form, a prohibition establishes certain legal and coercive consequences should the prohibited act occur: a court order for damages, say, or a prison sentence. Being banned does not thereby stop the thing from happening. It just means that the legal system will be engaged in a way it otherwise would not be.

Moreover, in the complex "real world" of ever-changing and shifting political, social, and economic relationships, the general prohibition (and the coercive sanction) can sometimes only make unwelcome situations more complicated. Some behaviour may well be discouraged (the deterrence effect); but other behaviour will be modified so as to escape detection. Or, the behaviour may carry on as before, but worsened by the criminalization of all those involved. The easily satisfied will have their "ban" but the effects may be unfortunate or unpredictable.

This is not to argue for libertarianism, still less anarchism. It is instead to urge sensible and balanced law-making. There is a positive and essential role for prohibitions and coercive sanctions in our polity. However, such laws should always be made and implemented with anxious scrutiny. Enacting the prohibition is not an end in itself. There should be regard both to the likely effects of the "ban" and to the interferences which will be made to other values important in a liberal society.

So those calling for something to be "banned" should therefore ask two simple questions. First, what will the prohibition do in respect of the undesired behaviour? And second, what other consequences may flow from the prohibition? Good answers to both these questions will inform the political choice as to whether such a ban should be implemented and, if so, how. We may even get better laws as a consequence; we could even get prohibitions that actually work and are proportionate.

The call for something to be "banned" should be the start of a mature and constructive political debate, and not the end of one. Perhaps the time has come to ban just banning things.

 

David Allen Green is legal correspondent of the New Statesman. He also writes the Jack of Kent blog and for The Lawyer.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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The top 10 reasons Brexit isn't working, according to Brexiteers

We'd have got away with it, if it weren't for that pesky Mark Carney. 

Over the next few years, it is likely that the economy will shrink, that the entire government will be consumed by trade negotiations at the expense of every other priority, and that EU leaders will use their considerable negotiation advantages to theatrically screw us. As this unpretty story unfolds, those who argued confidently for Brexit, in parliament and in the press, will feel compelled to maintain that they were right, and that if it hadn’t been for some other impossible-to-foresee factor everything would be going splendidly. What follows is an attempt to anticipate the most predictable post-rationalisations; I’m sure there will be more creative efforts.

1. WHITEHALL SABOTAGE. If we’re making no progress in trade negotiations, that’s because the civil service is doing its best to scupper a successful Brexit. That power-crazed madman Jeremy Heywood will stop at nothing to ensure he is bossed by Brussels, and the snooty bastards at the Treasury are working to subvert the national will out of spite. Even as our finest ministers strive manfully to cut Britannia free of its enslaving chains, all they hear from functionaries is “It’s a bit more complicated than that”. It’s only complicated because they want it to be.
 

2. REMAINERS TALKING DOWN THE COUNTRY. God knows we tried to reach out to them, with our gently teasing admonitions for being elitist snobs who just needed to get over it. But did they concede that a glorious future is at hand, if only we all wish for it? No, my friends, they did not. Instead, they sulkily point out how the things they predicted would happen are in fact happening, as if this somehow proves they were right. And since, inexplicably, the world agrees them, the whiners’ prophecy is being fulfilled.
 

3. THE GLOBAL ECONOMY. It appears the UK economy has sunk into a recession. Now, the whiners will tell you that this has got something to do with the vast uncertainty created by taking a fundamental decision about the nation’s future without a clue about how to implement it. In reality, of course, the recession has been caused by the same global economic headwinds that had absolutely nothing to do with the 2008 financial crisis, which was all Gordon Brown's fault.
 

4. ECONOMISTS. Since they nearly all said that Britain would be worse off if it voted Out, they now feel compelled to tell us that things are indeed worse. OK, maybe they are worse. But think about it: if we hadn’t voted Out, the economy might be even more calamitously buggered than it is now. This is logically unassailable. But do economists ever point it out? Do they Brussels. Yet sadly, global businesses, investors, consumers, and lots of other people who frankly lack gumption or vision, take these so-called experts seriously.
 

5. MARK CARNEY. Let’s get this straight: the Canadian governor of the Bank of England doesn’t want Britain to succeed, because then we’d be a direct competitor to his motherland. But with his honeyed voice and perpendicular jaw and incessant references to “data”, this man has gone a long way to convincing much of the public that he is some kind of disinterested authority on Britain’s economy. In reality, of course, he is out to destroy it, and seems to be making a pretty good fist of doing so.
 

6. EU BUREAUCRATS. You know those people we spent years attacking for being interfering, self-enriching, incompetent fools? Turns out they are now keen to make our lives as difficult as possible. The way to deal with this, of course, is to mount a national campaign of vilification. Another one. Before long they will be begging for mercy.
 

7. THERESA MAY. Look, we all wanted her to succeed. We knew she wasn’t one of us, but she wasn’t exactly one of them either, so we gave her a chance. Yet perhaps it is time to admit the possibility that the Prime Minister isn’t making this work because, when it comes down to it, she just doesn’t share our blood-pumping, sap-extruding belief in Britain unbound. In short, she’s just too damn reasonable. It’s time to embrace the unreasonable man. What’s Boris doing these days?
 

8. THOSE OTHER BREXITEERS (i). Not only can we not get the Remainers to present a united front to Brussels, it seems that we can’t even rely on our fellow Brexiteers. Most of us are on the same page: take back control of our borders, blue passports, compulsory blazers, onwards and upwards to the sunlit uplands. But there are some among our own ranks who frankly don’t get it. These latte-sipping media types simper on endlessly about the importance of retaining access to the single market and seem awfully keen on Norway. Why don’t they just go and join Remain?
 

9. THOSE OTHER BREXITEERS (ii). Hey guys, the problem is this: Brexit got hijacked by the roast beef and two veg brigade, OK? For us it was always about unleashing the entrepreneurial spirit, shaking off the dead hand of Eurocrat regulation, being more human, that kind of thing. We had to go along with all that anti-immigration stuff but believe me we were biting our tongues and crossing our fingers. Some of our best friends are Turkish.
 

10. NONSENSE, IT IS WORKING.

Ian Leslie is a writer, author of CURIOUS: The Desire to Know and Why Your Future Depends On It, and writer/presenter of BBC R4's Before They Were Famous.