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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I was wrong about Help to Buy - but I'm still glad it's gone

As a mortgage journalist in 2013, I was deeply sceptical of the guarantee scheme. 

If you just read the headlines about Help to Buy, you could be under the impression that Theresa May has just axed an important scheme for first-time buyers. If you're on the left, you might conclude that she is on a mission to make life worse for ordinary working people. If you just enjoy blue-on-blue action, it's a swipe at the Chancellor she sacked, George Osborne.

Except it's none of those things. Help to Buy mortgage guarantee scheme is a policy that actually worked pretty well - despite the concerns of financial journalists including me - and has served its purpose.

When Osborne first announced Help to Buy in 2013, it was controversial. Mortgage journalists, such as I was at the time, were still mopping up news from the financial crisis. We were still writing up reports about the toxic loan books that had brought the banks crashing down. The idea of the Government promising to bail out mortgage borrowers seemed the height of recklessness.

But the Government always intended Help to Buy mortgage guarantee to act as a stimulus, not a long-term solution. From the beginning, it had an end date - 31 December 2016. The idea was to encourage big banks to start lending again.

So far, the record of Help to Buy has been pretty good. A first-time buyer in 2013 with a 5 per cent deposit had 56 mortgage products to choose from - not much when you consider some of those products would have been ridiculously expensive or would come with many strings attached. By 2016, according to Moneyfacts, first-time buyers had 271 products to choose from, nearly a five-fold increase

Over the same period, financial regulators have introduced much tougher mortgage affordability rules. First-time buyers can be expected to be interrogated about their income, their little luxuries and how they would cope if interest rates rose (contrary to our expectations in 2013, the Bank of England base rate has actually fallen). 

A criticism that still rings true, however, is that the mortgage guarantee scheme only helps boost demand for properties, while doing nothing about the lack of housing supply. Unlike its sister scheme, the Help to Buy equity loan scheme, there is no incentive for property companies to build more homes. According to FullFact, there were just 112,000 homes being built in England and Wales in 2010. By 2015, that had increased, but only to a mere 149,000.

This lack of supply helps to prop up house prices - one of the factors making it so difficult to get on the housing ladder in the first place. In July, the average house price in England was £233,000. This means a first-time buyer with a 5 per cent deposit of £11,650 would still need to be earning nearly £50,000 to meet most mortgage affordability criteria. In other words, the Help to Buy mortgage guarantee is targeted squarely at the middle class.

The Government plans to maintain the Help to Buy equity loan scheme, which is restricted to new builds, and the Help to Buy ISA, which rewards savers at a time of low interest rates. As for Help to Buy mortgage guarantee, the scheme may be dead, but so long as high street banks are offering 95 per cent mortgages, its effects are still with us.