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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Why is Labour surging in Wales?

A new poll suggests Labour will not be going gently into that good night. 

Well where did that come from? The first two Welsh opinion polls of the general election campaign had given the Conservatives all-time high levels of support, and suggested that they were on course for an historic breakthrough in Wales. For Labour, in its strongest of all heartlands where it has won every general election from 1922 onwards, this year had looked like a desperate rear-guard action to defend as much of what they held as possible.

But today’s new Welsh Political Barometer poll has shaken things up a bit. It shows Labour support up nine percentage points in a fortnight, to 44 percent. The Conservatives are down seven points, to 34 per cent. Having been apparently on course for major losses, the new poll suggests that Labour may even be able to make ground in Wales: on a uniform swing these figures would project Labour to regain the Gower seat they narrowly lost two years ago.

There has been a clear trend towards Labour in the Britain-wide polls in recent days, while the upwards spike in Conservative support at the start of the campaign has also eroded. Nonetheless, the turnaround in fortunes in Wales appears particularly dramatic. After we had begun to consider the prospect of a genuinely historic election, this latest reading of the public mood suggests something much more in line with the last century of Welsh electoral politics.

What has happened to change things so dramatically? One possibility is always that this is simply an outlier – the "rogue poll" that basic sampling theory suggests will happen every now and then. As us psephologists are often required to say, "it’s just one poll". It may also be, as has been suggested by former party pollster James Morris, that Labour gains across Britain are more apparent than real: a function of a rise in the propensity of Labour supporters to respond to polls.

But if we assume that the direction of change shown by this poll is correct, even if the exact magnitude may not be, what might lie behind this resurgence in Labour’s fortunes in Wales?

One factor may simply be Rhodri Morgan. Sampling for the poll started on Thursday last week – less than a day after the announcement of the death of the much-loved former First Minister. Much of Welsh media coverage of politics in the days since has, understandably, focused on sympathetic accounts of Mr Morgan’s record and legacy. It would hardly be surprising if that had had some positive impact on the poll ratings of Rhodri Morgan’s party – which, we should note, are up significantly in this new poll not only for the general election but also in voting intentions for the Welsh Assembly. If this has played a role, such a sympathy factor is likely to be short-lived: by polling day, people’s minds will probably have refocussed on the electoral choice ahead of them.

But it could also be that Labour’s campaign in Wales is working. While Labour have been making modest ground across Britain, in Wales there has been a determined effort by the party to run a separate campaign from that of the UK-wide party, under the "Welsh Labour" brand that carried them to victory in last year’s devolved election and this year’s local council contests. Today saw the launch of the Welsh Labour manifesto. Unlike two years ago, when the party’s Welsh manifesto was only a modestly Welshed-up version of the UK-wide document, the 2017 Welsh Labour manifesto is a completely separate document. At the launch, First Minister Carwyn Jones – who, despite not being a candidate in this election is fronting the Welsh Labour campaign – did not even mention Jeremy Corbyn.

Carwyn Jones also represented Labour at last week’s ITV-Wales debate – in contrast to 2015, when Labour’s spokesperson was then Shadow Welsh Secretary Owen Smith. Jones gave an effective performance, being probably the best performer alongside Plaid Cymru’s Leanne Wood. In fact, Wood was also a participant in the peculiar, May-less and Corbyn-less, ITV debate in Manchester last Thursday, where she again performed capably. But her party have as yet been wholly unable to turn this public platform into support. The new Welsh poll shows Plaid Cymru down to merely nine percent. Nor are there any signs yet that the election campaign is helping the Liberal Democrats - their six percent support in the new Welsh poll puts them, almost unbelievably, at an even lower level than they secured in the disastrous election of two year ago.

This is only one poll. And the more general narrowing of the polls across Britain will likely lead to further intensification, by the Conservatives and their supporters in the press, of the idea of the election as a choice between Theresa May and Jeremy Corbyn as potential Prime Ministers. Even in Wales, this contrast does not play well for Labour. But parties do not dominate the politics of a nation for nearly a century, as Labour has done in Wales, just by accident. Under a strong Conservative challenge they certainly are, but Welsh Labour is not about to go gently into that good night.

Roger Scully is Professor of Political Science in the Wales Governance Centre at Cardiff University.

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