A couple of weeks back, on 6 November, Simon Jenkins launched a stinging attack in the Guardian on the government’s propensity to criminalise various behaviours. His full article “Our addiction to criminalising human behaviour makes a mockery of private responsibility” is worth reading, but here are a few key extracts.
If poisoning your foetus with alcohol is a crime, why is it not a crime to abort it? If alcoholism in pregnancy is “attempted manslaughter”, as a QC told the court of appeal … surely abortion is murder.
We need a philosopher — as Raymond Chandler would say — and we need one fast.
The advance of criminal law into these recesses of private morality is ominous.
Now we have the proposed crime of “emotional violence” – including “reducing self-esteem” by calling someone fat – showing there is no limit to the law’s ambition. To be against jailing people for such offences is not to condone what they do, merely to apply some sense of proportion.
Oxford’s Jonathan Glover sought to apply moral precepts to everyday life in his excellent book, Causing Death and Saving Lives. He quoted from Karamazov the brother’s euphoric cry that “everyone is responsible for everyone else and in every way”. It was, he said, heavy with “nightmare implication”.
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Such paternalism – or perhaps control freakery – led the last Labour government to create 4,300 new offences through 50 criminal justice acts. It led Tony Blair to justify war against one state after another, for its own good.
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Glover asked only that we “work out what things are most important and then try to see where we ourselves have a contribution to make” … There must be some room left for private responsibility.
Indeed there must be some room — I would say a lot of room — for personal responsibility. We are too good at insisting that someone — anyone — is to blame except us. It is never our fault or our responsibility.
This has to stop. We have to start taking responsibility for our own actions. Just as we cannot be responsible for other people’s emotional reactions, we cannot expect them to be responsible for things which are down to us to attend to.
Guys & gals … We have to grow up and take responsibility for ourselves, and tell our politicians to get out the way.
I entirely agree. I wrote an article a few years ago which was published by my then law firm, which may possibly be of interest. This is what it said:
What is legislation for?
There is a great liberal tradition in the law. Alternatively, given one’s political standpoint, there is a dangerously libertarian tradition in the law. At any rate, there it always has been and it has always made two major assumptions.
The first is that the liberty of the citizen to do as he or she wishes is paramount. Parliament may limit it, but if it does so it must do so only for absolutely compelling reasons.
Secondly, if Parliament does limit our liberty it must do so in the clearest possible language, so that the citizen always knows unambiguously what can and what cannot be done. To put it another way, if a citizen’s freedom of action is to be curtailed, or liberty threatened, no less than absolute unambiguity is appropriate.
The first principle was abandoned long ago. Perhaps inevitably, given the complexity of modern life, we are highly regulated in almost everything we do. (Curiously, the United States, where the libertarian rhetoric survives and flourishes as it does not here, is even more regulated than Britain.)
The abandonment of the second principle is more recent and perhaps more sinister. It suggests that the Government believes that legislation has a function beyond telling us precisely what we can and cannot do, and what the consequences are of each. There is a feeling that we are instead being encouraged to comply with what leading articles in the Guardian used to call “the mood music”.
Here are three recent examples.
A junior minister was on television defending the Government’s proposals to criminalise smacking children. The interviewer suggested that unless the chastisement was serious – in which case it was caught by existing legislation – it was unlikely in most cases that there would be proper evidence, and therefore convictions. That was not the point, the junior minister said. If there were no prosecutions at all that would be a cause for congratulation, not the reverse; the point was not to obtain convictions but to “send a very clear message” to parents.
Here is a second example. In the Serious Organised Crime and Police Bill, the Government is introducing the new offence of stirring up religious hatred. This will parallel the existing offence, under the Public Order Act 1986, of stirring up racial hatred. There are many problems with these proposals, which have already provoked serious concern on the part of writers’ organisations and others in the media. They are beyond the scope of this article. For our purposes, bearing in mind the considerable difficulty of working out what “stirring up religious hatred” actually means, consider the following extract from the Home Office’s website:
“There have not been a large number of prosecutions under incitement to racial hatred. In the past 3 years 84 cases have been referred to the CPS, of which 4 proceeded to prosecution, of which 2 resulted in convictions. However, the offence has provided a powerful response and a strong deterrent to the conduct of racist and other extremist organisations and individuals”.
In other words, 97.6% of the complaints under the racial-hatred provisions of the Public Order Act during the past three years failed to result in a conviction. 95% got nowhere at all. It is a fair bet that the proportion for the religious equivalent would be even higher. The Government seems quite content with this. The point is apparently not to prosecute people who behave criminally but to provide a “powerful response”.
It is indeed powerful. We can assume that the protestors who closed the play Behzti in Birmingham, and those who protested in their thousands to the BBC about the screening of Jerry Springer: the Opera, felt encouraged to feel religiously insulted because of the Government’s bill, irrespective of what it actually said. From that point of view its vagueness is an advantage.
And here is a third example. This derives not from national legislation but from Brussels, and may be closer to home for our readers.
Article 81(1) of the treaty of Rome outlaws anti-competitive agreements and arrangements. Article 81(3) provides a structure by which the simple wording of Article 81(1) may be qualified, particularly by Block Exemptions. These have tended in the past to say that, notwithstanding the simple wording of the Treaty, and subject to certain overriding conditions, certain “white” clauses are acceptable, certain “grey” clauses are acceptable in certain circumstances, and other “black” clauses are never acceptable. In any event, the Commission would always provide clarification where things were still unclear.
This was not ideal, because parties often felt forced to adopt white clauses that might not be commercially appropriate, because they knew that they would then be safe. Recently, however – see for instance the new Technology Transfer Block Exemption – that guarantee of safety has been removed. The Commission has largely abandoned the use of grey and white clauses. There are still black clauses, but even with these there is no certainty. For one thing, there are sometimes suggestions in Block Exemptions that they are not invariably black. For another, in an attempt to avoid the previous perceived inflexibility, the Commission has resorted to language that is more philosophical than clear.
And this is all against the background of market-share tests. This is not the place to address these; suffice to say that they themselves are fraught with uncertainty.
The responsibility however is on the parties to make their minds up. With the effect of making this more difficult, the Commission has said that it will no longer rule – or, at any rate, officially rule – on difficult cases.
The Commission’s approach is to suggest the philosophy – the strategy that it intends to be achieved – and leave it to the parties to interpret it, on pain of considerable civil and criminal penalties if they get it wrong. That of course puts a new type of burden on lawyers, since, operating in such a nebulous environment, few companies will want to go ahead without a letter of comfort from their solicitors. And English solicitors, whilst they welcome any burden that a client may thrust at them, are traditionally uneasy with philosophy – let alone mood music.
This is legislation, but not as we know it.
Thanks, Robin. Yes I agree. Somehow (and I have no idea how) we need to get the two principles re-established as sacrosanct. It reminds me of the old description of the models:
English Model – All is permitted, except that which is forbidden.
German Model – All is forbidden, except that which is permitted.
Russian Model – All is forbidden, including that which is permitted.
French Model – All is permitted, including that which is forbidden.