Original URL: http://www.theregister.co.uk/2009/05/24/breaking_the_law/

If they can break the law, why can't we?

Establishment bad behaviour weakens rule of law

By Jane Fae Ozimek

Posted in Government, 24th May 2009 06:02 GMT

Comment Lies, spin and establishment contempt for the rules by which the rest of the population are meant to live, are nothing new.

It is just possible, however, that the last few weeks have been a tipping point, with large swathes of the population now questioning just why they should adhere to the letter of the law when others don’t. More seriously, if this resentment spills over into active disobedience, then for a while at least, the British population may become just that bit less governable – with all the implications that may have for added costs of law enforcement.

It begins with spin. Over the last year, The Register may have given the impression that it is less than confident in the views expressed by the Secretary of State for Culture, Media and Sport, Andy Burnham. One very definite flash point was his observation that it would not be impossible that "before you download something there is a symbol or wording which tells you what's in that content". He added: "It doesn't seem over-burdensome for these to be regulated".

For this we have taken him to task – frequently – interpreting his words as indication that he thinks that it is possible to categorise the billions of pages on the internet in a way that is even remotely akin to the classification systems applied to film. That, in turn, has led to some lively debate with his departmental press office, who will neither confirm nor deny such an interpretation.

As their spokesman puts it: "Those are his words. How you interpret them is up to you". We are not so sure about that. This is a tactic that politicians regularly adopt in public debate, setting out a proposition that is open to a range of interpretations – and then steadfastly refusing to be pinned down on what they actually mean.

It is arguably disrespectful to the public: Worse, it introduces a sense that it is perfectly acceptable to obfuscate and duck responsibility for personal utterances – a trend that is exacerbated in everyday life by the widespread use of automated customer service centres and service staff not allowed to deviate from their pop-up script.

A far more dangerous piece of rhetoric was let loose on the British public by Deputy Prime Minister, and trained lawyer, Harriet Harman MP. In response to question by Andrew Marr in his politics programme on 1 March, she said of the controversial pension awarded to Fred Goodwin, former chief executive at Royal Bank of Scotland: "It might be enforceable in a court of law, this contract, but it is not enforceable in the court of public opinion and that is where the government steps in".

That phrase – the "court of public opinion" - may eventually be her political epitaph. Whilst it plays well to the gallery and is qualified by the caveat that "this is where the government steps in", it introduces a dangerous expectation of populism to the political debate, as well as a challenge to any and every slightly unpopular measure the government wishes to introduce.

What, for instance, has the court of public opinion to say on issues such as ID cards? The policing of photography? Phorm? Not to mention MP’s expenses and the recently discovered practice of "flipping". What, too, has it to say about those individuals who have reacted to the expenses row by hurling bricks through the window of their local MP's surgery?

It is, however, in the area of policing that on-going and deep damage is in the process of being done to respect for the law. This week we reported the case of Colin Port, Chief Constable of Avon and Somerset Police, who has gone public with his own populist rhetoric, proclaiming his willingness to go to prison before obeying a court order. Our own investigation suggests the matter is more complex than the simplistic "court sides with paedophile" spin provided by the Sun.

Yet even if it were not, there is a very serious issue of principle a stake here. Legal academics have long debated the point at which it is "right" to disobey the law. The usual response relates to the underlying "justness" of the law and whether or not an effective process exists whereby laws can be changed to reflect changing views. The issue is put most succinctly in "A Man for All Seasons" by Robert Bolt, in what has come to be regarded as the quintessential argument against the view that one ought to "cut a great road through the law to get after the Devil".

To that, Sir Thomas More, the hero of the play, responds: "And when the last law was down, and the Devil turned 'round on you, where would you hide... the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down... do you really think you could stand upright in the winds that would blow then?"

If the Chief Constable has been outspoken in his defiance of the law, ordinary police officers have been bending it, occasionally breaking it, in ways that may evoke their own backlash. Breaking the law is always to be condemned, and wherever possible, should be dealt with through the legal system.

One problem in recent years has been a series of incidents, in which individual police officers appear to have committed sometimes serious offences – and no action has been taken: the apparent assault on an innocent passer-by at the G20 demonstration; the shooting of a Brazilian electrician (following a number of firearms incidents in which there is a perception in some quarters that the police have shot too soon); or the simple unlawful removal of equipment from photographers.

To be fair, such events are rare and newsworthy because they are rare. What is far more common is the way in which the law is bent for outwardly benign purposes. Many police forces now set up "knife arches" as part of their drive against knife crime. They have no legal power to compel an individual to walk through them, yet the Met has indicated that refusal to walk through an arch when asked to do so by an officer "may" be grounds for a search. In other words, the police have no explicit power to compel an individual to walk through an arch – if parliament had wished to grant that power, it probably would have – but creative interpretation of the law has given it to them all the same.

Directly related to this, according to Lib Dem MP David Howarth, is a dangerous disrespect by the police for democratic forms of expression. Speaking to El Reg, he said: "Police now seem to see their job as disrupting and preventing protest as though protest itself were illegitimate. When we reach that point, it is impossible to police in a democratic way."

One result of this attitude, which looks on occasion as though it is sanctioned at senior level, has been a rash of pundits tweaking the noses of the police in very public fashion. Comedian Mark Thomas responded to an unlawful stop and search by taking the matter to the Police Complaints Commission, and subsequently by expressing his intention to take out a private prosecution. His publicly expressed view was that if the police waste his time, he will certainly waste theirs.

A week or so back, Daily Mail columnist Peter Hitchens wrote of his own encounter with the police. He took down details of a police vehicle that appeared to be illegally parked. Moments later, he was accosted by a police officer who demanded his name and an explanation. He responded by asking whether the officer had the legal power to do this, at which point the pc claimed he had the right to carry out a search under Section 44 of the Terrorism Act: however, he wouldn’t do that if he could just write down a description.

(This is a requirement of the current police bureaucracy, that wherever possible, stops should result in a form filled and a database entry detailing who was stopped and their ethnicity).

Sadly, this incident drew to a close when a passer-by intervened and explained to the policeman just who he was talking to. The net effect of such incidents, and the fact that well-known and reputable columnists from both sides of the political spectrum will now write unfavourably about their encounters with the law, whilst providing sufficient detail to turn large swathes of the population into bar-room lawyers, is likely to be corrosive. It still takes a certain amount of chutzpah to stand up to a police officer in a public place. However, if our postbag is anything to go by, there is a growing segment of the public who feel both cross enough and empowered enough to do so – to argue back when some official states baldly that "it’s the law".

This effect has been multiplied – perhaps it should not have been – by the current furore over parliamentary expenses. The over-riding mood is one of public anger laced with a spirit of vengefulness. To a degree, this is misplaced. Part of the problem that this row illustrates is a British unwillingness to grapple directly with issues of pay. In many industries, headline wages have historically been suppressed in return for "understandings" about what workers may be allowed instead. Over the years, these arrangements – known as "Spanish Practices" – have been eliminated, hanging on only in some of the upper reaches of the establishment.

Claims that most workers would be sacked at once for bending the rules in the way that MPs appear to have are likely misplaced, and if the public reflected more quietly on the issues, it is probable they would not wish their own employers to pursue such a draconian policy either. If you are alleged to have fiddled your expenses, you would expect a full investigation before you were fired. You would also hope for a warning for a first offence in most businesses, rather than summary dismissal.

Nonetheless, this affair is bound to filter into attitudes towards compliance with the law. After all, why be quite so accurate in reporting one’s tax affairs, when it is clear that those who pass the laws think it is beneath them.

Whether this will make a difference in the long run is open to question. There is much media froth at the moment about redefining politics, but we have had such moments before - remember the Social Democrat Alliance passing the 40 per cent mark in opinion polls – and they have passed.

It may depend in part on whether your view of the British people and their history is of essentially law-abiding, solid citizens – or workshy, foot-dragging chancers. There is support for both positions, with a well-based alternative historical tradition – from Robin Hood to the Poll Tax riots - and popular meme (e.g., "Passport to Pimlico") suggesting that we are less law-abiding, less conformist than the authorities would like to hope we are.

At base is the question of whether our consent to be governed, to be policed, has weakened in any way. The answer is almost certainly yes. But it would be unwise for those in authority to respond in an, er, authoritarian manner. Wiser counsel, both in the Police and legal establishment, are well aware that policing with consent is infinitely cheaper and more effective than policing with grudging acceptance – or worse, open defiance.

If we are able to make any predictions at all, it is not that the public will now indulge itself in a crime spree of epic proportions: rather that the collective will to abide by the spirit of the law is now irrevocably weakened and that in future, where a rule can be bent to individual advantage, it is much more likely that it will be. ®