For centuries, kings’ coronation oaths included a pledge to serve justice and maintain the laws. Indeed, the English state was unified by law: England formed as a country not through the spread of state administrators, but through the spread of a legal jurisdiction (1). The growth of national courts from the 12th century – overtaking private feudal jurisdictions – was the result of their ability to deliver speedy and fair resolutions to injustices and disputes. England was one country under one law; the authority of the state stood on the fact that it represented the law.
We are now in the unique position where law proper plays a vanishing role in the uses of state power. Officials today seek to escape legal rules specifying the course of action in any particular case; they no longer even claim to be ‘representing the law’.
We see this most clearly with the growth of summary powers to issue ‘orders’. The prime minister recently argued that ‘extremism disruption orders’ were necessary to ‘bring our country together’: for too long, he said, the government had told citizens ‘as long as you obey the law, we will leave you alone’.
Extremism disruption orders would allow for coercion to be exercised outside the application of the law. A person could be prohibited from broadcasting and would have to seek police approval before posting on social media. It would be a crime to violate the order, even if their publishing were entirely anodyne.
This is the latest in a long list of powers to order, including: Football Banning Orders, Dispersal Orders, Control Orders, Anti-Social Behaviour Orders, Community Protection Orders, Public Spaces Protection Orders, Designated Public Place Orders, Eviction Orders, Closure Orders….
In these terms, the state doesn’t specify a rule; it doesn’t lay out a domain of prohibited activity, or specify procedures for the resolution of conflict. Instead, it makes it a crime to disobey the specific order of a specific official. It makes the official’s word in itself the law.
It henceforth becomes a crime to go to a football match (if one has been issued with a football banning order), to stand in a public place (if issued with a dispersal order), to enter one’s own house if that house has been subject to a closure order. The use of coercion loses any systematic basis, but is simply whatever officials find to be expedient in a particular case.
Officials are gaining the power to issue precise on-the-spot directions to individuals. In Newquay the council is issuing buskers with ‘community protection orders’, which can impose certain limits on the busker as the official believes to be necessary. This could be ‘you must not play in the town of Newquay’, or ‘you must not use amplification’, or ‘you must not play for more than an hour in the same spot’. It will then be a crime for that person to violate this specific direction of their musical activity.
Some of these orders go through a court, some do not, but this distinction is not great because the condition being tested is not the relation of this case to a defined body of rules, but rather whether the order meets the conditions under which an order can be made. Normally, a power can be invoked on the basis of authorities’ ‘suspicion’ or ‘belief’ that somebody’s behaviour ‘may lead to’ or ‘may be associated with’ some condition such as ‘harrassment, alarm or distress’; or that the order is necessary ‘in order to prevent’ or ‘reduce the likelihood of’ these things occurring.
The role of the court, then, is not to enforce the law, but to establish the conditions under which officials can make up the law.
This represents a fundamental constitutional shift. AV Dicey argued that the difference between English and French law was not that English law was more lenient, but that it was more predictable: it was defined by the ‘rule of law’ (2). The ‘rule of law’ precluded arbitrary actions on the part of officials. The law specified certain crimes, and anything outside of these specific areas was allowed. If officials were to use their powers in ways unspecified by the law, then it was they who were the criminals: they could be sued for trespass or theft in the ordinary courts.
Indeed, the current disdain for legal principle disrupts the very basis of a modern state. The sociologist Max Weber argued that the ‘calculability of the functioning of the coercive machinery’ is one of the essential conditions for the development of a modern state and market economy (3). Yet now, the rules can be changed overnight: people wake up and there is a new crime.
Suddenly it is a crime to sleep rough on the streets of Hackney, after the council passed a ‘public spaces protection order’ prohibiting this and a host of other activities such as ‘loitering’. This order appears like a revelation: there was no public consultation or prior discussion, and the exact text of the order appears only towards the back of a Hackney council magazine.
Councils including Lincoln have passed public spaces protection orders prohibiting ‘legal highs’; nightclubs and private homes are issued with closure orders on the basis of disorder ‘associated’ with the premises. In other areas, councils have banned the sale of high-strength alcohol or certain brands of alcohol, leading to losses of hundreds of thousands of pounds for small retailers.
Here, somebody has set up a business or purchased stock on the basis of a certain legal state of affairs. Overnight, they find their shop closed because an official has decided that their activities have or might lead to anti-social behaviour in the vicinity.
You might say: they are just legal highs; this person was a nuisance to their neighbours. But this is important. These are legal highs, they are within the domain of permitted activity, so a person sets up a business and invests money. Within weeks, the council declares this activity illegal. Worse, it threatened one shop with a ‘closure order’ before it passed the ban, and issued another shop with a Community Protection Notice before the ban came into force.
The council says that the shop or nightclub is ‘anti-social’ and fostering disorder, but in this case it is the legal high seller who represents the principle of the law, and the council who represents the principle of disorder and arbitrary will.
The enforcement of the law through the prosecution of a criminal returns social life to an axis: it affirms the fundamental principles of the operation of social life. The application of an order disrupts the idea of orderliness: it states that the only rule is the contingent, arbitrary will of officialdom.
These summary orders make it difficult to organise your affairs, because you do not know what you can do and what you cannot. More fundamentally, they make the question of right and wrong entirely contingent and based on arbitrary will.
A raid on a legal high shop or nightclub is not just an infringement against that individual, it is an assault on the whole idea of law in state and society. This is far more disruptive and fostering of chaos than any shop or club ever was.
(1) The French state was unified through administration – through a central state administrator in every region – while the English state was unified much earlier through the development of a common legal system. (The State and the Rule of Law, Blandine Kriegel, Princeton UP, 1995.)
(2) AV Dicey, Introduction to the Study of The Law of the Constitution
(3) Max Weber On Law In Economy and Society, HUP, 1954, p72