The recently enacted UK Anti-Social Behaviour, Crime and Policing Act embodies a new relation between state and society. This relation has been implicit, developing slowly and inherent in many pieces of legislation, but this law embodies it overtly and completely.
From my conversations with civil servants involved in drafting the powers, it became clear that the underlying idea of the law is that local authorities should be ‘enabled’ to do whatever they want to do. In the consultation process, local authorities were asked: ‘Is there anything that you would want to do that is not covered by these powers?’ That is, they were asked not, ‘what does this allow you to do?’, but ‘is there anything you can’t do?’.
Here we see a new approach to law and to lawmaking: the development of the freedom of action of state officials, as an end in itself.
Historically, it was the freedom of civil society that was promoted as an end in itself: freedom of speech and of association were promoted as goods in themselves, regardless of how people chose to use these freedoms. Now it is the freedom of the state that is developed systematically as a project, and which requires no further justification. The expansion and creation of new powers is seen as good in itself, be it a law-and-order policy or a neighbourhood-renewal strategy.
Increasingly, to solve social problems means to create new powers. The ASB Act includes ‘public-space protection orders’, ‘community-protection notices’, ‘dispersal powers’, as well as new behavioural injunctions and powers of eviction (see ASB Act guide). So – by a strange inversion – it is through giving the state new powers that a community is served, and public space ‘protected’.