Send in the clowns: Britain’s bizarre new laws
The hyperregulation of everyday life – from clown shows to live-music events to sipping wine in a park – speaks to a profound reorganisation of the relationship between state and society.
The erosion of civic freedoms in Britain over the past 10 years is perhaps best viewed through the eyes of a clown.
First, all the key aspects of the clown’s act have been deemed a health-and-safety risk: banned activities include blowing bubbles (in case someone slips), wearing giant shoes (in case the clown slips), and twisting balloons into animal shapes (in case children have latex allergies). Second, under the Licensing Act 2003, clowns have to get an ‘entertainment licence’ for each local authority in which they perform, which means a lengthy form delivered to several public bodies with a fee. Finally, of course, clowns work with children, which makes them prime suspects in terms of paedophilia and general dodginess, and to allay these suspicions they must wear their Criminal Records Bureau check on their sleeves (or keep it stashed in a pocket).
Ten years of regulation is summed up on the website of ‘Bimbo the magical clown’, who performs tricks with stuffed toys. Next to booking information, Bimbo disclaims in bold red text, bordered by stars: ‘Full Public Liability Insurance’; ‘Health & Safety Risk & Control [of substances hazardous to health]’; ‘Assessments available for viewing’; ‘CRB checked’.
The regulation of clowns indicates an important feature of today’s state regulation: that it targets the most innocuous and innocent parts of life. In the past, state regulation would tend to be targeted at political agitators, criminals or other groups that were (rightly or wrongly) held to be ‘threatening public order and the way of life of decent respectable people’, etc etc. Now it seems to be the most normal and everyday things that are subjected to the greatest degree of regulation.
Over the past 10 years, activities such as dealing drugs or robbery have not become significantly more difficult. But it has become extremely difficult to hold a boys’ football match (requiring CRB checks and child protection courses for the coaches); to hold a concert in a village hall (requires a ‘premises licence’ for ‘regulated entertainment’); to invite an African artist to give a talk at your art gallery (requires that you register with the Home Office as a ‘licensed sponsor’ and issue a ‘certificate of sponsorship’ to your visitor); or to hold a charity cake stall (requires a Public Liabilities Insurance Certificate and in some cases a Portable Appliance Test Certificate).
Philip Johnston’s book, Bad Laws, charts this new breed of regulation which ‘circumscribes or prohibits what was once a perfectly acceptable form of behaviour’. Johnston recounts how the Licensing Act 2003 has meant the cancellation of such threats to public order as: a poetry reading in an Oxfam bookshop, elderly gentlemen singing folk songs in a country pub, a well-dressing festival in a Derbyshire village, and dinner events in an east Sussex village hall. There is a peculiar obtrusiveness and vindictiveness about contemporary laws; they get in the way of everyday activities to no obvious end.
As with other books about petty rules and red tape (How to Label a Goat by Ross Clark or The Bully State by Brian Montieth), Bad Laws was written in response to New Labour’s over-regulation. Now – when the Liberal-Conservative coalition government promises to ‘roll back the state’ and ‘reduce the weight of government imposition on citizens’ – it might be considered out of date. In fact, such books are more crucial than ever. Unless we can understand the causes and dynamics of this strange new form of state regulation, and build a strong and conscious civil liberties movement, the new regime will merely extend the invasive regulations of the old.
The state takeover of civic life under New Labour
In retrospect, New Labour’s laws appear as a systematic project of state intrusion into civic life, as year upon year an increasing number of everyday activities was caught in the legislative net. The Protection from Harassment Act 1997 allowed the prosecution of everyone from arguing couples to political protesters; the Police Act 1997 set up the Criminal Records Bureau to check out any adult who worked or volunteered with children. The Crime and Disorder Act 1998 created anti-social behaviour orders, which meant that individuals could be barred from having noisy sex, opening the door in their underwear or playing football in the street.
From 2000 onwards – when the gloss of Cool Britannia had worn off – the hyperregulatory machine really cranked into action. The Terrorism Act 2000 introduced a broad definition of terrorism which could be used against political demonstrations; the Race Relations Act 2001 created an obligation on schools to report ‘racist incidents’, including one kid calling another ‘chocolate bar’; the Criminal Justice and Police Act 2001 created zones in which the police could confiscate bottles of wine from picnickers and also made it an offence to protest outside somebody’s home. The Sexual Offences Act 2003 made it an offence to get somebody drunk, and criminalised teenage canoodling; the Anti-Social Behaviour Act 2003 created dispersal zones in which groups could be broken up by the police, and also introduced on-the-spot fines for graffiti, noise and truancy. The Licensing Act 2003 created the aforementioned regulation of clowns, poetry-reading and pub singalongs. The Hunting Act 2004 banned foxhunting with dogs; the Health Act 2006 banned smoking in public spaces.
The Protection of Vulnerable Groups Act 2006 meant that the nine million adults who work or volunteer with children would have to go on a database. In the same year, the Identity Cards Act introduced ID cards; the Violent Crime Reduction Act provided for ‘drinking banning orders’; and the Racial and Religious Hatred Act threatened to criminalise risqué jokes. And so it went on…until Labour finished with a flurry of regulations targeting lapdancing clubs (which under the Policing and Crime Act 2009 require a ‘sex licence’), football supporters (subjected to ‘football banning orders’), and drinks offers such as ‘free drinks for the ladies’ (banned under the Mandatory Drinking Code 2010).
There are few areas of life that have not been touched. From football clubs to pubs, foxhunts to poetry readings, circuses to the backs of the school bike sheds, playgrounds to political protests – everyday activities are either now banned or highly regulated.
Johnston’s documentation of these laws is thorough and persuasive. If we look deeper, to institutional structures, the picture is scarier still. Alongside these laws, there has also been a rapid growth in behaviour-policing institutions, which reach into every local club or group and exert a formidable coercive power over people’s everyday lives.
Take the issue of child protection, for instance. Quite aside from the vetting database, a Leviathan of a child protection bureaucracy has spread throughout sports clubs, churches and charities, and dictates everyday behaviour to a minute degree. Every church parish or sports group has a child protection officer, whose main role is to vet the other adults and ensure their compliance with the latest guidance on ‘safe behaviour’. Guidance regulates everything from ‘safe travel to matches’ (there should be two CRB-checked adults in the car) to ‘safe photography’ (photography is banned or strictly regulated), to ‘safe touch’ (children should either not be touched at all, or only in a particular way or on a particular part of the body).
One volunteer, Brian Denman, who runs a Club at Brentwood Baptist Church, describes how his tiny group is circumscribed by these rules: ‘The club meets on Mondays with a membership of about 12, half boys and half girls in the 11-14 age range, and we play games, table tennis, pool, PlayStation, and have short talks. We have four leaders but when our two lady leaders are not available we cannot meet, as we have girls and no female leader on site.’ So 14 people cannot meet in a church hall to play table-tennis, because it is deemed ‘unsafe’ for two (CRB-checked) men to be in charge of a group containing girls…
Similar institutional structures have built up around issues such as bullying, health and safety, immigration, and alcohol or entertainment licensing. The result is that, in order to carry out a civic activity, one must in effect have appointed somebody to act as a state agent. Within every civic group – every nursery, church group, jazz club, football club or art gallery – there must be at least one nominated bureaucrat, whose allegiance is not primarily to the group but to the state. The role of the appointed official is to monitor members of the group, report them for misdemeanours, and instruct them in the latest guidance for how they should behave.
As well as child-protection officers, there are new officials including: health-and-safety officers (responsible for putting up patronising signs and banning innocuous activities); ‘authorising officers’ (responsible for monitoring that African visitor to the art gallery and reporting them to the UK Border Agency for any ‘suspicious behaviour’); ‘designated premises supervisor’ (with responsibilities under the Licensing Act 2003 for regulating behaviour in a pub or music club, including CRB-checking staff or installing CCTV cameras). Some groups lump together different responsibilities under the revealing title of ‘compliance officer’.
State and society: shifting relations
Together, these new institutional structures have transformed the essential relationship between state and society. A liberal-democratic state such as Britain worked on the assumption that, in general, everything was permitted unless it was explicitly banned, and the justification for banning an activity was primarily that it caused harm to others. Now this assumption has reversed: it is assumed that everything is banned, unless explicitly permitted. It is assumed that all unmonitored, unregulated social life is illegitimate and dangerous, a mere breeding ground for terrorists, paedophilia and crime. Only if we are on the official database, have a CRB check or are obeying the official guidance are we deemed ‘safe’. To do something freely, without going through official procedures (even something so simple as taking a photograph, holding a cake stall, or running a table-tennis club) is to invite catastrophe.
Hence the peculiar intensity of regulation visited on the most ordinary of activities. Johnston notes that the Licensing Act 2003 views live music as an inherent public-order problem, with the Association of Chief Police Officers stating that ‘Live music always acts as a magnet in whatever community it is being played. It brings people from outside that community and others who come and having no connection locally behave in a way that is inappropriate, criminal and disorderly.’ When 30 pianos were set up in the streets of London in 2008, each piano required planning permission, a temporary events licence and an appointed ‘minder’. The targeting of live music far outweighs that of pre-recorded music. Pubs do not need such costly licenses to blast out pre-recorded heavy metal or for a wide-screen TV playing a football match at full volume. The only possible explanation for this distinction is that spontaneous social life is considered a public-order problem, while pre-recorded or commercial life is not.
A similar logic can be seen everywhere. In How to Label a Goat, Ross Clarke observes that while airport security confiscates the tiniest nail file, you can still buy duty free bottles that could become a far deadlier weapon. The item in the handbag is risky; the shop-brought product safe. Clark also recounts how some care homes ban visitors from bringing home-made cakes for residents’ birthdays. The commercially produced cake is deemed safe, while the cake cooked up in somebody’s kitchen is a health-and-safety issue. This makes no practical sense – it is almost impossible to get food poisoning from a cake – and can only be understood in terms of an attitude to free social life.
Health-and-safety regulations often target spontaneous community activities, while ignoring much more serious objective risks. One recent example of this was a Brighton resident who was ordered to take down Christmas lights he had strung up on his council flat. As the head of the tenants association noted, the council had blissfully ignored real risks in the block, such as two-foot icicles hanging over balconies and chunks of concrete falling off the building. Residents’ ‘doormats or twinkly lights’ are treated as far riskier than falling concrete (1).
Now we are beginning to understand the peculiar degree of regulation visited upon unhappy clowns. Yet there is something else: British clowns have fared much worse than their counterparts in Europe. The degree of regulation of everyday life in Britain is beyond anything seen in other countries – and indeed, French, Spanish or Germans are equally flummoxed by our surveillance and petty rules. Why Britain?
A very British hyperregulation
Johnston sees ‘bad laws’ as fundamentally inimical to the British tradition of liberty. Indeed, with its constitutional (rather than absolutist) history, British law accorded a much greater independence to civic life than did many Continental states. Napoleonic law is much more prescriptive: the central state arches over society, with the president a perfect incarnation of le peuple and la République and so accorded an unusual power over them. Yet it is now Britain, with its liberal, common-law tradition, that astounds the French. Articles in French newspapers wonder at the proliferation of CCTV cameras on every British street corner, or the fact that British citizens are always asked to report each other for minor misdemeanours.
The degree of regulation on these isles is founded in a certain British tradition, however: the infinite inventiveness of the British elite when it comes to institution-building.
While the French elite approached state-building as an art, creating elite institutions to radiate their authority throughout society, the British elite created a phenomenal network of political institutions that ran like a dense web from parliament down to every town or borough. The British Tory and Labour parties are political parties without compare. In no other country was the labour movement incorporated into the party system (and therefore government and state system) to the same degree as Britain, with a line from the Labour leadership down to every smoky Labour club in northern factory towns. The Conservatives, as the party of the middle and upper classes, had a similarly intricate network, running through key establishment institutions such as the civil service and Church of England (‘the Tory Party at prayer’), and down through Conservative Associations in Middle England villages, which met for dinners and garden parties and tea.
While the French state arched over society and has periodically broken down, with the people seizing the streets of Paris or the universities, the British state was firmly embedded in social life and experienced a remarkable degree of stability and continuity. Britain’s class-based parties created the conditions for collaboration, where each party did ‘what was necessary for the country’ at different points: the Tories took on the welfare state in the 1950s just as New Labour took on Thatcher’s free-market reforms.
The end of class-based politics in the 1990s arguably rocked the British state more than any other: the most phenomenally rooted state had now became the most rootless. In France, the central state bureaucracy has a strong presence separate from political parties, with a structure from the civil service elite down to the mayor or prefecture in every town or region, which flies the tricolour and ensures that correct procedure is maintained in matters such as the changing of windows or the filing of tax. The mundane business of state administration is accorded with an incredible grandeur because it is administration ‘for the République’. In a Le Monde feature (23 October) about the elite École Nationale de l’Administration, its cohort of 24- and 25-year-olds professed their sincere desire to spend the next 40 years in honourable state service, stamping forms in all the right places. In Britain, local government was based more on the party system, which after the end of class-based politics was left without ethos or foundation.
So the British elite busily set about building new points of contact between the state and the public. When the Labour clubs closed, civic social life was what remained: the social life that was left and was real was that of sports clubs, charities, concerts, pubs, village halls, churches…. The state latched on to these social determinations – the only ones left – and made them the focus for a new generation of regulation.
This regulation is not positive in essence – expressing the needs and desires of those sports clubs, charities or pubs – but instead is entirely negative, based on the risk management of free social life. Johnston’s ‘bad laws’ are entirely disconnected from the public: this is regulation that embodies, in a pure form, the worldview of the bureaucratic elite. The peculiar uselessness of these laws is because they don’t seek a public end, but merely project the worldview of a bureaucracy, with its worship of rules and procedures and hostility towards spontaneity in all forms.
These regulations are directed against all social classes and strata of society. Victorian civic regulation was targeted at the so-called ‘dangerous classes’ or ‘residuum’, with measures such as the banning of dogfighting or prohibitions of ‘hawking, dancing, spitting, trading, music’ pasted up as bylaws in public parks. It is significant that the Victorians did not ban foxhunting, which as an elite pursuit was seen as more ‘civilised’; it is equally significant that New Labour did. Social hierarchy is subsumed by the standoff between the bureaucracy and society. The authority of the child-protection adviser or health-and-safety officer overrides all educational, religious, political or cultural authority. No class is safe: the smoking ban affected the private clubs of St James’ just as much as the pubs of Huddersfield. Lords and Bishops line up with East End youth workers to be subjected to CRB checks or the latest child protection rules. With the hyperregulatory state, the bureaucracy has become a class for itself, set equally against Middle England and the old ruling classes as against the working class.
In summary, then, the dynamics of state regulation have been driven by deep-rooted causes in British social life, rather than by the peculiarly controlling nature of the New Labour elite. We should bear this in mind when evaluating the new coalition government’s promises to roll back the state.
The Big Society and the extension of hyperregulation
There is no doubt that members of the coalition government have sincerely held liberal convictions and want to reverse the worst encroachments and absurdities committed under New Labour. The components of the Freedom Bill – the review of the vetting database, the abolition of ID cards, the abolition of the child database Contact Point, limitations on CCTV cameras – are important and welcome. But there are contradictory forces at play, and alongside these reversals we can already see an even deeper extension of the state into everyday life.
First, it is important to note that the ‘Big Society’ concept devised by David Cameron is not in essence liberal at all, but is about the more enthusiastic participation of people in state structures. In his speech announcing the Big Society, Cameron said something very significant: ‘We shouldn’t be naive enough to think that if the government rolls back and does less, then miraculously society will spring up and do more. The truth is that we need a government that actually helps to build up the Big Society.’ But state ‘roll back’ is, actually, what free civil society should be about; civil society should be those areas of life (churches, clubs, parks) independent from the state, which are (except in the event of criminal incident) self-regulating and in which we encounter neither politicians nor officialdom. The ‘Big Society’, by contrast, is politicians’ presentation back to society of an image of itself.
The flagship Big Society proposals are basically unguarded state populism – and it is an indication that the Soviet Union has faded from memory that such things can be proposed without irony. Big Society proposals include: Big Society community activists, a Big Society bank, a Big Society Day (which will be a bank holiday), and Big Society ‘citizen service’ for 16-year olds. (There is so far no Big Society anthem or flag, or Big Society holiday camps, but perhaps these are in the pipeline.)
More significant, perhaps, is the new legislation introduced with less fanfare, around licensing, immigration and health, which extends and firms up systems for the regulation of social life. The coalition’s licensing reforms – whipped out for a swift consultation over August – will give enormous powers to local authority licensing boards to refuse alcohol or entertainment licences, or to set harsh conditions, as well as making it significantly harder to apply for a one-off licence to cover events such as a circus or village fete. Importantly, the new government planned to switch licensing from the Department of Culture, Media and Sport to the Home Office, thus sending the direct signal that they consider this to be an issue not of leisure but of public order.
The coalition’s immigration cap, meanwhile, hardens and extends the essential elements of New Labour’s points-based immigration system (PBIS). All the irrational and controlling provisions of the PBIS remain, including the requirement for every art gallery to register as a ‘licensed sponsor’, to issue a ‘certificate of sponsorship’ and monitor their visitor. The centrally set ‘cap’ on different kinds of immigrants is another level of bureaucracy laid over the top (a cap which bears no relationship to the needs of universities or businesses, as members of these organisations are loudly protesting).
Meanwhile, the new Health White Paper includes profound shifts towards the politicisation of health, including enlisting businesses and schools in the task of telling people not to drink so much, or what to eat, or how much exercise to do. Again, there is a significant shift of responsibilities, shifting key responsibility for public health from the National Health Service to local authorities.
Finally, the new Localism Bill will give councils more powers to evict travellers from land, and also to target people who construct ‘hidden homes’ (for example, out of bales of straw), and create to a national database of people guilty of ‘planning offences’.
The coalition government seems set to extend the coercive powers of local authorities. In their origin local authorities, led by Chamberlain’s Birmingham, focused on the delivery of public services – the cleaning of streets, maintenance of streetlights, collection of rubbish and sewage systems, and so on. Now they focus more on policing behaviour: rather than clean the streets they are more interested in handing out fines for dropped cigarettes; rather than collect rubbish they want to invest in surveillance cameras and other forms of policing of residents’ refuse. A addressed to local councils: ‘What powers do you want? What more do you want to be able to do?’ It was in this spirit that Cameron supported Manchester councils’ proposal for a minimum alcohol price. This is presented as new but is actually classic New Labour. One of the defining features of New Labour’s ‘bad laws’ is that they gave open-ended powers to local agents of the state: power to issue ASBOS, to declare no-dog zones, no-leafleting zones, alcohol control zones, dispersal zones…. Plus ça change.
Let us not wait for Liberation Day
There is no doubt that the new government offers real opportunities for certain coercive laws to be reversed. But the reasons for the extension of state power are deep, and we can see already the same hyperregulatory tendencies showing forth in the Lib-Con coalition.
We should remember that old truth: freedom springs not from the grace or good will of leaders, but from the pressure and desires of citizens. Thanks to public pressure, liberal-minded politicians have supported coercive laws, and authoritarian individuals have been pressured into supporting liberal laws.
The radical potential in Britain lies not in Nick Clegg et al, but in the growing restiveness of the British public. The state bureaucracy’s war on civil society has forged its equal and opposite reaction: a populist consciousness of freedom that runs across all classes. The front cover of Johnston’s book promises ‘an explosive analysis of Britain’s petty rules, health-and-safety lunacies and madcap laws’ – a colourful language that has entered common parlance, with publications such as the Daily Mail targeting ‘meddling officials’ who ‘interfere with law-abiding citizens going about their business’, etc. The regulation of everyday life has risen to popular consciousness, with unlikely rebels ranging from vicars to flower arrangers refusing to be vetted or to go along with rules. It is this growing public restiveness, and not the fine words of politicians, that provides some real possibilities in Britain today.
Because if we look at the coalition through the eyes of a clown, there has been no change for the better, only more regulation over this most innocent of activities. Unless we build a strong movement for civil liberties in Britain, one thing is for sure: in 10 years’ time, the freedom talk of the Big Society will have meant the further extension of the state over civic life. If we want a truly independent civic life – parks, pubs, clubs and circuses outside of bureaucratic control – this will not be delivered from above in the blast of a ‘Freedom Bill’, but only won, bit by bit, from below.