Analysis

Banning things is ‘curse of our age’

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Brits seem to want to ban everything nowadays

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While recent amendments to the law on defamation have signalled a clear nod to the right of free speech, a defining feature of UK culture is a knee-jerk intolerance to controversial opinions — and calls to ban these controversial opinions, whatever they may be.

There is a student-led trend towards banning speakers, statues and songs that confront — and often challenge — political correctness in universities.

Remember the ‘Blurred Lines’ controversy? Now there’s talk that a ban on veils in schools and in the courts is on the cards — a reform David Cameron has publicly backed. And who could forget the 575,000 people that have called for eccentric Republican candidate Donald Trump to be banned from entering the UK, after he made a raft of anti-Islamic comments.

Brits can’t help but get offended. And this isn’t just an ideology — it has real implications in law.

Aside from institution-specific bans and campaigns, yesterday politicians allocated three hours of their time to debating the Donald Trump petition in Westminster Hall. He was called a “wazzock”, a “dangerous fool” and “poisonous” by MPs clearly in the mood for a vent — but ultimately no decision was reached on the entry ban. The decision is, as Garden Court Chambers’ barrister Colin Yeo explains below, one for the Home Secretary and no one else.

In the wake of this Donald Trump fiasco, the utility of this ban-heavy culture has been pushed into the spotlight — and torn apart — once again.

In 2011, top lawyer and legal commentator David Allen Green called for a ban on banning things, attacking this prohibition-hysteria as futile and even counterproductive. He explained:

[T]o ‘ban’ something is not actually to eliminate it, whatever ‘it’ is. The ‘it’ is not extinguished; the ‘it’ may just be attended by some different consequences. The legalistic prose in a solemn document is not some magic spell which banishes horrors by invocation. To say there should be a law against a thing is often no more than saying there should be a spell against it.

Bans can in fact, according to Green, create new problems. He continued:

In its correct legal form, a prohibition establishes certain legal and coercive consequences should the prohibited act occur: a court order for damages, say, or a prison sentence. Being banned does not thereby stop the thing from happening. It just means that the legal system will be engaged in a way it otherwise would not be.

Today we caught up with Green to see if his feelings have changed at all in the last five years — and they haven’t. He told Legal Cheek:

The political addiction to ‘banning’ things is a curse of our age. But law is not magic. All because something is ‘banned’ the undesirable thing is not, at a stroke, somehow extinguished. It just means that when it happens, there are different legal consequences than before. These consequences must be thought through, especially when imposing criminal liability on real people.

He continued:

There is a place for prohibitions but they also can make things worse.

In the context of the Donald Trump debate, the likes of Piers Morgan and Paul Flynn MP have rallied up support for Green’s sentiment, the former saying he is “embarrassed” by Britain’s handling of the petition.

Regardless, the Donald Trump e-petition is still the most popular on parliament’s website — the second most popular calling for UK borders to be closed and for a ban on immigration.