Daniel Hannan: Laws must be general, equal and certain. And yes, that applies to lockdown gatherings too.

17 Mar

Lord Hannan of Kingsclere is a Conservative peer, writer and columnist. He was a Conservative MEP from 1999 to 2020, and is now President of the Initiative for Free Trade.

Look, either it’s ok for people to gather in crowds or it’s not. We really can’t work on the basis that it’s wrong for other people to do so, but fine for you and your mates. Laws, as F.A. Hayek put it with admirable economy of phrase, must be general, equal and certain. Yet politicians, police chiefs, BBC presenters and – let’s not dance around the fact – the public at large now want a more or less arbitrary system where the rules are differently enforced depending on whether they share the opinions of the people infracting them.

This shouldn’t need saying, but the virus doesn’t care whether you’re demonstrating against the lockdowns, or for the safety of women, or against a police killing in the United States, or for the restoration of the Brazilian monarchy.

My own view is that many lockdown prohibitions are disproportionate. We know that outdoor transmission of Covid-19 is rare and, as a general principle, we should trust people to use their common sense. I would therefore allow peaceful demonstrations to go ahead. But plenty of good and sincere people disagree with me. Indeed, if the polls are to be believed, most voters want restrictions tightened further.

Fair enough. Where to draw the line between liberty and security is a legitimate argument – and, during an epidemic, an especially difficult one. If you’re in favour of people being allowed to congregate outside, fine. If you’re against it, fine. But if you want bans on sports crowds, weddings and other gatherings, but think that a special case should be made for demonstrators whom you happen to like, then you need to go back to basics and understand what the rule of law means.

When I say “you”, I include all the Labour and Conservative MPs who have spent this week complaining about the application of a law that they themselves passed only last year. I have no doubt that they were genuinely shaken to see images of women at Clapham Common being roughly manhandled. But what did they imagine would happen when they voted to outlaw demonstrations?

There is no dishonour in changing your mind, of course. If MPs were respond to the footage by easing the restrictions on public gatherings, or at least by bringing forward the end of the lockdown to take account of better than expected figures on infections, hospitalisations, fatalities, inoculation take-up and vaccine effectiveness, I would be the first to applaud. But that is not what they are doing, at least not in most cases. They still want people to be banned from attending the funerals of loved ones. But they want the law to be selectively disapplied when, as in the case of the Clapham protest, they sympathise with the demonstrators.

Not that I want to pick on MPs. They are reflecting the prejudices of their constituents. The rule of law – the idea that the rules apply equally to everyone, and that the people in charge shouldn’t get to change them as they go along – does not come naturally to us. Very few societies, in the sweep of history, have tried to apply it, let alone succeeded.

Think of the TV dramas that we watch: Game of Thrones, Narcos, Peaky Blinders. They appeal to a much older, tribal instinct, a desire to take sides. In evolutionary terms, Magna Carta, the American Revolution and “a government of laws not of men” happened an eye-blink ago. Our instincts and intuitions come from a different world, a world in which two completely different sets of rules governed our behaviour – one set for our kin-group, and another for everyone else.

That, in a nutshell, is why people are uninterested in due process when they happen to want a particular outcome. It is why they hold other parties to a very different standard from their own. It is why the first thing they ask, when they see people protesting against lockdowns, or holding a vigil for a murdered woman, is not “what do the rules say?” but “are these my kind of people?”

The rule of law, in many ways, contradicts human nature. We need to appreciate it intellectually, because we struggle to feel it in our bellies. The institutions of a modern state – legislature, judiciary, media, police – must build and maintain the norm through careful and rigorous impartiality.

Last year, that stopped happening, for two reasons. First because, in a panicked response to the disease, MPs passed too many rules. “If you make ten thousand regulations,” as Churchill once put it, “you destroy all respect for the law.”

Second, because, over the summer, the police – cheered on, it must be said, by the organs of Official Britain – subordinated the duty of consistency to the imperatives of identity politics. Having spent months harassing people for walking too slowly, sitting on park benches or chatting to friends, they dropped to their knees when Black Lives Matter protesters took to the streets.

Unsurprisingly, our respect for the law has taken a hit. With each violation of the lockdown rules, the taboo against law-breaking buckles further. The police come to be seen, not as impartial upholders of the law, but as just one more group with an agenda. And the worst of it is that there is no reason to expect these things to end when the lockdown does.

Biden is a conservative – succeeding not because he is old, but because he is old-fashioned

10 Nov

Joe Biden is a conservative. Amid anxious speculation about what kind of a President he will turn out to be, this crucial point has often been overlooked.

For some, the lower-case “c” in conservative will be unsatisfying. But for many American voters it was and is profoundly reassuring.

It would be idle to pretend we can know with precision how far those Republicans who voted for Biden were repelled by the uncouth behaviour of Donald Trump, and how far they were attracted, or reassured, by Biden’s conservative demeanour.

The two motives are not mutually exclusive: for most of these voters, both were in operation.

Trump is a reality TV star who has again and again yielded to his own worst instincts, and for this reason his performances possess a certain horrific authenticity. No one, surely, could behave that badly without being in some way genuine.

Hillary Clinton’s campaign against him in 2016 failed in part because she sounded so hypocritical. For while she claimed to be on the side of ordinary Americans, anyone could see she preferred the company of her billionaire friends in the Hamptons. Her grand liberal condescension was for many voters at least as off-putting as Trump’s unabashed sleaziness.

Biden’s campaign has succeeded, not exactly because he is old, but because he is old-fashioned – a manner which comes more easily and naturally when one has lived for a long time, so his advanced age is not necessarily the drawback which the media assume it to be.

He takes trouble with ordinary Americans: his courtesy and warmth of feeling are authentic, attested by among others the people he got to know on his 8,200 train journeys between Washington and Delaware, during which he travelled a total of over two million miles.

That is a conservative thing to do. He found a routine, a rhythm, which suited him, and he stuck to it. Each night he went home, and he speaks of home with unfeigned emotion.

Loyalty to existing institutions is a conservative characteristic. Biden is loyal to his family and his church, and to a certain idea of his country, expressed in his victory speech:

“I pledge to be a President who seeks not to divide, but to unify, who doesn’t see red states and blue states, but the United States.”

George Washington, President from 1789-97, would have agreed with this. Washington was a gentleman of the 18th century who refused to turn himself into a party politician, and in his Farewell Address delivered this solemn warning to his compatriots:

“I have already intimated to you the danger of Parties in the State, with particular reference to the founding of them on Geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the Spirit of Party, generally…

“The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual: and sooner or later the chief of some prevailing faction more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty…

“It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions…”

Many Americans have feared in recent years that “the spirit of revenge natural to party dissension” would end by tearing the country apart, with each side justifying its excesses by pointing to the excesses of the other.

Biden offers himself as the President who can avert this disaster by governing as an American, and not just as the leader of a faction.

This idea of rising above faction is old-fashioned, but America is an old-fashioned country, with attitudes on such matters as the right to bear arms which are no longer found in Europe.

It is the oldest republic in the world, an eighteenth-century nation with deep roots in the English common law and a proper reverence for Magna Carta, a document more honoured now in Washington than it is in Westminster.

James Madison and the other drafters of the American Constitution did not only look to England. They pored over the history of the Roman Republic as they sought to devise a form of government which would endure.

“If men were angels, no government would be necessary,” Madison wrote in The Federalist Papers, but since men are not angels, “ambition must be made to counteract ambition” by means of a system of checks and balances.

And this is what has happened. The system does not work perfectly – no system can – but neither Trump nor any of his predecessors has attained the despotic power against which Washington delivered his solemn warning.

In March this year (though so much has happened since that it seems longer ago) I brought out a volume called Gimson’s Presidents: Brief Lives from Washington to Trump. 

While writing it, one could not help but notice that many of the presidents were tawdry, third-rate figures, a point from which the undoubted greatness of a handful of them can distract one.

And yet the republic has endured, and has shown a capacity, albeit at sometimes terrible cost, to correct its own most grievous faults.

Biden is already coming under fire from various factionalists on the Left of his own party, who want him to adopt their partisan opinions.

He knew this would happen, so took the precaution of declaring in his victory speech:

“Folks, I’m a proud Democrat, but I will govern as an American President.”

In that speech, he quoted from the Bible, in its best and most traditional version: yet more evidence of his own conservatism, and his determination to appeal to the conservatism of millions of Americans who are fed up with the party-political dogfight, and want a President who will put the national interest first.

During his 36 years in the Senate (1973-2009) Biden generally sought to work with Republicans, rather than pick fights with them.

He will now draw on that experience. He is not a man of brilliant intellectual gifts – few presidents are – and he is also a dull speaker, who if anything will sound duller as he becomes better known.

But unlike Trump, who in 2016 reaped the electoral reward of being an angry outsider, Biden is trusted in Washington, knows who everyone is, is supported by a tried and tested team of advisers who have been with him a long time, and has already appointed a panel of public health experts to advise him how to tackle the pandemic with an altogether unTrumpian seriousness.

Biden intends to draw on the rich American tradition of pragmatic, unglamorous, bipartisan work. And since to work within a tradition, rather than attempt to make things up from first principles, is yet another conservative characteristic, conservatives could well end up approving of President Biden.