Plebgate: blame the laws, not Mitchell or the police

A nasty sting to the incident that forced Andrew Mitchell to resign from the Cabinet was that he swore at a police officer, and that members of the public could easily expect to be arrested for such behaviour. By not being arrested on the spot, Mitchell was already being shown undue favour. This helped to reinforce the notion that Mitchell (possibly alongside the rest of the Cabinet) saw himself as above ordinary folk. This added plausibility to the uncorroborated accusation that he called a police officer ‘pleb’.

Now it appears that the police officer’s account may have not been entirely accurate, and that an additional statement used to bolster it may have been fabricated. But it is important to step back from the mistakes of individuals in this case and look at how laws can end up turning minor incidents into sources of conflict and controversy.

The idea that swearing at or in front of police officers should, on its own, constitute an offence draws not so much from a practical concern about keeping order on the street. It comes much more from a symbolic concern about showing respect to those that represent and enforce the law. The problem with symbols is that in a relatively free society, they are easily contested and subjective. Symbolic acts can mean very different things to different people. (It is no wonder that magistrates usually prefer not to convict in such cases.)

Laws that govern symbolic behaviour easily generate conflict. If being subjectively disrespected is a crime than that means that agents are encouraged to feel disrespected. The symbolic grievance becomes a way of exercising personal power. It encourages individuals, who would otherwise demonstrate skill, experience and endurance, to act as if they have been victimised and lack basic self-respect. It then encourages organisations to demand ever more deference to members. An arms race between different groups can even break out, in which legal protections for one group show ‘disrespect’ to groups that are not included. Failure to show expected levels of respect then becomes a genuine source of hurt.

This is how the law ends up distorting individual behaviour in utterly perverse (and often self-defeating) ways; in this case apparently a police officer trying to impersonate a member of the public to back up a shaky story to get at a minister they feel has slighted them.

We need fewer laws that are founded in subjective and symbolic concerns, and especially those that rely on the subjective opinions of police officers. This is a common problem of many laws that attempt to regulate speech and personal expression, including the public order act, many forms of ‘hate’ crimes, as well as prohibitions on pornography (which famously, is almost impossible to define and delimit). At once, they give over too much power to the police, while also, paradoxically, putting too much pressure on them to make impossible judgements.

If we want the police to be accountable, we need to make the laws they are expected to enforce clear.