THE LAW IS A CHATTERBOX

Kenneth Minogue argues that

our liberty and our patience are being eroded by hyperactive legislators

IT IS NEARLY half a century since Michael Oakeshott, grinding his teeth under the relentless social engineering of the Attlee government, wrote his classic account of rationalism in politics — classic both because of the elegance of its style and the suggestiveness of its argument. The present decay of British government is a case study in what he is talking about.

A visible symbol of the problem is avail- able to everybody who travels on the Lon- don Underground. It consists in the invention of 'priority seats' which ought to be surrendered if someone in need, an invalid or a pregnant woman, is standing. When Oakeshott was writing, there would have been no need for such a notice: young men knew that you did not sit while ladies, or anyone in need, were standing. The priority seat exemplifies the project of trying to deal with moral collapse by the technical device of regulation. And it is, of course, merely a halfway house. When the device is seen to have failed, the principles of the recent Criminal Justice Act will be invoked to fine users of the seat who don't abide by the rule.

When Oakeshott's rationalist turned to politics, he became a social engineer. Life was a sequence of problems to be solved by government. A 'strategy' for everything was not then the jargon, but the idea had long been abroad. Since everything in our society is defective from one point of view or another, a rationalist government is for- ever rushing from problem to problem, fix- ing things. It is hyperactive. When the French minister for health remarked that she was 'responsible but not guilty' in the contaminated blood scandal, she pin- pointed the reason why the late Nicholas Ridley was the wisest man of his time. Asked what he hoped the Government might achieve in its next term of office, he incautiously replied 'nothing'.

Had this excellent programme actually been achieved, Mr Howard would not now be. wrestling with the deficiencies of the Criminal Justice Act, teachers would not be worried that raising their voices to a child in the classroom might be an invasion of rights given in the Children Act, quite a lot of money would have been saved from

erroneous propaganda on Aids, we should never have entered the ERM, farmers would have been spared some of the tor- ture by form-filling imposed by the Min- istry of Agriculture and so on. Everyone has his own little list.

A new bout of hyperactive rationalism is triggered every time people are discovered not to be doing what they ought to do. Moral derelictions are particularly power- ful generators of new regulations — as when invalids and pregnant ladies are left standing. On a larger scale, doubts about the punctiliousness of policemen generate a vast demand for the recording of details. More police are then needed, and types of unbecoming conduct needing further supervision multiply. The case of universities is a moral fable in itself. They were showered with gold and flattery in the 1960s by governments who thought they caused wealth. Increas- ing costs led to doubts about the efficiency and probity of these expanded institutions, and soon they were being stretched on the rack of regulation — by performance indi- cators, peer group grading and differential funding. A whole warehouse equipped with fork-lift trucks was needed to move around the forms in which universities reported their research achievements in order to be graded by committees. The result was waste of time, diminished effi- ciency and the collapse of a vocation into 'Bloody ring of steel.' a set of grumbling job-holders.

That rationalism involves a vicious circle was clearly recognised by Oakeshott. 'Like Midas,' he remarked in a typical footnote, 'the Rationalist is always in the unfortunate position of not being able to touch any- thing, without transforming it into an abstraction; he can never get a square meal of experience.' Every time a regulation fails, it is supplemented by a further regula- tion. And that is how harmless pipe-smok- ing publicans and providers of ploughman's lunches without proper cooling equipment find themselves politically harassed.

The vicious circle gets even worse. Some people who recognise the reality of 'politi- cal harassment' will think that there ought to be a remedy for it in the courts. The remedy would almost certainly turn out to be worse than the disease. In a rationalist world, even those who recognise the folly become themselves entrapped. This, in Oakeshott's view, was what happened to Hayek, with whom in many ways he was in sympathy. 'A plan to end all planning,' he remarked of The Road to Serfdom, 'may be better than its opposite, but it belongs to the same style of politics.' That, perhaps, is why we might stick staunchly by the reso- lute nihilism of Ridley.

Perhaps the worst aspect of rationalism is what it does to the people who must endure it. They lose all capacity to look after themselves. A sad, recent example was revealed in a remark made by Holly Johnson, who has just found fame beyond the popular music scene by revealing that he has Aids. Repudiating the view that his condition resulted from promiscuity (he blamed not using condoms), he said, 'Really, if the British Government had made themselves more aware of what was happening in America, we would have been educated sooner.'

We have a population many of whom not only don't know when to come in out of the rain; they don't even know what to do when the sun comes out. 'How many people,' asked the National Heritage Min- ister, Robert Key, in what one must assume was a humorous moment, 'know that it is perfectly possible to fly the Union flag without any need of planning permis- sion?'

Here is Margaret Thatcher's 'dependen- cy culture' barely touched by ten years' exposure to what the late Shirley Letwin called 'the vigorous virtues'. Nothing, it seems, could discourage ministries from engineering attitudes, or, as they whimsi- cally put it, 'educating' us.

From seat-belts to diet, the ministries have been unceasing in their concern for our welfare. The Ministry of Health has become the preaching church of the body militant. It followed the basic rule of•ratio- nalism as employed to destroy the univer- sities: first seduce by benefits, then control. Many a happy smoker who welcomed the onset of the National Health Service under the Attlee government lived to suffer bemusement at the extent to which it made him the object of official concern.

Health initiatives can hardly escape caprice. They are largely determined by political activism. An estimated £800 mil- lion has been wasted on Aids 'public edu- cation'. Aids is a horrible disease, but it is far from being the most important threat to British life. What it has certainly done is lure the Government into the production of misleading statistics and uncritical judg- ments.

Aids is far from being the only example. In March, Mrs Bottomley announced a tri- umph: fewer babies were dying of cot deaths because parents followed the offi- cial advice that they should be laid to sleep on their backs. This was a guideline issued by the Chief Medical Officer in October 1991 in response to research in New Zealand. Earlier research dating back to 1971, however, had seemed to show that, contrary to traditional practice, babies were better placed to sleep on their stomachs.

Ministries, in other words, are putty in the hands of powerful pressure groups armed with the latest research fad. Yet even otherwise sensible people do not seem to object to governments taking on things they are evidently incompetent to do. 'The Government's role as arbiter of the medical debate is becoming as central as its function of producing resources,' observed the Times. It is apparently Mrs Bottomley's ambition to cut the suicide rate by the year 2000. This is part of a national strategy the Government is pur- suing. It is called 'The Health of the Nation'. The first thing the Government might consider privatising is individual judgment.

Oakeshott's analysis of rationalism, compact as it is, opens up many lines of thought. One is that, in its concentration on trying to achieve a perfect system, rationalist politics is distorted by taking its bearings from the sick, the weak, the poor, the abnormal and the incompetent. In the form of an ethics of caring, rationalism multiplies failure rather than circumscrib- ing it.

There have, for example, been four sui- cides at Oxford, out of about 10,000 stu- dents, in the course of this year. Media `Hide, honey — I'm home!' attention has focused on this fact, and a journalist on the Times has written that 'it is the system that has failed, not individu- als'. Yet, as a conference on the 'loss of virtue' in Canterbury was told last month, there is evidence from America that suicide rates at universities are very largely corre- lated with the prestige of the institution. Again, Japanese education and industry are much admired, but the cost in stress and suicide is notably high.

What the rationalist looks for is a system without failures. This is a vain ambition even in dealing with nature. It is absurd when one is dealing with human beings. 'It is the system that has failed, not individu- als' has been the great collectivist cry since Marx and Engels brought out the Commu- nist Manifesto back in 1848. A great deal of subsequent evidence suggests that attempts to create the perfect system have usually been horrible failures.

The promise of the National Health Ser- vice was that something like a perfect sys- tem (incorporating medicine designed to prevent illness before it had to be cured) would vastly diminish health problems. It has not. The vicious cycle of the poverty theory of the needs of welfare opened up the hope that the welfare state would soon have a diminishing number of clients. Instead, the welfare burden grows: one sixth of the population now requires income support.

Making government responsible for fail- ure in modern society leads to legislative overload. Ministers then amplify acts of parliament by using discretionary powers. Much of the wording is so clumsy as to require frequent recourse to courts and tri- bunals. And I am not here just referring to the iniquitous Maastricht Treaty, so bad that no one knows what it means. One may take one's bearings from the marvellously indiscreet Alan Clark, who tells us that ministers go off to meetings of the Council in Brussels with agendas never weighing less than six pounds, and a short plane trip in which to master them. It is hardly sur- prising that government "as fallen increas- ingly into the hands of civil servants, and that some ministries, such as that of Educa- tion, are notorious for making worse every- thing they touch.

The paradox of rationalism is that to see it as a problem merely reconstitutes the folly at a higher level. Lady Thatcher came to power on the policy that repealing is appealing — and we have more regulations than ever before. The philosopher Heideg- ger sometimes treated the term 'nothing' as the present participle of the verb 'to noth'. A Heidegger-Ridley merger suggests that the best possible future policy for a govern- ment would be 'nothing'. Liberty, Hobbes wrote back in 1651, is the silence of the law. There can be no liberty if the law is a chatterbox.

Kenneth Minogue is Professor of Political Science at the London School of Economics.