Nevertheless the force of social contract theories was grounded in historical developments reflecting the shift from feudal society to industrial capitalist society and its shift from social relations based on feudal status to relations

The paper argues that the last few decades have witnessed changes in how citizens are viewed in the UK and that these changes have implications for security risk governance. The paper identifies a shift from contract to tort law, and a related shift from a contract model of citizens to a tort model of citizens, or from a view of citizens as robust, rational risk-takers to vulnerable persons at risk. My discussion of law involves socio-legal ideal-types, nevertheless, these ideals inform presumptions underpinning individual laws and policies and their interpretation. The paper begins by discussing the contractual model of the citizen as robust rational risk-taker and its influence on the interpretation of tort law. Second the paper discusses the expansion of tort and consumer protection, and the evolving view the citizen as vulnerable victim. Third the paper discusses the implications of a tort culture of risk aversion for security strategies. Contractual character of modern law and the rational citizen Any account of modern citizenship would be incomplete without reference to the influence of social contract theories and theories of individuals’ natural inalienable rights. From eighteenth century Enlightenment philosophers like Rousseau or political figures like Tom Paine invoked the idea of the rights of man and society founded on individuals coming together in a social contract, These ideas were applied politically by the American and French revolutionaries and the British Chartists. Political theory classes teach how the idea of an original social contract and natural rights is a myth. Nevertheless the force of social contract theories was grounded in historical developments reflecting the shift from feudal society to industrial capitalist society and its shift from social relations based on feudal status to relations based on contract, including the expansion of commercial trade and waged labour. The rise of contractual relations in the UK was unsurprisingly accompanied by contractual disputes, and disputants applied to the courts to resolve disputes. The nineteenth century saw the rise of contract law in the UK, largely developed from civil case law. Tort law also began to develop in the 1 Please note that this is a first draft and I have yet to add many references. nineteenth century, but at a slower pace than contract law. Contract law was the primary field, and tort law was the subsidiary field evolving to fill anomalies in the primacy of contract law. The relation between capitalism, contract and modern law has been analysed by the Marxist legal theorist Pashukanis and others. The contract model of law has underpinned the democratic ideal of law, which regards law as the reflection of our collective will. We follow laws, which we ourselves have willed and agreed to through political debate and assent. In other words, we are subjects of law as both authors of law and its followers. In so far as legal sanction is invoked it is to hold us to our agreement in law. The law’s contractual character is clearest in civil law. But even criminal law in the modern democratic ideal of law embodies the idea of a citizen with the capacity to reason and enter into contracts. Criminal law sanctions the citizen for violating the social contract and not following his or her will as embodied in law. The criminal sanction is measured proportionate to the violation of the social contract. The criminal contract-breaker, having served time, regains his or her freedom and returns to society to resume full citizenship rights. Tort and the reasonable man on the Clapham omnibus Tort law developed to redress problems that arose outside a contractual relationship or could not be addressed by breach of contract. For example, injury sustained by faulty goods or services. Or for third parties who were not party to a contract and who had suffered injury. For example, tort law sought to address injured railway passengers such as children whose tickets had been bought by somebody else, or those who had consumed defective food products but were not the original buyer. The subject of tort might be a person who is not a formal participant in a contract who is at risk and needs to be protected. Tort law originally tended to supplement contract law and was interpreted to encompass foreseeable injured parties and foreseeable injuries. Informing the character of contract law and tort was an understanding of the citizen as a robust, rational, active self-determining individual with the capacity to handle risk. Consider the ideal of the proverbial reasonable man on the Clapham Omnibus, who was invoked to determine the standard of care in negligence claims. (See Hall v Brooklands Auto-Racing Club (1933) 1KB 205). The assumption was of the average solid citizen as reasonable and rational. This ideal embodied the figure of the new suburban, middle-income male office worker and householder (renting was the norm for most). Evidently this archetypal figure did not embrace women or all men when first invoked culturally before being invoked legally. Not least universal suffrage was not won by people without political struggle. Yet the ideal as it modified into ‘the ordinary man in the street’ came to embrace more of the population following the achievement of universal franchise, and as the possibilities for office work, becoming a householder, suburbia, and train and bus travel expanded. The ideal embraced much of the population in the postwar consensus after the Second World War. Here I stress that I am discussing a legal ideal, yet the ideal of the rational sensible citizen, informed by social forces, influenced law’s development in the nineteenth and twentieth century, especially after the Second World War. Belief in the ultimate reasonableness of people even influenced criminal law reform. Contractual assumptions of the citizen as capable risk-taker Under the contract model, the citizen is allowed to take risks and make wrong decisions and undertake endeavours, which might fail. Consider how the idea of the citizen as a conscious risk-taker is expressed in case law.* Consider how the idea of the citizen as a risk-taker is expressed culturally in Kipling’s historically well-known poem If: If you can make one heap of all your winnings And risk it on one turn of pitch-and-toss, And lose, and start again at your beginnings And never breath a word about your loss; If you can force your heart and nerve and sinew To serve your turn long after they are gone, And so hold on when there is nothing in you Except the Will which says to them: "Hold on". This idea of the citizen as capable risk-taker was modified in twentieth century Britain through the creation of the welfare state. Nevertheless its assumptions of capacity underpin the concept of universal basic welfare, which regarded welfare rights as bound up with duties and responsibilities, that is, the capacity of citizens to act responsibly and fulfil their share of social duties. See, for example, influential models of welfare citizens’ rights and duties by social theorists T.H. Marshall, Richard Titmuss, and Richard Tawney. Underlying the various models was an expectation that citizens had capabilities, would act responsibly, and, having contributed to society, were entitled to state welfare when they fell sick, became temporarily unemployed or reached retirement age. The welfare state model with its idea of universal entitlements was propelled through the force of the collective democratic political movements of the twentieth century, which emphasised the productive capacity of the working classes and their related social entitlements. It is no coincidence too that the broad social consensus the postwar welfare state model attracted was fostered by the individual and collective sacrifices made by citizens in the Second World War. Citizens had testified to their capacity to risk their own lives for the social good and therefore society owed them a duty to support them when in need. The default ideal of the citizen under the idea of universal welfare rights remained a capable subject with agency. Consider how Talcott Parsons’ concept of the sick role assumes citizens as robust capable beings and how people would only be in the sick role temporarily because their pride in their independence would make them want to relinquish the sick role as quickly as possible. Only a residium of the population were considered as lacking rational capacity. But even among this category there was overall social optimism over their reformability and therefore ultimate rational capacity. Thus in the postwar period under the sway of belief in people’s rationality and society’s robustness, child murderers like Mary Bell could be returned and assimilated relatively simply back into society, with a fresh start under anonymity, once they had served their sentence. Instructively the original 1960s’ trial judge of Myra Hindley, perhaps the most notorious child killer in the UK of the last century, indicated that she might be released after serving a very long sentence. That her release did not happen is indicative I would argue of the shift from the risk-taking contractual model to the risk-averse tort model in subsequent decades I am discussing. One aspect of the risk-averse model is more illiberal laws and erosion of the citizens’ freedoms. Rise of citizen as consumer and tort claimant The expansion of tort is linked to policy approaches treating the citizen as a consumer. The postwar social consensus and collective political movements that had underpinned the universal state welfare system began to fragment. In that fragmentation, claim-making took on more individualised, special pleading forms. From the 1980s the state welfare system shifted from a collective welfare model to a more individualised, privatised model, which imagines the citizen as consumer and has sought to put more welfare costs onto private individuals and bodies, for example, to encourage citizens to take up private pensions and more health insurance etc. The ideal of choice, essentially a consumer model of choice, has displaced the previous ideal of a universal, shared system of national welfare and common social institutions. Tellingly local authorities are applying consumer data models to populations in their policy planning (see the importance of the company Experian’s expertise, regularly consulted by UK government bodies, also Ireland too). Instead of choosing between big competing political visions, the citizen as consumer chooses between a set menu of policy priorities and competes for places in the most attractive institutions like schools. Contrast past idealism over the local comprehensive school with today’s ideal of parental choice of school. Contrast the past idealism over the creation of a universal health service and the local general hospital, with today’s ideal of patient choice of hospital and the promotion of the ‘choose and book’ patient appointment system. The citizen as consumer does not easily square with previous idea of citizens’ commensurate rights and responsibilities. Consider the retail mantra ‘the customer is always right’: the consumer is to be flattered and does not expect to be made to feel uncomfortable. How well do such ideas translate into the public sphere? On the one hand the citizen as consumer under official social policy will be flattered and encouraged to feel self esteem for just being, as did the BUPA advertising campaign of a few years ago. But on the other hand the consumer analogies are obviously strained. If something is not pleasing, then the consumer may walk away and go elsewhere. Yet when consumer choice is applied to limited public services, not every citizen is able to realise their choice or go elsewhere if their choice is not met. The model of citizens competing for access to the best public services creates an inevitable winners and losers’ situation. Its operation is experienced as arbitrary and inequitable, and tends to further fragment a sense of social solidarity and alienate people whose choices cannot be fulfilled in public institutions. The experience of social inequity and uncertainty over access to desired public goods is underscored by the accompanying rise of tort. Official policy has also sought to encourage the use of tort and its privatised model of personal redress through the identification of third party wrong as part of shifting the welfare burden onto the private sector. Fuller welfare entitlements arise based on the finding of a tortuous act. An individual’s welfare entitlements are considerably enhanced if there is an identifiable tortuous act and a tort offender with the capacity to meet the tort claim. Conversely an individual’s welfare entitlements are considerably lower if no tort claim can be established and enforced. The position of the tort offender becomes paramount. Can a claim for negligence be established? Does the tort offender have the financial capacity to meet the court claim? Is the tort offender sufficiently insured? In shifting from a collective social contract universal needs-based state welfare towards more tortuous wrongs based welfare provision, the fortunes of those requiring welfare provision appears to be more arbitrary. The unequal welfare benefits arising from tort further undermines a sense of commonality between citizens. Citizens as consumers and tort claimants are encouraged to view their own welfare and security in privatised terms. Under the concept of choice, citizens may live in the same area, but increasingly lead parallel lives, not sharing the same social space or social institutions, thereby further eroding the shared civic space. The idea of citizen of consumer appears to follow social contract theories. Indeed in its more individualised concept of the relationship between the citizen and state it appears to follow the social contract theories more strictly than the collective welfare state model. But the contemporary privatisation of responsibility is paradoxically accompanied by official mistrust of citizens’ capacity to make responsible choices. Declining political and civic engagement among citizens has encouraged a more negative view of citizens’ capacity among policy-makers. Citizens are expected to take more financial responsibility for their own welfare, but are not expected to act wisely in their best interests without official guidance. External advice, regulations and programmes are expanding to empower weak citizens and ensure citizens make the correct choices according to official policy. Thus contemporary official policy departs from the contract presumption of citizens’ capacity. Indeed the growing institutional use of personalised contracts like ABCs (A Behaviour Contracts note their tellingly childish sounding acronym), or school-home agreements or university-student contracts with citizens is symptomatic of a breakdown of social trust. These contracts are not entered into as free acts by citizens, but as part of disciplinary frameworks. The diminished view of the capacity of citizens as consumers is becoming codified in contemporary consumer protection and tort law. Before I discuss the contemporary tort model of the individual, the next section discusses the expansion of tort and consumer protection law. Expanding consumer protection law The expansion of tort and consumer protection is also related to institutions seeking to establish their legitimacy and forge links to a more individualised, depoliticised population. Expanding consumer protections have been introduced by European legislation too. Indeed European institutions have attempted to gain political legitimacy through appealing to the citizen as consumer and developing consumer protection legislation. The European Community/European Union have been important in expanding consumer protection, and health and safety legislation. The number and role of governmental consumer advisory bodies or professional consumer advocacy groups have expanded. Take the Consumer Association, founded in 1957, and its influential magazine Which? The Consumer Association, now known as Which?, claims to be the largest such organisation in the world with a membership of * (Which? web site). It was a core sponsor of the European Office of Consumer Unions set up in *, now known as BEUC which lobbies the European Union on consumer issues (Which? web site). In 2004 Which? was ‘granted official super-complaint powers by the Department of Trade and Industry, giving it ‘the power to make super-complaints to a number of government agencies about markets that are failing consumers’ (Which? web site). Take the government Food Standards Agency (FSA) set up in 2000, championed by Which?, whose remit is protecting consumer interests in food safety and standards. Indicatively the growing prominence of professional consumer advocacy groups, such as Which?, has paralleled the decline of political engagement, trade union activity and other civil society activism. Civil society increasingly has the character of professional advocacy rather than activity by ordinary citizens. Concurrently older bodies like the trade unions are revising their activities away from collective actions towards more individualised professional services such as providing legal aid or counselling. The original legislative provisions and campaigning focus of consumer organisations was on regulating manufacturers, retailers and service providers. We can see this emphasis in the list of acts highlighted by Which?: the Unsolicited Goods and Services Act 1971, Unfair Contract Terms Act 1977, Consumer Safety Act 1978, the Sale of Goods Act 1979, the Competition Act 1980. Consumer protection law also broadened to encompass increasing protections against the citizen entering into detrimental contracts. Protections against consumers entering onerous contracts, such as cooling off periods, were codified in the Unfair Contract Terms Act (UCTA) 1977. The legal limitations have expanded, but they remain fairly cautious and have not made serious inroads into consumers’ freedom and risk to contract. However the courts have become more willing to interpret consumer protection loosely, and, for example, overturn onerous but legal credit contracts in a few notorious cases. Tort law evolved secondary to contract law, but a risk consciousness is becoming culturally pervasive and expanding tort. Official policies to encourage the use of tort law led to a loosening of rules governing solicitors and the funding of civil claims in the 1990s. Advertising was allowed and civil claims funded on a conditional fee or ‘no win, no fee’ basis, to encourage more tort claims. These changes were accompanied by the spectacular growth of claims management firms and aggressive advertising in the media. Crucially the expansion of tort has also been accompanied by qualitative changes in the character of tort, consumer protection, and expectations of risk. The next section discusses the rise of risk consciousness. Embracing risk consciousness The expansion of tort was gradual, but the late 1980s marked a watershed in a new tort consciousness and sense of being at risk. This sense was manifested in a series of disasters including the Bradford fire (May 1985), Zeebrugge ferry (March 1987), King’s Cross fire (November 1987), Piper Alpha (July 1988), Lockerbie air disaster (December 1988), Kegworth air disaster (January 1989), Hillsborough stadium (April 1989), Marchioness boat disaster (August 1989). The disasters did not register as individual tragedies but came to be linked together culturally to signify a pervasive sense of pessimism and vulnerability. These disasters were also significant legally as they were followed by a series of legal cases, which expanded tort law. The extensive media coverage of the progress of the legal claims helped keep these disasters in the public consciousness and reinforced their cultural impact. Indicative of the changing cultural expectations was the new attention given to emotional damage. The Hillsborough neglience case, for example, expanded the potential neglience claims for psychiatric injury. See Alcock and Others v Chief Constable of South Yorkshire Police [1991] WLR 1057 It should be emphasised it was not simply the scale of disasters that precipitated the heightened cultural sense of being at risk. Past disasters had not resulted in the same cultural or legal risk consciousness. The enormity of the Aberfan tragedy, where over a hundred teachers and pupils were killed by a mining landslide, elicited very different cultural responses. No legal claims were initiated by the Aberfan relations – the idea was rejected as bowing to vengeance (Furedi, 2000). The cultural responses affirmed the strength of the community and outside intervention was rejected (ibid.). Interestingly since the 1990s, the new risk consciousness has been revising the cultural histories of disasters like Aberfan or the 1953 floods. Victims of these past disasters, interviewed about their experiences in various documentaries or oral history projects from the perspective of today’s cultural norms, appear to be reshaping their memories in the light of present expectations of vulnerability and psychological trauma. Like other cultural norms, risk consciousness comes to shape views of appropriate and inappropriate responses, including official models of functional and dysfunctional behaviour. Risk governance of consumers Growing risk consciousness has been analysed as a defining feature of contemporary culture. There is now an extensive sociological literature on ‘risk society’. Castel (1991) has identified a shift from ‘dangerousness to risk’, which involves the rise of social regulation through risk prevention rather than traditional morality or political ideologies. Risk governance involves identifying risks (including risky behaviour), targets, prevention policies and monitoring mechanisms. The sociological risk literature observes how risk governance blurs the ordinary and the dangerous, and invites ordinary activities to be viewed through the prism of potential risk. Risk management policies involve making individuals aware of risks, and providing guidelines and programmes to support those needing to modify their behaviour. Significantly, government policies and advocacy groups are broadening the categories of risk and risky behaviour from which they wish to protect individuals. The expanding role of both government and non-governmental consumer protection organisations has been accompanied by changed understanding of consumer protection which does not simply entail ensuring manufacturing standards but encompass attempts to regulate consumer choices. These changes are not necessarily (yet) legally codified, but are indicated a shift from contractual freedom to tort protection in organisations’ interpretation of their mission and attitudes towards consumers. In this vein, two major bodies, the FSA and Which? want to change citizens’ eating habits and address ‘poor food choices’ (Which?, 2004). This mission is captured in the FSA’s institutional slogan ‘Safe Food and Healthy Eating for All’ and elaborated in its eating well web pages. Consider the alarmist opening tone of the alarmingly named 2004 report Recipe for Disaster by the Consumer Association: Our food is killing us. We eat too much of the wrong type of foods and we are now suffering the health consequences with almost a quarter of people in the UK obese’ (Consumer Association, 2004, p. 2). The report contends that ‘Poor food choices are a key risk factor for the major killers’ (Consumer Association, 2004, p. 2*). Its Health Warning for Government* campaign is demanding government ‘Launch a hard hitting, innovative campaign by government to change UK eating habits’ (Consumer Association, 2004, p. 3*). Both organisations have been trying to promote simple traffic light labels on food to guide consumers to make the eating choices in line with government health policy. The traffic light labels join proliferating advice to citizens. There has also been huge expansion of lifestyle media programmes and columns and seeking to change their behaviour, which endorse official risk governance of the citizen, from parenting to healthy eating. Retailers too are also ready with advice to consumers to help them follow official healthy living guidelines. Government bodies, NGO advocacy, and media programmes, and retailers too seem eager to make us aware and offer us advice. Sometimes the same figures appear in different guises. So Sainsbury’s free magazine to parents puts forward healthy meals and pack lunches for children devised by the chef Jamie Oliver, who produced a television documentary on his attempts to reform school dinners, in turn becoming an informal government advisor and spokesperson on the nation’s diet. Strikingly whereas the older consumer programmes like Watchdog, which began broadcasting in 1980, advised people about faulty products and investigated the products or services of major companies (including the civil claims company The Accident Group!), today’s lifestyle programmes revel in berating individuals for their greed, slovenliness, poor relationships or simply lack of taste. In this vein Oliver was ready to voice contempt for parents who gave junk food to their children. The ever-expanding consumer protection labelling, health awareness campaigns, basic safety or life skills advice implicitly suggest the stupidity of citizens. Relentless officially sanctioned advice to put on sun cream or put on a jumper, eat your greens, or don’t drink too much effectively treats citizens as children. The shift from contractual freedom to tort protection thereby involves a demoralised view of citizens. Interestingly many advocacy campaigns like the Which? report above often cite ‘one in four’ people to be affected by their particular campaign concern. Consider just a few alarming ‘one in four’ reports of recent years: One in four [women] 'had drinks spiked', ‘One in four students suffer mental illness’, ‘One in four children are overweight by age three’, ‘One in four touched by ID fraud’, One in four at risk of cannabis psychosis, ‘One in four teens a crime victim', ‘one in four adults’ with high blood pressure and at risk of cardiovascular disease. There is even a registered charity called One in Four which ‘offers a voice to and support for people who have experienced sexual abuse and sexual violence’. The charity claims, ‘Research has consistently shown that one in four children will experience sexual abuse before the age of 18’. The basis of the ‘one in four’ figure rarely appears well substantiated, as the case here. Has the striking coincidence of this statistical risk repeated in so many different sorts of awareness campaigns been researched? I have not yet found a general study of the ‘one in four’ statistic, although reports have questioned the common ‘one in four’ statistic in specific areas. Questions have been raised on ‘one in four’ domestic violence or campus rape statistics (for example, Sommers, 1995; Holbrook, 2003). The ‘one in four’ statistic first appeared commonly in the United States, before the UK. The ‘one in four’ statistic is now also common among international NGOs and echoed by regional NGOs. I have heard it quoted by NGO advocates in the postYugoslav states. It would be interesting to know why so many risks seem to coincide at the figure of ‘one in four’ in contemporary advocacy. An informal google search of the ‘one in four’ figure is dominated by individuals at risk, while the figure ‘one in ten’ seems less monopolised by individuals at risk and the reference to victims of violence less prominent. (The ‘one in ten’ risks include risks like ‘one in ten resistant to TB drugs’ or ‘one in ten victim online fraud’, while the ‘one in ten’ figure is also associated with dodgy acts by individuals like ‘one in ten avoiding paying licence fee’ or ‘misused credit card’.) The contemporary advocacy campaigns collectively convey the message that we are a nation at risk. The qualitative changes in law and policy amount to codifying a model of citizens as susceptible people at risk from themselves or others (typically one in four is the figure cited!). The contemporary tort view of the citizen as a vulnerable, gullible, weak, feeble, even contemptuous consumer prey to risk is a subject lacking capacity or sufficient capacity, who requires protection and empowerment by legal regulation and authorised advocates. Institutional risk management has to take into account the risks of tort litigation and requires expanded insurance cover, while the conditions of insurances policies and their interpretation also expand under the precautionary principle. Rising insurance claims have led to rising insurance premiums and requirements on insurance holders to regulate their activities. Fear of litigation and insurance requirements contribute to institutional risk avoidance. Instead of risk to be embraced, risk is to be avoided. Citizens continue to witness activities being curtailed in their ordinary lives like school fireworks parties or presents of homemade birthday cakes to nurseries, without having to read any popular media ‘health and safety gone mad’ type stories. Many activities like school firework parties went ahead safely in the past based on social trust and ordinary sensible precautions without the need for risk insurance or formal risk management. The rise of formal risk management is also symptomatic of an erosion of communal solidarity and social trust. There is a link between a more pessimistic view of citizens and the expansion of more illiberal strategies to deal with social problems to protect the best interests of citizens. A shift has taken place from a presumption of freedom to presumption of a need to regulate in the name of citizens’ welfare. Thus health campaigners have successfully achieved the banning of smoking in enclosed public space. Some health campaigners are now demanding a shift in the freedom to drink alcohol in public spaces unless otherwise prohibited to a permission to drink alcohol in designated spaces only. So from the freedom to take risks we have the right to be smoke-free, alcohol-free or risk-free, involving a shift to a tort concept of freedom as protection. Freedom, in its changed meaning, becomes a regulated space. Sensible risk principles? Officials often deplore the development of a risk-averse climate, even as they continue to endorse policies that promote this climate. The Health and Safety Executive (HSE) now run their own ‘myth of the month’ page to try to counter the idea that they support excessive regulation. The HSE states, ‘We believe that risk management should be about practical steps to protect people from real harm and suffering not bureaucratic back covering.’ It has drawn up a summary of sensible risk principles:1. Sensible risk management is about: • Ensuring that workers and the public are properly protected • Providing overall benefit to society by balancing benefits and risks, with a focus on reducing real risks – both those which arise more often and those with serious consequences • Enabling innovation and learning not stifling them • Ensuring that those who create risks manage them responsibly and understand that failure to manage real risks responsibly is likely to lead