Maintaining constitutional principles during a pandemic might be regarded as the obsession of lawyers and other cranks. After all, didn’t Cicero—no mean lawyer himself—say that salus populi suprema lex (a phrase that might well be translated as “the health of the people is the supreme law”)?
That reaction is understandable, but—even on its own terms—dangerous. In the end, law works because most people accept its moral authority as a regulator of what they should and should not do and as the basis for enforcement action by the state. That moral authority is underpinned by some degree of confidence that those who make the law have considered its contents with care, not drawn arbitrary decisions, and that what the law says makes sense, or is at least comprehensible. That is particularly so in the case of a law—like (the provision that tells us when we can be outside our homes)—which tightly regulates almost every aspect of everybody’s life. If those regulations are seen as treating different people differently without good reason, or as being so unclear as to leave people in real doubt as to what they can do and to leave them vulnerable to capricious enforcement by agents of the state, then that will weaken their authority and ultimately their effectiveness.
This may all seem a bit abstract. But the way in which the most recent iteration of these regulations has been drawn up and approved is hopelessly unsatisfactory. And unless the next iteration is done a lot better, the problems will get worse.
Process first. No one knows why Boris Johnson decided to announce the new rules in a recorded TV broadcast on a Sunday rather than (as paragraph 9.1 of the August 2019 Ministerial Code requires) in parliament on a weekday, accompanied by critical details such as the text of the new rules. But confusion was inevitable and duly occurred. The next time he announces a change in the rules, it should be in parliament where he can immediately be questioned on important detail, and the announcement should come with a draft text of the new rules (not least because, as anyone who has ever had a hand in legislative drafting knows, the process of turning policy into legal text often throws up issues that need to be addressed, and so improves the policy).
Even more seriously, the new rules were issued under the “emergency procedure” (in section 45R of the Public Health (Control of Disease) Act 1984). But the basis for doing this is legally dubious. Using section 45R meant that the rules came into force at the flick of the health secretary’s pen and without any vote by parliament (though they lapse if not approved within 28 days, or if there is a negative vote before then). But the secretary of state is allowed to use section 45R only if the rules are “urgent”: and it is hard to see why a relaxation in the rules could be urgent, particularly as parliament is sitting and an affirmative resolution of both Houses (the default procedure for regulations of this kind under section 45Q) could easily and swiftly have been obtained.
That said, even a yes-no affirmative vote is a thin form of scrutiny for any changes to rules that have such impact on every single person in England. And the need for scrutiny is intense when (here and no doubt in future rule changes relaxing the lockdown) very significant policy choices have been made, which will for many people make the difference between having an income or a business and not having one, or being able to carry out activities of great personal importance or not being able to do so. For example, why are garden centres able to open but not other types of non-food retailer? What is the evidence base for providing that you can meet only one of your parents, but not both, for outdoor recreation in a public garden, but not in your own garden? What is it about house-buying, apart from being an obsession of the English middle classes, that makes it appropriate to permit being away from home for that purpose, but not, for example, car-buying—and why is it lawful to visit an estate agent’s office but not lawful to open a car showroom or, for that matter, a church for private prayer, or a library (the latter, in a possible assertion of Celtic literary superiority, being allowed in Wales)? Why is thought right for people to be able to drive to a national park for a walk but not to stay overnight in one (for example in self-catered accommodation), when that would at least put some money into the local community? And why (unlike in Wales) was it not thought right to put into law the exhortation to employers and shops to maintain two metre distancing?
There may well be good reasons for all these choices: but choices they are, and the incantation that ministers are “just following the science” is hopelessly patronising when (in all these cases) there is an obvious and inevitable trade-off between some increase in risk, the advice about which we are not allowed to see, and the economic and other benefits (including health benefits) of allowing further activities outside the home, the details of which we are, also, not allowed to see. If one could exclude the possibility of mistakes and biases, there would be less to worry about: but anyone who knows about government will know that mistakes and biases in this kind of assessment are routine, especially when conducted behind closed doors.
Proper parliamentary scrutiny could also improve the drafting of the new rules, which contain numerous oddities and obscurities—no doubt because it was rushed, which is an explanation rather than an excuse. For example, though garden centres can open, you are not expressly permitted to be outside in order to go and buy plants in them (a nice rosebush, however essential to the look of your garden, is unlikely to be a “basic necessity” as defined in regulation 6(2)(a)). The possibility of police constables interrogating garden centre visitors as to whether the rhododendrons they have just bought are really necessary has fortunately been reduced by College of Policing guidance that “visits to garden centres” are permitted: but it would have been better if the English regulations had expressly covered the point off (as the Welsh regulations do). A more treacherous minefield confronts parents whose children ask whether they can go and play football in the park with a friend: as Ronan Cormacain from the Bingham Centre for the Rule of Law points out, they now need a rather complex table to answer that question with legal accuracy. If the rules are vulnerable to officious enforcement, they will be brought into disrepute; and if people cannot understand them, they won’t comply with them.
Another issue that needs exploring is that the rules fail to match up with what ministers say we can do. For example, Johnson’s claim that you are entitled now to take “unlimited” recreation outdoors doesn’t sit well with the qualification in regulation 6(2)(ba) that recreation has to be “to promote [your] physical or mental health or emotional well-being” (a phrase has to be interpreted as meaning something, though it may just be the result of instructions to some unfortunate lawyer to turn the old Latin tag mens sana in corpore sano into legal English). Further, though ministers have told us that we are now permitted to drive into the countryside to take a walk, there is no change in the regulations that actually reflects that pronouncement. This is all highly unsatisfactory, not just because it infringes the basic principle that what ministers say should not change the law, but also because the difference raises significant legal and policy questions that should be debated and decided by the relevant legislatures and not by the phrasing of a government press release. Is there a real risk of close encounters of the wrong kind if lots of people drive to a national park for a walk on a fine Sunday, or is the risk rather less there than it is in Victoria Park? How far can you “reasonably” drive for a walk: Hackney to Suffolk? Norwich to Northumberland? And how on earth is that to be decided when the legislation doesn’t provide any framework in which to assess reasonableness?
A further issue—which will again get more serious as further selective relaxations are considered—is whether proper attention has been to the public sector equality duty—the duty that requires the impact of a policy on disadvantaged groups to be taken into account when formulating that policy. There is an unfortunate tendency in Whitehall to think that the government can cover that duty off by getting its lawyers to tack a few token paragraphs on to a policy decided without giving any real thought to such impacts: it would be nice to be sure that, when taking decisions of this importance to everyone, that tendency had been resisted.
The case for proper parliamentary scrutiny of these and future rule changes is therefore overwhelming. What would such scrutiny look like? One possible way of doing it—which would not require legislation but would require government cooperation—would be to set up an ad hoc Covid-19 select committee, with members drawn from the Health and Social Care, Home Office, and economic select committees (Treasury and Business). It would be given the evidence base for the choices being made (including the scientific and economic and other advice), hear from experts and affected businesses, unions, and other interests, scrutinise the drafting, and make ministers explain their judgments. The government could agree to take full account of its recommendations. And—with a will—it could be organised swiftly.
Ideally, such scrutiny would be formalised in new legislation. But it should not wait for that. The need for a proper process of scrutiny is not an optional extra. It will only grow as more and more tricky decisions need to be made as to which businesses and activities can be allowed to restart, more and more fine and sometimes peculiar lines are drawn, and the danger increases that those whose livelihoods and activities remain banned, when other ones are permitted, feel that the rules constraining them are unfair and illegitimate, and stop obeying them.
