Reactions to Dominic Cummings’s behaviour this week have frequently invoked familiar ideas: “no one is above the law,” “the law applies equally to everyone,” “those who make the law are also subject to the law.” No democratic government can be seen to say “one rule for us, another rule for the rest of you.” As eminent British judge Tom Bingham once memorably reminded us, these are all essential elements of the basic idea of the rule of law, and at one level the week’s events have provided a heartening reminder of the enduring popular appeal of these fundamental values and the force with which they are held in the UK. As the PM’s adviser himself said in his statement, people in this country do not like unfairness. What they do like, with some passion, it turns out, is the rule of law.
But much more interesting and, in the long run, important than the immediate political question of whether or not the current chief adviser to today’s prime minister should resign or be sacked for appearing to disregard these basic tenets, is what the episode reveals in general about the mutual dependency of the rule of law and public trust—and in particular about the importance of the rule of law in maintaining trust both during and after a public health emergency.
To be effective, public health measures both to respond to and recover from emergencies like the coronavirus pandemic must first be adopted by governments and then adhered to by the public. Trust is key both to adoption and adherence: trust in institutions (national and international), in the emergency response and recovery measures, and in the science that underpins those measures.
This crucial link between effectiveness, public trust and good governance was demonstrated by last week’s Oxford University study of conspiracy theories and levels of compliance, showing that the low level of trust in institutions may impede the response to the pandemic. It is no surprise, then, that the WHO also acknowledges the connection and the need to better understand it, calling in its Research Roadmap for studies which demonstrate effective approaches to promote acceptance, uptake, and adherence to public health measures and to identify practical steps to improve fairness, efficiency and transparency of governance processes.
This week’s furore over whether the PM’s adviser broke the rules shows just how much work there is to do to understand better this relationship between the rule of law and public trust. The relationship is complex and needs to be explored in depth across the full range of rule of law principles, including openness about reasons, transparency about scientific advice relied upon, the need for clear legal authority to impose measures restricting liberty, adequate opportunities for parliamentary scrutiny of public health measures, executive accountability to parliament for those measures, and the avoidance of differential treatment which cannot be justified in a principled way. But let’s concentrate for the present purpose on one specific principle: the everyday importance of legal certainty.
To command public trust and confidence, and therefore to be effective, public health measures in response to a pandemic need to be crystal clear, not only in their content but also in their precise legal status, and both need to be clearly communicated to the public. People need to know with reasonable certainty, not only what they can and cannot do, but what the consequences are for them if they act or do not act in particular ways. As George Peretz recently argued, if the regulations “are seen 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 means it must be absolutely clear to people what is a legal requirement, capable of enforcement by the police or some other enforcement body and backed up with the full weight of state sanctions such as arrest, fines, even imprisonment; what is guidance, advisory in nature and not legally binding; and what is merely ministerial interpretation, which might be interesting but is of no legal relevance.
Unfortunately, the government has failed from the start to appreciate the fundamental importance of legal certainty to maintaining the public’s trust. It started with the government’s text message sent to our mobiles on 24th March, asserting “New rules in force now: you must stay at home.” The Coronavirus Bill was before parliament, and regulations requiring people to stay at home, subject to exemptions, were indeed in preparation, but they had not yet been adopted by parliament, and therefore were not yet in force. The message should have said “you are advised to stay at home” and referred to government guidance but that (literally) would not have been as forceful.
“Both the PM and his principal adviser have been hoist on the government’s own petard of sending deliberately ambiguous messages”Given the context in which the message was sent—a rapidly escalating anxiety that the UK had been too slow to act on WHO advice, followed by other countries, to introduce lockdown measures—some were prepared to cut the government some slack in relation to what appeared to be the deliberate exploitation of ambiguity about whether “rules” referred to “legally-binding regulations” or mere “guidance.”
In the weeks that followed, however, this failure to distinguish between legal requirements and advisory guidance appeared to evolve into a deliberate strategy, calculated to maximise compliance by a law-abiding public fearful of the police’s powers of enforcement. Ministers, from the prime minister down, elided the crucial difference with loose talk about the need for everyone to abide by “the rules,” and occasionally misrepresented guidance as law. As a result, examples abound of what Mary Wakefield referred to in the Spectator as the “almost comical uncertainty” of lockdown, exacerbated by ministerial inability to fill in the gaps. The nadir was probably Michael Gove’s “clarification” of the rules on physical exercise: “I would have thought that for most people, a walk of up to an hour, or a run of 30 minutes, or a cycle ride of between that, depending on their level of fitness, is appropriate”—which, despite its comical uncertainty, circulated for weeks in the media as the government’s official position on exercise in England.
The resultant uncertainty has been corrosive of public trust. It put the police in an impossible position, as Steve Baker MP pointed out. It left families unable to answer simple questions from their children about what they could do if they went to the park. And it left businesses unclear about the obligations and responsibilities they owed to employees returning to work. The uncertainty drew criticism from across the political spectrum, including from the Society of Conservative Lawyers.
So in one sense both the prime minister and his principal adviser have this week been hoist on the government’s own petard of sending deliberately ambiguous messages about what is a legally-binding rule, what is advisory guidance, and what is merely ministers colouring in the gaps. Whether leaving London for Durham during the lockdown and driving from Durham to Barnard Castle were strictly speaking unlawful, because not within justified exemptions from the requirement to stay at home in the regulations, or contrary to the government’s guidance, is of secondary importance to the fact that the widely-held public perception appeared to be that such actions were “against the rules,” or the spirit of the rules, in the broad sense in which people have been encouraged by the government to think about the requirements. What we have witnessed is the spectacular backfiring of an approach which prioritised short-term compliance in the absence of longer term, rule of law-informed thinking about maintaining public trust and, crucially, how to rebuild trust in the institutions on which the rule of law depends.
As the country at last begins to emerge from lockdown, the government’s dependence on public trust is no less than when it required people to comply with its initial exhortation to stay at home. If anything, its dependence on that trust will be even greater, as people are asked to accept differential restrictions which apply to them but not to others. As the Scientific Pandemic Influenza Group on Behaviour (SPI-B) has pointed out, “To maintain public trust and support it will be important to have acceptable and equitable criteria for selecting which activities can be resumed.” People will be asked to entrust their personal data to a contact-tracing app which has been hastily developed and introduced with no legal framework enshrining the safeguards on which that trust depends. From this week, under the government’s new test, trace and isolate regime, a growing number of people will be asked to self-isolate for 14 days because they have been in contact with a person who has tested positive for the virus and are judged to be at risk of developing the disease.
To achieve and maintain the degree of public trust required to comply with these new requirements and adhere to the new guidance, and therefore to have a fighting chance of keeping the virus under control and averting a deadly second wave, the government and its advisers would do well to tap into the popular rule of law passions on display this week. Asking its behavioural scientists on SAGE to help it understand better the role of the rule of law in maintaining public trust would be a good place to start.
Murray Hunt, director of the Bingham Centre for the Rule of Law
