The road from Barnard Castle – government and the problem of illegality

20th September 2020

In any human community larger than about 120 to 150 – Dunbar’s number – it becomes increasingly difficult to govern on the basis of sheer personality alone.

And so instead of face-to-face encounters of dominance and appeasement you have rules and commands: things that bind you – oral or in writing – because of the legitimate nature of the rule or command.

In modern societies these rules and commands are divided between the normative and the positive, and the usual word for the latter is ‘law’.

As I set out briefly over at Prospect – in a modern society a government is creature of law, and so without law it is ultimately nothing.

Even a gang of thugs with official titles will find it hard to govern a medium to large society for long on the sole basis of a series of in-your-face confrontations.

But in addition to this basic requirement for government to take law seriously for government to exist at all, there is a key additional benefit of a government promoting compliance with the law.

If the government complies with the law then it is more credible for the government to insist on the governed to comply with the law as well.

This is, of course, an argument based on convenience.

But when a government itself does not itself appear to take law seriously it undermines the legitimacy of law.

And this is the problem the government of the United Kingdom now finds itself.

The problem of legality and illegality.

*

There are two events which illustrate this problem.

First there was the now notorious trip of a senior government adviser to and from Barnard Castle during lockdown for which he could provide no plausible good reason.

This appeared to be a casual breach of the applicable law, and one that he seemed to shrug off as unimportant because, by implication, laws were for other people and not for him.

In fact, this impression is to an extent unfair.

The police did investigate and they decided that, in the circumstances, there would be no further action and, even if he had been stopped on the day, he would have only got words of advice.

And so that was not law and due process averted but followed; it is just that law and due process did not get very far.

But what lingered was not the decision by the police (which was for the adviser a fortunate but not inevitable outcome) but the nonchalant indifference as to to whether the law was broken before the breach was was revealed.

And what many will remember is that neither the adviser nor the prime minister did take responsibility for the breach: nobody was sacked, and nobody resigned.

The only apology given was the adviser turning up late to the press conference to justify his actions.

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Now, months after the trip to and from Barnard Castle, we have the second event illustrating the government’s problem with legality and illegality.

The government has proposed that legislation be passed that would enable it to deliberately break the law.

(See my posts here, here and here.)

This proposal has been supported by the House of Commons in principle at ‘second reading’.

It may well be that this proposal is soon dropped or defeated during its parliamentary passage.

But the damage has already been done.

The government itself is now on its very own journey to and from Barnard Castle.

A grand ‘away day’ from the rule of law.

Some supporters of the government have attempted to justify this proposal, but even few of them are convinced.

And the underlying policy issue – state aid on the island of Ireland after the transition agreement ends – is not connected to the proposal in any logical way.

There is no good reason – perhaps no reason at all – for the government’s proposed illegality.

And so the impression is again given that laws are for other people, and not the government.

*

This weekend’s press has told us that the government is now considering ‘tough’ penalties for those who break self-isolation during the ongoing pandemic.

The figure mentioned for the fine is £10,000.

On what basis can the government now insist that others comply with the law?

Of course, there is the resort to coercion: the use of police and the courts.

A government should not, however, have to rely on brute force (or the threat of brute force) to get people to comply with a law, especially in the context of public health and public safety.

The government may have the brute power to seek to make the governed comply with the law but not the legitimacy to insist.

That is quite a loss for any government.

And that is what was thrown out of the car window on that journey back from Barnard Castle.

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10 thoughts on “The road from Barnard Castle – government and the problem of illegality”

  1. We British are a law abiding lot. We’ve been at it a long time. So when respect for law, belief in law, breaks down, it is a very shocking thing, in a way to might not be in say Turkey or Texas.

    1. Not any more.

      It would be hard to over-state the extent to which the *former* British historical reputations for moderation, propriety and respect for the law, practicality and pragmatism have helped the country to pursue its goals at an international level and have enhanced the UK’s soft power.

      Those of us who have, for example, worked in international institutions will know that the UK’s proposals, while frequently not supported by or aligned with the objectives of others and often even unwelcome in many respects, have inevitably been treated seriously and accorded respect. Similarly, it has been easier for the UK to make progress towards or broker international accords because there has been an underlying assumption that detail could be glossed over, on the basis that participants could depend upon the assumption that the UK’s involvement would ensure that reasonable and workable solutions would be elaborated later. This effect has also underwritten similar benefits on the plane of business and working collaborations: Britons and British businesses have been trusted and generally assumed to be reliable, serious, practical, trustworthy …

      Brexit, the casual mendacity, abject superficiality and wilful ignorance with which it was promoted (and which have come to characterise British public life), and the astonishing incompetence and thoroughgoing parochialism and pusillanimity with which it has been pursued have absolutely devastated any such perceptions, and consequently the many various advantages and facilitations which they conferred.
      The very real practical costs of this outcome are already excruciatingly apparent to anybody with contact with such international issues.

      Much of the Great British public may be kept cocooned in a tribal ignorance of the consequences of these actions, an ignorance actively promoted by the very media which should offer a corrective and informed voice, but foreign observers are widely far less deluded and, in particular, so many of those with whom we must deal at the higher levels have had formative experience studying or working in the UK , or are self-described anglophiles or (former) admirers of the country — these, often with a more detailed understanding of many aspects of how Britain works than the natives themselves (partly derived from a comparative perspective) have been recoiling under a series of previously barely conceivable shocks. How can one account for a country which has long offered itself as a model of democracy, stability and the rule of law when Parliament is illegally suspended by an executive which, chafing against the *limitations* of governing though massive deployment of secondary legislation, seeks to award itself the routine power to bypass Parliament entirely though such measures and rule by ministerial fiat (and, now, even to set such processes beyond any possible moderating reach of the Law!)?

      The latest outrage of the Government’s official announcement of its intention to repudiate its obligations under its very own solemn international commitments —and its solid subsequent confirmation and tawdry attempts at justification through all official channels of the law at the highest level— truly delivers a brutal death-blow with a very blunt instrument to all remaining hopes of salvaging something from the carnage. Are those protesting that the Withdrawal Agreement was agreed reluctantly as a less-than-satisfactory conclusion to difficult negotiations really unable to see that this makes the repudiation far *worse*?

      Seldom can any nation have struck so hard to undermine and destroy its own principal strengths and diplomatic advantages. (And then, to take just one example, Mrs May thought it might enhance the UK’s international position to toss *security cooperation* on the balance against a better deal on fish and agricultural produce, thereby at a stroke drastically devaluing the very prized asset whose value she appeared to rate so highly! Where to even start…?)
      The eventual fate of this particular item of legislation pales in significance beside the damage wrought by its proclamation: where would one even consider trying to start to rebuild trust?

      And for UK businesses and workers, already struggling against the imposition of massive restrictions and the loss of their Freedom of Movement, already bleeding out from denial of work and contracts and progressive exclusion from supply chains over the last five years as the UK Government has completely failed to provide the assurance required over future arrangements —ludicrously apparently imagining that leaving everything to the last somehow inexplicably constitutes some kind of leverage (or at least claiming this to continually postpone facing the reality that they have no feasible plans and no clue how to deliver *anything*)— this is one more lead weight to anchor the lifeless corpse of our futures to the bottom of the pond.

      Remember all those international enterprises who would *always*, no matter what, prefer to manage their legal affairs through London because of the stability and predictability of the English legal system and the UK’s enviable reputation for probity and upholding the rule of law … ? Wonder what they’re thinking right now!

    1. Acute myopia when it comes to the implications of their actions.

      Tunnel vision regarding priorities (data harvesting, Eugenics, and shovelling as much public money into their friends’ pockets as possible).

      And the blind leading the blind at Cabinet level.

  2. Convenient escapes from inconvenient situations, merely encourage the pursuit of ever more conveninet escapes from more inconvenient situations.

    It used, more eloquently, to be called a slippery slope.

  3. Very clear, and eloquent.

    But this is not the first Act in this tragedy, it is the second; the opening Act, entitled “They Are All the Same”, was themed was that one set of politicians is no better than another.

    This ended with the spectacle of ‘Burning the Ladder’ – even if those in power are incompetent, untruthful or corrupt, it remains legitimate to support them if “the other lot are just as bad”.

    Which raises the possibility that the government’s attitudes merely reflect the prevailing culture, rather than subverting it.

    “The animals looked from pig to man….” etc

  4. What about the Treaty of Utrecht?

    Article X: “And Her Britannic Majesty, at the request of the Catholic King, does consent and agree, that no leave shall be given under any pretence whatsoever, either to Jews or Moors, to reside or have their dwellings in the said town of Gibraltar;”

    However, the British ignored this provision. In 1729, the British and the Sultan of Morocco reached an agreement whereby the sultan’s Jewish subjects were legally permitted to reside in the colony.

    Was/is the government wrong to allow this – breaking an international treaty?

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