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.
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.
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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