Category: Coronavirus – COVID-19

Law is not magic – and lockdown regulations are not spells

19th December 2020

Of  course, law is not magic.

Magic is about old men in elaborate robes, in oddly furnished rooms, saying or setting down words in certain special orders that will then have real-world effects on those to whom those words are addressed.

Ahem.

In fact, law has a lot in common with magic – or, at least, magical thinking – and not only in the facetious characterisation above.

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If we move from the courtroom to government, and indeed to the public more generally, there is a common view that to make a law against something is to deal  with it.

A thing should be banned, and so just putting some words on a piece of paper – or on a computer screen – and then saying some magic words – either

‘Izzy–wizzy, let’s get busy!

or

‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows’

or some other similarly daft formula, the words will leap from the page – or the screen – and will change the world around us.

This is a habit of thought with which we are so familiar that is difficult to dislodge it from our minds.

But just setting out words, and chanting some special phrases, has little direct effect on anything – other than in respect of what meanings, concepts and values we in turn give to those words.

And with prohibitions, more is often needed for a thing to stop than for the words to have been typed ‘this thing is prohibited’.

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For some people, a prohibition may be enough: they will know that a thing has been banned and will act – or not act – accordingly.

For others, however, the banned thing can just continue – it is just that there is a risk that further instances of the banned thing may now be attended with certain legal consequences and, ultimately, coercive sanctions.

A person faced with such a risk may chose to eliminate the risk and not do the prohibited thing, or they may instead manage or even disregard the risk.

But unless one is in a totalitarian society, the mere threat of a coercive sanction is not enough – most modern societies rely on government by consent, and the state does not have sufficient resources to police everyone completely.

Put simply: laws and sanctions are usually not sufficient to effect behavioural change.

Instead many prohibitions work not because of words on a page, or because of enforcement, but because the purpose of the ban is aligned with social norms and is accepted (broadly) as legitimate – that the ban makes sense and is for a good purpose and so will be respected.

If a prohibition is not accepted as legitimate –  if it does not make sense or seems unfair or disproportionate – then no amount of legal magic or coercive force will give effect to the prohibition.

The prohibition then just breaks down.

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And now we come to the lockdown regulations.

The belief appears to be that just by making laws against social activity – either during Christmas or otherwise – is by itself sufficient.

That the government should lock down more firmly – and if the government does not do this, then it will be the government to blame if the pandemic spreads.

But typing banny words are not enough, with or without magic phrases, and there is certainly not enough police to enforce such banny words.

A lockdown will only be effective if people actually regulate their social behaviour in reality.

The government could issue regulations until it is blue in its face, but if there is a disconnect with social behaviour, then it is futile.

(And the sensible response to this is unlikely to be ‘more laws!” and ‘harsher penalties!’ – just as it is rarely a solution to bang one’s head harder against the wall.)

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Law and laws are only one aspect of how those who govern us can influence and control our behaviour, to get us to change from what we would otherwise do.

People have to understand the purpose and point of prohibitions, rather than to just be expected to comply with them when they are imposed.

And for this a government needs to be transparent and credible: there needs to be trust more than law, and policy rather than policing.

There needs to be leadership.

Resources need to be in place for testing, tracing, and treatments.

Fair account needs to be taken of other possible priorities, even if those other priorities are less important.

Prohibitions and coercive sanctions still have a role – but they are not sufficient by themselves.

In essence, a government needs to govern, and not just make laws.

That is what govern – ments do.

There should be no magic to this.

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The shoddy legal direction of Gavin Williamson to Greenwich Council

15th December 2020

Amidst the flurry of government regulations closing down various things during the current pandemic comes this very different legal instrument from Gavin Williamson, the Secretary of State for Education.

Instead of ordering a thing to close, the Secretary of State is ordering things to stay open.

It is an extraordinary letter, and it is worth examining carefully.

(As a preliminary point, however, please note I am not an education law specialist and so there may be sector-specific legal aspects of this of which I am unaware – the examination in this post is on general legal principles and based on my experience as a former government lawyer and as a public lawyer generally.)

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First, let us look at the power on which the Secretary of State relies upon.

It would seem there is no general legal power for the Secretary of State to order that any school remain open (or close), and so the letter relies on a specific provision in the Coronavirus Act 2020.

(If there were such a general legal power to issue such a direction, then presumably the Secretary of State would rely upon that power instead of the Coronavirus Act 2020.)

The relevant section of the Act is section 38.

The relevant part of that section is section 38(1)(a) which provides for a power to enable the Secretary of State to give directions requiring the ‘provision, or continuing provision, of education, training and childcare’.

That provision in turn refers to a paragraph in a schedule to the Act.

(This is not a ‘paragraph’ as such – it is a wordy provision which goes on for three pages, like something from a W. G. Sebald book.)

The paragraph sets out in detail the requirements for a ‘temporary continuity direction’ under section 38 – like a checklist.

For example, the Secretary of State must have regard to medical advice (paragraph 1(3)(a) and the direction must be necessary and proportionate (paragraph 1(3)(b).

The direction can require the recipient to take ‘reasonable steps in general terms’ (paragraph 1(4)(a)) and require a relevant institution to stay open or to re-open (paragraph 1(4)(b).

There is also a catch-all power that the Secretary of State may make any other connected provisions which he or she ‘considers appropriate’ (paragraph 1(4)(i)).

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What is the duty of the recipient of such a direction?

The Act provides that it is ‘the duty of a responsible body or relevant institution to which a temporary continuity direction…to comply with the direction’.

How is this duty to be enforced?

If the recipient does not comply with a direction, the government can make an application to the courts for an injunction.

(Both the above are in paragraph 1(6) of the schedule.)

This would, of course, be an unusual injunction – most injunctions prohibit a person from doing a thing, while this will be a rarer ‘mandatory’ injunction requiring a person to do a thing.

A failure to comply with an injunction is, at law, a serious matter and can be a contempt of court, with (presumably) sanctions such as imprisonment and unlimited fines.

A breach of a mandatory injunction may also result in a court directing that the required act be completed by another person at the expense of the disobedient party (CPR 70.2A).

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This looks like a wide and arbitrary power for the Secretary of State to give directions, with serious sanctions for a breach of a direction.

But if you look carefully there are explicit statutory requirements for the Secretary of State to be reasonable and to use this power only where necessary and proportionate.

These requirements are also imposed by the general law.

These will be quite high hurdles for the Secretary of State to jump.

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Going back to the letter, you will see that in paragraph 2 of the letter the Secretary of State asserts that he ‘considers [the direction] to be reasonable’ – but there is almost no reasoning other than a general reference to a general interest (‘of securing that schools…allow pupils to attend school full time’ ) and a general reference to the Secretary of State’s guidance (but with no specific guidance quoted).

There is also no local data.

Any court would expect to see far more reasoning than this before enforcing such a direction with a mandatory order.

For example, can the education of the pupils not be done remotely?

Has proper regard been made to local conditions?

Is it proportionate and necessary to mandate a school to remain open with only days left in the school term?

Is it fair and equitable (a test of most injunctions) to insist a state school remain open when many private schools remain closed?

These are not ‘gotcha’ questions, but points which one knows a court will ask before granting an injunction – and so should be anticipated and covered in a letter threatening an injunction.

But there is nothing in this letter to meet these obvious and foreseeable questions that would need to be answered in court.

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This direction then, even if it is the right thing for the Secretary of State to order, is not a well-drafted piece of legal work.

If i were still a government lawyer I would have been embarrassed to have prepared this for a minister.

It is not enough to assert that a thing is reasonable, necessary or proportionate – these statutory requirements for a direction also need to be shown.

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The recipient of this letter – Greenwich Council – has already published an initial response.

Their initial response is as detailed as the Secretary of State’s letter is not.

“Yesterday we asked all schools in the Royal Borough of Greenwich to move to online learning for most pupils, but keep premises open for the children of key workers, vulnerable children and those with special educational needs. 

‘Other boroughs have asked schools to take similar measures, and the Mayor of London has also called for all secondary schools to close, with an extra week off in January to enable testing.  

‘Our request was based on information from Public Health England and supported by the Council’s Public Health team. In the Royal Borough of Greenwich, we currently have the highest rates of COVID-19 since March, with numbers doubling every four days. Our seven-day infection rate for the borough is now 59% higher than at the same point last week. 

‘Infection rates are particularly high amongst young people, with 817 children of school age testing positive for COVID-19. 4,262 children and 362 staff are self-isolating – that’s an increase of 640 people since Friday. In many cases, other members of the child’s household have also tested positive, impacting entire families. 

‘Schools across the borough have now organised online learning from tomorrow, whilst others are opening their premises to all pupils. This evening we received a legal direction from the Government to withdraw our request to schools. We are in the process of seeking legal advice and will respond to the Government in the morning.  

‘We have alerted schools, and will speak to them tomorrow. But given we received this notification just before 5pm, it was impossible to ask schools to change any of the arrangements they have in place for Tuesday.’

The person(s) who drafted that response have done a good job: they are showing how the closure is reasonable, necessary and proportionate.

The response is based on local data and shows that reasonable alternative arrangements have been made.

The response also shows the council is in a better position to asses the situation than the Secretary of State.

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On the basis of information in the Greenwich Council response, the government would be hard-pressed to obtain an injunction in support of their direction.

None of the above is to say that the government’s ultimate position is weak – a better prepared direction, based on local data, and with proper and detailed reasoning, may have been – or still be – possible.

But such a direction letter was not sent, and this shoddy one was sent instead.

The Secretary of State may issue a better direction – or government lawyers may turn up to court with a better application for an injunction.

The government is even threatening to go to court ‘without notice’ so that the council may be subjected to an injunction without any say in court, which would be inappropriate given the council have set out already that it believes it is acting reasonably.

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Ministerial directions are powerful legal instruments, but they should always be used with care.

When I was young I often had reports sent from school averring that I could do better.

But here we have what purports to be a formal government direction sent to keep schools open where one could say of the Secretary of State that they could do better.

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POSTSCRIPT

Sadly – at least for the legal commentary (at least) the council has decided not to contest the direction in court.

The council, of course, is entitled to take such a decision.

But its decision to comply with the direction does not take away anything from the critique above.

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Brexit will be with either no deal or a deal on the terms of the European Union – and it is difficult to see how any Brexit could have ended differently

8th December 2020

We are now at the latest Brexit endgame.

Another endgame in that succession of contests between the United Kingdom and the European Union that we call Brexit.

This latest contest is about whether there will be an agreement between the European Union and the United Kingdom for the relationship following the end of the transition period on 31st December 2020.

And the United Kingdom has a difficult choice.

The choice is between the United Kingdom agreeing to the terms on offer or refusing those terms.

Take these terms or leave them.

This outcome, like previous outcomes in this process, will be determined by whether the United Kingdom refuses to agree a thing or agrees that thing on the terms of the European Union.

And this is how ‘taking back control’ has worked out in practice.

The European Union’s way, or the highway.

And, as before, it is more likely than not that the United Kingdom will agree a thing on the terms of the European Union.

This latest agreement was to be called the ‘treaty of London’ as a patriotic gesture.

But instead, it is Boris Johnson who has been summoned this week to Brussels.

Perhaps the European Union will not be so insensitive as to provide a disused Eurostar railway carriage as the venue for any reeluctant signature of instruments of the trade agreement.

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Is ‘no deal’ still possible?

There is a real prospect that Johnson going to Brussels will not mean he agrees to the presented trade agreement.

Even with the United Kingdom government jettisoning the makeweight issues of fisheries and the Internal Market Bill clauses, there are two serious issues of contention.

The outstanding issues are the governance of the agreement (that is, how is to be enforced if things go wrong) and the ‘level playing field’ of regulatory equivalence (that is, how is any divergence from the current common commercial standards be managed).

A moment’s thought should make any sensible person realise that these two issues go to the very centre of any future relationship agreement.

For these issues to still be open just days before the end of the Brexit transition period is not a good sign.

There is no indication or reason to believe that the European Union will compromise on either issue.

Not least because the European Union will be fully aware of how any compromise in this agreement will affect its credibility in other trade agreements, and European Union negotiators are not fools.

So it will either be the European Union’s way, or the highway.

And the United Kingdom is perfectly capable of choosing the daft way.

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Could things have been different?

What if, for example, the United Kingdom had exercised its (now lost) power to request an extension of a further year to the transition period?

That certainly would have been prudent from a practical perspective: it would have enabled the European Union and the United Kingdom to deal with other pressing issues, not least the coronavirus pandemic.

Yet.

Does anyone seriously think the United Kingdom government would have used this further year working out what it wanted from Brexit?

It has had since 2016 to work out its position, and there is no reason to think that another year would have made any difference.

Had there been a year’s extension to the transition period, the United Kingdom’s (lack of) position would have been the same in December 2021 as it is now in December 2020.

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So, if this is the current predicament – who is to blame?

There are currently pundits putting forward the view that the lack of a ‘soft’ Brexit, with the United Kingdom staying in either the single market and/or the customs union is somehow the fault of those who were not in government since 2016.

Remainers are certainly culpable for losing the referendum – after 43 years of membership, the referendum was theirs to lose.

And, in my view, Remain lost the 2016 referendum far more than Leave won it.

But once Theresa May made ‘Brexit means Brexit’ the basis of her bid to become prime minister and Conservative party leadership, there is no plausible chain of events that would have led to any Brexit being a ‘soft’ Brexit rather than a hard one.

(Brexit may have been avoided by a general election or a further referendum, or there may have been endless delays in sending the Article 50 notification – but if Brexit was to happen it was never going to be a happy one.)

‘Brexit means Brexit’ quickly became the red lines, and the red lines in turn necessarily meant the United Kingdom  leaving the customs union and the single market.

Remainers can be blamed for losing the referendum, but not for government policy on Brexit thereafter.

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Now we are a few days before the end of the transition period, without either an agreement or much clue.

Both a trade agreement on the terms of the European Union and no deal seem possible.

This is perhaps the worst possible position for the United Kingdom to be in at this time.

But since May told us ‘Brexit means Brexit’ it is difficult to see how any departure of the United Kingdom from the European Union could have ended up any better.

Brace, brace.

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Freedoms vs Permissions – a liberal look at the Court of Appeal judgment on the coronavirus regulations

4th December 2020

A few days ago the Court of Appeal handed down its judgment in the Dolan case.

This was an application for judicial review of the regulations restricting freedom of movement and other fundamental rights which were introduced in England earlier this year at the beginning of the pandemic.

The challenge was ultimately not successful, as the leading legal blogger Matthew Scott explains in this thread.

There are a couple of things in the judgment that are interesting from a liberal perspective.

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First, it was the approach of the court to the exercise of a freedom.

The classic model of freedom in a common law jurisdiction (such as England) is, of course, that one is free to do what one wishes – unless there is a specific prohibition.

This is the sort of liberty emphasised by those who trumpet freedom under the common law.

The court, however, seemed quite relaxed at this position being inverted under the regulations – that the starting point is that everyone is prohibited from doing what they want in respect of freedom of movement and assembly, unless there was a permission.

For the court there was nothing wrong with a general bans as long as there were exceptions where a person can satisfy the police and the courts that you had a ‘reasonable excuse’.

Here is the court’s reasoning on freedom of movement.

And then on freedom of assembly.

To make this observation is not necessarily to criticise the position of the court but instead to draw attention at how easily the court accepted the reversal of the classic model of freedom in the common law system.

The phrase ‘reasonable excuse’ has a nice nod-along quality that will make many people think ‘what could possibly be wrong with that?’.

Nonetheless it hands the decision on whether what you are doing is permissible to an official (or the court), and it will be they and not the individual who is the arbitrator of whether an excuse is reasonable or not.

And to take the position to an extreme: imagine a system where everything was prohibited unless an official (or the court) was satisfied you had a reasonable excuse.

That a person was never free to do anything, only to have the reasonable permissions of the authority.

What could possibly be wrong with that?

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In contrast with the ease with which the court accepted restrictions on the autonomy of the individual, the judges saw no need to exercise judicial control on the government’s own freedom of choice.

Back in March 2020 the government had a choice on how to regulate so as to restrict the fundamental freedoms of individuals.

On one hand, it could use the Civil Contingencies Act 2004 – a dedicated statute for dealing with emergencies with an exacting scheme providing for legislative and judicial supervision.

Or it could blow off the dust of the Public Health Act 1984, where it could impose wide prohibitions without real legislative control, where criminal sanctions and restrictions can be casually made and revoked without there being any prior votes in parliament and only the academic prospect of judicial review.

The government, of course, chose the latter.

And the court of appeal, that held that individuals should be banned for things unless they have reasonable excuses, afforded the government a complete free choice of which statute to use.

At paragraph 77 of the judgment:

“[The applicant] pointed to various differences in the procedure and timetable for the laying of regulations under the two different Acts: see, for example, section 27 of the 2004 Act, which deals with Parliamentary scrutiny of emergency regulations made under that Act. We do not consider that this detracts from the fundamental point that the Secretary of State may well have had a choice of options and could have acted under the 2004 Act. It does not follow that he was required to do so; nor that he is somehow prevented from using the powers which Parliament has conferred upon him in the 1984 Act, as amended.”

The government thereby gets the benefit of a ‘fundamental’ right to choose, even if citizens do not.

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None of the above means that the individuals should not comply with the coronavirus regulations – and it is emphatically correct that in a public health emergency of a pandemic, there should be be restrictions on the rights of individuals.

This post draws attention to how the court of appeal has gone about dealing with this challenge to the regulations.

Instead of anxious scrutiny of whether the broad prohibitions went further than necessary, the court of appeal seemed too ready to accept that the government can side-step at will a scheme designed to ensure proper legislative and judicial scrutiny of highly restrictive legislation.

A better decision of the court of appeal would have been to say that there was a presumption that in an emergency the government uses the legislation that provides more legislative and judicial scrutiny – unless it has (ahem) a reasonable excuse not to do so.

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Brexit makes no legal difference to the United Kingdom being able to authorise the new coronavirus vaccine

3rd December 2020

For the launch of any vaccine, credibility is essential.

And so senior government ministers and other politicians should not be lying about the regulatory aspects of the new vaccine so to score points for Brexit.

This is the Leader of the House of Commons, the cabinet minister responsible for the government’s legislative programme.

https://twitter.com/Jacob_Rees_Mogg/status/1334068994345754625

This is a health minister.

And this is a government-supporting backbencher.

You will see these statements are not about Brexit allowing the United Kingdom to authorise the new vaccine more quickly as a matter of policy.

Each statement directly and expressly attributes the speed of the authorisation to a change in the law made possible by Brexit.

This, however, is false.

The Medicines and Healthcare products Regulatory Agency confirmed yesterday it was acting under EU law when it it made the authorisation.

Even the Prime Minister did not endorse the claim that Brexit made any legal difference.

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The fact is that Brexit made no legal difference to the authorisation of the new vaccine.

Such an authorisation was (and is) possible under European Union law.

The relevant provision is Article 5(2) of the Directive 2001/83/EC.

Here is the proof in back and white.

European Union Directives do not necessarily need to be implemented to have legal effect, but for completeness the implementing domestic legislation for Article 5(2) is Regulation 174 of the Human Medicines Regulations 2012.

Until 31 December 2020 under the Brexit transition arrangements, Article 5(2) has legal effect in the United Kingdom – and even after 1 January 2020 Regulation 174 would still be part of domestic law.

Brexit therefore made no legal difference.

So what is the recent amendment mentioned by the politicians?

That appears to be a reference to the The Human Medicines (Coronavirus and Influenza) (Amendment) Regulations 2020.

But those regulations do not amend or directly affect Regulation 174 – you will see they skip straight over it and add supplementary provisions.

The recent amendment is thereby irrelevant to the legal ability of the United Kingdom to authorise the vaccine.

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The cabinet minister responsible for the government’s legislative programme and health ministers would know that Brexit made no legal difference to the United Kingdom’s ability to authorise the new vaccine.

They would know the correct legal basis for authorisation of the new vaccine: that is their job and they would have been briefed.

But they chose to knowingly promote a falsehood instead, just to score a point for Brexit.

This was dangerously irresponsible, given that any false statements about the new vaccine may be exploited by anti-vaxxers.

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The departure of Dominic Cummings

14th November 2020

Dominic Cummings is a genius at politics but was a failure in government about policy.

And this is because politics and policy are fundamentally different.

For example, politics can be linear while (good) policy will tend to be complex.

The approach of Cummings to the 2016 referendum and the 2019 general election was to be focused and unfussed about niceties and conventions and indeed the truth.

‘Take Back Control’

‘Get Brexit Done’

And so on, and many other statements, including those written on the side of a bus.

There are many things that one can and should object to in this electoral ruthlessness but it worked – twice.

Policy, on the other hand, is not (easily) amenable to such rush jobs.

Cummings believes, wrongly, that grand projects were easy, as long as you approached them with the right attitude.

On his blog, for example, he wrote about “the history of the classified programme to build ICBMs and the way in which George Mueller turned the failing NASA bureaucracy into an organisation that could put man on the moon. The heart of the paper is about the principles behind effective management of complex projects. These principles are relevant to Government, politics, and campaigns.” (Emphasis in original.)

He also published a series of posts on “the unrecognised simplicities of effective action“, including this 31 page paper.

Such stuff must have been interesting and exciting to write.

But the examples he used were not transferrable, even if those examples were accurately understood to begin with.

And when faced with two immense policy challenges in government: the departure of United Kingdom from the European Union and the coronavirus pandemic, the heady precedents of the Manhattan Project and putting men on the moon turned out not to be that useful.

Successful policy making is hard and it can rarely (if ever) be done just by making strident demands from the centre and upsetting (in both senses of the word) all those on who you depend to implement policy.

And, as Cummings has said many times, the current planning and public procurement regimes may be cumbersome and problematic – but disregarding them so as to make decisions and award contracts with no safeguards against abuse is no solution to those problems.

The news yesterday is that Cummings has left government, though it is not clear the extent to which he will carry on ‘working from home’.

He had everything a policy blogger could have ever have wanted credibility (after those two electoral victories), a place in the centre, direct access to the prime minister, and a large majority.

He even had immense policy challenges in Brexit and Covid to which he could apply and show off his policy prowess.

But it did not work out, and his substantive policy achievements were such that they could fit in a cardboard box.

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Politics versus policy, and why the approach of Johnson and Cummings to exercising power is going so badly

12th November 2020

The current government of the United Kingdom has a distinctive approach to politics, and it has a distinctive approach to policy.

In both cases the approach is associated with the government’s senior adviser Dominic Cummings and, to a lesser extent, the prime minister Boris Johnson.

The approach to politics has as a feature a disregard for the settled norms and practices of conventional politics: elections and referendums are there to be won, and it matters little about how that is done.

It is a focused and, in terms of both the 2016 referendum and the 2019 general election, a successful approach.

And because of this approach, they have power and their critics, however justified do not.

The approach to policy is similar, and can also be characterised as moving fast and breaking things.

There is no need for formal consultation exercises or procurement procedures, it is enough for there to just be central direction and directives.

And any policy will be formulated and implemented not by the traditional civil service in its traditional way, but by external hires and special advisers.

It is an approach which is not so much contrarian but indifferent to how policy was made and done previously.

But the lack of structure and the constant sense of rush comes at a cost, and because of that cost such an approach may be unsustainable in the medium to longer term.

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There are currently news reports about a resignation of a Downing Street adviser and of general dysfunction around the prime minister.

And this would be bad at any time.

It would be very bad if the United Kingdom faced just one major challenge – either a pandemic or the imminent departure from the European Union in practice (though technically the departure was back in January), with or without a deal.

But for this disarray to happen in the midst of a resurgent pandemic (and a second lockdown, that in an of itself will be widely devastating), and days away from the end of the Brexit transition period, is about as bad as politics and policy can be in peacetime.

At the base of the current predicament is a lack of seriousness about policy.

Whether it be the self-inflicted problem of Brexit or the force majeure of a pandemic, the government at its most senior level has not taken policy making and implementation seriously.

This is because policy is just regarded as politics as other means.

And, in turn, this comes down to populism – which can be described as the promotion of easy answers in exchange for electoral support.

Populism can succeed in elections and referendums, and it has recently done so, but it cannot deal with hard policy.

And therein is the contradiction forcing the current political chaos: what works in obtaining power can often be the very reason why being in power then goes so badly.

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The importance of Nigel Farage and other political hobgoblins

2nd November 2020

There are news reports that Nigel Farage and the Brexit Party are re-branding as the ‘Reform Party’ and will campaign on the basis of ‘lockdown scepticism’.

One immediate response of many will be to sneer at and deride him and his supporters.

Just as years ago he and his United Kingdom Independence Party were sneered at and derided.

But this approach is perhaps misguided.

Farage and other political populists should always be taken seriously.

*

Farage is a political hobgoblin.

He appears where there are cracks between the government and the governed, as a purveyor of easy answers.

On the European Union issue, for example, generations of politicians in the United Kingdom failed to make any positive case for membership.

Often, instead, politicians from both major parties competed with each other to sound the most sceptical about the European Union and to secure the most opt-outs. 

Year on year, the crack was widening: there was no political engagement with the voters on the importance – or even the nature – of United Kingdom’s membership of the European Union.

And so, in 2016, when a government held a referendum on the question of membership, there was not the support in place to carry a Remain vote to victory.

The Leave campaign did not so much as win the Brexit referendum; it was more that Remain lost it – and they lost it because of 40 or more years of political inaction.

Farage and other opportunists merely exploited that political gap.

*

Now there is another broad policy issue where there is a political gap.

The London government is proposing a lockdown for, in effect, the month of November so as to stymie the recent resurgence in Covid-19.

But for a lockdown to have effect, there needs to be be more than laws passed and subsidies offered.

A lockdown is an exercise in public mobilisation: a government is seeking a population to change its ways, to act significantly different for a significant period of time, and to do things (and not do things) that the population would not otherwise do.

Such a public mobilisation needs, in a word, leadership.

There needs to be a sense of legitimacy.

There needs to be an understanding of the evidence and the reasoning on which such a lockdown is based.

Laws – however ‘tough’ – are not enough.

It is not even a question of making laws clear, or resourcing their enforcement.

The broad behavioural change being sought cannot be brought about by coercion alone.

And the irony is that the current pro-Brexit government has become so complacent on the basis of the supposed ‘will of the people’ referendum mandate justifying what they do that they have disengaged with the people.

There is a disconnect.

Legitimacy is an ongoing process, but it can be lost as easily as it is to make a visit to Barnard Castle.

Clarity and transparency cannot co-exist with closed and politicised decision-making.

So there is another political gap.

*

And when there are political gaps, the political hobgoblins appear.

They are an index of the failure of a government to properly explain a complex policy issue and to engage with the public.

The easy answers promoted by the political hobgoblins have little or no merit in themselves, but this does not matter.

The political hobgoblins do not care, for they thrive in the political gaps.

And that is why political populists should always be taken seriously, for they are an indication of political failure.

Political hobgoblins exist to warn us.

**

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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.

*

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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The current government is an exercise in power without policy

17th June 2020

There were two political events yesterday that were indicative of the key weaknesses of the current government of the United Kingdom.

The first event was the u-turn on free school meals this summer – a shift forced by footballer Marcus Rashford’s public pressure, as well as it being something that plainly should be done.

The execution of this u-turn by the government had all the dignity of a nutmegged defender.

The second event was the announcement that the Department for International Development is to be folded into the Foreign Office.

There is no good reason for this shift, although there are many bad ones.

The folding of Department for International Development into the Foreign Office follows the merger of Number 10 and Number 11 Downing Street and the Cabinet Office swallowing the Department for Exiting the European Union, and so if this trend continues we will eventually just have a few mega-departments under tighter Prime Ministerial (and his adviser’s) direction.

The weaknesses that both events indicate are that this government is concerned with power but not policy.

*

By ‘policy’ I mean a seriousness about getting things done.

Policy is hard: it is more than just legislative changes, or deciding administrative or budgetary priorities.

And policy is certainly more than a mere press release or a media strategy generally.

Policy is about combining many things so that certain outcomes can be be achieved which otherwise might not be achieved, but for that policy.

This is not a party political point: Aneurin Bevan establishing the National Health Service and Norman Tebbit putting in place trade union reform are both good case studies of carrying through policy.

But this government appears not to have a grasp of policy.

This seems to be the case in all areas, not just those which come to light from time to time in the course of political events.

It is just that those other areas are less obvious or, in the case of Brexit, shielded by ideological commitment.

This government’s approach to policy is flimsy everywhere.

This in turn explains why this government – even with its eighty majority in the House of Commons – is blown off course so easily.

Sometimes the changes happen at or after prime minister’s questions, but this week’s u-turn came before hand.

And the positive policy announcements that are made – such as with the International Development department – seem to be either for media and political consumption or to provide cover for tightening central political control, or both.

None of this is surprising: key members of the government approach problems as if what is needed is to compose a rousing 1200 word newspaper column or to make some gesture that ‘plays well’ with voters, or to shut down any autonomy or checks and balances within the state.

An approach that is good for obtaining (and maybe retaining) power but does not really provide anything about how to use that power once you have got it.

The government has no solid notion of what it wants to achieve overall, on Brexit or anything else.

It just has a notion of how to play to its audience and to increase power.

Perhaps the flimsiness is a good thing: perhaps the ideological commitments of those in and around government mean that we should be grateful that those commitments are not – yet – reflected in hard, sustainable policy.

But this policy flimsiness still makes a difference: on Brexit as well as on other matters, the United Kingdom is, like a latter-day Withnail and I, drifting further into the arena of the unwell.

**

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