By the editor, Jul 1 2020 05:13PM
The current Government doesn't care much for law. That was apparent in its previous incarnation, when it attempted to prorogue Parliament, and responded to its defeat on the issue in the Supreme Court by attacking the judiciary. It has been clear in its dealings with the EU over Brexit, where it has openly canvassed the possibility of breaching the legally binding Withdrawal Agreement. And it has been exposed in its handling of Covid-19: not only in respect of the Cummings incident, but also in its mangling (deliberate or otherwise) of law and guidance, and inaccurate statements about what is and isn't lawful.
Plenty of commentary has criticised the Government for this, for example on human rights grounds.
The Government's private response to this criticism is, no doubt: so what? Liberals have to suck it up. We won the election, we've got an 80 seat majority. The "people" (at least, enough of the electorate who might vote Conservative), unlike the liberal metropolitans, don't much care about abstract legal niceties, provided the Government is looking after their interests, and taking care of the basics, such as locking up criminals.
But I don't think this is the trump card that those at the top of Government think it is, even on their own, purely electoral terms, for the reasons set out below.
FAILING TO CONVICT THE GUILTY
Miscarriages of justices don't just concern the wrongly convicted - they can result in the guilty going free. If the Government doesn't pay sufficient attention to the laws it passes, the wrong people can slip through the net. Consider the confusion created by the Coronavirus Regulations, made without any proper parliamentary scrutiny, followed up by guidance that inaccurately stated what the relevant criminal offences were - which resulted in the police trying to enforce guidance rather than target criminal offences. Many people were wrongly convicted. We don't know how many people who might have been guilty were never charged or whose prosecutions failed. And the confusion could have more serious consequences in the long run.
So, for example, the Prime Minister has publicly stated that street protests are lawful, when they've actually been prohibited by the Regulations. Did the Government mean to ban such protests, or not? Protests are now treated, including by the police, as though they are lawful; but what happens if certain protests become particularly dangerous to public health?
On the flipside, as a result of the confused messaging by the Government, most people mistakenly believe that there is a law prescribing 2 metre social distancing in the UK. If there was public pressure to enforce this "rule", for example after some particularly high profile event that attracted widespread opprobrium, no prosecutions would be possible.
Imagine if the Government got the law confused on more serious crimes as well, such as terrorism offences - and those perceived as guilty went unpunished. Simply sounding "tough" on crime only gets you so far. If you get the law wrong, you end up looking weak. It doesn't look very good for the "party of law and order". The "law" bit isn't an optional extra; in a democracy, at least, if you want order, you need to get the law right first.
LOSS OF AUTHORITY
Much of what a Government does is to make laws itself and draft laws for Parliament to approve. If it demonstrates a disregard for laws, it can weaken its own standing with the public.
The Cummings debacle provided a good example. Having made the Regulations restricting freedom of movement, the Government then supported its chief adviser who appeared to have flouted them. In Mr Cummings' own statements on the matter, he mixed up what was law and what was guidance, and didn't appear very bothered about whether he had in fact committed an offence, appealing instead to to a broader sense of what was justifiable. The Government's defence of him took a similar line, and blithely asserted that he had acted "legally" without explaining why it had reached that conclusion, and before any independent investigation had considered the matter.
The implication here is: the laws the Government makes don't matter that much; don't take them too seriously. It chimes with other statements made by the Government, such as urging people to use their "common sense" and appealing to "civic duty" rather than requiring compliance with the minutiae of the Regulations. The public may start to wonder whether this is a Government that is really governing; what sort of authority does it actually have?
Governments only exist with the support of Parliament. Since Parliament's business is to make laws, it is dangerous for Governments to treat laws flippantly. Conservative backbenchers have already shown themselves capable of defeating the Government and securing U-turns. This could get worse if, for example, the Government is perceived as downplaying the importance of bills that certain MPs are particularly interested in.
The Government's disdain for rules extends to its treatment of parliamentary procedures (indeed, in Mr Cummings' case, for the legislature itself). This has already caused friction with Conservative MPs. such as the row over remote voting.
Ultimately, Conservative MPs can unseat the Prime Minister. And even if he and the Government survive to fight the next election, they're in a perilous position if they've lost the support of many of their own MPs.
LOSING TRUST AND SUPPORT
One result of the Cummings episode was a dramatic decrease of support for the Government. There may be many reasons for this, but it is fair to assume that increasing numbers of people were distrustful of what the Government was telling them, and many didn't much like the Government defending someone who appeared to have broken the rules which they were trying to stick to.
No doubt the Government has determined from its extensive use of focus groups and behavioural science that people don't always respond well to being told what to do by law, and sometimes respond better to guidance and "nudging". No doubt also its dominant Vote Leave contingent believes that voters aren't bothered about compliance with electoral law and other established norms when it comes to campaigning, and assume voters have the same attitude regarding governing.
But there comes a point where people do like to know where the line is between what is lawful and what isn't. Many people may be happy to follow guidance generally, wouid act contrary to it in certain circumstances, and yet would almost always avoid committing a criminal offence. This isn't just because of fear of the material consequences of conviction: it's also because of social stigma.
A Government that sends out confusing messages on what is and isn't a crime risks losing the support and trust of the public in dealing with something like the Covid-19 crisis. We've all heard people say something like: "I've no idea what the rules are now, but doing so-and-so can't be that risky, can it?" The Government is now trying to relax restrictions nationwide, but impose tighter restrictions locally. It's difficult to do that if people aren't clear what the restrictions actually are, or have been encouraged not to care what they are, and have decided to judge matters for themselves.
Recently the Prime Minister warned against people "taking liberties" after reports of large crowds congregating on beaches. Ironically many of the people involved had good reason to think they had the "liberty" to do what they were doing, because the Government had given out the message that "British common sense" could be relied on to regulate behaviour, and the small print could be ignored.
A Government that doesn't take criminal laws seriously risks losing trust and support more widely. By making such laws, and being partly responsible for their enforcement, a Government is effectively telling the public: "these things are really serious - if you disobey, the State will punish you". Treating the law as frivolous suggests the Government doesn't mean what it says.
When those in Government - such as Dominic Cummings, Robert Jenrick, and Boris Johnson - break the law, or are dismissive of the importance of any laws that may apply to them, voters notice. They may not be concerned with the finer details of these matters. But they don't like the stench of sleaze and corruption, in the same way that people don't like to associate with neighbours who keep getting into trouble with the police.
FINALLY - THE ELITE VS THE PEOPLE
The Government continues to push a narrative that it is on the side of "the people" against a liberal elite. This still seems to have some traction. But it may be a mistake to assume that these voters equate the law with the elite: they may think well-paid liberal lawyers fall into that category, but not necessarily the police and others involved.
One difficulty of treating laws with contempt is that the Government begins rather to resemble the dodgy tycoon who believes the law doesn't apply to him - it's for the smaller people. The voter who's previously assumed the Government is on her side against the elite might start looking from pig to man and back again and wonder whether there's any difference.