The coronavirus emergency raises pressing questions about law-making and state powers: the UK government passed legislation at lightning speed and is now interfering with our daily lives in an unprecedented—if necessary—way. The rules have been criticised for lack of clarity—is a jogger resting on a park bench breaking them?—while some police forces have been censured for overstepping the mark of legitimate enforcement.
What is the right balance of powers to strike? And where might our constitutional system be left once the crisis passes?
For answers I phoned Simon Brown, one of our most senior former judges. Brown served on the highest court in the UK for many years, five and a half in the Lords and two and a half when the functions moved to the Supreme Court. Now a crossbench peer, he is the author of a fascinating new book recounting his rise through the legal profession, covering along the way his role in textbook judgments such as GCHQ, which helped determine limits on the exercise of the royal prerogative.
When we spoke, the UK government had passed its coronavirus bill and draconian measures had been in place for two weeks. Did the regulations overstep the mark?
“For five or six weeks, the government not only can, but properly should be doing what it is doing, which is laying down these emergency powers,” said Brown, speaking down the line from his home in Shropshire. But difficulties arise: the powers are “not very satisfactory in the sense that they are inevitably uncertain in their application. How can you, in this time, legislate for lockdown in such detail that everyone knows precisely where they stand?” He added that “It's all very imprecise.”
Some imprecision is inevitable in such a fluid situation. But the consequence is, says Brown, that “there’s a temptation for overly authoritarian policemen and women, generally individuals, perhaps even individual chief constables, to enforce this in a more draconian way than one would wish.” There have been several now-infamous incidents of officers reprimanding seemingly-innocent walkers, to outraged responses on social media.
Might it be that some officers are confusing the law, which is enforceable, with ministerial guidance, which is not? “I think there's a real chance that some of them are,” said Brown. The confusion means “there is a real danger” in all this.
Jonathan Sumption, another former Supreme Court justice, has asked whether social restrictions risk inflicting more harm than the virus itself. In a column for the Sunday Times, noted by Brown, Sumption asked whether they are “intolerable in a free society.”
Yet Health Secretary Matt Hancock has floated even tougher restrictions, saying over the weekend that all outdoor exercise may be banned. “I do hope they don’t go down the wrong road on that issue,” said Brown when this came up. “They seem to have rowed back on that over the past 24 hours, I think because a lot of people—quite rightly—have been getting at him.”
It will “need careful thinking out,” he continued, “as to what balance of interests is to be struck between the need to impose these draconian… instructions now on the population, as against the countervailing interests, which are, of course, [the] exercise of our given democratic rights and liberty, not least also the ability economically to return to [normal].”
*** Though coronavirus naturally dominates the agenda, other serious constitutional issues haven’t gone away. The government announced plans for a democracy and rights commission at the end of last year, with one source commenting that the PM’s Svengali Dominic Cummings wanted to “get the judges sorted.” Legal experts worried about an ill-thought through constitutional assault. I asked Brown whether it would be a relief if that now fell off the agenda.
“I think, yes… it can fall by the wayside quite safely now that we’re in a brave new world,” he said. The prospect of the commission “makes me pretty apprehensive.” “It looked to be a rather ugly response to Miller 2”—revenge for judicial interference in Boris Johnson’s prorogation decision in September last year.
In that vein, Suella Braverman, an outspoken critic of the courts, was appointed attorney general in February. “It’s very unusual for me not to know the attorney general but I’m afraid I don’t know this new one at all,” said Brown, slightly damningly. “It is my strong hope, as one gathers that she is a little—how shall we put it—sceptical about the power of the courts, I hope she was not appointed to try and clip the wings of the judiciary.”
One controversial member of the judiciary in recent times has been former Supreme Court president Brenda Hale. Did she deserve such strong criticism? Brown overlapped with her on the court and tip-toed round the subject.
“You may say that under Brenda’s presidency particularly, there was perhaps a more activist approach,” he said, “but this is simply a question of personalities, and now that Robert Reed is the new president, I think we'll be able to return to, not a retrenchment, but perhaps a slightly more conservative return to what many people would regard as greater orthodoxy.” There was a nervous chuckle as he spoke.
So what is the proper role of the judiciary in a democracy? In 2010 Brown gave a paper arguing that unaccountability is a strength, not a weakness. “I do strongly believe that,” he told me. The constitutional ideal is that “the judiciary is unelectable, unsackable and beholden to no one. And provided it recognises the ultimate vulnerability of its position, in the sense that it has to retain judicial independence—and that will only come from retaining public confidence that it is not going beyond its bounds—it has all the abilities that governments don’t to take a more measured view, to recognise the deeper, enduring values on a longer-term basis.”
Any reformers would do well to bear in mind that ideal and ask whether changes risk doing more harm than good. “It would be really unfortunate to have a power struggle between the government and the judiciary,” said Brown.
As for the constitutional implications of coronavirus, he was not inconsolable. “Nobody is ever keen to get rid of the powers that they [acquire], it’s true, and a lot of newspapers have been making that point. Well, one ought to keep a protective eye out against that, but I think that I wouldn't regard that as a central worry of the day,” he said.
Playing Off the Roof & Other Stories by Simon Brown (Marble Hill)