Maintaining constitutional principles during a pandemic might be regarded as the obsession of lawyers and other cranks. After all, didn’t Cicero—no mean lawyer himself—say that salus populi suprema lex (a phrase that might well be translated as “the health of the people is the supreme law”)?
That reaction is understandable, but—even on its own terms—dangerous. In the end, law works because most people accept its moral authority as a regulator of what they should and should not do and as the basis for enforcement action by the state. That moral authority is underpinned by some degree of confidence that those who make the law have considered its contents with care, not drawn arbitrary decisions, and that what the law says makes sense, or is at least comprehensible. That is particularly so in the case of a law—like (the provision that tells us when we can be outside our homes)—which tightly regulates almost every aspect of everybody’s life. If those regulations are seen as treating different people differently without good reason, or as being so unclear as to leave people in real doubt as to what they can do and to leave them vulnerable to capricious enforcement by agents of the state, then that will weaken their authority and ultimately their effectiveness.
This may all seem a bit abstract. But the way in which the most recent iteration of these regulations has been drawn up and approved is hopelessly unsatisfactory. And unless the next iteration is done a lot better, the problems will get worse.
Process first. No one knows why Boris Johnson decided to announce the new rules in a recorded TV broadcast on a Sunday rather than (as paragraph 9.1 of the August 2019 Ministerial Code requires) in parliament on a weekday, accompanied by critical details such as the text of the new rules. But confusion was inevitable and duly occurred. The next time he announces a change in the rules, it should be in parliament where he can immediately be questioned on important detail, and the announcement should come with a draft text of the new rules (not least because, as anyone who has ever had a hand in legislative drafting knows, the process of turning policy into legal text often throws up issues that need to be addressed, and so improves the policy).
Even more seriously, the new…