Simon Brown says there may be dangers lurking in the legitimate restrictions on our daily livesby Alex Dean / April 7, 2020 / Leave a comment
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…