There has been much chatter about people being puzzled by the lockdown rules. Critics of Boris Johnson are partly right: the law is confusing. But this isn’t necessarily the Prime Minister’s fault. And nor should it come as a surprise. Why? Because the law can never give absolute clarity about what you should do. Only a totalitarian dictatorship could even try – and even then it would almost certainly fail.
Lockdown is not martial law. It is made up of many factors, only one of which is the law. The law spelling out what we can and can’t do under lockdown is The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. It is a major advancement that we can all read it at all; not long ago, barristers could charge fees for just saying what was in a statute (because only they had the books).
While the backlash was loudest after Boris’s Sunday night address, it’s worth remembering that this update wasn’t the first amendment to the law, which has actually changed twice. The first change seemed to cause less of a fuss. When the PM addressed the nation on Sunday, we were all using version two and nothing changed in law until three days later. All he did was highlight to workers that for 45 days they had had the power to go to work if they could not work from home.
So why was it that we had all these powers to leave our houses from 26 March to 13 May but didn’t use them? The answer is part of justice and shows the limits of mere law. We should all take a moment to be mildly proud of ourselves here. Most of us went well beyond what the law required because we cared and wanted to save lives. And we often do this; this is why ‘taking a legal point’ is a pejorative term.
A government makes laws by writing the broad framework. That framework simply never can set out what happens in every eventuality going forward. That is OK because we have other factors that then kick in – if necessary the judges, but primarily us.
Sometimes Parliament does bizarre things it did not intend. Which is why, in 2006 with the original draft of the Legislative and Regulatory Reform Bill, Tony Blair’s government accidentally proposed giving itself and its minister huge powers to just re-write all laws. Fortunately, that coup d’état was fought off by some kind academic lawyers and the fact Blair hadn’t ever intended to do it.
The UK lags well behind other western nations in terms of teaching law in schools. Worryingly, you can attend any of our elite universities without knowing the difference between the House of Commons and the House of Lords. During the Leveson enquiry, Sir Brian was regularly ennobled by journalists against his will. That is a recipe for confusion.
In our society, moral and group pressure and above all common sense remain hugely important in the pursuit of justice. Judges have for a long time sought to understand the views of normal people and to bring laws into line with those views. In 1794, a ruler tried to tell his people what the complete law was by giving examples for every single variation of circumstances – and that was a Prussian dictator who imprisoned judges (and it didn’t work).
We can read the regulations, listen to the advice (knowing it is only advice), try to do our best and try to look after each other. You would be amazed at how hard the judges will then work to bring whatever the law is, into line with that behaviour. So rather than condemn the lockdown confusion, it’s surely better than the proscriptive and even more flawed alternative.
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