Archive for the ‘rule of law’ Category

Ronan Cormacain: Instinct or rules: making moral decisions in the Cummings scandal.

How should individuals conduct themselves during a public health emergency, and more specifically how much reliance should we have on “instinct” and “rules”?  Dominic Cummings, the Prime Minister’s chief adviser, has been accused of breaking the social distancing rules.  The allegations revolve around travelling from London to Durham to isolate himself and his family, as well as taking additional trips whilst in that isolation.  The specific law he is alleged to have breached is regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.  Regulation 6(1) provides that “During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.”  In the course of defending his adviser, the Prime Minister argued that “he followed the instincts of every father” in seeking to protect his family.  In response, Independent journalist Tom Peck stated that;  “There is no guidance in place anymore, none at all. Just do what Dominic Cummings did and ‘follow your instincts’ and you’ll end up in the right place”.

There are many pertinent questions which I do not address here.  Did Cummings break the law is a technical question which is best answered in the courts following a proper police investigation of all the facts, although some parts of the story as presented seem barely credible.  The question of his resignation isn’t really a legal question but a political one, which ought to take into account his role, trust in government, personal integrity and solidarity with the rest of society. There has already been a clear answer to the question on the effect of this scandal on the willingness of the public to follow the rules – although one behavioural psychologist (and member of SAGE) has unequivocally stated that this has trashed the message to the public.

Instead the purpose of this post is to investigate the nature of “instinct” as a criterion for our moral response to the pandemic, and to contrast this with the idea of a rule-based society.

Hobbes famously argued that without rules and order, without a sovereign in charge, life would be nasty, brutish and short.  He wanted a single ruler who imposed his will upon the populace, rather than a thousand separate rulers all vying for supremacy.  Even worse would be the idea that individuals should make their own independent moral choices:

the poison of seditious doctrines, whereof one is that every private man is judge of good and evil actions …From this false doctrine, men are disposed to debate with themselves and dispute the commands of the Commonwealth, and afterwards to obey or disobey them as in their private judgments they shall think fit; whereby the Commonwealth is distracted and weakened

(Leviathan at page 198)

For Locke, in his Two Treatises of Government, the idea was that people agreed to come together to form a society (a commonwealth) and to subject themselves to the rules of that commonwealth, provided that those rules had been properly arrived at and promulgated with authority.  Locke marked off some personal liberties (and private property) from encroachment from the commonwealth, but agreed that laws made by that commonwealth are binding upon everyone within it.  Whilst there may have been some ‘choice’ in the decision to originally join the commonwealth, there was no choice over whether or not to obey its properly made rules.

Kant considered who should be the arbiter of our moral choices – who gets to decide what is right and wrong? It isn’t always the case that we have complete personal autonomy over moral questions – we must sometimes subordinate our individual moral judgement to the moral judgement of the collective. His argument, according to Reiss, was  that “The principle of universality demands that our social and political relations should be governed and our public conflicts settled in a universal manner. This requires the existence of law.”  The universal matter means that we are dealt with in the same way, subject to the same restrictions.  It requires rules which are applicable to everyone. It does not allow the anarchy of individual choices on matters where there is a settled community rule.

Stephen Reicher is a professor of social psychology rather than a philosopher, but from his entirely different discipline he made exactly the same point as Kant when he said

the prime minister seemed to endorse the idea that, when the going gets tough, it is fine to rely on your own judgments – and fine to follow your individual “instincts”.  In effect, Johnson’s defence of Cummings turned an issue of communal responsibility into an issue of individual preference.

The Church of England vicar who questioned the Secretary of State for Health at the Government press conference on Tuesday 26 May made the same point when he said “if we are all being told we can use our instincts as to whether we can abide by the law, that’s an increasingly serious thing for the future.”

Developing Kant’s line of reasoning further, Jeremy Waldron in The Dignity of Legislation argued that we are not fully autonomous human beings when it comes to making moral choices, but that we should make our decisions subject to the decisions we have collectively reached in society, or as he put it “the heteronomous obligations of positive law”.  We all have the capacity for moral reasoning and decision making, but in some cases we collectively agree that it is not for individuals to make their own choices about what is right and wrong, but for us all collectively to agree on what is right and wrong, what is permissible and impermissible.

A system of laws is that heteronomous statement of what is permissible and impermissible. We have a system in place to elect MPs, who then pass laws, which are properly debated, enacted, promulgated and then enforced.  Parliament has debated and then enacted both the Coronavirus Act 2020 and the Public Health (Control of Disease) Act 1984.  Using the authority of the 1984 Act, the Secretary of State for Health then made the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.  Those Regulations were then laid before, and approved by resolution of each House of Parliament within 28 days, in accordance with the procedural requirements.  These rules were specifically crafted to deal with the coronavirus pandemic, and which took into account the need to protect the public as well as the need for personal liberties.  I have previously argued that laws still apply, even during emergencies.  The very fact that these Regulations were made for these exceptional circumstances shows that we have collectively taken the decision to regulate the pandemic through law.

It is these rules which reflect what we, collectively as a society, have decided is legally permissible and impermissible.  Furthermore, part of being a member of that society is that we respect those rules, even though we may disagree individually with some aspects of them.  For example, as an individual, I may think that it is perfectly acceptable for me to smoke in a public place, but even though I think my view is reasonable, I accept that society has taken a different view by enacting a law banning smoking in a public place.  In a similar vein, even though I personally may think it ridiculous that children have to go to school aged 5, I accept that the properly formulated and democratic rule is that we all must send our children to school at that age.  The point is that even though I may disagree with a rule, I accept the validity of it having been made and validated by the rest of society – I have given away some of my personal autonomy in favour of the group’s view of what is right and wrong.

From the constitutional and rule of law perspective, it is abundantly clear that rules must guide our actions.  Lon Fuller’s first example of a legal system gone wrong is when Rex, the mythical king, dispenses with a system of laws and decides instead to make individual judgements in individual cases.  For Fuller, the idea that the Prime Minister, or his adviser are the only arbiters of what is lawful is anathema to the morality of law.  Fuller says that “The first desideratum of a system for subjecting human conduct to the governance of rules is an obvious one: there must be rules”.  Implicit in Tom Bingham’s requirement that we are all subject to law, is the pre-requisite that there is a system of laws in place which purports to regulate our conduct.

This is why the recourse to “instinct” in the Cummings defense is out of place.  As Kant pointed out, if we were all to follow our individual instincts, then there would be chaos. Or as Jo Wolff more prosaically noted “Cummings’ gift to future teachers searching for an example of a breach of the golden rule of almost every religious and philosophical tradition: ‘what if everyone did that?’”.  Even if we are not the vile tyrants and bullies envisaged by Hobbes, it is still possible for reasonable people to disagree on moral and political questions.  But a system of law means that we mesh and aggregate our moral values into one which is collectively accepted by all of society. 

Nowhere is this clearer than in a public health crisis.  If we all follow the lockdown rules, then we have a good chance of reducing infection rates.  But if we all are free to follow our instinct, to do what we personally think is right, then we have absolute chaos and the complete absence of an effective public health policy. As Irish Times journalist Fintan O’Toole said “We endure these things individually because we understand ourselves to be also enduring them collectively”.  Being in it together means we are all subject to the same rules. It means that we don’t do the things that we personally think would be right (visit friends, attend funerals, hug family) because we have subordinated our own personal judgement to the judgement of the collective as represented by the Government and the Regulations.  It is our instinct to visit our dying relative, but we sacrifice that instinct to our notion of the greater good, the heteronomous consensus that we stay at home, protect the NHS and save lives.

Writing on the Peloponnesian war and the plague that ravaged Athens, the Greek historian Thucydides, (according to Robert Zaretsky) wrote that:

Those yet alive, shattered by the enormity of the event, “became utterly careless of everything, whether sacred or profane.” With the eclipse of the “fear of gods or law of men,” anarchy became the rule.

In a time of crisis, we do not have the personal luxury of obeying our instincts.  Instead all of us, from the highest to the lowest, must obey the law.

Dr Ronan Cormacain, Senior Research Fellow at the Bingham Centre for the Rule of Law and Consultant Legislative Counsel

(Suggested citation: R. Cormacain, ‘Instinct or rules: making moral decisions in the Cummings scandal’, U.K. Const. L. Blog (28th May 2020) (available at https://ukconstitutionallaw.org/))

Ronan Cormacain: Can I go to the park please Dad? Everyday lessons in legal certainty in the English Coronavirus Regulations

This post analyses the changes made on 13 May 2020 to the coronavirus social distancing regulations for England.  The criterion for analysis is the basic Rule of Law requirement of legal certainty.  Certainty allows us to plan our actions, lets the police know what it is they should be enforcing, and most importantly stops us from inadvertently breaking the law. The very limited case-study is the question posed in many households today – can I go to the park please Dad? 

The legislative background is set out at the end.

Legal certainty 1 – the Regulations

A key requirement of the Rule of Law is legal certainty.  For Bingham, law must be clear and predictable.  “Legal certainty” is a requirement in the Venice Commission Rule of Law Checklist.  According to Simson Caird in his study of the constitutional standards of the House of Lords, “the rule of law requires laws to be reasonably certain”.   More specifically, Brandreth and Sandhurst questioned the level of legal predictability in the 26 March iteration of the regulations.

With that in mind, can the Regulations be used to answer some quotidian questions?

26 March21 April12 May
Can I go to the park with my kids?  Yes Assuming that some “exercise” occursAs beforeYes Assuming that this is  “open-air recreation” or “exercise”
Can I play football with my kids in the park?Yes Assuming the same “household”As beforeAs before
Can my kids play football with their friends in the park?  No Different householdAs beforeNot sure. It depends.

Yes – one child from household A and one child from household B.

No – one child from household A, and more than one child from household B.

No – Dad can’t join in the game, because then it would be more than one member of another household. Or perhaps just the sole child is breaking the law (exercising with two people from another household), not your family (exercising with one person from another household).

Not sure – one child from household A, one from household B, one from household C. It depends if you construe reg 6(2)(b)(iii) as recurring (so you can have multiple iterations of one member of another household) or as a one-off (it only applies once, so as a maximum of one other household). Using teleological interpretation, the intention is to reduce the spread of the virus, so the one-off interpretation is probably best.

This is before taking into account regulation 7, which still limits public gatherings to a maximum of 2 persons, unless they are all in the same household.  If 3 or more kids play football in the park, and one of them is from a different household, then they are all breaking the law.  Assuming that playing football together is a public gathering.

This also doesn’t take into account the amendment to Schedule 2.  The new paragraph 44 states that outdoor sports courts can now open.  So the basketball court is now open, and I can use it, provided that either everyone playing basketball is in my family, or only 1 person from Household A is playing against 1 person from Household B.  But if there are more than 3 people, and any one of them is from a different household, they are all breaking the law.  Opening up outdoor sports courts only seems to make sense in terms of singles tennis, as any team sports require both teams to all be from the same household.

It is a little confusing.

Legal certainty 2 – Law v Guidance

Law is hard and fast rules, obligations which we must obey, duties which are enforceable in a court, and backed up by sanctions.  Guidance is also important, but it is not the same as law.  Guidance is something to “have regard to”, something which we “ought” to follow.  It is the parts of the Highway Code saying that we “should” do certain things, rather than “must” do other things.  The distinction is clear: the NHS advises me to stop smoking, but the law says it is unlawful to smoke in an enclosed public space.

There is confusion between the social distancing rules and the social distancing guidance.  Take the most obvious example – the 2 metre rule.  Everyone knows that we have to stay at least 2 metres away from others if at all possible.  Justin Madders MP made the following observation in debating the English Regulations:

Will the Minister provide clarity on the status of the 2-metre social distancing rule? It is probably the most effective tool in helping to stop the spread of the virus, yet it does not appear in the regulations. Does it appear elsewhere? Is it actually enforceable?

The answer is no.  It is not a rule.  It is very sensible guidance, and ought to be followed by everyone.  But it is not law.  This disregard for the distinction between law and guidance has been present from the start of the pandemic, see for example the concluding section of my Report for the Bingham Centre for the Rule of Law on the original Coronavirus Bill.

Legal certainty 3 –Regulations v Ministerial statements

Going back to first principles, the Rule of Law means that we are governed by the law, rather than governed by the wishes (sensible or otherwise) of the person in charge.  So the Government may very well offer sensible advice around eating more fruit and veg, or flying less, or helping my kids with their homework, but these are not rules. As Steve Baker MP said, in a debate on these Regulations, “can we please close this gap, so that police officers are not put in the invidious position of trying to enforce what are really no more than Ministers’ opinions of what should be done—in other words, things that are not in law”.

In the Prime Minister’s address to the nation on 10 May, he said “And from this Wednesday, we want to encourage people to take more and even unlimited amounts of outdoor exercise”.  The Coronavirus FAQ page asks, in relation to the 12 May rules – what can I do that I couldn’t do before, and answers “exercise outdoors as often as you wish”.  This follows on from Michael Gove’s earlier pronouncement that we were entitled to exercise outdoors once per day, 1 hour for a walk, 30 minutes for a jog, depending upon your level of fitness.

This is nonsense.  England, Scotland and Northern Ireland never had a rule limiting exercise to once per day.  Wales did have an express rule for exercising stating “no more than once a day”.  The only change made in relation to exercise in the latest English Regulations was the addition of “one member of another household”.  There has been no change to the law in terms of the frequency or duration of outdoor exercise.

What the Government says matters, particularly during an emergency and particularly as it is unlikely that citizens walk around with the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (as amended twice) in their back pocket.  For the Government to repeatedly mischaracterise what the actual rules are is a breach of the Rule of Law.

Raphael Hogarth, of the Institute for Government in an excellent tweet analysis stated:

Sitting in the sun etc are not listed as examples, but “reasonable excuse” is an open category, so the fact the PM has told you it’s fine should make it a reasonable (ie lawful) excuse.

This is a slippery slope to capriciousness.  Do we have a society where a ministerial speech changes the meaning of the law?  It would most likely be an abuse of process to be prosecuted for sunbathing if the Prime Minister said that sunbathing is lawful.  But it is anathema to our idea of the Rule of Law if what the Prime Minister says becomes, by virtue of him saying it, the law.

Conclusion

Even during a pandemic, the Rule of Law matters.  Citizens are entitled to legal certainty.  This means that (a) the Regulations must be clear, precise and certain, (b) the distinction between rules and guidance must not be blurred, and (c) Ministers should not mischaracterise what the law actually says.

Legislative background

Section 45C of the Public Health (Control of Disease) Act 1984 grants the Secretary of State the power to make regulations “for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection”.  Under an emergency procedure, these regulations come into effect immediately, but cease to have effect after 28 days, unless they are approved by a resolution of each House of Parliament.  Hickman questions why relaxing the restrictions is an emergency, requiring the use of the urgent procedure.  In England, social distancing measures have been enacted using this procedure in 3 separate statutory instruments:

NameMadeCame into force
Health Protection (Coronavirus, Restrictions) (England) Regulations 202026 March 202026 March 2020
Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 202021 April 202022 April 2020
Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 202012 May 202013 May 2020

Walker and Blick have questioned the merits of using the Public Health (Control of Disease) Act 1984 as the appropriate tool for making social distancing regulations.  Sandhurst and Speaight have questioned their vires.  I have questioned the legitimacy of the 21 April 2020 amendments.

The following sets out each successive iteration of regulations 6 and 7 dealing with exercise outside the home.  The italics are my addition to show the changes.

Original version, 26 March

6. (1) During the emergency period, no person may leave the place where they are living without reasonable excuse.

(2) For the purposes of paragraph (1), a reasonable excuse includes the need –

(b) to take exercise alone or with other members of their household

7. During the emergency period, no person may participate in a gathering in a public place of more than two people except-

(a) where all the persons in the gathering are members of the same household

Incorporating amendments, made on 21 April

6. (1) During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.

(2) [no change]

7. [no change]

Incorporating amendments, made on 12 May

6. (1) During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.

(2) For the purposes of paragraph (1), a reasonable excuse includes the need –

(b) to take exercise-

(i) alone,

(ii) with one or more members of their household, or

(iii) with one member of another household.

(ba) to visit an open public space for the purposes of open-air recreation to promote their physical or mental health or emotional wellbeing

(i) alone,

(ii) with one or more members of their household, or

(iii) with one member of another household.

7. [no change]

Dr Ronan Cormacain, Senior Research Fellow at the Bingham Centre for the Rule of Law and Consultant Legislative Counsel

(Suggested citation: R. Cormacain, ‘Can I go to the park please Dad? Everyday lessons in legal certainty in the English Coronavirus Regulations’, U.K. Const. L. Blog (15th May 2020) (available at https://ukconstitutionallaw.org/))

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