Our director Silkie Carlo writes in the Telegraph today:
Social gatherings of more than six people will be banned from Monday. Government pronouncements like this raise little more than an eyebrow these days, but they should raise a ruckus.
The need to limit social contacts is arguable – positive test numbers have risen and winter is coming. But if it is a winning argument, why isn’t the case being made democratically? Why isn’t Parliament voting on this major incursion into our lives? Why is there such an absence of democratic debate?
Britain seems a little too comfortable being ruled by diktat. It remains the case that a lockdown has never been in place in England with full and explicit parliamentary approval. The greatest loss of liberty in British history has been imposed largely by ministerial pen. In fact, there have been more than 350 minister-made laws relating to coronavirus across the UK. “Urgency” is often cited, but rarely evidenced, with policies announced days or weeks in advance of their “urgent” imposition. I fear parliamentary democracy is an overlooked casualty of this crisis.
The public is enduring a shock-and-awe campaign of contradictory ministerial commands endowed with the weight of legal sanctions. We have been told to go back to the office, eat out to help out and send our children to school – but now, this arbitrary limit on gatherings of more than six people looms over our social and private lives.
The absence of logic is characteristic of the Government’s rule-making during the pandemic. A team of 50 people can go to work in an office but if 10 go to the pub together afterwards, they’ll be committing an offence. A class of 30 children can sit in a school classroom and, at break time, hundreds gather in the playground. But if seven meet for a birthday party, the parents will face financial penalties. A family of five will not even be able to visit two grandparents at the same time.
Complex and contradictory decrees like these damage the rule of law, not only because they are undemocratic but because they are difficult to comply with. We have been turned into a nation of lawbreakers without even realising it. How many people knew the previous legal limit on social gatherings? And while the legal change on Monday is supposed to make the rules “super simple”, in Matt Hancock’s words, it will clearly do anything but.
Mr Hancock has warned his restrictions “will now be rigorously enforced by the police”. But what good is rigour without rationale? And what will the police enforce? We have been closely monitoring the policing of ever-changing ministerial commands since the onset of the pandemic and have found a chaotic postcode lottery of arbitrary policing. We should hardly be surprised – with Government guidance that contradicts laws, and laws that change every week, it would take a legal scholar to keep up with all the restrictions, exemptions and penalties. The courts have been involved in a stack of unlawful Covid prosecutions too – every one of the charges issued under the Coronavirus Act has been found unlawful on review.
An important opportunity for a course correction will arrive in Parliament in coming weeks, when MPs will have the chance to vote to repeal or renew the Coronavirus Act. The Act represents the biggest expansion of executive power in a generation, and contains some of the most extreme powers in modern British history. Most have been proven unnecessary, but the draconian ability for authorities to detain “potentially infectious” people under Schedule 21 has been used – though, astoundingly, the CPS found only unlawfully, to lock up and prosecute healthy people.
The Act was rushed through Parliament breathlessly, as the first lockdown was being imposed by a televised statement. Six months after it was passed, the vote to renew or repeal the Coronavirus Act is now about more than just these powers – it is about parliamentary democracy versus ministerial rule. And if MPs reassert themselves and restore the democratic balance in this vote, we ought to see fewer decrees bursting out of No 10 onto the statute books.
Few among us will doubt ministers’ good intentions – but you know what they say about the road to hell. If Parliament is serious about taking back control of our laws, the time is now.