Never Again

Never Again

Here we are, nearly 6 months on from that tearful resignation by poor inaptly-named Allegra. Since then we have had the PM’s Captain Renault-like shock at the revelation of parties at No 10 during lockdown, leaked photos, apologies to the Queen, an internal investigation, an off-then-on police investigation, numerous apologies to Parliament, accusations of lies to the Commons, a PM and his Chancellor paying a fine after being served with an FPN over attendance at a birthday party in Cabinet, referral of the PM to the Parliamentary Standards Committee, an off-then-on police investigation (still continuing) into the Leader of the Opposition and, finally, the Met’s announcement that they have completed their investigation into 8 events in 2020-2021 and have issued 126 FPNs. The PM is – apparently – not getting a second one, much to the surprise of some, disgust of others and relief of yet others, mostly Tory MPs. The focus will turn once again to Sue Gray’s report, though it scarcely matters what she says as everyone has made their minds up about the PM.

How did we get here? Forget for a moment the PM’s personal behaviour. The laws that were passed, what they stated, how they were drafted, scrutinised, communicated and enforced revealed institutions that were simply not up to it, institutions which failed to do the job they are paid to do, jobs which are essential in a free democratic society.

For the first time in peacetime people were forbidden from doing anything unless the law specifically said they could, a complete reversal of the normal presumption in English law that all is permitted unless expressly forbidden and an astonishingly draconian restriction of our liberties. Pretty much every aspect of our normal day to day life was criminalised.

The restrictions were announced four days before the laws were enacted with no Parliamentary scrutiny by simple Ministerial decree. Extensive enforcement powers were granted to a range of authorities, not just the police. These powers even made criminal actions which were lawful under the regulations if a police order was disobeyed.

Laws were drafted at the last-minute and published barely minutes before coming into effect. They were poorly and confusingly drafted and were constantly amended in ways which made it hard to understand clearly what they said. In the first year, they were amended 70 times, on average every 5 days. There was no scrutiny of any of this legislation. Only on 2 occasions did Parliament vote before rules came into effect and only one day beforehand. Parliament disappeared while our liberty was abolished by Ministerial fiat.

This was not all. Ministers than issued guidelines which were at odds with the law, often at odds with what other Ministers said hours or days earlier. The distinction between the law and guidelines was deliberately unclear. People were misled into thinking they could only go out once a day or only for an hour. Nonsense about “essential goods“, not sitting on park benches and covering up goods in shops was promulgated. Ministers opined on whether a Scotch egg was a “substantial” meal. Communication was poor, confusing and inconsistent. Journalists did little to help.

The police did not understand the rules either, gave out misleading advice, unfairly penalised citizens and abused their powers by spying on walkers via drones (Derbyshire Police) or telling those who protested that they would “make it up” because they – not a citizen – would be believed (Lancashire Police).

Zealous over-enforcement resulted in many prosecutions having to be abandoned because, once the CPS reviewed them, the wrong charges had been brought under the wrong laws. Who knows whether all the FPNs which have been issued were correct. Given the variations in understanding, it would not be safe to assume so. The publicity given to a case or the high profile of the person being investigated seemed to determine how the police would behave rather more than the actual law or facts. We had the ludicrous spectacle of police and Ministers saying that matters would not be investigated retrospectively and then just that happening, seemingly as a result of political or public pressure. Whatever happened to policing “without fear or favour“? A new concept of purdah was invented by the Met just before the local elections.

This has all been deeply dismal and worrying: a spectacle of capricious, arbitrary and confusing rule by decree, a contempt for Parliament and scrutiny, inconsistent, over-zealous and on occasion unlawful enforcement and communication which has obscured as much as it has clarified. All these alone have damaged the rule of law, the relationship between us and the state and our trust in its institutions and those in positions of power. Even had the PM scrupulously complied with the rules at all times, eating his birthday cake alone in a darkened room, it would not make up for the abysmal way the legislature, the executive, the police and other authorities behaved over a two-year period. Yes – Covid was an emergency – but it is frightening to see how easily our liberties were removed with little regard for any checks and balances, for the importance of process, scrutiny and challenge. Frightening too to see how even the extensive powers the police were granted were abused. (It is unsurprising that the Met’s policing of the Everard protest was found to be unlawful.) More worrying is how the government has developed a taste for such powers – and it is is even more unsurprising to find the government seeking to curb protests even more and grant the police yet more powers – see the Police, Crime, Sentencing and Courts Act just passed.

There will be a new emergency one day. We may even have a different PM, one with a greater regard for the rules. The emergency may be another health one. We cannot control that. It may require similar temporary restrictions on our freedoms. We may have no other option. But what we can – and should – ensure is that never again should we restrict or abolish our freedoms in such an arbitrary, cavalier, confusing and oppressive way.


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