Comment

This legal shambles over Brexit and Covid cannot go on much longer

It does not bode well for the Government to ram through new Covid rules and tie itself up in knots over the legality of its own Brexit bill

"I'm as mad as hell and I'm not going to take this anymore!”

So cried Howard Beale, Peter Finch’s desperate anchorman in the film Network, as he reached the end of his tether. It is, or should be, a scene much on the mind of our legislators at the moment, and I suspect many Conservative MPs are channelling Beale in their private moments.

Sir Charles Walker, vice-chairman of the backbench 1922 Committee, certainly caught that mood earlier this week when he explained, why he would not be supporting the Internal Market Bill (which will, you may recall, break international law, but only in a limited and specific way—phew). Sir Charles is a livewire, who thinks freely and cares deeply, but he is not a serial rebel nor one who opposed his government on a whim. He is also, it might be noted, chairman of the House of Commons Procedure Committee, so orderliness and propriety are very much in his bailiwick.

“I hope I'm not going to foul-tempered tonight,” he told the House. “It's not a disposition I warm to [...] I'm not going to be voting for this Bill at second reading because if you keep whacking a dog, don't be surprised when it bites you back.”

Nor is Sir Charles the only grandee whose patience has run out. The Archbishop of Canterbury was reported by this paper saying that he was deeply concerned about the effect that the new coronavirus regulations—the so-called “rule of six”—were having on society. He argued that the most effective response to renewed outbreaks of Covid-19 were being seen locally, at the community level, and that the government’s top-down response was too centralised, too ‘man-from-the-ministry’.

Archbishop Justin even played his trump card and invoked the teachings of Christ: “The heart of the Christian faith is to love thy neighbour, which is increasingly difficult when strict rules are imposed by the centre.”

How have we come to this? Everyone understands that we are in the grip of an extremely severe pandemic, and most—excepting the fringes-of-society cranks who think that a cotton mask is taking away their personal freedom—accept that we have to take certain steps to control the spread of the disease, steps which may be mildly disagreeable, inconvenient or even downright painful to live with, but which seem to be working. How, then, is the government not drawing on a vast pool of understanding and goodwill?

Walker and Welby were talking about different things, but in fact the same thing. They were talking about the actions of a government which imposes law as a reflex, without thought, consideration, or explanation. One diligent tweeter, Dr Benjamin Lewis, has watched with care the actual publication of the various regulations which are governing our conduct, and his observations are disheartening: the rules are usually published in the middle of the night, often after they have already come into force, and have been occasionally shoddy and rarely explained.

This clearly isn’t good enough. Of course the situation is a dynamic one and anyone with an interest comprehends that lawyers and policy-makers are working flat-out. But Parliamentary Counsel, the government’s draftsmen and women, are better than this. I worked with them closely when I was a clerk in the Commons Public Bill Office, and they are exceptionally bright, learned people. But any draftsman is only as good as his instructions.

What is the result? Dismal scenes like the Home Secretary, Priti Patel, finding herself declaring to the BBC that two family groups of four who stopped on a walk to talk to each other were guilty of the crime of “mingling”. I will give Ms Patel the benefit of the doubt and assume that, as a non-lawyer, she did not intend to give such explicit and baroque a legal declaration; but when the Home Secretary finds herself intellectually adrift and in a public muddle, something has gone wrong.

The resignation of Sir Jonathan Jones, Treasury Solicitor and head of the Government Legal Service, should have been regarded as a omen. This government is increasingly adrift from the reality and execution of the law, either because it does not care, or because it does not understand. It cannot communicate adequately to those to whom the laws apply what those laws mean, or how they came to be. It is receiving, it would seem, inadequate or partial legal advice from an undistinguished attorney-general (and I dread to think what her deputy, Michael Ellis QC, makes of recent events). The Lord Chancellor, sworn to uphold the rule of law, now seems relaxed about the whole business. Meanwhile ministers flounder and flail at the despatch box and in the media.

It is getting worse. Lord Keen, Advocate-General for Scotland and the government’s senior lawyer in the Upper House, is reported to be on the brink of resignation. He told peers this week that Brandon Lewis had “answered the wrong question” when telling the House of Commons that the Internal Market Bill broke international law. The Labour Party, for which one can forgive them, are saying that Keen’s authority is “shot”. Lord Falconer has accused him of misleading the House. He may be on the dole by the time you read this.

We can’t go on like this. It used to be a cliché that Labour governments were well-meaning but incompetent, while a Conservative administration might be flinty-faced but at least knew its business. Those days are gone. The Prime Minister needs to get a grip, on the law, on policy and on presentation. Time is running out.