The Guardian view on lockdown law: democracy must keep up
Even in the most extreme emergency, the prime minister does not have the power to make law by himself, live on television. The pandemic has sometimes created the impression that something along those lines is happening when Boris Johnson announces new lockdown rules, but his words are mere guidance until parliament upgrades them.
That constitutional process matters. Britain’s apparatus of Covid regulations is not reminiscent of East Germany, nor is it evolving into “something akin to a police state”, as Nigel Farage claimed last week. The comparison is proved false by the liberty Mr Farage enjoys to make it.
Lockdown is a burden, but most people recognise the necessity. On Wednesday, Britain passed the tragic milestone of more than 100,000 deaths recorded with Covid as the cause. Hundreds are dying every day. These are among the darkest days of the pandemic so far. History will pass a grim judgment on those who undermine the rules by casting them in a sinister, paranoid light.
But the importance of adherence to regulations does not excuse the government from its failures in communication and accountability. Ministers too often sound unsure about what is permitted and unable to say how vigorously police should enforce the law. Clarity, articulated with moral authority, is lacking and horribly overdue.
Public compliance could be better, but most people are doing the right thing. Needlessly draconian enforcement is cause for concern but not endemic. The cases overwhelming hospitals in January do not reflect current behaviour; they are the delayed effect of a more lax regime at the end of last year that should have been tightened sooner. Mr Johnson might want to blame the public for their misfortune, but many are suffering now for having done what was permitted over Christmas.
The prime minister’s obvious ambivalence about imposing restrictions does not encourage discipline. His eagerness to lift them prematurely has contributed to the confusion, as different areas have yo-yoed in and out of different tiers of control. Meanwhile, parliament has struggled to keep up. The legal basis for lockdowns has to be updated using statutory instruments derived from different laws. Some of it builds on the Coronavirus Act, rushed through the Commons last March, but much of it comes under the 1984 Public Health (Control of Disease) Act, which gives ministers extraordinary powers as long as they judge the need to be “urgent”. In some instances, MPs have not finished scrutinising one set of measures before they are superseded by another set. The result is what one legal expert calls “abracadabra lawmaking” – government pulling statute out of a hat without adequate checks and balances.
The requirements of social distancing and video conferencing have slowed the wheels of democracy, but Mr Johnson has never been eager in submission to parliamentary authority.
This is the prime minister who sought an illegal prorogation when MPs would not bend to his will over Brexit in 2019. Initial drafts of last year’s coronavirus legislation had even less provision for MP input than was eventually imposed by amendment. In September last year, the government was scolded by the Speaker, Sir Lindsay Hoyle, for showing “total disregard for the House” in the way it has handled pandemic regulation.
Inevitably the pace and scale of the current crisis override normal procedures. But that expediency needs to be matched with a sense that government is trustworthy in the exercise of extraordinary powers. There is no need to conjure fanciful spectres of totalitarianism in order to feel concern about the precedents now being set. The pandemic makes it easier for Mr Johnson to evade scrutiny and duck accountability. But he would be doing that anyway. Parliament’s duties to keep government in check are made harder by the coronavirus, but they are no less vital for the health of democracy.