The line between liberty and legality

It has been a dramatic week for the Government. First it introduced a Bill to the House of Commons which, Northern Ireland Secretary Brandon Lewis happily admitted, “does break international law”. Secondly, it imposed draconian nationwide measures to curb the spread of Covid-19 which, while not a return to full lockdown, will cause millions to feel both anger and anguish.

Such issues are delicate and momentous. But they are also, condensed into the space of a single week, defining. Greater arcs of time smooth the ripples caused by modifications or reversals of strategy. A week allows for no such cushioning. Instead, we have been subjected to a series of dramatic steps that seem at best inconsistent, at worst incompatible. What kind of government, voters might be justified in asking themselves, is this? Is it a government informed above all by liberty, determined to champion sovereignty at the cost of breaking the law? Or is it a government that criminalises individuals for seeing their own grandchildren, backed up by promises of exemplary arrest? Exemplary arrests might have been better made in Parliament Square this week, when Extinction Rebellion radicals daubed abuse on the statue of Winston Churchill.

Drawing the boundaries of liberty and law could not be more sensitive, defining as they do the relationship between governors and governed. It is a relationship which Downing Street, via the data-driven insights of Dominic Cummings, and the relentless use of polling and focus groups, claims to understand as few before it. But there are pitfalls with this approach.

The first is that such polling can give No 10 the impression that it knows best, and further entrench the slide towards executive power, under the cover of “giving the people what they want”.

The second is that polling is a function of leadership rather than the other way around. In 2003, backing for the military campaign in Iraq had a 16-point lead in surveys, though many would prefer to forget that fact now. In March, at the imposition of lockdown, 65 per cent approved of the Government’s handling of the Covid crisis while just 23 per cent disapproved. Three months later that had fallen 60 points to -18, which pollster Peter Kellner at the time called “the biggest, fastest shift I can recall for any government on any issue”. Boris Johnson should know this better than anyone. After all, it was his leadership of the Brexit campaign that supercharged it.

This year there have only been two issues: Covid and Brexit. But that seems enough to have muddled the instincts of an administration which wants to espouse both the Prime Minister’s old live-and-let-live approach at the same time that it leads new crackdowns on pubs, parties and obesity. Here are what the Prime Minister once described as “the jostling instincts of the human heart”. But leadership is about choosing a path.

Given that basic freedoms are at stake, it is not acceptable to leak and brief those choices once they have already been taken, barely bothering to announce them in Parliament, let alone debate them there. On Monday March 23, the 329-page Coronavirus Bill, granting the Government exceptional emergency powers, was voted through in a single day without opposition, on the condition that it was reviewed every six months. Those six months are nearly up. Renewal must be dependent on guarantees of greater scrutiny of such monumental issues.

In the immediate term, the Government should modify the Rule of Six so that it no longer applies to children. That or explain its scientific rationale and the reason why the science is different in Wales and Scotland. The alternative is to see countless thousands of families ignore the rules, and so loosen the Government’s grip on public consent ahead of a winter in which edicts may need to be adhered to very strictly indeed.

This week has been dramatic and delicate, but by no means a disaster. The Internal Market Bill may well come to be seen as the tactical masterstroke which finally focused minds in Brussels and led to an equitable and triumphant trade deal. The, hopefully modified, Rule of Six may ultimately be viewed as a wise if unpalatable measure that spared the country an awful second wave.

But if things go wrong, then a government which announces but does not debate, which changes its mind but does not nurture a clear political character, whose policies spring without obvious coherence from no clear ideological fount, will not be able to rely on sympathy from many quarters.