A Burgundy diary – 12 May 2020

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Clarity and corvid-19 laws

 

In his paper on Rule of law Lord Bingham defined what for him were the eight bases of the ‘rule of law’. (Under the name Tom Bingham he later wrote an excellent short paperback with the same title expanding on his paper, and for the lay reader.)

 

Bingham’s first rule was that ‘the law must be accessible and so far as possible intelligible, clear and predictable’. He went on to refer to a 1979 European Court of Human Rights case which had said that a law must be ‘formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able… to foresee, to a degree that is reasonable in the circumstances, the consequences’ of what a person is doing.

 

If you think about it there is nothing surprising in any of this. If I am to be prosecuted I must know what law it is said I have breached and what I am said to have done wrong. I must be able, as far as possible, to understand the law on which I am to be charged.

 

Looked at from the other end of the telescope for the police officer who may think she or he should arrest me, that police officer must know what is the law on which I may be charged. Otherwise the police may be wasting their time; and may be infringing such rights as I may have not to be arrested.

 

As things now stand with corvid-19 this is a serious point. If the Government want to control spread of this virus they must be clear on what terms, otherwise many people will take no notice; or others will be wrongly prosecuted. At present we have a prime minister – who relationship with precision is imprecise (ie he can’t cope in any real way with detail) – who stands behind a lectern which says ‘stay alert’, ‘control the virus’, ‘save lives’. How vague is all that? It says almost nothing. The first and third of the slogans are what most of us do every day of our lives; and the second we have limited control over, save to wash our hands etc. It tells police officers nothing.

 

‘Stay at home’ was clear. We knew what the exceptions were. Mostly the police knew those exceptions and what were their powers of enforcement (where needed). Bingham’s first rule of law, given the time to frame the 2020 legislation, was broadly complied with. Now we have drift; and the bitter irony is that the man who understands what is needed – who once headed the Crown Prosecution Service – leads the opposition (Kier Starmer), and is not really listened to; whilst the man who waffles imprecisely over it all leads the government (Mr Johnson).

 

David Burrows

12 May 2020

 

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