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Public trust in the law is at risk if ministers hurry through hundreds of new rules and laws, bypassing parliament and leaving citizens, businesses and police in the dark, the former head of the legal department said. of the government.
Sir Jonathan Jones, who resigned over proposals to violate international law in the Brexit negotiations last year, said unorthodox law-making during the pandemic should not be allowed to become the norm.
Other legal figures have highlighted how the changes have restricted fundamental freedoms, such as the right to protest, and the shooting of grouse is allowed amid lobbying by Conservative MPs. There was anger last week when ministers revealed maximum prison sentences of 10 years for lying about travel from Covid hotspots, without parliamentary scrutiny.
Writing for The Guardian on Thursday, Jones highlighted how police forces continued to apply different standards to Covid restrictions, while the chaotic nature of law-making would not help people understand the rules, a major concern when “compliance it is so important, in fact potentially a matter of life and death. “
“The government’s approach to legislating for Covid, while it may be justified for the most urgent emergencies, should not become a model for policy-making or law-making in general,” he said. “That would lead to worse policy and law, and undermine respect for both.”
Jones said the detail of how the law was communicated had to change. “The detail is there for a reason: the detail is the law. The law is not established by a ministerial press conference or a government publicity campaign, however mandatory or lurid the language may be. It is established by the legislation itself ”, he said.
Jones said ordinary citizens don’t “sit frantically refreshing their screens to read pages of detailed legal text,” but the government’s way of conducting things left businesses and police in a state of confusion, which could have serious consequences. consequences.
“We have uncertainty or confusion about what the law actually says, inconsistency between the letter of the law and the guide (which may have been written without taking into account current legislation), and different interpretations and approaches to enforce the law adopted by different police forces, “he said.
“None of that promotes trust in the law or the way it is produced. It also doesn’t help people to understand what the law says or to comply with it, just when compliance is so important, in fact, it is potentially a matter of life and death. “
Jones resigned as permanent secretary of the government’s legal department in September after a disagreement with attorney general Suella Braverman over plans to nullify parts of the Brexit deal in Northern Ireland. His five-year term was due to end in April this year. At the time he resigned, he was the sixth senior official to announce his departure in 2020.
He said his experience within the civil service meant he understood the “great strain” that Covid had put on lawmaking, saying that government attorneys were drafting “complex legislation, often at high speed, sometimes overnight. the morning … But this is not a desirable way of making laws ”.
His call comes after several other legal figures raised the alarm over the past year, prompting a rethinking approach as the vaccine program advances and restrictions are eased.
The concern was also underscored by former attorney general Dominic Grieve, who said that the proper functioning of the political system was the only bulwark when the state was passing such radical restrictions.
“When draconian powers of this type are granted to the government in an emergency, it is essential that the system of government itself function properly to ensure that they are not abused and applied sparingly,” he said. “That is what, among other things, legal agents are there to do. However, the evidence suggests that this has not always been happening and that ministers don’t see the importance of it.
Human rights lawyer Adam Wagner of Doughty Street Chambers said the omission of parliament was “one of the hidden scandals of the pandemic.” He said the government had imposed “strict criminal blocking laws, usually at the last possible minute, with a [health secretary] The pen of Matt Hancock, and at a rate of two new laws every week on average ”.
He told The Guardian: “The government has used emergency procedures under the Public Health Act in a way that they cannot have been designed for by parliament.
“This has led to illiberal results, such as severely restricted right to protest, and also to corruption, such as when the grouse shooting was included as a reasonable exception to the confinement laws because, allegedly, conservative supporters were pressuring it into private. This law-by-decree approach cannot be allowed to continue. “
Jones said that the pandemic had seen “the creation of the most intrusive and stringent laws of modern times, affecting all aspects of our lives and our economy,” but almost everything had been done directly by ministers (secondary legislation), usually reserved for technical measures, rather than through acts of Parliament (primary legislation).
Jones said more than 370 regulations had been made in response to the pandemic: “Many of these measures cannot be remotely considered ‘secondary’ or technical in nature. In various ways they have restricted our freedom, movement and social activity, as well as the opening of businesses, schools, places of worship and other organizations ”.
He said the government was also attempting to circumvent any parliamentary scrutiny whenever possible “by using the most urgent form of parliamentary procedure”, which meant that the rules that affected the most basic functioning of daily life had no chance of being scrutinized by the deputies.
He said the government’s current conduct meant that there could be “no adequate test of the underlying policies, which often involve, as they do, the most sensitive judgments about the correct balance between protecting public health and the broader impacts. in people’s lives and in the economy. “
Jones said it was also detrimental to public confidence and compliance that the details of the laws only had hours to go into effect. “In some cases, that gap has been as little as one hour,” he said.
The hotel quarantine regulations came on the Friday before the Monday they took effect, “so even though the policy outline had been under consideration for a few weeks, travelers, hotels, travel companies and everyone else affected by the new law only had a weekend notice of the obligations detailed in it ”.
