4-Aug-20 Changing Laws

Photo: Pixabay at Pexels

For those UK citizens who have not lived through conflict, authoritarianism, pandemic or social unrest, coronavirus has presented us with a novel legal context. Since March 2020, we have experienced multiple changes to our ability to meet with friends and family, to go to work and school, to buy and sell goods and move around our locality, within our country, or beyond.

What is particularly marked is the speed and detail of changes. While many of us paid attention to the initial easing of lockdown in May, subsequent shifts in numbers gathering and household contact, metres apart, if and when to wear face masks, the types of venues opening or not and how, are harder to track. Over time, the slogans have changed and the four nations of the United Kingdom have moved into different lanes within the recovery track. Localised spikes can also mean local tightening. We are like the animals in Animal Farm who wake to find the rules and principles of yesterday have been superseded.

Of course, the nature of the coronavirus challenge requires swift social action. But it does present a challenge in keeping the public informed and compliant, and thereby maintaining legitimacy.

A review in June of the first prosecutions under the Coronavirus Act revealed a number of problems. Charges had been withdrawn or overturned for 53 people and more cases were being reviewed. As I noted in a blog in March, the changing context has been difficult for policing, with some discrepancies in interpretation and enforcement vigour between local forces. This has had implications for the Crown Prosecution Service (CPS):

When asked by The Independent why the CPS did not stop police using the Coronavirus Act, given the 100 per cent rate of unlawful prosecutions, [Greg McGill, the CPS director of legal services] replied: “We can’t tell people not to charge under the act but we’ve issued legal guidance to the lawyers so they understand the precise circumstances where it can be used. It’s not for the CPS to stop charging offences, it’s to make sure that it’s appropriate.” (Lizzie Dearden for The Independent, 28 June 2020)

The police and CPS cannot refuse to implement bad laws; although they might neglect to use them. Laws are proposed by Government and approved through Parliament. The reasons behind under-enforcement are complex and may include poorly written law; lack of police prioritisation or resources; under-reporting of offences; evidential reasons; and so on.

It is a well known saying that ‘ignorance is no defence’, when it comes to the law. This means that it is not an acceptable defence in court to say that you did not know that your activity or omission was illegal. However, the most effective laws must be those which have both public knowledge and broad public support. In this way, particular activities become unacceptable and citizens engage in social control through self-regulation.

This has risks too, for example where majority public opinion is oppressive to minority groups or where individuals engage in vigilante action. However, in terms of maintaining social order and social distance, which are the challenges presented by COVID-19, it is preferable that people willingly comply, encourage by example and are given some latitude to self-correct their behaviour. Rather than engaging the costly, time-consuming and often inequitable criminal justice system, we need simple and consistent public information: wear a mask in public; wash hands and surfaces regularly; meet those outside your household in public or open-air; always maintain personal space.

Laws are often drafted by civil servants who are good at turning policy ideas into detail; their capacity to produce reams of commentary and guidance is formidable (I used to be one). However, this can be at the expense of simplicity and thinking through practical translation. In addition, there is a tendency to focus on restrictions, rather than enablers. For example, instead of introducing laws which have effectively closed arts and performance activities (among others), it would have been better to fund these venues to alter their delivery model and consider how we can better use available space (physical disused, under-used, re-purposed; online) to try to continue activities in new ways. Some of these innovations or accelerations of change will continue post-corona.

COVID-19 has provided us with three lessons: first, to maintain legitimacy, governments should focus on simple and consistent messaging; second, the criminal justice system is not necessarily the best approach to maintaining social order; and finally, informing, investing in and enabling citizens positively to self regulate and to innovate through social challenges, is more likely to ensure public support, compliance and long-term resilience for the next systemic shock.

© Natasha Mulvihill and Criminology Tales, 2020. 

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