Coronavirus: The rule of law is key at times of crisis

4 June 2020

Community support for law is strongest when the laws are enacted following an accepted process and when they apply equally to everybody.

The British Government, like many around the world, responded to Covid-19 by enacting regulations to keep its citizens at home. In essence these regulations required that people stay home, and can only leave to exercise once a day, go to work if they are essential workers, shop for essential items and fulfil any medical or care needs.

One of the advisers behind this policy was, the British Prime Minister Boris Johnson's chief adviser.

Cummings has been a key figure in Johnson's political career, masterminding much of the government's agenda including tactics relating to Brexit and the timing of and strategy for the election in 2019. He also played a key role in advising the government on its coronavirus strategy.

It was surprising then, when shortly into the lockdown, Cummings drove over 400 kilometres to relocate his family, apparently violating these rules.

Cummings drove his family from London to County Durham after his wife developed Covid-19 symptoms. He subsequently started displaying Covid-19 symptoms himself. Two weeks later, he went for a 30 minute "test drive" in the area to test the suitability of his eyesight to drive back to London, after concern that Covid-19 had impaired his vision. He then drove his family back to London.

Cummings has been clear that he did not regret his conduct, asserting that what he did was not a breach of lockdown rules.

Johnson came out in support of Cummings, telling the media that: "To me, he came across as somebody who cared very much about his family and who was doing the best for his family."

However, Johnson's judgment on this matter has been questioned in the UK, with Labour and the Liberal Democrats accusing both men of double standards.

From an employment perspective, Cummings has held firm that he has not considered resigning. Accordingly, no matter which high profile person calls for Cummings to be fired, Johnson (or whoever is Cummings technical employer) is not obligated to dismiss him for his conduct, even if it is conduct that is sufficiently serious that it could result in a dismissal. The employer has the ultimate discretion.

Compare the recent lockdown breach of our Health Minister, David Clark, which involved two trips within the same region totalling less than 50km. Once made aware of the conduct, our Prime Minister condemned his behaviour and demoted him. She spoke about the matter publicly and declared that the only reason he maintained his position was to reduce volatility in a time of crisis. While she could legally remove Clark from his position as health minister, it suited her better not to.

Both men kept their richly taxpayer funded positions and perceived perks, despite some modest changes in the case of Clark.

The issues involved run much deeper than those in most potential employment dismissals.

There are many in the UK, like in New Zealand, who followed the lockdown rules even when that meant big sacrifices. Families were kept apart, funerals were limited and some people even missed the opportunity to say a last goodbye to loved ones who lost their lives to Covid-19.

As a result, Cummings' conduct and Johnson's reaction to it has sparked outrage in the UK as people feel that there is one rule for them, and another rule for those in powerful positions. That is not how democratic society is meant to function and it flies directly in the face of rule of law.

The same applies in New Zealand with Clark. He slipped in the Cabinet rankings, was publicly chastised by the Prime Minister and publicly apologised. But he held his job and all of the privileges that go with it.

The rule of law is a fundamental principle in a civilised democracy. At the heart of the rule of law is the idea that no one is above the law - the law applies to all people equally. That principle came about through centuries of struggle for a better way of life.

A milestone in the emergence of the rule of law dates back to 1215 when King John of England signed the Magna Carta, granting a number of rights to barons and requiring the king to act in accordance with established rules and customs.

Six hundred years later, the phrase "rule of law" was popularised by Albert Venn Dicey in the 19th century.

Without rule of law, a leader has unfettered power and limited accountability. A leader is not bound by the law and can make or unmake laws at their pleasure.

For instance, when Johnston advised the Queen that parliament should be suspended in 2019, the UK Supreme Court declared this to be illegal as it was inconsistent with parliamentary sovereignty (the notion that only parliament can make or unmake laws). This decision reflected the idea that no one, not even Johnson, is above the law, and he cannot exercise powers he doesn't legally have.

New Zealand has also seen the principle in action in the famous decision of Fitzgerald v Muldoon, in which the then Supreme Court declared that Muldoon's announcement abolishing the government superannuation scheme was illegal. The message of the court was clear - "Parliament is such that it has the right to make and unmake laws and no person or body is recognised as having the right to override or set aside the legislation of Parliament".

Both decisions demonstrate clearly that even governments need legal authority to do what they want, no matter how politically inconvenient that may be.

If ordinary citizens see people in such positions breaking laws, or condoning law breaking like that of Cummings or Clark, the risk is that those citizens could disregard the laws themselves. This is disastrous when dealing with a health crisis.

The rule of law and equality before the law are important cornerstones of our democracy and deserve to be strongly upheld.