That shift puts an impossible burden on those who draft the law, to think of every single good reason that could arise … They missed a few. Of course they did.
To be fair – the law doesn’t attempt to list every single good reason. It says ‘reasonable excuse’ and then lists some examples of reasonable excuses.
It is very clearly written to acknowledge that people have to make judgement calls on what other things might be reasonable.
Exactly right, Rob. The legislation doesn’t list “house on fire”, so thank heavens for the reasonable excuse clause. The legal concept of reasonableness is pretty wide. Your actions simply have to not be so extreme that no reasonable person would act in that way. Hence why Durham Constabulary were unable to feel the collar of Dominic Cummings.
I doubt many people read the law. They follow the slogans. As they are told to do.
T C
3 years ago
Although I largely agree with the point made in your article, your reliance on the coronavirus regulations is misplaced. Firstly, under Section 6 of The Health Protection (Coronavirus, Restrictions) (England) (Regulations 2020 – the relevant regulations – the test is whether a person could show a “reasonable excuse” (cf. a “good excuse”) for leaving his or her home. “Reasonableness”, of course, is a concept our common law has a long tradition of assessing in a variety of circumstances. Secondly, rather than providing a short list of exhaustive legal exemptions, as your article suggests, the exemptions are examples of the type of behaviour that will be considered “reasonable” (viz. “a reasonable excuse includes…”). It is slightly worrying that someone in your position could misunderstand this.
As for sentencing guidelines, I agree that these cause more harm than good. The main reason is that they take away the ability of the Judge to decide on a just sentence. Instead, the Judge is bound by the constrains of what some detached civil servant happens to think would be a suitable punishment for the crime in question. It would be much better to put the discretion back in the hands of the Judge again entirely. Only the Judge will have watched the trial, perhaps heard evidence from the Defendant and had a real opportunity to consider what would be a just sentence in the specific circumstances of the case.
andy9
3 years ago
Conversely though, many government policies and regulations get progressively added to and built upon over time to produce systems of huge complexity, so complex that people struggle to understand all of the details. Like a once fine house with lots of badly built extensions tacked onto the sides.
Often this is done to accommodate complexity; the scenarios which had not been foreseen, to close flexibility which comes to be seen as loop-holes, or to narrowly and specifically target certain groups for certain treatment.
With much of government policy there seems to be an unfortunate trade-off; simplicity in policy often means poorly targeted measures, unforeseen loop-holes and a failure to accommodate the complexities of the individual. But government attempts to address that results in yet more policy and regulations creating excessive complexity for the user and often unforeseen policy interactions resulting unintended incentives and consequences, typically requiring yet more complexity.
I guess the ideal is to have simple policy where it has been well designed, tested, robust to gaming and evaluated at the limits, to ensure it works and provides the right incentives such that it isn’t necessary to write every scenario or detail into it.
Your are right, the problem is not government simplicity but government complexity. The solution is for the grasping and gormless state to ‘simply’ stop doing so many things and to cut taxes so that people have more freedom in which to live their ‘complex’ lives without state intrusion and largesse.
Douglas McCallum
3 years ago
The medical/public health establishment continues to insist on a similar “one size fits all” approach to Cover-19. The idea that the population over 70 comprises the “vulnerable” is not only absurdly simplistic but flies in the face of evidence. Mortality is principally (albeit not exclusively) related to underlying health problems and conditions, not age itself (except for the very elderly, e.g. 85 or 90+). A healthy 75 year old without health issues is much less “vulnerable” than a 65 year old with diabetes and/or cardiac problems.
Consider as well the “one size fits all” approach to lock-down in general. People who would normally commute into crowded big cities might be in close physical proximity to tens of thousands of other people every day. In small town and rural areas we would be hard pressed in normal times to encounter even a hundred. Presumably the probability of either catching or passing on the virus is therefore hugely greater in big cities than in sparsely populated areas. This has shown up fairly consistently in affected countries in which dense urban areas tend to have worse outbreaks (think of New York City).
Although many people seem to think otherwise, the rules for over-70’s are exactly the same as for everyone else. They are simply advised to take special care.
Dougie Undersub
3 years ago
Apart from the incorrect dig at the drafters of the lockdown rules – see Rob Jonson below – this is an interesting and thoughtful piece. It is, as Fraser Bailey says, an inevitable consequence of the state attempting to do more and more. To take the case of benefit law, at one time benefits were administered locally, as Parish Relief. The payments may seem miserly by modern standards and the conditions harsh but the decisions took account of local issues and were taken with a knowledge of the individual applicant. Opportunities for benefit fraud were few. This system was open to criticism as what today we would call a postcode lottery. Everyone must be treated equally, wherever they live, based on their circumstances in relation to a national standard, not a local one. Inevitably, such a system is bureaucratic, clumsy, clunky and unresponsive. It, along with many other encroachments of the state into local communities, tends inexorably towards homogeneity. We complain about the way every high street looks the same but seem happy to accept this uniformity in just about everything else.
alwyn_kotze
3 years ago
“One size fits no one.” OK. Fine. Now let’s design some national policies without reference to a standard…
I get that that this is an opinion piece. But so much in the 21st C discourse is about saying “No, not like that” and nothing else.
You must admit, that would require a longer article and some actual thought.
Kenneth MacKillop
3 years ago
Because “one size fits all” does not work, and because governments cannot implement “many different sizes” at all, the Swedish approach is wise and elegant. Let individuals decide for themselves “what size they are” and “tailor” their own bespoke individual policies as much as possible.
There are a few functions for which governments are vital. And then there are those for which government is absolutely the least helpful and the most harmful. This virus and epidemic are decidedly in the latter category.
Some highly focused government efforts, in theory, might be beneficial — mainly limited and carefully designed plans to address the care home problem. That will have to wait for a future pandemic, however, and will take many years of effort with sustained public backing rather than forgetting. Giesecke is probably right in his prediction that nothing will improve in public policy.
Claire M
3 years ago
Fascinating. Thank you.
Lee Johnson
3 years ago
Very good article. I wish more of the kommentariat thought like this.
Anonymous
3 years ago
It is said, although no one writes it in the press, that DC’s situation is more tricky than that of other parents because his son is autistic, cannot eat or dress unaided, and becomes highly stressed if he is with people he doesn’t know, or indeed if there are people he doesn’t know demonstrating outside his house. I wish DC had confirmed this in his statement, but I can quite understand why he would not want to discuss his son in public; and if he had done so, his enemies would have criticised him for doing it.
Tony Hay
3 years ago
Universal Basic Income. Easily understood. Simple to administer. One size. Fits all. See Louise Perry in today’s Post https://unherd.com/thepost/…
jfgwells57
3 years ago
This article is so right about mental health service users and pathways. The word pathways was chosen to show what experience of services should be like – simple, pleasant, taking you to a good ending as long as you follow it, just like a good path. Nothing could be further from the reality of the experience of service seekers. The term “pathway” like many others in health and social care has become alienating and insulting for patients and their families.
Derek M
3 years ago
“Take sentencing policy. It is almost always written by people who’ve never committed a crime” – I should hope not, it would be dangerous and ridiculous if it was. Only a Lib Dem (or maybe a Green) would suggest otherwise
Lang Cleg
3 years ago
This is why UBI is such a terrible idea.
ruthengreg
3 years ago
Law, Guide lines, whatever they expected us to lockdown. DC didn’t, okay he may have good cause. But he should have sought guidance. There’s where he went wrong. Facts. An apology would have been enough. But low and behold he broke the regulation again. I find his tale unconvincing. It was a wrong signal. Clever he maybe God he is not..and he should go. He and his family will been hounded more by the press. Again wrong. Now Boris is putting unnecessary pressure on his colleagues. We can do without this side show. It is sending the wrong signals out. Commonsense please before it gets worse Boris.
maddfox321
3 years ago
You make some good points . But in my opinion ” Demonic ” Cummings was not in Durham for childcare . He was in secret meeting with GlaxoSmithkline .
tundemusa2020
3 years ago
Interesting post
henk korbee
3 years ago
I read all comments despite I am not a UK citizen. Almost all has been said. I only remark that there has been a mechanism to require that the State is able to do more and more for individuals, like taking care of. But what does that mean taking care of? At a huge cost preventing someone have to die caused by nature?
Adrian Smith
3 years ago
The more detailed guidance did allow for what Cummings did going to Durham – his excuse for his trip to the castle when no longer infectious is weak but is it better or worse than Ferguson getting his married mistress round for a leg over?
The point about the simplicity of headline rules and focus group generated slogans is clear. If we are to get out of this mess we need a different approach based on understanding what we are trying to achieve and then some advice and guidance – not rules that we can apply sensibly to our own situation.
It is my 52nd birthday on Tues and it looks like being the hottest day of the year so far. We are having a local family of close friends round for a BBQ. Unfortunately that will be 8 people in my garden – meets the rules in Wales and Scotland but not in UK. We will probably apply the WHO 1m rule rather than 2m as that is more practical. Whilst I am happy for my friends to wee in the garden I am not going to exclude them from the house for this purpose.
Andrew Baldwin
3 years ago
Very well said. The universal basic income (UBI) is one program where simplicity is always put forward as a big selling point. It is supposedly going to replace a grab-bag of programs and get rid of most of the bureaucracy associated with social assistance. However, in Ontario, where a basic income pilot was announced in April 2017, the bureaucratic system that determines eligibility for disability, drug, and dental benefits remained in place. This was all supposed to fade away when the UBI became law and was further refined, but it is difficult to see how if this really happened it would be an improvement. For disability benefits, for example, would it really be better to eliminate bureaucrats with a specialized knowledge of different kinds of wheelchairs to decide what a crippled person need with a much reduced cadre of workers handing out simple cash payments to people who had just lost the use of their limbs and had no clue what they needed? Is that really the hallmark of sharing, caring society?
Andrew Roman
3 years ago
As a Canadian lawyer for close to 50 years I was often involved in drafting and amending laws. The writer makes a good point about laws that try to cover too much and fail to recognize the risk of unintended consequences.
There are at least two types of potentially good laws: legal rules and grants of discretion to officials. Legal rules are necessarily rigid. You wouldn’t want to measure the length of something with an elastic ruler. That means one size fits all.
Discretions are more complex. They permit officials to decide to do/not do something, or, e.g., to finance/not finance something, subject to various requirements and prohibitions.
Balancing the mix of these two types of laws is an art, not a science.
But then we have a third category, what we see in this issue: a law that creates a prohibition with a subjective discretion as to compliance: Thou shalt not leave home unless you have a valid reason. If there was a complete list of valid reasons the law would be clear. With no list or only a partial and non-exhaustive list of reasons you have a vague law.
A good law is one which is sufficiently clear that a person subject to that law can know with a high degree of certainty whether some future conduct will be inconsistent with that law. That is not this law. Hence everyone is free to second guess the validity of anyone’s departure from home.
On one view, such laws are not really laws in substance, they are merely guidelines presented in the form of a law. On that view we should not be too hasty to characterise someone’s behaviour as illegal, as distinguished from inappropriate or irresponsible.
Adam Huntley
3 years ago
One thing that would have been very simple was to say “I am sorry for the hurt my decision may have caused and am grateful for your understanding”
cbrown
3 years ago
This is a compelling argument for small Government. It’s too difficult and too expesive for Governments to micro manage society – unless one aspires to the lowest common denominator of pure socialism – a concept consistently rejected by the West.
One size fits no one?
Really?
But you love the EU and want us to stay,
So one size does fit all when it suits you!
They can’t help it. Hypocrisy is a large animal from Africa.
I agree with Andy Jones there is a naïveté about the assumption that policies can be tailored to fit all.
Creeping bureaucracy stifles much activity in most area of life
To be fair – the law doesn’t attempt to list every single good reason. It says ‘reasonable excuse’ and then lists some examples of reasonable excuses.
It is very clearly written to acknowledge that people have to make judgement calls on what other things might be reasonable.
Exactly right, Rob. The legislation doesn’t list “house on fire”, so thank heavens for the reasonable excuse clause.
The legal concept of reasonableness is pretty wide. Your actions simply have to not be so extreme that no reasonable person would act in that way. Hence why Durham Constabulary were unable to feel the collar of Dominic Cummings.
I doubt many people read the law. They follow the slogans. As they are told to do.
Although I largely agree with the point made in your article, your reliance on the coronavirus regulations is misplaced. Firstly, under Section 6 of The Health Protection (Coronavirus, Restrictions) (England) (Regulations 2020 – the relevant regulations – the test is whether a person could show a “reasonable excuse” (cf. a “good excuse”) for leaving his or her home. “Reasonableness”, of course, is a concept our common law has a long tradition of assessing in a variety of circumstances. Secondly, rather than providing a short list of exhaustive legal exemptions, as your article suggests, the exemptions are examples of the type of behaviour that will be considered “reasonable” (viz. “a reasonable excuse includes…”). It is slightly worrying that someone in your position could misunderstand this.
As for sentencing guidelines, I agree that these cause more harm than good. The main reason is that they take away the ability of the Judge to decide on a just sentence. Instead, the Judge is bound by the constrains of what some detached civil servant happens to think would be a suitable punishment for the crime in question. It would be much better to put the discretion back in the hands of the Judge again entirely. Only the Judge will have watched the trial, perhaps heard evidence from the Defendant and had a real opportunity to consider what would be a just sentence in the specific circumstances of the case.
Conversely though, many government policies and regulations get progressively added to and built upon over time to produce systems of huge complexity, so complex that people struggle to understand all of the details. Like a once fine house with lots of badly built extensions tacked onto the sides.
Often this is done to accommodate complexity; the scenarios which had not been foreseen, to close flexibility which comes to be seen as loop-holes, or to narrowly and specifically target certain groups for certain treatment.
With much of government policy there seems to be an unfortunate trade-off; simplicity in policy often means poorly targeted measures, unforeseen loop-holes and a failure to accommodate the complexities of the individual. But government attempts to address that results in yet more policy and regulations creating excessive complexity for the user and often unforeseen policy interactions resulting unintended incentives and consequences, typically requiring yet more complexity.
I guess the ideal is to have simple policy where it has been well designed, tested, robust to gaming and evaluated at the limits, to ensure it works and provides the right incentives such that it isn’t necessary to write every scenario or detail into it.
Your are right, the problem is not government simplicity but government complexity. The solution is for the grasping and gormless state to ‘simply’ stop doing so many things and to cut taxes so that people have more freedom in which to live their ‘complex’ lives without state intrusion and largesse.
The medical/public health establishment continues to insist on a similar “one size fits all” approach to Cover-19. The idea that the population over 70 comprises the “vulnerable” is not only absurdly simplistic but flies in the face of evidence. Mortality is principally (albeit not exclusively) related to underlying health problems and conditions, not age itself (except for the very elderly, e.g. 85 or 90+). A healthy 75 year old without health issues is much less “vulnerable” than a 65 year old with diabetes and/or cardiac problems.
Consider as well the “one size fits all” approach to lock-down in general. People who would normally commute into crowded big cities might be in close physical proximity to tens of thousands of other people every day. In small town and rural areas we would be hard pressed in normal times to encounter even a hundred. Presumably the probability of either catching or passing on the virus is therefore hugely greater in big cities than in sparsely populated areas. This has shown up fairly consistently in affected countries in which dense urban areas tend to have worse outbreaks (think of New York City).
Although many people seem to think otherwise, the rules for over-70’s are exactly the same as for everyone else. They are simply advised to take special care.
Apart from the incorrect dig at the drafters of the lockdown rules – see Rob Jonson below – this is an interesting and thoughtful piece. It is, as Fraser Bailey says, an inevitable consequence of the state attempting to do more and more.
To take the case of benefit law, at one time benefits were administered locally, as Parish Relief. The payments may seem miserly by modern standards and the conditions harsh but the decisions took account of local issues and were taken with a knowledge of the individual applicant. Opportunities for benefit fraud were few.
This system was open to criticism as what today we would call a postcode lottery. Everyone must be treated equally, wherever they live, based on their circumstances in relation to a national standard, not a local one. Inevitably, such a system is bureaucratic, clumsy, clunky and unresponsive. It, along with many other encroachments of the state into local communities, tends inexorably towards homogeneity. We complain about the way every high street looks the same but seem happy to accept this uniformity in just about everything else.
“One size fits no one.” OK. Fine. Now let’s design some national policies without reference to a standard…
I get that that this is an opinion piece. But so much in the 21st C discourse is about saying “No, not like that” and nothing else.
Actual proposals are needed.
You must admit, that would require a longer article and some actual thought.
Because “one size fits all” does not work, and because governments cannot implement “many different sizes” at all, the Swedish approach is wise and elegant. Let individuals decide for themselves “what size they are” and “tailor” their own bespoke individual policies as much as possible.
There are a few functions for which governments are vital. And then there are those for which government is absolutely the least helpful and the most harmful. This virus and epidemic are decidedly in the latter category.
Some highly focused government efforts, in theory, might be beneficial — mainly limited and carefully designed plans to address the care home problem. That will have to wait for a future pandemic, however, and will take many years of effort with sustained public backing rather than forgetting. Giesecke is probably right in his prediction that nothing will improve in public policy.
Fascinating. Thank you.
Very good article. I wish more of the kommentariat thought like this.
It is said, although no one writes it in the press, that DC’s situation is more tricky than that of other parents because his son is autistic, cannot eat or dress unaided, and becomes highly stressed if he is with people he doesn’t know, or indeed if there are people he doesn’t know demonstrating outside his house. I wish DC had confirmed this in his statement, but I can quite understand why he would not want to discuss his son in public; and if he had done so, his enemies would have criticised him for doing it.
Universal Basic Income. Easily understood. Simple to administer. One size. Fits all. See Louise Perry in today’s Post https://unherd.com/thepost/…
This article is so right about mental health service users and pathways. The word pathways was chosen to show what experience of services should be like – simple, pleasant, taking you to a good ending as long as you follow it, just like a good path. Nothing could be further from the reality of the experience of service seekers. The term “pathway” like many others in health and social care has become alienating and insulting for patients and their families.
“Take sentencing policy. It is almost always written by people who’ve never committed a crime” – I should hope not, it would be dangerous and ridiculous if it was. Only a Lib Dem (or maybe a Green) would suggest otherwise
This is why UBI is such a terrible idea.
Law, Guide lines, whatever they expected us to lockdown. DC didn’t, okay he may have good cause. But he should have sought guidance. There’s where he went wrong. Facts. An apology would have been enough. But low and behold he broke the regulation again. I find his tale unconvincing. It was a wrong signal. Clever he maybe God he is not..and he should go. He and his family will been hounded more by the press. Again wrong. Now Boris is putting unnecessary pressure on his colleagues. We can do without this side show. It is sending the wrong signals out. Commonsense please before it gets worse Boris.
You make some good points . But in my opinion ” Demonic ” Cummings was not in Durham for childcare . He was in secret meeting with GlaxoSmithkline .
Interesting post
I read all comments despite I am not a UK citizen. Almost all has been said. I only remark that there has been a mechanism to require that the State is able to do more and more for individuals, like taking care of. But what does that mean taking care of? At a huge cost preventing someone have to die caused by nature?
The more detailed guidance did allow for what Cummings did going to Durham – his excuse for his trip to the castle when no longer infectious is weak but is it better or worse than Ferguson getting his married mistress round for a leg over?
The point about the simplicity of headline rules and focus group generated slogans is clear. If we are to get out of this mess we need a different approach based on understanding what we are trying to achieve and then some advice and guidance – not rules that we can apply sensibly to our own situation.
It is my 52nd birthday on Tues and it looks like being the hottest day of the year so far. We are having a local family of close friends round for a BBQ. Unfortunately that will be 8 people in my garden – meets the rules in Wales and Scotland but not in UK. We will probably apply the WHO 1m rule rather than 2m as that is more practical. Whilst I am happy for my friends to wee in the garden I am not going to exclude them from the house for this purpose.
Very well said. The universal basic income (UBI) is one program where simplicity is always put forward as a big selling point. It is supposedly going to replace a grab-bag of programs and get rid of most of the bureaucracy associated with social assistance. However, in Ontario, where a basic income pilot was announced in April 2017, the bureaucratic system that determines eligibility for disability, drug, and dental benefits remained in place. This was all supposed to fade away when the UBI became law and was further refined, but it is difficult to see how if this really happened it would be an improvement. For disability benefits, for example, would it really be better to eliminate bureaucrats with a specialized knowledge of different kinds of wheelchairs to decide what a crippled person need with a much reduced cadre of workers handing out simple cash payments to people who had just lost the use of their limbs and had no clue what they needed? Is that really the hallmark of sharing, caring society?
As a Canadian lawyer for close to 50 years I was often involved in drafting and amending laws. The writer makes a good point about laws that try to cover too much and fail to recognize the risk of unintended consequences.
There are at least two types of potentially good laws: legal rules and grants of discretion to officials. Legal rules are necessarily rigid. You wouldn’t want to measure the length of something with an elastic ruler. That means one size fits all.
Discretions are more complex. They permit officials to decide to do/not do something, or, e.g., to finance/not finance something, subject to various requirements and prohibitions.
Balancing the mix of these two types of laws is an art, not a science.
But then we have a third category, what we see in this issue: a law that creates a prohibition with a subjective discretion as to compliance: Thou shalt not leave home unless you have a valid reason. If there was a complete list of valid reasons the law would be clear. With no list or only a partial and non-exhaustive list of reasons you have a vague law.
A good law is one which is sufficiently clear that a person subject to that law can know with a high degree of certainty whether some future conduct will be inconsistent with that law. That is not this law. Hence everyone is free to second guess the validity of anyone’s departure from home.
On one view, such laws are not really laws in substance, they are merely guidelines presented in the form of a law. On that view we should not be too hasty to characterise someone’s behaviour as illegal, as distinguished from inappropriate or irresponsible.
One thing that would have been very simple was to say “I am sorry for the hurt my decision may have caused and am grateful for your understanding”
This is a compelling argument for small Government. It’s too difficult and too expesive for Governments to micro manage society – unless one aspires to the lowest common denominator of pure socialism – a concept consistently rejected by the West.