It is trite to observe we are in the midst of a crisis. It is equally obvious that extraordinary changes will need to be made to our pattern of life and to the law, albeit on a temporary basis. However, this does not and must not mean, as Cicero wrote, that silent enim leges inter arma. On the contrary, it is more important than ever that the rule of law continues so that once we have ‘flattened the curve’ there is something to go back to.

Last night, I saw a disturbing sight. A Returning Officer, about to hold the poll for a local government by-election, put out a press statement which said, in effect, that the Crown Prosecution Service had promised not to prosecute them if they called off the poll. Quite aside from the obvious exigencies of this action — holding a poll today would have been clearly farcical — this is quite wrong, and it is well out of the CPS’s bailiwick to be giving assurances like that.

Parliament has, in a somewhat labyrinthine way, provided that it is a criminal office for a Returning Officer to misconduct themselves (this being quite aside from the general offence of a misconduct in a public office). This finds form at section 63 of the Representation of the People Act 1983, which creates an offence of “breach of official duty” thusly:

“If a person to whom this section applies is, without reasonable cause, guilty of any act or omission in breach of his official duty, he shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.”

Elsewhere, in the pithily named Local Elections (Principal Areas) (England and Wales) Rules 2006 we find an array of duties placed on Returning Officers, all of which use the word must. For example, the Returning Officer must appoint Presiding Officers and pay them, must issue poll cards, must count the ballots, and must forthwith declare the result. That is, the Returning Officer is provided no discretion about those matters. And this is surely correct, because otherwise the risk (however fanciful) of a Returning Officer using discretion to influence the result would be too great.

The law should not fall silent in wars or pandemics — it should sound as loud as ever

This is not even difficult to imagine. A simple example would be where a Returning Officer knows a candidate is not quite eligible to run uses a discretionary power to put off the date of an election by a week to make it possible. Scheming like this actually happened in the Roman Republic, as it happens. Although the 2006 Rules are delegated legislation, they are still approved by Parliament and are modelled on the Parliamentary Election Rules made by Parliament. Thus Parliament has instead plainly provided for this to be impossible. 

Now, a global pandemic might very well count as a “reasonable cause” in the circumstances. I make no quibble there. But that is explicitly not something one civil servant, i.e. the CPS lawyer who gave the assurance, should be giving to a local authority employee (a civil servant in all but form). It is for, in this case, the magistrates to determine what is a “reasonable cause” or, as we shall see, Parliament to provide.

In the recently published Coronavirus Bill, there is a power to suspend local elections until next year. This is the correct way of proceeding. If it was desired to suspend today’s polls, Parliament has had days and days to make provision. Indeed, I suspect it could have been done by amending the Rules cited above by Statutory Instrument just to throw the timetable off until the bill could be passed. Alternatively the Returning Officer could have just acted sua sponte and Parliament could have retroactively indemnified them.

The problem with the approach adopted is not that it produces a bad result per se. It is that it sets a very dangerous precedent. It in effect says that the CPS (or whoever) can decide which laws are important, and which can be ignored.

Turning again to the Coronavirus Bill, there are many powers in it. But all of them are intentionally circumscribed — the idea being, of course, the Parliament will be providing to HM Government only the minimum of extraordinary powers needed. Is the consequence of the CPS decision here that if one of those circumscribed limits proves vexing, the government can just advise itself to ignore it?

It would make a mockery of even the idea let alone the reality of the rule of law to do so. That which Parliament has provided or prohibited it is beyond the power of ministers and civil servants to take away or permit. The alternative is rule by decree, and in the case of the CPS’ assurances here, a functionally unpublished decree. Which we should call by its real name: a secret law. This is only made worse in the case of a called off election because it is a secret election cancelling law. The one area where the laws must always be upheld, no matter how exigent the circumstances. That is not to say there are ever circumstances where it is justified, of course. Indeed, the Bill of Rights explicitly castigates the “the pretended Power of Dispensing with Laws … by Regall Authoritie”. 

And if it really is necessary to make rapid legal provision without recourse to MPs for permission, there is already an existing vehicle (and, hint, it is not the CPS providing secret ‘assurances’). The Civil Contingencies Act 2004 provides all the powers needed to make rapid emergency laws, and then correctly provides for Parliamentary scrutiny of those and their automatic lapse until permanent provision is made. It also requires the emergency laws be published and except in the most dire emergencies requires the ultimate constitutional umpire, Her Majesty the Queen, to agree to them too. Strong safeguards, which is right because the power in this 2004 Act is almost without limit.

A civil servant providing an assurance that another public official will be legally ‘safe’ has none of these safeguards. Equally, there is no useful scrutiny mechanism for that civil servant either. But there should not be anyway, because civil servants should not be in the business of dispensing with laws.

In this case the issue is very anodyne and pretty harmless. But it need not always been so. Indeed, we can imagine in the coming weeks and months a great deal of matters needing to be dealt with in extraordinary ways. But unlike in the Roman Republic, the law should not fall silent in wars — or pandemics. Instead it should sound as loud as ever.