Sovereign is He Who Decides When Schools Close

The black hole at the heart of liberal legalism

[When a rational man] finds a good and wise ruler, he may not perhaps think it either necessary, or useful to set precise Bounds to his Power in all things.

-John Locke, from Two Treatises of Government

Exactly five years ago, on 18th March 2020, the Prime Minister of the UK appeared on TV to announce the closure of schools.

It’s fair to say that he was not really thinking about this at the time, but in doing so he was revealing a deep truth about the nature of Britain’s governing constitutional order in the 21st century. This is that it is fundamentally a political rather than a legal construct. This might sound like an odd thing to say given that we appear to live in an age in which political decision-making is increasingly constrained by law. But it is crucial in understanding our current predicament.

Let’s begin, though, at the beginning, with the edifice of liberal law. That edifice, it is important to understand, does not exactly stand on quicksand. Rather, it floats suspended above an empty vortex. To the 21st century liberal, it is open to human beings to deploy their reason to divine not just a moral order, but the moral order - all the while denying that there is a spiritual dimension to human existence, that there are such things as nations or destiny, that human beings have souls, or that there is meaning in the universe.

The result of this is a deep self-delusion about how law is supposed to work. To the liberal mind, the underlying moral order which they insist on is given effect through the mechanism of constitutionalism - rights, equality, procedure, liberty, the rule of law, and so forth. Law enshrines what they instinctively ‘know’ to be the case: that everybody is entitled to equal concern and respect because that is what liberal reason dictates. And therefore, in an idealised sense, law can simply be mapped one-to-one to the moral order which reason reveals - on any legal issue there could be, to use Ronald Dworkin’s favourite expression, a ‘right answer’ derived from the application of our intellects.

And that is really the story of liberal legalism in a nutshell. To the liberal mind, we are essentially advancing towards a perfect unity between what the ancients saw as the irreconcilable opposites of justice and liberty. We can have our cakes and eat them: everyone can be one day both free and treated justly, which is to say, equitably. In fact, the two things are the same.

The problems really begin the moment one starts to ask where the underlying moral order comes from and why it means that everybody is entitled to equal concern and respect. Christians have no problem answering that question. But the 21st century liberal finds it extremely vexing. There are basically two gambits that get deployed. The first is the Rawlsian one: to come up with thought experiments which ‘prove’ that liberalism is just objectively the best way to arrange things. And the second is simply to avoid thinking about it by resorting to tendentious claims about the existence of vague universal principles or values that purportedly everybody in the world really subscribes to if you look at their beliefs from the correct angle.

Roger Scruton once remarked that this peculiarly delusional character of liberalism - insisting, as it were, that there is such a thing as a de facto natural law founded on equality and liberty but without any spiritual or theological content - made it even less sympathetic for conservatives than Marxism. At least, in Scruton’s view, Marxists had an idea about human nature (rivalrous, self-interested, power-hungry, rooted in class background) that could be plausibly believed. Marxists don’t pretend there is a universal secular moral order founded on objective reason: they just see power. And there is something honest about that - if there is no God, and if materiality is all that there is, then what matters is who gets the material and how they use it. The liberal, on the other hand, always wants to insist that there is rather some way that we can reason ourselves into a legal mechanism by which everything can be, as it were, made right - an operationalisation of fairness that could some day resolve any and all inconsistencies and complaints in order to produce a completely level playing field of opportunity.

Liberals manage to retain this self-delusion because in normal times the constitutionalism argument appears to make sense. It seems to be the case that there is indeed an edifice of law which can be deployed to achieve a workable modus vivendi between justice, or equity, and liberty. Through the tools of legislative process, rights, separation of powers, procedural fairness and so on we can typically, at least to a tolerable level, smooth over underlying tensions and political conflict.

But there are moments when the mask slips and the distinction between liberalism and Marxism is revealed to be a lot narrower than most people assume. At such times the two are shown to rest on more of less the same logic: political power, and political expediency, exercised in the name of class interests. Liberalism, in the sense of a constitutional order which deploys objective reason to operationalise justice and liberty, is thereby shown to really be a figment of the imagination. Instead, it is just a matter of political choice: picking priorities and picking winners, all the way down.

The schools-closure was one such moment. You will, I am sure, remember the sense of panic that had set in over the course of March 2020 - though the degree of panic and the precise dates might vary depending on where in the world you are reading this. The atmosphere was truly febrile. I still remember the profoundly alienating experience I had during those months - it is geniunely surreal (I can think of no other better adjective) to not be worried about something everybody around you is going completely nuts over. Not being a TV news-watcher or social media-consumer, and having kept a close eye on the data for two months, I couldn’t fathom where the panic was coming from - I knew, as it was already abundantly clear by that point, that the great majority of the population was essentially at no risk from the disease. But I was forgetting that most people are avid TV news-watchers and social media-consumers, and with hindsight I can now well understand the reason for the frenzy having set in for all that I was blindsided by it at the time.

Schools became the locus of the furore. Despite it having been repeatedly and patiently explained by the Prime Minister, and the various science and medical chiefs and deputy-chiefs that were being trotted out to ‘do media’, that children were at absolutely negligible risk from Covid-19, that schools had been repeatedly shown in the data from other countries not to be major sites of transmission, and that it was much more important for children to be in school than to be cooped up at home, war drums were beating - and they were rapidly drowning out all voices of reason. Why won’t they close the schools? became practically a campaign slogan in its own right, and one which promised to hole Boris Johnson’s government below the waterline before it had even had a chance to get going.

It was in this context that Boris took to the stage on the 18th March - one in which every millimetre of his political antennae would have been directed towards the possibility of being outflanked by Labour as the party of lockdowns. Quite simply, he was scared that if his government had stayed the course and kept schools open, and a single child had died of Covid, it would have done him irreperable damage. And he also surely worried that the honest argument he could have made to pre-empt such a scenario - which would have been to calmly explain that 16 children die of the ‘flu each year on average in England & Wales and this isn’t typically seen as being a sensible justification for closing schools - would not have been persuasive to the public and would have sounded cold-hearted.

And, re-reading the text of his announcement today, one is struck by how self-evident this reasoning really was. The crucial passage reads as follows:

And we come today to the key issue of schools where we have been consistently advised that there is an important trade off. And so far the judgment of our advisers has been that closing schools is actually of limited value in slowing the spread of the epidemic.

And that is partly because counterintuitively schools are actually very safe environments. And in this disease and epidemic children and young people are much less vulnerable.

And hitherto the advice has been that we should keep schools open if possible in order to reduce the pressure on the NHS and on all other public services. But I think you’ll agree I have always been very clear that this is a balanced judgment and one that we have kept under constant review.

So looking at the curve of the disease and looking at where we are now – we think now that we must apply downward pressure, further downward pressure on that upward curve by closing the schools.

What you’ll notice about this is that is a patent non-sequitur. At no point does Boris suggest that the facts have changed - it was still the case that closing schools would be of limited value in slowing the spread of the disease, still the case that schools were safe environments, still the case that children and young people were much less vulnerable, and still the case that closing schools would increase pressure on public services by requiring parents to take time off work to look after children. It is just that looking at where he was now it had become for some unidentifiable reason important to close schools anyway.

This is not rocket science - the subtext is practically a supertext. Where he was now was under increasing political pressure to close schools. And therefore schools had to close as a matter of pure political expediency.

What followed was particularly instructive in respect of the wider point I wish to make. There was (and is) a clear legal mechanism allowing a Prime Minister to as it were ‘close schools’. Under s. 20 of the Civil Contingencies Act 2004, the Prime Minister is identified as one of the persons who may make ‘emergency regulations’ either indirectly through a statutory Order in Council (which strictly speaking is issued by the monarch), or directly where such an Order would be difficult to obtain without delay. And since ‘emergency regulations’ can under s. 22 do more or less anything, they certainly extend to the capacity to order schools to close.

However, such an Order (or directions issues as emergency regulations) would count as delegated or secondary legislation, and in our constitutional arrangements that would make it amenable to judicial review in case of a dispute about its procedural propriety, rationality, consonance with human rights, etc. Most evidently, it would create a prima facie circumstance in which a child claimant might bring a case on the grounds that his or her right to education under Article 2 of the First Protocol to the ECHR (given effect in UK law through the Human Rights Act 1998) had been violated.

What would be supposed to happen, then, within the liberal legal edifice with respect to a circumstance like this, would be for Boris to have made an Order in Council and laid it before Parliament for scrutiny and possible amendment or repeal via an affirmative procedure (meaning that both Houses would have to vote to approve it to continue after seven days). And then there would have been a mechanism by which those affected - school children - could assert their legal/constitutional rights to an education and have a court procedure determine the legality of the measure in light of its ‘proportionality’. This would have involved the court carefully weighing up the legitimate interest being given effect by the direction to close schools against the right to an education of children, and making a considered, reasoned decision on where the correct ‘balance’ ought to lie.

But when the chips were down and push came to shove at the end of the day when all was said and done and the rubber hit the road, this is nothing like what actually happened. What actually happened was that Boris Johnson, the Prime Minister, stood before the TV cameras and announced to the nation that schools would close - and schools, sure enough, closed. To be crystal clear - it wasn’t that the correct procedure was not followed. It was that no procedure was followed at all. Boris said ‘Close’, and the schools said, ‘How quickly?’ And that was that. They closed.

This was all confirmed when the dust had settled a few months later. When everybody had had a chance to calm down, Parliament’s Joint Committee on Human Rights sat down to think about the human rights implications of COVID-19, and realised ‘upon probing’ that there had been no actual regulation whatsoever requiring schools to close:

[W]hilst the Government’s messaging was indeed that schools had been closed, upon probing, the Government had not used its powers to close schools. Instead of issuing a direction…to close educational establishments, and properly justifying the need to close schools, the Government, through communications and press announcements, encouraged schools not to allow pupils to attend except for certain groups and encouraged parents not to send their children to school.

In a blackly humorous way, it continued:

We consider that measures which are likely to affect human rights should have a proper legal basis and be properly justified, rather than being announced through a press notice. The legal status of such measures should also be properly communicated so that parents and children know on what legal basis they are being denied access to schools. To do otherwise raises real rule of law and human rights concerns.

So when it mattered, schools were closed not as a result of a properly constituted legal process but by press notice. And, likewise, when it mattered, the other side of the coin, the right to education, was taken into consideration nary a jot. In the summer of 2020 a claim for judicial review came before the High Court partly on the grounds that the closure of schools had violated the right to education of children, in Dolan and Ors v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin). But the judge, Lewis J, dismissed this aspect of the claim summarily. ‘No…power has been identified as having been exercised so as to impose any legal requirement on any school in England to close,’ he declared (accurately, as we have seen). And since this was the case there was simply nothing further for him to say - it was ‘neither necessary, nor helpful’ to inquire into the matter. The government may at one time have ‘requested’ schools to close, but that was then and this was now, and at the material time (July 2020) it seemed as though the intention was to have children back in school in the following September. So what was there to complain about?

Leaving aside the bizarre jurisprudential contortion on display in this reasoning (the inference would have to be that human rights matters are not justiciable if they arise from a ‘request’ rather than a legal requirement - which it is safe to say is a more-than-slightly unorthodox interpretation of human rights law) what is most interesting about it is its offhandedness. Judges have, ever since 1998, been telling anyone who will listen, until they are blue in the face, that proportionality assessments are rigorous, principled, carefully reasoned, and not to be impugned. But, at the risk of becoming repetitive, when a proportionality assessment really, actually mattered - when an issue of true import was at stake - the exercise was treated by the judge with the utmost lack of seriousness. To call the reasoning cursory would be too generous: there simply was no reasoning deployed at all.

(And one should add - the only appropriate emotion is really wry amusement - that the finding by Lewis J in the High Court in Dolan that the government had only ‘requested’ schools to close was flatly contradicted, apparently unwittingly, by the Supreme Court not long afterwards in FCA and Ors v Arch Insurance (UK) Ltd and Ors [2021] UKSC 1. Here, that court found that Boris’s speech on the 18th March 2020 had indeed been delivered, as we of course all knew at the time, ‘to announce the closure of schools’.)

In the end, then, the decision to close schools was a great big mess - a purely political impulse, brought about because Boris Johnson is not particularly good at standing up for himself and in the purported interests of the class of voters who might vote for him at the next election, and given effect through nothing like a properly constituted legal process but through a wing and a prayer. It was a foolish policy that did more harm than good, and I think people increasingly accept this for all that they excuse it with false platitudes about ‘not knowing anything about the virus’ at the time. Yet even setting to one side its substantive quality as a decision of policy, it was in legal terms an embarrassment. It was not meaningfully done in accordance with law at all; it was done to achieve a political outcome based on the almost-naked selection of one priority over others.

But what is revealed by this, admittedly extreme, example is the deeper truth, which is that liberal legalism, insisting that there is a way to as it were constitutionalise its revealed morality in the form of the rule of law, in the end rests not on respect for law as such but on pure political expediency. When there was felt to be some important public good to be secured - or, perhaps one should say, when it became necessary for government to display a commitment to some account of the public good - the rule of law flew out of the window. And what this indicates is that faith in law actually runs at best skin deep in contemporary liberalism; law is all very well if it achieves a political objective, but if a commitment to rules would interfere with such an objective the rules will be found not to apply, or to apply in such a way as to be no interference after all. To use Antony de Jasay’s arresting metaphor, the rule of law under modern liberalism thereby takes on the aspect of a chastity belt for which the wearer holds the key. The law matters until it doesn’t. And then off comes the lock.

The truth, in other words, is that liberal legalism does not map law onto any underlying morality at all - it is politically, not legally constituted, and law simply flows from what is politically useful. And this really dates back to modern liberalism’s very roots. John Locke, writing in 1689, made it all pretty explicit. The English people, he tells us in that text, ‘are very seldom, or never scrupulous, or nice in the point’ when it comes to executive power (that is, the use of the prerogative). They do not contest what is ‘done without law’ or is ‘contrary to the Letter of the Law’, as long as they believe what has been done to be for the public good. ‘Prerogative,’ he concludes, ‘is nothing but the Power of doing publick good without a rule.’ And where there is a dispute between executive and ruled in respect of its use, the answer is straightforwardly determined - not by the application of law but by identifying whether the power in question was used ‘to the good or hurt of the People’ and that alone. It is decided, in other words, as a matter of politics, and not of law.

What this says about what I earlier called the edifice of liberal legalism should now be obvious. That edifice does not rest on an underlying moral order discernible by reason, and given effect in the rule of law. It rests rather on political expediency, political decision-making, and ultimately political choice. This does not mean that law is absent from the picture - far from it. Law is everywhere, and growing in social importance all of the time, minute and detailed. Rather, it means that where law exists it flows from the imperatives of politics and not as a pre-political framework of rules. Our regime is in summary politically, not legally constituted. And to come back full circle, it is in this sense not so very different to the type of regime that Marx would have understood - one which has at its heart expediency rather than morality, and power rather than liberty.

This I think goes a long way to understanding the position we are in with respect to our hopelessly confused conceptualisation of the relationship between politics and law. Everywhere law is becoming politicised and politics legalised. As a result law is losing its character as a set of formally authenticated rules and is becoming transformed into a branch of politics. It serves what is politically expedient. And this is because, quite simply, liberalism nowadays does not accept, as I earlier put it that there is ‘a spiritual dimension to human existence, that there are such things as nations or destiny, that human beings have souls, or that there is meaning in the universe’. There is as a consequence within its framing only politics, and power. Liberals just happen to be very good at concealing this unpalatable fact - from themselves as much as others - with the mask of rights, equality, constitutionalism, due process, and the rule of law. Their talk is of commitment to legality. But it is politics that lies at the heart of their project.