Why the Damian Green affair vacillates between tragedy and farce: the law is a mess

in Politics

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A key problem underlying the Green affair may be that no one really knows what powers the police have of entry and seizure, or ought to have, in Parliament or anywhere else. The CPS paper “Crossing the Threshold” is rather long, but it precisely identifies this problem and proposes a solution.

I abridge the paper’s summary and recommendations:

  • The home has traditionally been a privileged space [as has Parliament] for which a legal power of entry is required to enter without permission.
  • Powers of entry have flourished: there are now 266 powers of entry for state officials.
  • A number of these powers originate with the EU, rather than with Parliament.
  • Realistically, a citizen cannot now be aware of the state’s powers of entry.
  • Force may be used in the exercise of these powers.
  • Discretion as to what is reasonable behaviour is often left to those wielding the entry power.
  • Many laws are so broadly drafted as to afford little protection to the citizen from vindictive or officious behaviour.
  • Record keeping on the use of these powers is variable and sometimes seriously inadequate.
  • Entry powers need reform.
  • If possible, officials should always seek permission to enter a home.
  • A reasonable time for entry should be specified.
  • Except for the emergency services [acting in emergency], a warrant from a magistrate should always be required before officials can force entry to a private home.
  • The use of entry powers should be documented and published.

I recommend the report. It demonstrates that, in this area, the law is a mess.

A related question is to whom the police are accountable. I suggest they should be accountable to the law, as determined by democratically-elected representatives. Further, I suggest it is not presently possible to hold the police accountable under the rule of law, because the law has become too untidy. A consequence is an argument about how to hold the police accountable under the rule of authority.

A question before society and before Parliamentarians should be how to restore the classical idea of the Rule of Law: not the presence of laws, not the rule of authority, not the rule of no one — which is bureaucracy — but the Rule of Law.

What is required in the renewal of Britain, is fundamental reform of the law, not more law. If the law cannot be understood, it cannot be obeyed. A consequence has been anti-terrorist police in Parliament, seizing property without a warrant.