Cummings and Goings

As promised, here is part two of my thoughts on the Dominic Cummings case. I want to focus here on the question of how we interact with rules.  The key question for DC’s future is whether or not he did break any rules.

If he broke lockdown rules, then this is serious because he has played a significant part in constructing them and developing the Government’s message.    Whilst, in my opinion, it wasn’t necessary for someone like Neil Ferguson to resign from an advisory position, I think this is different. Although not a party politician, Cummings is a political creature at the heart of our government, shaping its direction for good or evil.

The original claim against him was that he went to Durham to see his elderly parents in order to get them to look after his child should he and his wife deteriorate in health. Whilst some of his supporters were quick to portray this as merely about someone wanting to look after his child during sickness and so a good thing, I think most of us would see this as an open and shut care. The reality is that elderly parents are likely to be much more vulnerable to coronavirus and taking his child to them would be highly irresponsible.

However, what did Cummings claim that he actually did?[1] His defence was that he and his wife had driven to Durham, had self-isolated on a section of the property but away from his parents and that his sister had been available should child-care was needed and also brought essentials to their door without coming into contact with him. Downing Street argues that this was within the rules and guidance.[2]

But was it? The rules state that it is an offence to leave the home without reasonable excuse.

“During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.”[3]

That all appears cut and dry doesn’t it. We are not to leave home. However,  what about “without reasonable excuse”?  This is exactly Cummings’ point, he had a reasonable excuse because he was seeking to care for his child. This is the defence that his supporters are making.  However, is that what the legislation has in mind? Well, let’s look a little bit further. The legislation goes on to describe some “reasonable excuses” such as exercise, buying essential goods, seeking emergency health care, attending a funeral, to access public services such as childcare etc. [4] There is quite a lengthy list, however, crucially, it does not cover the circumstances described by Dominic Cummings and again, that suggests that he broke the law.

Wait a moment though. The actual wording before those “reasonable excuses” are listed is

“a reasonable excuse includes the need”

The important word there is “includes.”  This is important because the word “includes” suggests to the ordinary and reasonable reader that the list may not be exclusive. Admittedly, it is such a long time since I studied law that I cannot say for certain that this is what the drafters intended or what would be assumed in court. However, it is important to remember that English Law works differently to European Law and other jurisdictions. Some jurisdictions work on the basis that if something is not permitted, it is forbidden. Traditionally, English Law works on the basis that something not forbidden is permitted. Align that principle with the word “include” and I think a defence barrister could make a good fist of arguing that Cummings actions are not necessarily forbidden.  Indeed, reading between the lines, the fact that the legislation gives examples relating to health-care and child-care, one might argue that a case could be made that his actions were reasonable and within the spirit of the regulations.

However, at this stage, quite a few of us are going to be getting quite narked about this aren’t we?  This all sounds like legalise and the slippery language of lawyers. Arguing that the case hinges on what “includes” means feels a bit like Bill Clinton’s lawyerly defence during the Monica Lewinsky  affair.

               “It depends what ‘is’ means”

To the objective, normal, non-lawyer type person” it seems and the defence sounds too clever by half.  It is one thing to seek nearby help. It is quite another to drive the full length of the country risking infecting your child in an enclosed space and anybody should you have to stop for petrol or to visit the toilet.

And that’s the point. The law states that there needs to be “a reasonable excuse.” Again in English Law, “reasonable” means what the objective and reasonable man or woman in the street would consider it to be. It is not what a clever, lawyerly argument thinks.[5]

There I think is the problem with our establishment, it tends to be too clever for its own good.  So we end up with public figures being able to excuse their behaviour as acceptable even when it infuriates the wider public. The result is that permission is stretched to the ‘enth degree and no-one can put their hand up and simply say “I am sorry.”

However, whilst public theology enables us to think carefully about how we view issues in public life from a Christian perspective, I would not want us to get off the hook without also being challenged.  Here are a couple of things to consider

  • A Biblical, godly approach means that we should not be too clever by half and find ways to make ingenious excuses. When we are in the wrong, we need to hold our hands up and face the consequences.
  • We should be careful not to throw false accusations around just because we do not particularly like aspects of a person’s character or reputation.
  • At the same time, it is possible for people to treat someone unfairly and bring a false charge but for the person still to be in the wrong even cleared over that one wrong thing.
  • Compassion and sympathy does not mean that sin can’t be identified and consequences faced.

This is another example of how legalism fails to offer either true compassion or justice. Let’s be careful to be better within the church.

[1] I am going to stay clear about further stories about further visits to Durham and walks in the countryside because there is the risk that once a politically sensitive story is out there it is easy for people to start “remembering” seeing things.  Before long we will discovering that Dominic is magically everywhere.

[2] It is also important for Christians to show integrity by not accusing someone of doing something without evidence. We may believe Cummings was in the wrong but let’s make sure we challenge for the right reasons.

[3] The Health and Protection (Coronavirus Restrictions) (England) Regulations 2020.

[4] The Health and Protection (Coronavirus Restrictions) (England) Regulations 2020.

[5] And that’s why after careful consideration, I believe Cummings is in the wrong and should face consequences.

%d bloggers like this: