On Monday evening came the inevitable. In an address to the nation, Boris Johnson declared a new English lockdown, likely to last until March at the earliest. As with the first lockdown last March, we are legally required to stay in our homes, unless for specific exceptions.
It is generally accepted now that the virus poses a catastrophic threat. Leading scientists say the situation is more perilous than it was in the spring. And it may well be that we need comprehensive and intrusive rules, not simply guidance or requests, to get us through it.
A combination of exhaustion and lack of morale could render mere advice useless. There is simply one problem: we have never known exactly how effective individual laws are and have never had a national conversation about how they should operate.
Not all laws are contentious. In a pandemic the government must act to regulate public spaces. Indoor venues such as pubs, restaurants and theatres must all be subject to tight control or outright closure. The government is right to mandate face coverings. It is obvious that large indoor gatherings must be prohibited. But the issue grows more complicated when dealing with the most intimate areas of our lives. Right now in England (and most of the UK) it is illegal to meet anyone from another household indoors for social reasons, unless you are in a household bubble with them, and illegal to meet more than one person from another household outdoors. In much of the country, these rules have already applied for several months.
When deciding what should be law, the first question regards civil liberties. It is not difficult to argue that they should play second fiddle to public safety; nobody complains about the existence of speed limits. But the point at which necessary restrictions become unduly authoritarian can be debated. There is no objective correct answer. Other countries, such as Germany, Denmark and the Netherlands (albeit with lower case loads) have instituted recent lockdowns which curbed indoor gatherings without banning them outright. Governments may reason that people are likelier to obey the rules if they are less stringent, and that will stop them breaking further rules—but equally, limited gatherings still allow opportunities for the virus to spread.
We must further ask whether the law is the best instrument to control human behaviour. Do our current laws work? We only have the laws because ministers believe they need to compel people: they do not believe people would comply with advice alone. The evidence for that belief is unclear. Sweden initially kept virus rates lower than other countries almost entirely with advice rather than legal force, but in recent months its rates have skyrocketed. In England, some people have taken fright and imposed stronger restrictions on themselves, choosing not to meet friends outside or bubble with other households. Conversely, it appears that overall compliance with the laws is now lower than it was in the spring, even though they are nearly the same.
The debate isn’t about giving people the right to behave unsafely. It is about how and where to draw an arbitrary line. Laws will always create anomalies because some things are easier to legislate for than others. A rule banning people meeting indoors is easy to pass and understand. A rule specifically banning close private contact would be absurd. When the government has sought to over-regulate or micro-manage—forbidding a group to “mingle” with another group in a park; allowing people to meet on a pavement but not in a garden; requiring people to order a scotch egg with their pint—it has been ridiculed, with the effect of reducing respect for those particular laws, and the law in general.
These are not problems of theory, but of application. The greatest problem has been inconsistency. The government initially permitted Christmas bubbles because it knew households would gather anyway and didn’t wish to criminalise millions of people—but why was that not a consideration before? For months, the official messaging has focused on both laws and common sense. People have been given two quite different instructions: to use their own judgment and at the same time defer to the government. Often, people don’t even know what the laws are: over several months they have become increasingly complex, and frequently published a matter of minutes before taking effect.
The government has also, at times, sharply changed tack: it began the pandemic with a legal approach and then, in the summer, switched to an advisory one. People were asked not to to meet in large groups or multiple households, but it only became a crime when gatherings surpassed 30. From autumn, the approach changed back to legal enforcement.
The way the laws have been issued has not helped the confusion. For the most part, they have been dispatched from the Department of Health without even a fig-leaf of parliamentary oversight. The executive has, in effect, been dictating laws as though in a state of emergency for the last ten months. Before November, MPs had not been given a vote on specific restrictions since March.
Then comes the question of enforcement. Prosecutions have largely taken place in secret, with newspapers having to conduct investigations simply to discover defendants’ names. Several people have been charged incorrectly and have frequently had no right to appeal fines. Concerns have also been raised that penalties are unfairly targeting poorer people and those from ethnic minorities. The level of secrecy precludes easy scrutiny; sometimes even police officers appear not to understand the rules. In April a woman was fined for a crime that did not technically exist.
A key difficulty is that many of these rules cannot be enforced. Police are currently stopping parties but tending not to break up coffee mornings between a few friends. To do so would be seen as overly intrusive and draconian. But then why is the coffee morning illegal to begin with? If the law cannot or will not be enforced, why have it?
Becoming fixated by the rules can distract us from fighting the spread of the virus—which neither knows nor cares what the restrictions are. There can be ways to break the rules safely and follow them dangerously. A relentless focus on laws forces a reactive focus on loopholes, when the real goal must be to educate people on why and how the virus is dangerous and get them to change their behaviour.
We are in the most dangerous phase of this pandemic, and both advice and legal restrictions are needed. But so is public engagement and consultation. In the end, this is not a philosophical discussion about the importance, value or efficacy of law. It is about the best way to guarantee safety while governing and policing with consent. We all agree there’s a balance somewhere. The question we haven’t been able to ask is, where?
