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Confusion and Distrust

Francis FitzGibbon

I comply unconditionally with the pandemic regulations that restrict my freedom because they are the law and I am not exempt from the law. I miss my friends and family and normal life, but personal preferences have to come second. If I thought the regulations (or any other laws) were unconscionable, my disobedience would be Rawlsian: noisy, public, reasoned, and intended to change the law for the better. I would accept my punishment as the price to be paid.

The Covid-19 regulations are draconian, inconsistent, obscure and inconvenient, but they are not unconscionable. They do not require me to do things that the state should never make its citizens do. They are proportionate to the threat that the virus poses to health services, and necessary to slow the spread of the disease and protect those services: or at least, they are arguably so. The law and the reasons for it make sense. The regulations are contained within statutory instruments. They alone are the law. They are the ‘rules’. They can be enforced with criminal sanctions. Guidance and advice are not rules and cannot be legally enforced.

The official thinking and language around the regulations, on the other hand, are a source of confusion and distrust. The government’s advice and guidance are not part of the law, but ministers and broadcasters constantly muddle them. It may be foolish and dangerous to ignore the guidance, but it has no legal standing. There is no ‘rule’ against exercising more than once a day, or travelling to take exercise, or sitting on a bench. Ministers who issue law-like commands that go beyond the regulations are misleading the public. Such commands are not rules. They have no legal force.

You might wonder how any normal person is expected to understand the regulations – for England currently, The Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021 – when you see how the updates are drafted:

(4) In paragraph 2—
(a) in sub-paragraph (2), omit paragraphs (d) and (da);
(b) in sub-paragraph (3)—
(i) in paragraph (a), omit “and (d)(ii)”;
(ii) in paragraph (b), omit “and (d)(iii)”;

The home secretary, for one, doesn’t understand them: at the press conference on 12 January she said ‘the rules are clear’ and we can leave home for recreation; the regulations do not define recreation, but it is one of the things they expressly forbid. On the same day, the prime minister was condemned for taking his bicycle seven miles from home to exercise – perfectly legal, if inconsistent with the ‘stay at home’ advice. Confusion reigns. That makes it all the more important to be clear about what the law forbids, and what the experts advise.

The devolved nations have their own rules, as does each tier. London has had five sets of rules since early December: the second national lockdown until 2 December; Tier 2 (2 to 15 December); Tier 3 (16 to 19 December); Tier 4 (20 December to 6 January, with the Christmas relaxation withdrawn); and now the third national lockdown. The pace of the pandemic may justify changes, but the number of new variant rules only adds to the confusion. Needlessly, because the politics of Covid-19 mean that the rules are always late, never proactive. Each leak or solemn announcement (‘alas’) is more performative than the last.

A government that takes away cherished freedoms must make a watertight case for it. Ours has consistently failed, because it has lost credibility and trust. It is not only the confusion over what is law and what is advice, or the mess over the ‘world-beating’ test-and trace system, or Dominic Cummings’s visit to Barnard Castle and the protection he received. Aside from the exigencies of Covid-19, taking away freedoms and creating confusion are the hallmarks of this government: they boast of ending freedom of movement, and access to the freedoms of the single market. And, like a self-interested lockdown rule-breaker, they threaten to breach international treaties because they think laws and norms are provisional, to be ignored at will. Why should the people of this ‘great and freedom-loving country’, as Johnson calls it, be any different?

And yet, the vast majority see the sense in complying with what they at least think are the rules, in order to suppress the virus, in spite of the government’s mixed messages. Some will over-comply, by doing less than is permitted or advised. We should worry about the elderly, scared and vulnerable, who deny themselves contacts that they can and should have. On the other hand, there’s no persuading the irreconcilable anti-vax cranks and Covid-deniers who will defy any interference with their selfish desires.

In the short term, it matters if people do not know what the law forbids – that includes the police, whose every mistaken crackdown breeds more distrust. Distrust and confusion are the virus’s friends. And for the future, it matters greatly if ministers think they can order us about without a legal basis, and if we grow used to it.


Comments

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  • 14 January 2021 at 9:40pm
    Marmaduke Jinks says:
    You may be right that the current restrictions “are proportionate to the threat that the virus poses to health services, and necessary to slow the spread of the disease and protect those services” but whether they are proportionate in respect of preventing ‘unnecessary’ (as opposed to, et, necessary) deaths is moot.
    It is clear, and has been clear, that there are sectors of the population that are vulnerable to dying from this disease and sectors that are not.
    To use just one day’s statistics: yesterday, 13 Jan, it was reported that just over 1500 had died within 28 days of a positive Covid test; of those only 46 had no significant co-morbidities and none of the 1500 was under 39.
    So we can identify the vulnerable; let’s shield them and let the rest of the population out. Not only would that reduce the death toll but it would also reduce the pressure on ‘our’ NHS.

    • 15 January 2021 at 11:35am
      Charles Evans says: @ Marmaduke Jinks
      This is the usual lazy argument used by anti-restriction zealots.

      Co-morbidities are exceptionally common. Have asthma? That's a co-morbidity. Have diabetes? That's a co-morbidity. Does your BMI tell you that you're overweight? That's a co-morbidity. Many millions of people in the UK - a huge percentage of the population - have co-morbidities. Does that mean they're weak, sickly people who deserve to die? No. That's also no justification for "shielding" (aka totally isolating) them from the general population - we're not going to lock millions of people away in the attic so those of us who are younger and healthier can carry on as normal.

      You've also presented a false binary world - life or death. A very large proportion of people who are infected with Covid, who do not die, still experience serious chronic after-effects, many of them debilitating. I have a colleague who is 31 years old, healthy, who is now suffering from prolonged post-infection Covid symptoms which are seriously debilitating. You present a false choice: it is not 'live or die', but 'live, live with serious chronic after-effects, or die'.

      I suspect, 'Marmaduke', that you have not been infected by Covid-19. And I also suspect that you have a total lack of empathy for anyone who has been. As Francis FitzGibbons says in the penultimate paragraph, you're on the side of those "cranks and Covid-deniers who will defy any interference with their selfish desires". Your clear desire to carry on as you please, making others suffer the consequences of a pandemic whilst you entirely escape them, is despicable.

    • 15 January 2021 at 3:56pm
      XopherO says: @ Marmaduke Jinks
      I don't think what you suggest would protect the NHS much. Where I live between 1 in 5 or 6 of those in hospital with COVID dies. That leaves many with a much wider age range, younger and healthier in beds being treated. Some may need ICUs because triage is very much in operation whether it is admitted or not. If general measures are eased, which would seem to be what you want, then more of the 'rest of the population' you want to 'let out' will end up in hospital even if they do not die in the end because of treatment (even spend longer there than those who die.) No relief for the NHS about to collapse completely because of an inept, mean, nasty, mendacious and corrupt (using cronies rather than real expertise) government.

    • 15 January 2021 at 5:36pm
      Marmaduke Jinks says: @ Charles Evans
      As it happens I belong to a group that would be considered both aged and vulnerable. Why should I not shield myself so that others who are in virtually no danger from this disease, can get on with their lives?
      Better to isolate (I prefer that to ‘lock away’) a significant minority than everyone.

    • 15 January 2021 at 5:50pm
      Marmaduke Jinks says: @ Charles Evans
      Oh and by the way. I am happy to discuss these matters and even to be proven wrong but I don’t think that the simple act of my adopting a different position to yours makes me a ‘zealot’.