Confusion and Distrust
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.