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
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.
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.
Better to isolate (I prefer that to ‘lock away’) a significant minority than everyone.
But the thing I don't understand is this. The 'isolate the vulnerable' argument might have been valid 12 months ago but we are within a month or two of having those 'vulnerable' immunized. The prospect of another year of economic disaster is one thing, but a couple of months more of restrictions? Surely that is a price worth paying to reduce the long term effects, whether they are death or viral fatigue syndrome?
I would however like to correct some common misconceptions regarding Covid mortality risk. The effect of comorbidities on mortality is largely overstated in the media and in popular discourse. Indeed, most common comorbidities (diabetes, BMI > 40) seem to increase risk by a factor of approximately two. Others, like asthma, @Charles Evans mentions, have a statistically significant but essentially marginal effect on mortality: in the OpenSAFELY study published in Nature (see link below) only severe asthma, requiring oral steroid treatment in the last year, is associated with an increase in mortality risk, and a fairly modest one at that (odds ratio of approximately 1.4). Compared with the effect of age (odds ratio of 14 for someone aged 50-60 vs someone aged 18-40) the added risk from comorbidity seems fairly minor.
I would also caution against presuming that comorbidities listed in ONS/PHE data are "significant". If you look at the data, listed comorbidities include any history of mental illness, for example, or common conditions such as eczema that are not thought to confer added risk in the event of coronavirus infection.
This is not to say that we can't identify those who are at risk, but more sophisticated tools, which take into account the essentially exponential increase in mortality risk with age, and multiple comorbidities, are needed in order to get a more accurate picture. One such example is the ALAMA Covid-age score (https://alama.org.uk/covid-19-medical-risk-assessment/). This tool uses the data from the OpenSAFELY study to translate comorbidity related risk into age related risk.