5th January 2021
Another lockdown in England and the other constituent nations of the United Kingdom.
Another dollop of regulations containing restrictions backed by criminal sanctions, and another dollop of governmental guidance and ministerial exhortations.
This is the third national lockdown in England, and the sound of the official starting whistle is now familiar.
Will it work?
And if not, why not?
*
If the lockdown is to work, it will not be by law alone.
As this blog has previously averred, law is not magic, and regulations are not spells.
It does not matter how solemn the law-making ceremony is, and how solemnly the laws are then pronounced.
To have effect any laws need to be clear, comprehensible, and accessible.
And this has been the fault now, for over a year, with the coronavirus regulations – they are difficult to find, at least in their up-to-date and consolidated form, and impossible for a non-lawyer to follow.
Indeed, it is rumoured that there is only one person – Adam Wagner, a barrister in London – who has read and understood all the legal instruments enacted over the last year in England.
(I happen to be an experienced former government lawyer, trained in drafting statutory instruments, and with a speciality in public law and an understanding of emergency legislation – and I gave up trying to keep on top of the ever-changing increasingly complicated lump of coronavirus legislation last Autumn.)
And if the laws are not clear, comprehensible, and accessible, then – regardless of any other factor – law-making is a futile exercise.
More than mere law is needed.
*
The second thing that is needed is enforcement.
Criminal laws that are not enforced are official fictions.
They are nothing more than the sort of item you get on those lists you see from time to time, of ridiculous laws from yesteryear that are still nominally in force but ignored.
And for criminal laws to be enforced, there needs to be be resources and an understanding of the law by those entrusted to enforce the law.
There also needs to be a working criminal justice system.
And there is little evidence of there being resources in place for laws to be enforced either by by police or by the courts.
Without credible enforcement, it does not matter if you keep increasing the supposed penalties to incredible amounts – like some Dr Evil boasting of a ransom of one million dollars.
But more than enforcement is needed.
With a challenge of the sheer scale of a pandemic, only a totalitarian state could perhaps rely on laws and enforcement alone
*
For the lockdown to work in a modern non-totalitarian society, there needs to be consent.
In essence: laws and sanctions should only have any effect at the margins, because the mass of the people will do the ‘right thing’ anyway.
And this engages the normative issues of legitimacy, accountability, fairness, and credibility.
There cannot be one law for the many, and another for those who go on day trips to Barnard Castle.
There cannot be one law on a Monday, allowing children to go back to school after the Christmas vacation, and then suddenly another law on the Tuesday.
There cannot be a demand for schools to be closed, just days after the government was – literally – threatening a council with a High Court mandatory injunction so as to keep schools open.
There cannot be many things – that is if a government genuinely wants to be taken seriously in imposing a lockdown.
*
But even laws and sanctions, resources and enforcement, and consent and credibility, are not enough if the underlying policy is not sound – or seen to be sound.
And this is also a challenge for this government.
The fundamental mistake with government policy on coronavirus, as with Brexit, is that it has approached something complex as if it were quick and easy, and ministers have kept preferring crowd-pleasing gestures to dealing with the problems that they put-off.
Most of the problems of Brexit policy, and many of the problems in coronavirus policy, were foreseeable and foreseen.
Ministers were told at the time.
But ministers shrugged, and made the mistakes anyway.
Unless there is sound policy in place, blowing the official whistle for another lockdown – with all the paraphernalia of laws and guidance, and ministerial broadcasts – will not work, and cannot work.
Ministers need to get policy right – and then other benefits will follow.
This is the rub – ministers keep shrugging and crowd-pleasing and getting policy wrong, because they know they can get away with it.
In other words: ministers know that a sufficient number of voters do not care enough whether politicians are candid and competent on coronavirus, as with other things.
And so until a sufficient number of voters do care that politicians are candid and competent, we are likely to keep on hearing the whistle sound of bad policy-making and implementation, and for as long as the pandemic persists.
*****
If you value the free-to-read and independent legal and policy commentary please do support through the Paypal box above.
Suggested donation of any amount as a one-off, £1 upwards per post found useful or valuable, or £4.50 upwards on a monthly profile.
This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.
Each post takes time, effort, and opportunity cost.
Or become a Patreon subscriber.
You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.
How will we know when a sufficient number of voters care? And what number of voters would be ‘sufficient ‘?
This is all too true. And do we have any faith in the statement that the first vaccinations will in fact be administered to the first four levels of people by mid-February? In my district it appears that no vaccines have even been bought yet by the local health trust.
“Candid and competent”: a useful and excellent encapsulation of what to expect of good government, thank you.
Intrigued to see you think we don’t have a totalitarian government, it’s certainly pretty close. I don’t think democracy is supposed to be 43% of the voting electorate picking someone/ some party with absolute authority for 5 years.
Like many governments, ours might have populist and authoritarian tendencies, but I don’t think it helps to describe our government as being close to totalitarian, as if it were much like Nazi Germany, or Maoist China, or North Korea. We don’t have a one-party state and leader’s cult of personality, using unpredictable and unaccountable violence to terrorise the population, the media under total central control, or secret police or political prisoners. There are plenty of countries there or thereabouts (and we should have very significant concerns about for example Turkey, Hungary, Poland) but the UK is not one of them. Not yet.
The UK is an elective dictatorship though. A government with a Parliamentary majority has a fairly free hand to do what it wants. The important thing is that general elections remain free and fair, and that when the governing party loses it gracefully concedes power to the winner.
Can someone ensure that a copy of this article is made available, nay, read aloud, to every single member of the government?
Your last 3 paragraphs sum up the situation well. Perhaps there already is a sufficient number of voters who care whether politicians are ‘candid and competent’, but what are we to do if we do care? Apart from wait another 4 years. Even then, we’re likely to return a majority government from a minority electorate. Perhaps I have answered my own question: that constitutionally the most important matter facing us now is to ditch FPTP and reform our voting system so that parliament reflects the electorate.
“credibility, sound policy, and for voters to care that ministers now get it right”
That boat sailed a fair while ago. And promptly sank.
Whilst it would apparently clash with your valid point about the importance of clarity, is there any scope to employ a bit of deliberate ambiguity in order to place some of the onus of responsible decision making back on the individual?
Whatever the law requires, and whatever gloss the government guidance puts on top of that, each individual ultimately remains responsible for their own decisions and the consequences flowing from them.
If individuals exercise their own personal autonomy and refuse to comply, a law requiring something does not make it happen; a law permitting something does not make it mandatory; a law prohibiting something does not stop it happening.
There will be consequences either way, whether or not a person complies.
“Too little, too late” has been the one policy this woeful administration has successfully and rigidly adhered to throughout its existence.
I completely agree, although I believe the decisive Nicola Sturgeon has achieved little more than Loris Boris.
It is perhaps not that insufficient numbers of voters care (see support for lockdown in polls), but that without any visible enforcement (ideally ‘light’, so educational) in the first instance, then people are unwilling/scared to self police. There is no law on queuing, but plenty of social condemnation of queue jumpers, which ensures, by and large, that people do queue. Add in double standards, so while we were all locked down in Spring, you could happily fly in and out of the UK with zero checks, no enforced quarantine or tests (this is still the case today); even the simplest of measures such as thermal imagine cameras are absent from airports and all major transport hubs.
The absence of visible measures on the ground, gentle enforcement, news from the frontline of healthcare, accompanied by public education to take the wind out of the sails of the denialists may reflect playing to the gallery, an unwillingness to lead or stupidity, but its effect is that the majority do not feel empowered to act and put social pressure on those stepping out of line. The result is that if this was a game of Prisoner’s Dilemma, defecting would always be beneficial.
You say in the headline, “credibility, sound policy, and for voters to care that ministers now get it right” are what’s required. I’d add that ministers should be competent and that voters should have trust in their credibility.
Under “competence” I’d include an understanding of science and the basics of statistics, epidemiology and modelling; and the ability to listen to real experts and to trust their expert judgement; ministers ought to have sufficient self-awareness and mental agility to be able to change their minds on the basis of evidence, rather than relying on (populist) ideology.
This most recent lockdown is really an emergency response to the deteriorating situation in NHS hospitals, particularly in London.
You and your readers are, I’m sure, familiar with the concept of “triage”, a sifting of patients into those needing immediate treatment, those who can wait a bit, and the “walking wounded”. This concept only applies when health care resources are not overwhelmed.
There is a second type of triage which applies in the case of major disasters when the resources in any hospital are overwhelmed.
In these circumstances, the most seriously ill, people who would need a team of medics, nurses etc for their management, will be comforted, sedated and left.
The less seriously ill will be given treatment as far as resources allow; the idea is to do the greatest good to the many.
This does mean that some (many) people in the most severely ill category who would have survived if they had arrived when resources were not overwhelmed will die.
To perform such an unpleasant duty, it is usual for a very senior clinician to sift or triage patients on arrival; in effect, he or she will be “playing God”.
It is through the continuing complacent incompetence of elected politicians, particularly those in government at Westminster, that much of the UK is now in this dreadful position.
Excellent post, and I agree with it as far as it goes, but you have missed out implementation of policy. I know the traditional distinction is between Politicians who formulate policy and Civil Servants who implement it, but there are grey areas – sometimes policies create or remove logjams, and as a general point at least some politicians need to get their hands dirty and show a real interest in the business of Governing and implementation (which will form a virtual loop of informing better policy), including cracking the whip if needed.
I was talking to someone who left the Civil Service having worked in No. 10 during the coalition years, and he was lamenting the departure of ‘grown-ups’ like Francis Maude who got involved in the business of governing when he was Minister for the Cabinet Office. Unglamorous stuff on the face of it, not many votes or opportunities for grandstanding, although occasionally it’s possible to bob up with
a real coup and say, ‘we did this little thing and it will save oodles’.
To return to my theme, even a Government that is good on policy formation needs a bevy of competent Ministers whose province is the act(s) of governing, not tweeting or cloaking themselves in whatever is the passing ‘commonsense’ fad of endlessly angry BTL posters.
“The second thing that is needed is enforcement.
Criminal laws that are not enforced are official fictions.”
That appears to be what has happened online fraud and payment card fraud
There seem to be approximately 4 million incidents per year, and although I can’t find any figures I suspect that less than 1% are prosecuted
https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/natureoffraudandcomputermisuseinenglandandwales/yearendingmarch2019
And the result is that it’s ignored by the public, and companies treat is as a cost of doing business
My personal view is that it doesn’t help for the Prime Minister to talk about people’s inalienable right to go to the pub, or for politicians to repeatedly talk about how they have had to make rules more flexible because otherwise people won’t want to follow them. Like the Barnard Castle events, these seem to me to set a tone that lowers expectations. The ‘meta message’ seems to be along the lines of, “we know you don’t want to follow rules and we understand why you wouldn’t”. A ‘meta message’ of “this is deadly serious, and we expect everyone to play their part” would be better.
Much of the onus for popping the bubble of apathy and getting voters to care lies with the alternative Government in waiting. Voters too need to take some responsibility by seeing through the superficially alluring politics of nihilistic despair.
What we see with this Prime Minister is weakness in the form of wanting to always be a people pleaser. Professional politicians know only to well that when answering questions they must not hold their future selves hostage to spontaneous and hastily made promises. Many voters groan at the sight of an MP or Minister wriggling around and seemingly being unwilling to give a straight answer to a simple question. But the more talented of them avoid directly answering a question in a way that skilfully satisfies the listener whilst avoiding the temptation of holding their future selves hostage to rash undeliverable people pleasing promises. A skill that is sadly lacking in our current PM.
Well, I do care that politicians are candid and competent, and I made my opinion of the government’s failure in the Barnard Castle affair known to my MP (a Conservative).
But I fear I’m the ‘wrong’ kind of voter. The government doesn’t need my support, it needs me to express my anger, so that it can signal to the ‘right’ kind of voters that it’s successfully provoking the ‘wrong’ kind…
Thanks for some sharing some great thinking. I’d like to examine and amplify some necessary attributes of the word “right” in the article title. IMHO “right” should be:
a) subjectively objective & popular – visibly propose “tick boxes” recognisable by most of the population;
b) authoritative & durable – sourced independently, and useful beyond the immediate news cycle. “Right” could in theory be defined outside of government;
c) supported by the law (as a last resort) or social censure. This support must be both responsive and commensurate. “Right” is not immutable at the detail level.
A catalyst is often beneficial to trigger coalescence around “right”, no matter how “wrong” things get – I’m thinking of Fauci, Thunberg here. Today, ministers invent a new “right” every day, and public memory is short.
Policy definition is fundamental, implementation can also be challenging!
As the old cliche goes “people get the government they deserve”. Perhaps we need to take the spotlight off the politicians who are simply responding to demand, back onto the voters. Has democracy, as idealised and practiced gone to the point where it has broken-down. Is universal suffrage a viable idea or should only those with sufficient education and some stake status in society have the vote? Is lowering the voting age obviously a good thing or should it be raised so that the voters have sufficient life experience and knowledge to be considered “engaged”.
These are not legal questions, obviously, but the law follows society not the other way round. If society does not share broadly a set of values, aspirations, assumptions about the way things should work, goals, and above all else, trust in the system and its institutions, then the law becomes largely irrelevant and just another political battleground.
See a substantial number of previous blogs and comments. In (very) short we are at the mercy in the UK of FPTP, Corbyn boosted the Tory vote in December, Remain expertly lost the Referendum.
If all you have is a hammer then everything has to look like a nail. Lockdowns are now well into diminishing returns territory. No other tool apart from vaccine is available, without it lockdown is the only tool on offer and it hardly works.
What is needed is vaccines put into arms. But therein lies a problem – the word shortage is on the horizon. All the world wants vaccine and is prepared to pay for it. Our government having declared it has secured stocks is almost certainly aware such statements are illusory. The job of vaccinating everyone will be slower than hoped. A game of expectation management and blame management is in play.
Surely the reality is that as the NHS does become overloaded and doctors are forced into triaging patients (denied of course by government) then the ‘dead granny’ count will start to go up. A degree of schadenfreude hoves into view as Boris snatches defeat from the jaws of victory. Much wailing and gnashing of teeth.
A few separate but related points, based on the new lockdown being announced by the Prime Minister at 8pm on Monday 4th, in what looked like a pre-recorded message, to come into force on Tuesday 5th, but the regulations – the (fx:draws breath) “Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021” – were “made” at 4:30pm Tuesday, laid at 5:30pm, and came into force on 6 January (as no time was specified, I assume immediately after midnight). Yet again, by reason of urgency, the regulations were made and came into force without a draft being laid or approved. See
https://www.legislation.gov.uk/uksi/2021/8/regulation/2/made
So (1) the Prime Minister misspoke (perhaps no surprise there) when he announced a change in the law introducing a lockdown to come into effect the following day, as the regulations actually came into force the day after that.
(2) Was it really necessary for the regulations to come into effect immediately “by reason of urgency”, when the announcement was made on Monday, the regulations were made on Tuesday, and Parliament is meeting on Wednesday to approve them anyway. Why not lay regulations in draft on Tuesday and get them approved on Wednesday, so they can come into force that day? You know: Parliamentary democracy, not executive fiat.
(3) It took nearly a day to make the regulations after the announcement, and I expect more than a day after the decision was made. The decision for a third lockdown could have been foreseen several weeks in advance, probably at the time the second lockdown was ended. Have the government given up on contingency planning? Didn’t they have a draft set of new regulations ready, just in case? If not, why not?
(4) Why on earth do they insist on making regulations in the impenetrable format of adding and deleting specific words or subclauses (“(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)”; (c) in sub-paragraph (4)(b), omit sub-paragraph (i);” and so on). It creates legislative Swiss cheese which is almost impossible for anyone to follow. Please, please, please publish a consolidated version.
(5) The Prime Minister hopes to relax the lockdown in February, but as they stand the amended regulations will continue the lockdown until 31 March. Please, just be realistic and level with us. Be a leader and take some decisions. This Tiggerish over-optimism crushed time and again by Eeeyorish reality, raising expectations and letting us down time and again, is worse.
The fact that we have an incompetent and indecisive Government has been clear from the start of the pandemic. Our Government failed to lock down the whole of the UK when the first case was identified here, including a ban on people entering and leaving the UK. The internal lockdown should have been kept in place until all cases and contacts had been located and isolated. The international travel ban should have ben kept in place except for essential travel and we should have adopted similar procedures to those still in place in New Zealand and Australia. At the time of the first case, there was enough evidence from China of the behaviour of the virus to take these measures.
From the outset, this Government has been putting its own interests and those of its close friends first, before those of the general public. Until now, infections and deaths have been treated as though they were collateral damage.
Watching the behaviour of our Prime Minister and his colleagues at the press conference on Thursday, 7th January 2021, I was forming the impression that the Government was, at last, becoming somewhat worried about the situation, hence the present restrictions. I noticed that Boris Johnson dodged the question put to him asking if he regretted his decision to relax the regulations for Christmas Day.
During the pandemic. it has been clear that the Government, while verbally supporting the NHS, was very keen to try to manage the pandemic centrally using people with no health care experience. Was this because there was (and maybe still is) a plan to privatise healthcare in the UK? What other reason could there be for not putting the matter in the hands of the experienced NHS people?
There has certainly been a lot of dodgy dealing in respect of PPE and a good few of the Governments ‘friends’ seem to have made a lot of money out of the public’s misery.
One useful law the Government could introduce would be for landlords not to be allowed to charge rent for commercial properties forced to close during lockdowns and to have to refund any rent so paid since the pandemic started. It is time greedy landlords suffered like the rest of us instead of forcing businesses into bankruptcy, which is to no-one’s advantage.
Thankfully, we now have two vaccines which are being deployed and, at last, GPs are being given the opportunity to immunise patients with it – provided they receive the supplies they need. The distribution logistics is in the hands of the military. The question is whether the military is competent enough to undertake the task. Do we have the kind of military leadership that used infantry to attack machine guns and heavy artillery head-on or the kind that led the troops at the Battle of Imphal/Kohima, when British troops fighting in horrendous jungle conditions turned the tide against the Japanese army in World War II?