How a new formal lockdown will be a test of legal legitimacy

29th November 2021

As I type this post in a public place, only about three-quarters of those around me are also wearing masks.

In general, I am one of the many who do not like wearing masks but do so anyway for the sake of others.

But against that many there are the few who do not wear masks, of whom a small proportion are, of course, exempt.

That means there is a substantial number of people who do not wear masks and do not want to do so.

If and when a dangerous new variant of coronavirus comes along, the law will revert to making it mandatory to wear masks in many public places.

It will cease to be matter for personal choice.

It will instead become a matter (again) for the criminal law and state coercion.

But will it make any difference?

Or have sufficient numbers of people become resistant to masks so as to make any new criminal law unenforceable?

And, if so, where does that leave the rule of law and the legitimacy of public health regulations?

What will be the approach to enforcement by the police, if any?

The strange – perhaps ironic – thing about all this is that not so long ago those who protested against the state wore masks in defiance, inspired in part by V for Vendetta.

And now the defiant act against the state is to take masks off.

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17 thoughts on “How a new formal lockdown will be a test of legal legitimacy”

  1. I am no longer a habitual mask wearer, but use one on public transport and in crowded indoor public spaces. A few days ago my family and I were returning from the theatre and, having been on the train, were all still wearing masks. (One of us in in the frontline of the NHS and wears one of necessity most of the time.). We were greeted as we turned a corner by our local pub, by ‘take those masks off’, ‘what are you doing?’, ‘don’t you know what is going on?’ followed by a string of abusive and misogynist language directed at one of our party who attempted to explain our position. I fear that this is representative of a train of thinking that is likely to feed and distort opposition to sensible and lawful measures. The resistance appears to come from, in this case, from the ‘white working class’ , perhaps spurred on by the libertarian chaos-makers. All-in-all, depressing prospect, since the will likely not be enough consensus of the subject to enable social enforcement.

  2. Defiant act of not wearing masks may be intended as being against the state but in reality it is against fellow citizens and that includes nearest and dearest of those who resist mask mandate.

  3. Two things have contributed to the lack of mask wearing in my opinion. The first is the long running effect of there being ‘no such thing as society’ and the unrelenting focus on the small state and individual choice to the exclusion of a sense of community. The second is the haste with which this government has sought to get things ‘back to normal’; that the goverment is also a proponent of the first point has compounded matters.

    It wasn’t helped by the WHO getting the transmission method wrong for nearly 12 months (all about droplets and no contribution from aerosols) but most people we unaware of this and clear governmet direction would have compensated for it.

    1. That is a rather blunt damnation of WHO, without acknowledgement of the nuances of evaluation of the scientific evidence.

      1. I don’t know which particular set of evidence you are referring to. The evidence in question goes back over a hundred years and there appears to have been misinterpretation along the way but it still wasn’t rocket science to work out aerosols were involved.

        There’s plenty of information on the web including from a number of scientific journals but here is a somewhat popularised version.

        https://www.wired.com/story/the-teeny-tiny-scientific-screwup-that-helped-covid-kill/

  4. Quoted from the start of a long article in the latest issue of the London Review of Books – 10 million a year David Wallace-Wells,
    “Not​ all deaths are created equal. In February 2020, the world began to panic about the novel coronavirus, which killed 2714 people that month. This made the news. In the same month, around 800,000 people died from the effects of air pollution.”

    Recently I was caught doing 24mph in a 20mph area. the street was virtually empty, the view ahead was clear, it wasn’t in a built up area but beside a `Common. No argument, pay up or attend a speed awareness course.

    Travelling in a virtually empty carriage on a train I can get away with not wearing a mask. In future I may have to show health reasons why I’m exempt.

    Why are some matters of public health so much more important than others? Why is personal freedom an issue for coronavirus?

    Politicians citing loss of freedom makes me smile. Does this apply to civil servants and those they invite to seminars? Are they self aware?

  5. After lockdown ended mask wearing virtually ceased in our area. However I’ve noticed more people wearing them of late. This is bound to increase with worries over the omicron variant.

    Although it needs the back up of legal sanctions, mask wearing should be publicised and encouraged for social reasons. Stressing criminal sanctions will only increase resistance to it. Were many people actually prosecuted for not wearing masks during lockdowns? Compliance was largely voluntary. The problem in England is that rules on mask wearing were relaxed when lockdown was ended, and the argument has to be won again.

    No-one enjoys wearing a mask but making it an issue of freedom when it is actually an evidence based public health matter should be vigourously contested, like the freedom not to be vaccinated. Sadly the government decided to rely on vaccination to combat covid-19 and has never been keen on promoting mask wearing. At least this time they are acting without delay.

    1. I would agree with this if the case for masks really was evidence based. My conclusion, having looked at a lot of evidence, mainly from Cochrane and the BMJ, is that case for masks is conclusively inconclusive. At this point I ask myself why the medical authorities have persuaded their political masters to advocate masks. I wish that I could answer my question.
      I wear a mask when required or recommended, but as a matter of courtesy rather than public health.
      I don’t find the precautionary principle a convincing answer.

  6. Living in Hamburg where wearing a mask has been mandatory on public transport and in shops for many months, it is is interesting to see the current debate in the UK. Enforcement is generally light with most situations being self-policing yet observance is over 95%. I think that the key to this has been clear messaging from the government both at national and local level which is in sharp contrast to the weak messages in the UK. Perhaps there is also a stronger sense of civic responsibility in Germany.

    1. My experience of Germany is that any deviance from the social norm, from slightly incompetent parking upwards, results in a sharp “you mustn’t do that” from the next passer-by. The outcome is certainly higher social compliance in Germany, whatever we attribute it to. Next door in Czech Rep, social compliance is lower even than in Britain.

      Criticism of deviance by others in Britain can easily be repaid with a threat of physical violence. So social misbehaviour is common, and the perpetrators often don’t even realise. I attribute this to poor social cohesion, poor education, and a mistrust of authority especially among the excluded classes. Who can blame them? Czech has better social cohesion and less inequality in education as in everything. But there are other factors resulting in a broad mistrust of authority going back to the time of communist repression; recent governments continue to be mistrusted as corrupt.

  7. “Those who want to continue to add fuel to a fire that no one chose to light will have to learn to change their tune. There’s no such thing as a ‘health dictatorship’ when almost two-thirds of citizens support the difficult path of their leaders.”

    So wrote a Lausanne newspaper after Swiss voters overhelmingly backed the government’s COVID-19 law on Sunday, with an increased turnout.
    https://www.swissinfo.ch/eng/covid-vote-judged-a–victory-for-the-silent-minority-/47149670

    Does the vote add legitimacy to the policy? Will the resistance be weakened? We shall see.

    (Since this is a “law and policy” blog, worth pointing out that Sunday’s vote was a proper “referendum” ie, an approved law or international treaty referred to voters. Two other votes were on “popular initiatives”. They were not referendums, according to Swiss law and policy.)

  8. We are likely to face a comparable dilemma concerning climate change mitigation. Another collective action problem, with an ‘elite’ of ‘experts’ mandating policies that restrict personal freedom, and a counter-elite of anti-experts citing ‘common sense’ (not, of course, the same as informed ‘good sense’) and peddling seductive conspiracy theories. Will Net Zero be the new Covid? I fear the populist counter-revolution has a long way to go yet.

  9. We have to ask, “What would Churchill do?”

    Would Churchill and his 1940s government insist that everybody, including children, carry masks at all times out of doors, wear them when instructed and get the police to fine miscreants heavily? Oh wait, they did. There is your answer: call the COVID masks “Bulldog gas masks” or “Churchill Gas Masks”.

    Churchill also provides the answer to Priti Patel. In May 1940, one-third of a million refugees landed in Kent in small boats from Dunkirk. We took back the 220,000 who held British passports, but sent back some 100,000 French to the Nazis and their prison camps. (Alistair MacLean has a short story about one of the return voyages.) There are still some French – mostly sons and daughters – who don’t really appreciate British repatriation, especially when the next Churchillian step was to order the Royal Navy to attack the French Navy and kill over 1,000 French sailors (including one in Plymouth)

  10. I find it interesting that, to a significant extent (at least in the US), the same people who oppose masks on grounds of individual liberty are against women’s liberty to terminate pregnancies….

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