With ongoing nervousness about relaxing restrictions, exacerbated by concerns over the new variants, Adam Wagner, a barrister at Doughty Street Chambers and an authority on lockdown rules, has written an article for UnHerd warning against the danger of everlasting lockdown. He begins by reminding us just what a momentous thing lockdown is.
Twelve months ago, the first two cases of COVID-19 were confirmed in the UK. Fifty days later, on March 23rd, the Prime Minister announced that he would “give the British people a very simple instruction – you must stay at home”. Three days after that, the first set of emergency lockdown regulations arrived. These were undoubtedly the most severe restrictions on liberty imposed in peacetime, and Health Secretary Matt Hancock reportedly described them as “Napoleonic”. “In lockdown”, he told the Cabinet, in a reversal of the usual principle of English law that whatever is not explicitly prohibited is permitted: “people would be forbidden from doing anything unless the legislation said, in terms, that they could.”
It is extraordinary that restrictions which a judge described as “possibly the most restrictive regime on the public life of persons and businesses ever”, could be made without prior Parliamentary scrutiny. But it took just 11 pages of law and one signature for Matt Hancock to impose the March 24th lockdown, which came into effect the moment he put down the pen.
Those 11 pages closed all non-essential businesses, meaning that people could only leave their homes if they had a “reasonable excuse”, and largely banned gatherings between people not of the same household. Any breaches could be punished. The police were also given power to take “such action as is necessary” to break up gatherings or ensure business closed.
Wagner asks if lockdowns can be justified, and finds it hard to answer. Even if some of the restriction are proportionate, he says, they cannot become permanent, for three key reasons.
First, some lockdown measures work but they have serious knock-on effects including a shrinking economy (which itself causes higher mortality), delayed cancer treatment and surgery. The move to online education has most severely affected those from lower socio-economic groups. While this doesn’t negate the need for restrictions, it illustrates how damaging they can be and why they must only be used for as long as necessary and no longer.
Second, the method by which lockdown has been imposed in England borders on anti-democratic. There may have been justification in March for using emergency procedures to bypass Parliament but there has not been since. The most severe legal restrictions on liberty require the gold standard of democratic accountability, not a rushed procedure which side-lines Parliament. This has likely led to illiberal outcomes, for example the explicit allowance for protest being removed in early December, meaning that it is unclear whether socially-distanced outdoor protests are a criminal offence or not…
Third, the lockdown laws themselves have become overly-complex, poorly communicated and almost impossible for a non-lawyer (including the police) to digest. Guidance and law have become elided by both politicians and public, leading to wrongful enforcement and widespread confusion. Then there are the exceptions. On one level, it is positive that exceptions have been added to allow for the many vicissitudes of human life, but they have been at the expense of simplicity.
Hard questions will need to be asked as to what to do next, and it will require a rights-based approach to resolve. It is essential that we don’t enter a semi-permanent state of emergency laws and basic rights switched on and off by the Government at will and without democratic scrutiny. Lockdowns may have been necessary, but we cannot be locked down forever.
Worth reading in full.