Blog12th July 2021
In relation to pandemic policy in England, the absence of sustained ethical discourse at the level of government has created fundamental challenges to establishing how responsibility should be understood—practically, and as a matter of principle. Unsubtle representations of the relationships between individual, shared social, and legally-enforceable forms of responsibility create problems as the government seeks to end restrictions regulations. This has avoidable and harmful consequences for the immediate impacts of policy, and for developments into the future.
John Coggon is a member of the Nuffield Council on Bioethics and the UK Pandemic Ethics Accelerator, and Professor of Law at the Centre for Health, Law, and Society, University of Bristol Law School
Restrictions regulations and political framings of responsibility for the population’s health in the pandemic
Since March 2020, coronavirus restrictions regulations have become a feature of everyone’s lives in the UK. They have spanned national and local ‘lockdowns’, as well as lesser—but still enormously limiting—controls. The Westminster government has announced that it is now making the final steps in what has been billed as an ‘irreversible’ return to freedom in England.
This move away from legal regulation has stimulated much public agonising, amongst other things, on how the purported freedoms that will follow correspond with ideas of public safety and personal responsibility. Are they recklessly restored, bare, ‘negative liberties’ that will be the cause of a further wave of disease that will hit England, and beyond, like a tsunami; whether because of poor social coordination, poor collective understanding, alienation, or plain unsocial spirit? Or are they a proportionate and respectful return of fundamental rights that people should enjoy, and which they will exercise with proper regard for their own and others’ well-being?
The language used—notably of diktats
versus individual freedom—implies a dichotomy between our legal obligations as imposed by governments and our personal behaviours. This creates a false binary of legal—and thus governmental—and personal—and thus individual—responsibility. Such a framing is wildly simplistic. First, it cannot go without saying that ‘hard’ legal regulations will anyway persist after the next easing of restrictions. But the very framing of diktat or freedom itself has the potential to do great harm, while shifting any blame off the shoulders of political decision-makers and onto each of us as individuals. This is a product not just of current political framings, but of framings throughout the course of the pandemic.
Government-created ambiguities on the meaning and authority of ‘the rules’
Since we first entered lockdown, libertarian critics have prominently called into question both the legitimacy and effectiveness of restrictions regulations. Lord Sumption, a former Justice of the Supreme Court, has been one of the most forthright of these. He has caused stirs, while also winning acclaim, by acknowledging his own disrespect for coronavirus laws. And he has made repeated arguments against the use of restrictions regulations, voicing ideas such as this:
People are making their own judgments, guided by their own vulnerabilities and their own tolerance of risk. Left to themselves, people can manage this virus better than Boris Johnson and [Matthew] Hancock because they can fine-tune their precautions to their own situation and that of the people around them.
The vision painted by the Prime Minister last week
looks very similar to what Lord Sumption has argued for all along; with
all its stark lack of subtlety in appreciating quite how firmly
different social realities and pressures may, and do, impact people’s
ability to “fine-tune” their situations. Health inequalities, and wider,
socially-created disparities, have been long known to governments, worsening, and laid bare through the unequal impacts both of COVID-19 itself and of policy responses to it. ‘Freedom day’ may be as much about abandoning
people and communities as it is about empowering them.
Beyond such important critiques, regard should be given to the damage
that has been done to public understanding of, and respect for, the
authority of coronavirus laws and guidance by the political framings. I
would highlight here two problems in particular that have been created
by the politics of a hard ‘follow-the-rules’ approach, and the equally
blunt politics now of suggesting there will be no rules. Each of these
chips away at the authority and trust that are needed to sustain
practically-effective collective actions to overcome the challenges of
the pandemic without the threat of legal sanction.
First, since the onset of coronavirus restrictions, the idea of ‘the
rules’ has had its own in-built ambiguity or equivocation. Restrictions
regulations have created legal obligations. But these have been
supplemented by official guidance that itself is just that: advice that
people have good reason to follow, but which they may take or leave.
Although the distinction between hard laws and ‘mere’ guidance has come
to the aid of senior government employees when they have sought to
justify behaviour that flouts the latter, general messaging has implied
that laws and guidance together constitute ‘the rules’ and must be
followed. Guidance and advice have been passed off in practical senses
as if they were law.
Secondly, there have been serious challenges to the moral authority of the rules
given behaviours of those who have set them. Most starkly this has come
through scandals associated with senior members of government. They
naturally, and fairly, lead to questions of why a public official should
be empowered to take liberties while restricting liberties. But in
addition, laws have been passed extremely quickly with little scope for
scrutiny or for allowing people to prepare for fundamental legal
changes. This applies as much to those charged with enforcing the rules
as those who are supposed to follow them. These points, combined with
avoidable inconsistencies in messaging, do not make for steady, open,
accessible public discourse or understanding.
The rhetoric and framing of ‘the rules’, and of where responsibility
lies when ‘the rules’ are not based in law, have significant
implications from practical and ethical perspectives. Hitherto in the
pandemic, the idea of the rules has tended towards melding law and
guidance into one. Now, the government seeks to shift the responsibility
to individuals, with guidance being billed instead very much as just
that. It ought, however, to be the case that responsibility is
recognised as being, and as having been, shared at individual, societal,
and governmental levels. Effective health outcomes are being balanced
against considerations of fundamental rights and differential impacts
and experiences across different groups and communities. We cannot
address the question (and have not been able to at any point during the
pandemic) as if responsibility is a click switch: between absolute legal
obligation and the government being uniquely responsible; or absolute
freedom and responsibility residing uniquely with the individual.
A significant danger here is that where coordination is needed, it is
lost, and where buy-in through a sense of political unity and social
solidarity is needed, it is undermined by both current and earlier
practices and messaging. The Nuffield Council on Bioethics emphasised in
its 2007 report Public health: ethical issues
that even a policy choice of not regulating is exactly that: a
political decision that requires justification. The report also
emphasised—and explained through its representation of a ‘ladder of
interventions’—that methods of regulation are not exhausted by a binary
of either having a hard legal rule or absolute individual freedom. The discourse
from and around the Westminster government’s move towards the next stage
of lessening restrictions regulations in England suggests that things
are simple: there is either ‘lockdown’ or ‘liberty’.
Both in its direct effects, and in the forms of social coordination it
requires, the coronavirus creates restrictions; and as I have noted,
legal regulations will continue after ‘freedom day’.
Shared responsibility beyond unfettered individual choice or unfettered legal control
The challenges for ethical governance as we progress through the next
stages of the pandemic (it is not behind us, or even nearly behind us)
must account for the mix of principled and practical concerns that we
face. We need a clear and accessible discussion about values and
trade-offs, including for whom and when. We need to learn from and
respond to the different reasons that people have to act in different
ways, and the different methods of regulation that might be called into
aid of striking the optimal balances against the concurrent threats to
freedom, health, and other values that matter to us all.
When seeing these points, it is essential that we keep to the front
of our minds that the impacts of coronavirus reach across sectors and
settings. Activities that people previously enjoyed will still be
restricted, and we will find that there are rationales—and compelling
ethical justifications—for forms of government regulation; whether legal
regulation, or other methods of intervention. These—the methods and the
justifications—need to be discussed openly, and with sensitivity,
across our diverse communities. We cannot and will not get by either
with a view of outright legal governance or of outright individual
freedom.