Dr Samantha Davey, Lecturer in Law, University of Essex
The original position can be summarised by the Government’s mantra ‘stay home, save lives’ which became ingrained in the minds of the general public. We were permitted to leave the house for one of the following reasons only: daily exercise, medical need, caring for vulnerable individuals, to shop for essential supplies, and to go to work if it was not possible to work from home. All shops, except for those selling essential supplies such as food and medicines, were closed. We were no longer permitted to socialise, face-to-face, with people outside of our households. Social distancing became the new norm with guidance emphasising that people should maintain distances of 2m from individuals outside of our households. The changes led to the need for adjustments with many people working from home and children being educated from home. No one could have anticipated how different our lives would have become in 2020. Nor could we have predicted the restrictions on our civil liberties deemed necessary to protect the individuals most vulnerable to the virus such as the elderly and those with pre-existing health conditions. At first, many people accepted the legitimacy of these measures. Over time, however, many people in support of the Coronavirus Law and the corresponding guidance have become concerned over constraints on their civil liberties.
The restrictions on our daily lives were (and still are) overwhelming and perplexing for many people. While these measures felt short of the tough stance taken in countries such as Russia and Spain, where people were not even allowed to leave their home for daily exercise, we are not used to the state having such control over our day-to-day lives. In the space of just over two months, not only has the legal landscape shifted dramatically but so has the social landscape. Actions once seemed natural, such as hugging and visiting close relatives, were deemed as potentially dangerous and unlawful. In order to hope to continue to enforce lockdown law, the guidance accompanying the law needs to be seen as legitimate since legitimacy fosters public obedience.
At the time of writing, in June 2020, over 36,000 people in England have died from the coronavirus. The daily death toll has decreased gradually which has led to changes in the restrictions which will apply from June 1st and June 15th. From June 1st, schools re-opened (albeit just to reception, year 1 and year 6 pupils) and some workers were able to return to work, including those working at shops selling non-essential goods. We can now go out more than once a day for daily exercise, we will have more choices in which shops to visit and we can meet in groups of up to 6, if these meetings take place outside and there is social distance. Further relaxations are to follow on June 15th. Social distancing seems likely to continue for the foreseeable future although there are talks of reducing this from 2m to 1.5m.
Since my original reflections on the coronavirus law, the social and legal landscape has changed significantly. From both an academic and a personal perspective, it is challenging to remain up to date with the guidance accompanying the Coronavirus Law. This law and the corresponding guidance have been likened, by some, to George Orwell’s works of fiction such as 1984. It is argued that the legitimacy of the government guidance is under threat. At best, the guidance lacks clarity and, at worst, is contestable, ambiguous and even contradictory in nature. Indeed, the government guidance accompanying the Coronavirus Law has been voluminous, confusing and, at times, contradictory. The rules change so rapidly that the metaphorical ink on the paper barely has the chance to dry before pages are ripped out and replaced with fresh pages. This raises issues about the diminishing legitimacy of such government guidance and perhaps even of the Coronavirus Law itself. What is the democratic legitimacy of guidance provided via policy documents, press briefs and pages on government websites? In other words, what democratic legitimacy does guidance have which has been created to support law?
The Coronavirus Law contains provisions which permitted the police to intervene to arrest those who had committed breaches of the social distancing requirements. Police have been involved in cases where, for example, large parties have been organised and when offences have been committed against key-workers, such as coughing on them. The key difference with the Coronavirus Law compared to many other laws is that it is emergency legislation which has not been through the usual checks and balances. Worse still, the law has been interpreted and applied in the light of rapidly evolving government guidance rather than a single, thoughtfully drafted policy document. The government has provided guidance on the law via website summaries, reports and press briefings. Sometimes these sources have been contradictory and have changed rapidly with the passage of time. Although laws change over time and what might constitute lawful conduct one day and not the next (and vice versa), it is argued that actions by state officials based on guidance rather than on specific provisions from the Coronavirus Law (such as police actions) raises issues of legitimacy. The far-reaching nature of the guidance and emphasis on controlling day-to-day conduct makes it difficult to be certain that the guidance is being observed. These are challenging times for the government and members of the public alike but law and documents which seek to define, interpret and assist in developing law ought to have legitimacy also.
There is little doubt that the furore over Dominic Cummings and other senior government officials, who left their homes for non-essential reasons, in contradiction of the guidance provided by the Government, has led to questions about whether the public can be expected to follow guidance and face sanctions if they do not. In particular, if those in authority are not seen to follow guidance they have helped to create, it undermines the legitimacy of the guidance. The perception of differential treatment and the confusing nature of the guidance documents also serves to distract the public from the government’s main objective behind the Coronavirus Law: the protection of the health and well-being of vulnerable groups in society. Will these relaxations be welcome measures to improve the country’s economic and psychological well-being or measures which will lead to further confusion about government guidance and a corresponding weakening of the legitimacy of the Coronavirus Law itself? Only time will tell.