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Taking liberties

April 1st, 2020

One of the most enjoyable aspects of investigations is listening to miscreants’ excuses for their bad behaviour. The same ones came up regularly, so much so that interviews would have been much quicker if we’d had a poster on the wall of the excuses so they could just have pointed and said: “6” with a bit of “9”. The two most common, usually presented with the passive-aggressive mulishness of schoolboys, were: “Where does it say I can’t do that?” and “Show me where it says that I have to do that.” 

It would be disappointing if the police do not have a similar list of reasons for why people are not complying with the rules restricting movement. When it comes to regulation of human behaviour, it is impossible for any law or procedure to list all the possible permutations of actions to be permitted or prohibited. No wonder people try to find ingenious ways to justify what they want to do. Hence the need for judgment, common-sense and reasonableness. Or – if these are too hard for people or officials to understand – they could all be crudely summarised in the injunction: “Don’t take the p*ss.” Or, more politely: “Don’t take liberties.”

Ah yes. Liberties. It may seem to some like unnecessary frivolity to be talking about these at such a time. But it isn’t. We are a state governed by laws, virus or no, just as we were a state governed by laws during wartime. We are not a state where simply because one man – the PM – says or advises something it thereby becomes the law. Advice is not the same as law. This is not a distinction without a difference. Public officials are not there to do the bidding of any individual, however mighty. They are there to enforce the laws on behalf of all of us. A virus is not an excuse or reason for any official to act unlawfully.  The government has the inestimable advantage of being able to pass laws very quickly to deal with this emergency. It has given public officials considerable powers to restrict what people can do. Its officials should not abuse that advantage by claiming powers they do not have.

A free Government interferes with nothing except what it must.” Those words were written in 1873. The government has interfered with our freedoms for the best of intentions: to minimise to the extent possible the amount of social contact between people and, thereby, the virus’s transmission so as to give everyone, particularly the most vulnerable, the best chance of surviving it. 

Those who ignore the rules – whether because they are inconvenient or because they think they are not at risk or because they don’t care or don’t understand or because they simply cannot bear to be inside any longer or for any other reason at all – are not simply being selfish or careless or unthinking. They are risking not just their own health (a risk they can take) but the health of others (not their decision to take). The purpose of these rules – the need to keep people apart – matters. Ignoring that – and the generally sensible advice and guidance about how to do so (such as the steps taken by supermarkets and others) – may not be unlawful but it is stupid. If too many people behave stupidly or selfishly, there is every likelihood of even more restrictive measures being imposed.

So much for the obligations on citizens. What of government? Its communications strategy has been woeful – particularly in relation to its advice. Where that has differed from the law it has led to confusion, not just in the public but amongst officials. It is too reactive to individual media stories or seems to change according to individual Ministers’ views. Health officials should set out the health advice. Ministers should set out what the rules say. Clear communication about their purpose and what is sensible is necessary. But so too is clear communication to public officials about what is lawful, what is not and the importance of using the powers they have lawfully and with intelligent discretion. If clarification is needed that should be agreed and communicated to all relevant departments so that all are speaking with one voice. What it says should be accurate and consistent.

And what of officials, the police above all? The rules are clear and can be found here.  Section 6 deals with restrictions on movement.  Four things are worth noting:

1. There is no reference to movement outside the home needing to be “essential”. Indeed the word “essential” features not at all. There must be a “reasonable excuse”. What is “reasonable” is dependent on circumstances.

2. The list of reasonable excuses is not exhaustive. There may be other reasons which would make it reasonable for someone to leave their home.

3. How one exercises, where one goes to exercise or how often one can do so are not set out. Similarly, with shopping or with visiting a vulnerable person or doing charitable work or any of the other activities listed.

4. The rules make no reference to government guidance at all.

It makes sense for people to take account of government guidance – especially health advice, and understand their purpose. Officials can point to it. But the police should not be misleading people into thinking that the rules and government guidance are one and the same. They are not. The government could have made them the same. It did not. And yet the official police guidance is misleading when it says that people may only leave home for the reasons listed in government guidance or when it talks about people committing an offence if they do not have a “valid” reason for being outside.  

Pedantic?  Possibly – but we are talking about people’s freedoms here. The police are stating that a  breach may lead to fines and criminal convictions but misleading people about what the offence is. That is alarming. The language in the rules is clear. There is no reason for the police to use different language or to put their own spin on it. It is not for the police to decide that the restrictions should be something other than what Parliament has decided. Civilians may not know the precise language in the rules. They will defer to authority, trust them even to know what they are doing, or be scared of officials in uniforms. The police should not abuse that trust or fear or their powers. Why?  Well, apart from the obvious reason, it is likely to prove counter-productive. If people feel that the police are going too far then they will likely be less willing to do what is necessary. That increases rather than reduces the health risk.

And there is another longer-term reason: the police’s standing with the public is not high. A recent report by HMICFRS stated that the public has lost faith, having “rumbled” that the police are unable to investigate most crimes. While the emergency lasts, there will be public support for those working hard to protect it. But that support risks being lost if public officials behave like omnipotent officious busybodies, claiming powers they do not have, especially if the restrictions have to last a long time, as seems likely. 

Trust in government is a precious commodity, especially at a time when so many are fearful. The government has limited our freedoms because, for this emergency, it must. It will not achieve what it is trying to do if people ignore its advice and think only of themselves nor if those acting in its name overreach and lose the public’s trust. We really all are in this together.

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