Freedom is coming – or, at least, a form of freedom. All those new rules and regulations imposed since Covid took over our lives are on their way out. After sixteen months it will be down to our individual choices about how we behave that will determine the future of the pandemic. Or so we are being told. Some this has come not a moment too soon. Others think it’s all far too premature. With the number of new daily cases of the virus rising fast they say we still need the force of law to check our tendency to behave irresponsibly. It’s a classic case of whether governments should use law or guidance to steer individual behaviour in the public interest. In a free society, what should be the balance between legal imposition and mere government advice? And is the government getting it right?
When the pandemic first struck us ministers were surprised by how ready most people were to accept unprecedented legal curbs on their daily behaviour and, indeed, to demand that the government be even tougher. It had been assumed that because we treasure our freedom possibly above all else we simply would not accept the draconian diktats the Chinese government had imposed when the virus first appeared there. The thinking had been that in China, under the all-pervasive rule of the Chinese Communist Party, it is the norm for personal freedom to be trumped by what the government decides is in the national interest. But here the norm was supposed to be the other way round. The people must be free to do entirely what they like and government-imposed legal constraints must be the rare exception.
That, at least, constitutes the theoretical distinction between a ‘free’ and a ‘non-free’ society as western liberals have always seen it. The classic statement of it was made by the Victorian philosopher, John Stuart Mill, in his essay ‘On Liberty’, in which he said that governments should constrain through law an individual’s behaviour only in order to protect others from the harm that could be caused them by that behaviour. That sounds straightforward enough, but the rub comes in deciding what constitutes the harm that can be done to others. Much political argument about actual law turns on this point and on whether the supposed harm is so great that it justifies the curtailment of freedom by law.
Some cases are, of course, easy. Few people would dispute that we need a law against murder since killing someone is, to say the least, harmful to the person who’s killed. But once we move beyond such cut-and-dried examples, things become more tricky, especially when it’s argued that the potential harm of someone’s behaviour is not so much to other individuals but to society as a whole. Concepts such as ‘the general good’ have been used by political ideologues of left and right to justify legal constraint on individual freedom. It’s certainly the justification the Chinese Communist Party uses to justify curbs on its citizens’ freedom. The problem then arises as to who should decide what the general good is.
Even in societies that would describe themselves as ‘free’, the concept of the general good has been not only deployed but extended to take in notions of the general moral good. That, for example, was what used to be claimed in Britain as the justification for a law that made homosexual acts illegal. It wasn’t that such acts were harmful to individuals. How could they be if they were consensual? It was, rather, that they were harmful to society’s moral values and so should be outlawed. Such a view may seem baffling now, but it’s only just over fifty years since it was the law of the land.
Free societies can get themselves into the most extraordinary contortions in deploying Mill’s concept of harm when imposing – or not imposing – law. No country regards itself as more free than the United States. Yet less than a century ago it banned the drinking of alcohol. Today, by contrast, successive governments have bowed to the power of the gun lobby rather than impose stern restrictions on the ownership of guns. That’s in spite of the overwhelming evidence of the massive harm caused. Every day wholly innocent Americans are shot either accidentally or deliberately, but the lobby claims that the government has no right to tighten those laws. It would, they say, be a monstrous curtailment of individual liberty.
Observing the early years of American democracy, the great French writer and proto-sociologist, Alexis de Tocqueville, made the extraordinarily prescient observation that the greatest threat to freedom in democratic societies lay in its being gradually strangled by a network of legal constraints, none of them especially draconian in themselves but, in combination, ‘stifling of liberty.’
He was writing in the 1830s but many would say that that is exactly what has happened to all western democracies. Individual laws introduced to protect against some perceived harm or other have been imposed at an exponential rate. It’s what democratic politicians do. When they are faced with a problem their first thought is to reach for the law. There is, of course, a reaction against this by those who fear that freedom is being lost. Sometimes the idea is mooted that governments should somehow be forbidden from introducing new laws and regulations until they have got rid of an equal number of old ones. People applaud and nothing happens.
Perhaps the most striking way in which Mill’s dictum has been compromised is not so much by extending the concept of the potential victim of harm from other individuals to society as a whole, but by regarding the perpetrator themselves as the victim who must be protected. We must bring in laws to save us from ourselves, it’s argued. The case for protection often seems so obvious that we overlook the issue of whether government should be sticking its nose in to protect us, or whether we should be left to look after ourselves.
Driving provides many examples. It’s obviously straight out of the Mill rulebook that there should be drink-drive laws, since drunk drivers are a palpable threat to other people. But why should it be illegal not to wear a seatbelt in a car or a crash helmet on a motorbike? The potential victim of someone not wearing either is the person not doing the wearing, and no one else. It requires some fairly elaborate intellectual contortions to claim any other victims. One suggestion that’s been offered is that the public in general is the victim because the injuries caused to people who don’t wear seatbelts or crash helmets imposes additional burdens on the NHS which affect us all. But if that were a convincing defence of these laws, then we ought to be using the law to ban smoking, drinking, over-eating and all the other cases of our personally irresponsible behaviour whose consequences the NHS has to deal with.
This brings us neatly to the notion of public health, the modern version of public morality. Here government has clearly taken the view that there are limits to what the law can, and possibly should, do. Governments may have come to the view that there is little point in passing laws banning smoking, drinking and the like, because they think people would simply defy them (that’s what did for prohibition in the States). Or they think, in proper Mill terms, that it’s not the government’s job to protect people from themselves. In any event, it has largely avoided the law and depended instead on guidance (and taxation) to temper people’s irresponsible personal behaviour.
Covid, however, provided a cut-and-dried example of a public health issue where Mill’s rule of thumb adjudicated in favour of legal curbs. That’s because it was people’s individual behaviour that was the greatest factor in spreading the virus, and because the spread was so harmful, it was clear that legal constraint even on perfectly normal behaviour was justified. And the public accepted as much.
Now the law is being lifted. Yet it is being done at a time when the number of new daily cases is rising sharply once again. The government can claim that the harm that might ensue is far less than it used to be because of the success of the vaccination programme and that this justifies the shift from using the law to using guidance as the means of affecting public behaviour. The vaccines minister, Nadhim Zahawi, said at the weekend that the government’s approach was no longer ‘government by diktat because I think we need to transition … to a place where we can manage this virus in a responsible way’. By ‘responsible way’ he meant leaving it to individuals to act responsibly, with government guidance showing them how to do so.
But is it justified to lift all legal restrictions? And will we behave responsibly according to the new guidance? On the first point, there are strong dissenters. In particular, the removal of the legal obligation to wear face masks in crowded public spaces and on public transport – government guidance says it is now merely ‘expected and recommended’ – has been criticised, and the Mayor of London, Sadiq Khan, has used his own powers to enforce a legal requirement. Furthermore, merely suggesting to nightclub owners, now finally able to open again, that they institute a Covid check at the door rather than legally requiring them to do so, has been criticised as just asking for trouble. Why should the owners of clubs be expected to be custodians of public health when their own priority must be to start making money again?
As for whether we will observe the guidance and behave responsibly, there are certainly grounds for scepticism. This week the Dutch prime minister, Mark Rutte, apologised to the people of Holland for having lifted legal constraints only to see the number of new cases rocket twenty-fold in less than a fortnight, requiring him to reimpose legal constraints on bars, restaurants and nightclubs. And in Israel, with one of the best vaccination rates in the world, exactly the same thing has happened: legal curbs were lifted too early and have had to be reimposed.
Criticising the government’s lifting of the law, Pat Cullen, the Royal College of Nursing’s acting chief executive, said: ‘we must not lose the benefits of a successful vaccine programme to rash decisions… Public mask-wearing is straightforward and well-established – government will rue the day it sent the wrong signal for political expediency.’
So has the government got the balance between imposing the law and issuing guidance right in fighting the pandemic? Are this week’s lifting of all legal curbs in England justified or not? And, more generally, should we have more or less law, or more or less guidance in how we lead our lives so as not to harm others?
Let us know your views.