• Students for Global Health UCL

Civil Liberties in a Post-COVID World

(This blog post was written in late 2020 and is therefore not up-to-date. It has been published here for public access).

During early coronavirus reporting, one may recall the extent of critique from the western world of China’s ‘draconian’ lockdown policies [1]. It may then be an irony to some, several months later, identical practices have been adopted globally. It is easier to count the number of countries yet to have lockdowns – seventeen excluding the United States which varies depending on state – than those that have [2]. Where did this drastic - almost hypocritical - shift in attitudes come from? Not withholding debates on its necessity, lockdown was, and is, an interference on people’s democratic liberties. There have been debates [3] on the questionable legality of lockdown – the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 – given its bypass of parliamentary scrutiny through a 'statutory emergency' legal loophole [4]. Legal experts have disagreed on whether the pandemic and its accompanying policies qualify for such a loophole [5], and it is this disagreement that has formed the central premise of the debate questioning the legal and political legitimacies of the lockdown.

“Given the speed with which the crisis was and still is developing, the Regulations were made using a statutory emergency procedure, meaning that they were not subject to Parliamentary scrutiny. They have yet to be challenged in the courts.” Hanna Noyce – UK Human Rights Blog [3]

It is the fundamental requirement of any institution or societal system that its members believe in its legitimacy. Legitimacy establishes political power. Sociologist Max Weber describes rational-legal legitimacy as the legitimacy that is based on formal institutional processes that establish and facilitate law in the public interest [6]. Furthermore, one can distinguish the object of legitimacy (what is legitimate) from the ‘legitimators’ [7] in question (who is doing the legitimising) [7]. This problematises the lockdown in two ways. Firstly, the legitimacy of the lockdown as a policy and whether it serves its intended purpose of ‘public interest’. This can be done through understanding the idea of a social contract [8]. Secondly the legitimacy of those who are carrying out processes of legitimation [7] as well as the processes themselves. This can be briefly understood through an introduction to the idea of public sovereignty. Both arguments are fundamentally connected and often a breakdown in one leads to a breakdown of the other.

Lockdown Legitimacy and the Politics of Pandemics

Democracy relies on a premise of popular sovereignty; the idea that the authority of the state and government is born and sustained through the consent of its people [9]. The idea that ultimately authority is vested in the people themselves. Without consent, one cannot have legitimators, only tyrants. The legal debate can be seen to stem from an ambiguous consent. The emergency statute assumes that the public has given implied consent to the government to act in a manner that would never be legally acceptable outside of these extreme conditions. Historically, a submission of people’s freedom or liberty has come in exchange for some form of security or protection, provided by leadership, from a threat [10].

So we have two conditions. A – that public sovereignty means government is only as legitimate as the public deems. B – that the public can wilfully and consensually submit their freedoms under the conditions of protection and security. In this way people legitimise the lockdown implicitly by legitimising government through public sovereignty, and explicitly by submitting their liberty in exchange for security.

We can combine the two diagrams in this way: showing how the two processes of legitimation are connected, relying on each other.

Without protection and security, the exchange is unequal, and people are no longer consensually submitting their freedoms.Without consent, the exchange omits the public as implicit ‘legitimators’ of said policy. Therefore, one can argue that lockdown becomes illegitimate when the two conditions (A&B) described above both break down through the absence of protection and thus the usurp-ing of consent.

A[11] survey [12] conducted and published in South Korea earlier this year showed that “68.2% of the respondents preferred maintaining information- sharing even if it sacrificed individual right to privacy.’ An earlier survey ‘found that most respondents supported the Korean government sharing the travel details of people with COVID-19 [11]. This practice of submitting certain freedoms is not unique to geography nor can it be explained by the generalising ’collectivist versus individualist cultures’ argument. Government surveys conducted in the UK both in April [13] and October [14] also showed that people supported long-term lockdown and the more recent ‘circuit breaker’ lockdown (though the percentage of supporters decreased from 87% to 67%). It is fair to assume that the (albeit dwindling) support for lockdown highlights people’s overall willingness to support a restriction on their freedoms under the conditions that they are protected from threat. The political tipping-point, thus comes in a breakdown of the security-liberty exchange or what can be viewed as a kind of ’social contract’.

Based on the above thesis, it is my opinion that the lockdown, independent of its (unresolved) legality [3] is illegitimate specifically because it needed to happen twice. It is no longer an extreme last resort, but simply a resort, due to a host of structural failings. You can read more about these here [15]. The very nature of having the lockdown twice changes, and inherently contradicts, the very reasons why lockdown policy was able to bypass legal checks and measures in the first place.

How then are people still complying with lockdown despite an arguable breakdown in the political legitimacies of the lockdown? We come then to the idea of framing pandemics and infectious disease as an ‘individual’ problem and the importance of political language in constructing this narrative.

Framing Language, Conceptualising Disease, Imposing Policy:

In 1991 Cholera hit Peru and other South American countries after more than a hundred years of absence [16]. Political and financial instability worsened during global trade boycotts for fears of spreading the infection. Whether by design, necessity or wilful ignorance, the Peruvian government began to frame the epidemic as a problem of ’individual hygiene’. The idea of stigma was closely tied to this with infected individuals referred to as ’unhygienic pigs’ [16].

Though COVID has not been framed in the UK as an individual hygiene problem explicitly, this comparison highlights the role of language and stigma in placing responsibilityon individuals instead of governments. The keyword here being instead, since the social contract does indeed need two to tango. Whilst the Peruvian government placed responsibility on the individual through stigma, modern day post-COVID governments seem to relocate responsibility through moralising compliance to policies[17]. The British Stay home, Save lives or people will die narrative, frames COVID in an apolitical and ahistorical vacuum that ultimately blames individuals and their movements, and thus logicising the extreme restriction of these movements. As though it is the act of movement itself that kills. The use of extreme language, reminiscent of war-time frames the virus as a foreign enemy and healthcare workers as front-liners. [see poster below]. Interestingly if we reflect on the social contract, exchanging liberty for security, we discover that it is often the case, as described by Baker (2003) [18], liberties come to be considered luxuries during times of war.

HM Government Coronavirus Poster [19]

Of course, there is apt public critique of the UK government’s COVID response but very little physical resistance or outrage. People are perhaps of two camps. One- yes the health infrastructure is inherently ill-designed for infectious outbreak management and yes years of cuts put us here, but we cant debate that now and so lockdown is the only current solution. And two – this is a massive violation and lockdown doesn’t work (within which is the ’COVID is not real’ group). To conclude, I would like to reflect on my own positionality as a medical student. Doctors and medical students (speaking from my own network) often seem to fall into group one. As such, the role of the doctor ’expert’ in contributing to a moralising narrative about lockdown is pivotal. The ‘please stay home, you’re putting us at risk’ is obviously out of context alone. Government policy failings and years of austerity have put us at risk. Although I do not think that doctors should or in reality do take an either or position, there still seems to be an enthusiasm for critiquing the actions of others - a quick "cancel" follows - that isn't matched with an open critique of policy. At least not with the same levels of vitality. It seems that once you start talking politics, heavy sighs fill the room and the false inevitability of a crumbling health infrastructure falls, literally, on deaf ears.

But "front-line workers", in these statements, have a position of not only intellectual authority but also moral authority, which makes it difficult to defend an anti-lockdown position (and act on it) without sounding like you don’t care about the work that doctors do. The truth is, doctors cannot solve the problem of coronavirus. Neither can government on its own. Pandemics are and always will be complex, and pretending that a one-fix solution solves all is the biggest crime of all. Though one problem may lead to another, and though you may never please everyone, it is my belief that there exist certain, unshakeable principles which, even in times of emergency, are worthy of protection; the principles of political legitimacy, government accountability and finally, freedom.

Bibiliography (including hyperlinks):

[1] Regencia, T., 2021. Could China’s Coronavirus Outbreak Become A Global Epidemic?. [online] Aljazeera.com. Available at: <https://www.aljazeera.com/news/2020/1/28/could-chinas-coronavirus-outbreak-become-a-global-epidemic> [Accessed 18 December 2020].

[2] En.wikipedia.org. 2021. COVID-19 Lockdowns. [online] Available at: <https://en.wikipedia.org/wiki/COVID-19_lockdowns#Countries_and_territories_without_lockdowns> [Accessed 18 December 2020].

[3] Noyce, H., 2021. Is The Lockdown Lawful? An Overview Of The Debate – UK Human Rights Blog. [online] UK Human Rights Blog. Available at: <https://ukhumanrightsblog.com/2020/04/20/is-the-lockdown-lawful-an-overview-of-the-debate/> [Accessed 19 December 2020].

[4] Nice, A., Hogarth, R. and Marshall, J., 2021. Emergency Powers. [online] The Institute for Government. Available at: <https://www.instituteforgovernment.org.uk/explainers/emergency-powers> [Accessed 19 December 2020].

[5] Cambridge Law Faculty, 2021. ‘Government By Decree – Covid-19 And The Constitution’: Lord Sumption. Available at: <https://www.youtube.com/watch?v=amDv2gk8aa0> [Accessed 20 December 2020].

[6] O’Neil, P., 2015. Essentials Of Comparative Politics + Cases In Comparative Politics. New York: W W NORTON, Norton and Company, pp.35-38. ISBN 978-0-393-93376-5.

[7] Abulof, U., 2017. ‘Can’t buy me legitimacy’: the elusive stability of Mideast rentier regimes. Journal of International Relations and Development, 20(1), pp.55-79. Available at <https://link.springer.com/article/10.1057%2Fjird.2014.32> [Accessed 21 December 2020].

[8] Iep.utm.edu. 2021. Social Contract Theory | Internet Encyclopedia Of Philosophy. [online] Available at: <https://iep.utm.edu/soc-cont/#SH2b> [Accessed 21 December 2020].

[9] Beckman, L. (2019). Popular sovereignty facing the deep state. The rule of recognition and the powers of the people. Critical Review of International Social and Political Philosophy, 1–23. https://doi.org/10.1080/13698230.2019.1644583

[10] Hobbes, T. and Tuck, R., 2006. Leviathan. Cambridge: Cambridge University Press.

[11] Zastrow, M., 2021. South Korea Is Reporting Intimate Details Of COVID-19 Cases: Has It Helped?. [online] Nature.com. Available at: <https://www.nature.com/articles/d41586-020-00740-y> [Accessed 21 December 2020].

[12] Ju, Y., & You, M. (2020). The Outrage Effect of Personal Stake, Dread, and Moral Nature on Fine Dust Risk Perception Moderated by Media Use. Health Communication, 1-11. doi:10.1080/10410236.2020.1723046

[13] The Conversation. 2021. Coronavirus: New Survey Suggests UK Public Supports A Long Lockdown. [online] Available at: <https://theconversation.com/coronavirus-new-survey-suggests-uk-public-supports-a-long-lockdown-136767> [Accessed 25 December 2020].

[14] Hardinges, N., 2021. Majority Of Brits Support Two-Week Circuit Breaker Lockdown, Poll Suggests. [online] LBC. Available at: <https://www.lbc.co.uk/news/majority-brits-support-two-week-circuit-breaker-lockdown-yougov-poll/> [Accessed 25 December 2020].

[15] Sinclair, I., 2021. A Timeline Of The UK Government’S Response To The Coronavirus Crisis. [online] Medium. Available at: <https://ian-js.medium.com/a-national-scandal-a-timeline-of-the-uk-governments-response-to-the-coronavirus-crisis-b608682cdbe> [Accessed 5 January 2021].

[16] Armus, D. (2003). Stigma and Blame during an Epidemic: Cholera in Peru, 1991. In Disease in the history of modern Latin America: From malaria to AIDS. Durham: Duke University Press.

[17] Zahariadis, N., Petridou, E. and Oztig, L.I. (2020). Claiming credit and avoiding blame: political accountability in Greek and Turkish responses to the COVID‐19 crisis. European Policy Analysis. Available at: <https://covid19.elsevierpure.com/fi/publications/claiming-credit-and-avoiding-blame-political-accountability-in-gr> [Accessed 30 December 2020].

[18] Baker, N.V. (2003). National Security versus Civil Liberties. Presidential Studies Quarterly, 33(3), pp.547–567.

[19] HM Government – Stay Home. Protect the NHS. Save Lives. Available at: <https://beta.southglos.gov.uk/wp-content/uploads/Stay-home-poster.pdf>

[20] The Guardian. (2020). I’m an NHS junior doctor: here’s why I’m asking you stay at home | Catherine Hsu. [online] Available at: https://www.theguardian.com/commentisfree/2020/mar/21/nhs-junior-doctor-stay-at-home-coronavirus [Accessed 30 December 2020].

[21] Designed by author on Canva

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