Police officers had a difficult task enforcing complex, fast-changing and sometimes, frankly, illogical laws. However, there were some concerning and heavy-handed tactics, from the use of degrading spit hoods, to police dogs when dispersing a party (leading to tragic life-changing injuries),3 to carrying firearms when telling a gym to close. Whether through confusion or over-enthusiasm the police mistakenly fined people for not wearing masks despite being exempt, moved people on erroneously from park benches, and threatened people swimming at the beach with fines, among other examples. People driving cars were stopped and turned around or fined, when they had broken no laws, only breached ‘guidance’. There are many regrettable examples of mistaken and misused laws, documented throughout 2020 by Big Brother Watch, a small NGO which defends civil liberties.
Perhaps some of the confusion arose from the lack of parliamentary scrutiny – the usual checks and balances were not in place in 2020. The first emergency laws were understandably brought in quickly, but remarkably no primary legislation was brought in all year. We are still under emergency law at the time of publication. Brimelow said the fact that primary legislation has not been debated ‘can only mean government control and seeking to bypass the democratic system.’ Her grave concern is that the law will be so emasculated it may not be there for us the next time we need it.
Fines were set at life-destroying levels. Individuals who broke the new coronavirus self-isolation regulations faced fines of £1,000. Worse, if an ‘authorised person’ considered you were ‘reckless’ in coming into contact with someone, the fine was raised to a crushing £4,000. Fines for organising protests or parties were an inconceivable £10,000.
In any year, these fines are enough to break most UK households financially. But it was a year of rising unemployment, salary cuts and businesses running at half-mast. ONS data shows that average disposable income (after tax and benefits) was £30,800 per year before lockdown. For the poorest fifth, this was just £13,100. Even prior to the current recession – the deepest in modern times – disposable income was falling by more than 4% each year.
The police have never before had the power to issue such large fines to individuals, and there are good reasons for this. Normally, fixed-penalty notices are £100 or £200. For example, driving distracted could land you a £100 on-the-spot fine. The fine can only be higher (increasing to up to £5,000) if it is issued by a court. To keep fines within people’s means, some are linked to salary, typically limited to 50 or 75% of a weekly wage. But a £4,000 fine would be a staggering 16 weeks of salary for someone in the bottom fifth of earnings. If these fines were unpaid, resulting in an appearance at a magistrates’ court, they would probably be adjusted to be means-tested.
There is simply no equivalent in modern Britain to these disproportionately high fines. As I said in Chapter 7, ‘The tools of the trade’, they have more in common with the Weregild and ‘blood money’ of the Dark Ages than any modern-day fixed-penalty notice. ‘Recklessly’ leaving self-isolation and potentially transmitting the virus would cost you about the same as murdering a ‘non-prospering Welshman’ would have in the ninth century. Welcome to neo-feudal justice.
‘Emergency legislation was alright at the beginning but it’s not alright now,’ echoed Adam Wagner, a human rights barrister. ‘If I was in charge it’s what I would do if I could get away with it too.’ This was an interesting admission, if a little surprising. I challenged him – would he really? ‘If you are in the teeth of a crisis and you think you are saving lives, I can understand the motivations.’
Wagner expanded his reasoning: ‘When society is fearful, people search for strong man approaches to politics. These are danger times. Physical danger leads to the legislation (IRA, terrorism, coronavirus) and people will allow a devil’s bargain with the state to address it. And I am very sympathetic to it myself. I’ve spoken about feeling threatened after 9/11. It felt like the world was coming apart. In my feelings, in my mind, I felt the pull of ‘go to war’, let’s blow something. I wouldn’t have supported torturing people, but I felt the pull. I realised if I felt it, then anyone else can. What do we do in these times when our values change temporarily?’
This was a refreshingly honest and important insight into how fear of physical danger can shape our reactions to law, society, even war. Wagner agreed that we ‘fight the same battles every generation. The same stuff happens in human societies over and over again. If people have too much power they will abuse it.’
I questioned what lessons we had forgotten from previous generations. ‘When I first started out at the bar I was involved in an inquiry on the use of torture on Iraqi detainees,’ said Wagner. ‘They used the five stress techniques of psychological and physical torture that were used in the time of the IRA. The military said in the 1970s that they would never use those tactics again. By the 2000s no one knew about this judgement. Both possibilities are troubling: they either forgot or ignored it.’ This seems to encapsulate our problems in one depressing example.
Silkie Carlo, Director of Big Brother Watch, put it to me plainly that we are living through ‘the greatest loss of liberty in modern Britain and it has happened by diktat. This is how autocracies and dictatorships emerge, for the “greater good”, measure by measure.’
Carlo said we should be vigilant about the Big Tech response and state surveillance. ‘I’m struggling to understand how some of the mistakes have been made. It’s been a cacophony of disaster. With contact tracing, the government wanted to collect as much data as possible and hold it centrally. They were basically asking people to be on a state-issued digital tag. We warned them that there are serious risks with this. A lot of public money has been wasted. The government doesn’t understand that they need public trust, but that doesn’t come from rhetoric and finger-wagging. You can’t force people, you need a high degree of trust. That trust did not exist with the app.’ Also, more covert surveillance powers may be being used, including ‘sentiment analysis’. I asked if she meant our private Facebook timelines? ‘Facebook and “private” don’t belong in the same sentence,’ she shot back.
Normally the use of new technology in policing would follow substantive public debate, but Covid has accelerated the take-up of drones and facial recognition software. Carlo cited the example of a police force in Wales using a drone to disperse people who had been standing in line outside a pharmacy for prescriptions, a ‘dehumanising and intimidating’ form of policing.
She was also cautious about the introduction of thermal scanning. There is no evidence it is an accurate measure of whether someone has a fever. It also ignores that people know better than an infrared scanner when they are ill. After all, we don’t send our children to school or visit the Apple Store with a fever. It can also lead to what she called ‘surveillance stacking’: ‘First it’s thermal scanning, then they might add facial recognition, then automated age, gender and behavioural data-gathering. We have to be cautious it doesn’t lead to a society with diminished freedoms.’ Of course, if it doesn’t actually work, it’s also a pointless pantomime of public health and a waste of money.
I had to agree to one of my sons having his temperature taken before a dental appointment, or he would have been declined care. As though I would not know if he had a fever and was ill? I’ll admit I sent one son on a Duke of Edinburgh trip with a slightly broken arm, but I definitely know when they are so ill they have a fever. More to the point, they know when they are ill. Pointing temperature guns at our heads before we cross thresholds does not improve public health.
Like Sumption and Brimelow, solicitor Stephen Jackson explained that he was so concerned about the misrepresentation of guidance as law that he felt compelled to act. He founded the website Law or Fiction to help ordinary citizens as well as employers make sense of the emergency legislation. ‘I was astounded to read that the government had only “requested” schools to close in the Simon Dolan4 case. But I watched the Prime Minister tell us all on television that schools must close. The government has
behaved duplicitously towards the public. It shows a worrying level of disdain,’ he said.
He said he’d received many messages from confused and worried people, some quite heartbreaking, such as a new mother who needed a doctor to examine her burst and infected episiotomy stitches. Astonishingly, she was not offered an appointment, but was asked to send a photograph of her genitals to an unsecured practice email address. This inconceivably insensitive and intrusive request is no substitute for proper medical care.
‘People think physical contact is not allowed,’ he said. ‘There are sad cases of people thinking that they must only wave through the window at family, grandparents think they can’t hug their grandchildren. But they are allowed. And imagine the barbarity of not being able to say goodbye to loved ones on their deathbed. This creates permanent scars.’
Barrister Francis Hoar wrote an article5 arguing that the emergency regulations were incompatible with human rights. On reading it, a businessman called Simon Dolan, who also believed that the government had acted illegally and disproportionately, contacted Hoar. Together with solicitors Wedlake Bell they mounted a legal challenge against the government. They argued that the lockdown regulations removed the right to liberty by restricting people to stay in their houses, the right to a private and family life, the right to freedom of religion and expression of that, the right to protest and free assembly, plus the damaging effect on business interests and education. Another important part of the challenge was whether the government was right to make the emergency laws under the Public Health Act, and that the government had fettered its discretion by providing the five restrictions which all referred to the virus and did not refer to anything else.
I visited Hoar in his chambers. A portrait of his ancestor Sir Nicolas Tindal hung on the wall, a judge whose judgements protected many from execution by codifying the protection of insane defendants from conviction. This same passion was evident in Hoar: ‘I don’t mind being an outsider. There are a number of times that the establishment has got it wrong before. I’m in a profession where one is supposed to protect the outliers and the vulnerable. The great heroes of mine have often done that, even when the prevailing opinion was extremely unpopular. That’s what a barrister should do.’
I met Hoar before the ultimately unsuccessful Judicial Review and subsequent appeal. When we met he was uncertain but hopeful about protecting the vulnerable, but observed that ‘What is terrifying is that this wasn’t just imposed by governments, people wanted it. Of course people can choose to stay in their homes, but they wanted it to be law, to impose these restrictions on others.’
Sumption, Brimelow, Carlo, Jackson, Wagner and Hoar were united in their dedicated efforts to speak up for the law and democracy, during a year when most of Britain was more worried about loo roll than the rule of law, and had not understood the seriousness of what was happening to the country.
Sumption was visibly tired during our interview, ready for the holiday he was departing for the next day. Presumably the campaign he had waged had taken its toll. He took a few minutes during the interview to prune his beautiful garden. In the garden I asked him if he felt his public defence of civil liberties was a duty, or a mission. ‘No, it wasn’t a mission, that smacks of fanaticism. It was not my duty, it was the duty of politicians. The reason I have done it is that I thought this was an outrage which was deeply damaging to civil liberties. No politician was prepared to put their head above the parapet and say that this was disgraceful and profoundly damaging to our traditions and to the people who are least affected by the virus because they are young. Somebody had to say it.’ It may not have been his duty, and his interventions as a former Supreme Court judge have come in for criticism, but his campaign does seem to have been driven by a sense of moral duty and public service.
When Carlo and I sat in the lounge of her modest flat in London, she told me she worked 20-hour days in the early weeks, reviewing the legislation and producing Big Brother Watch’s monthly reports for parliamentarians. ‘I’d never let my team do this, but I had to put in those hours. I feel a sense of duty. I couldn’t live with myself if I didn’t do everything that I can. There were days I didn’t leave this room, I’d sleep for three hours on the sofa, because that’s all the time I could take.’
Sumption and Carlo live in the same city but are socially and economically miles apart. One is an ex-judge and OBE of considerable standing, and the other heads up a small NGO. Ordinarily, this should be an insignificant detail, but I found myself comforted by the fact that people across the spectrum of society were prepared to speak up, more concerned with character than reputation, and compelled by a sense of moral duty to do what they know is right, no matter how difficult.
Francis Hoar said the country needed more lawyers to do their part: ‘The rule of law does not exist in isolation. It depends upon lawyers and judges prepared to defend it against government power: not just through their cases but through condemning the state for stripping individual liberty. It is our responsibility as lawyers to do so.’
The law is ours. As Roger Scruton said, ‘English law is the property of the English people and not the weapon of their rulers.’ The British public needs to remember that. Johnson and Hancock, along with all Members of Parliament, are public servants. They have a duty to enact and use law wisely, proportionately and respectfully. Protecting the law and deserving its protection are one and the same. We should all be custodians.
Is it time to release democracy from quarantine and resuscitate the rule of law?
SAM, 30, PARAMEDIC
I’ve seen a lot of mental health problems, distress, and suicide attempts this year. We’re always at the local bridge with people who want to jump.
One thing that’s different about this year is that a lot more middle-class and upper-class people are suffering and trying to take their lives because they can’t get jobs. I’ve also come across a lot of grief; people haven’t had the opportunity to grieve properly for people who have died this year and that causes a huge psychological impact and trauma. Fear and grief can affect us more than the physical.
Young people having anxiety episodes because they are so worried about having Covid. People have called us out because they want a Covid test and they don’t want to leave the house.
I talked a 25-year-old woman off the bridge whose mental health had got a lot worse in lockdown. She’d had problems for years, had then got better and was off medication, but in lockdown she went badly downhill. Weirdly, it was the first time as a paramedic I could relate to that. I sympathised and told her I agreed that the lockdown measures were too hard to live with. I said it in front of the police who were there. Jobs like that hit me the most. There’s no bloody need – a 25-year-old woman should not be on a bridge in despair and so isolated she wants to die. These measures are not normal, it’s not right for human beings to live like this.
16. TERRIFYING IMPACTS
This is a collection of some of the ways we were impacted by fear and restrictions during the epidemic. Some of these impacts are as a direct result of fear, and some as a result of lockdown, which is related to fear. After all, could we have consented to lockdown and complied with the rules if we weren’t scared into submission? I have not included the impacts caused by Covid itself.
DEATH
•40,000 excess deaths from the economic impacts over the next 50 years, as reduced income, unemployment and anxiety reduce life expectancy.1
•32,000 excess deaths among adults in social care by the end of March 2021 due to reduction in support and people being discharged from hospital early.1
•18,000 deaths due to cancelled operations.1
•10,000 deaths due to disruption to emergency care.1
•4,000 deaths due to not seeking help, even when suffering a heart attack or stroke.1
•There was a 52% increase in excess deaths of people dying of dementia during the first wave.2
•The equivalent of 560,000 lives will be lost as
a result of lockdown. (This was calculated before the third lockdown.)3
MENTAL HEALTH
•The number of adults who experienced some form of depression increased from one in 10 to one in five during lockdown, by June 2020.4
•15% of people reported depression, anxiety, or fear as a direct result of government pandemic advertising.5
•One in eight adults developed moderate to severe depression during lockdown.6
•Nine out of 10 autistic people worried about their mental health during lockdown.7
•Autistic people were seven times more likely to be chronically lonely than the general population during lockdown.8
•Half of 16 to 25-year-olds said their mental health has worsened since the start of the pandemic.9
•One in three adults increased their consumption of alcohol during the first lockdown to cope with stress.11
•There was a 16.4% increase in deaths from alcohol-specific causes between January and September 2020 compared with the previous year.12 (An inquiry is needed to understand this, but I’m putting this impact in the mental health section for obvious reasons.)
•There was a 20% increase in opiate addictions and a 39% increase in number of relapses among addicts.13
•There were 15,541 calls relating to suicide or attempted suicide recorded by London Ambulance Service in the first six months of lockdown, from March to November 2020, compared to 11,703 calls over the same period in 2019.14
•87% of people with an eating disorder have seen their symptoms worsen because of social isolation.15
•161,699 fewer people per month in 2020 were able to contact mental health services than in 2019.16
•1.5 million children and 8.5 million adults will need support for depression, anxiety, post-traumatic stress disorders and other mental health difficulties in the coming months and years.17
HEALTH
•Six in 10 people reported worse sleep since lockdown was announced.18
A State of Fear: How the UK government weaponised fear during the Covid-19 pandemic Page 24
