Covid: Lack of legal certainty is now endemic

Niall McCluskey and Christian McNeill take a critical look at the latest coronavirus rules.

Ignorance of the law is no excuse. The corollary is that the state attempts to create laws that are certain.

The Coronavirus Act 2020 gave the Scottish ministers sweeping powers to make regulations in response to Covid-19. Back in March when the act came into force the situation seemed so grave that these powers were largely uncontroversial. The intention behind the powers was ‘to flatten the curve and save the NHS.’ Today we know much more about the virus and can assess more realistically the threat it poses.

With the benefit of hindsight we can see that all countries in the northern hemisphere followed similar ‘curves’ in their rates of coronavirus, irrespective of the controls imposed. It also appears that the UK reached a peak of cases prior to lockdown, when one works back from the peak number of fatalities a few weeks later. The total number of UK deaths attributed to coronavirus is currently just over 42,000. This sounds like a large number until seen in the context of the hard but compelling fact that over 600,000 Brits reach the end of their lives each year. And one single, panicked decision, presumably designed to save the NHS, inflated the number of deaths from covid enormously: moving frail and elderly covid positive patients from hospitals to care homes.

However the coronavirus regulations now control and restrict every area of our lives and are subject to no scrutiny whatsoever by the Scottish Parliament. Yesterday at the stroke of a pen the Scottish government closed down all pubs and restaurants across central Scotland, banned outdoor live events and intensified restrictions in a number of areas including hospitality more generally and sport. And for good measure they cancelled the National 5 exams. In the UK parliament Conservative rebels recently achieved concessions from the government regarding parliamentary votes but in Scotland a significant democratic deficit has arisen.

People’s lives and businesses are being upended. By the end of the year 100,000 Scots are expected to have lost their jobs. Free association is curtailed for many. Children and young people are severely affected by the restraints even though according to Professor Linda Bauld only one person under 30 in Scotland has died of Covid-19. In the last three months, Scotland has only recorded 43 Covid deaths at any age. (The average number of Scottish deaths from all causes in a three-month period is over 14,000.) Covid is not even one of the top 10 causes of death over this period. The restrictions are impeding treatment for the main causes of death which include heart attack, stroke and cancer, and those deaths dwarf deaths from Covid.

With no effective opposition in Scotland to challenge these draconian restraints the only recourse Scottish citizens now have is the courts. We would expect businesses to seek legal advice and in relation to the exam cancellation we anticipate that a judicial review of that decision is now inevitable.

The original justification for emergency powers is no longer present. The current approach is utterly unclear. There is no known exit strategy. Lack of legal certainty is now endemic. In Scotland the regulations and guidance are ever changing. We doubt most lawyers let alone the public could reliably explain what is prohibited at any given time. Citizens cannot regulate their affairs. Businesses have no way to move forward or be secure. A change in regulations can have drastic effects and change plans at a moment’s notice. Many businesses have worked hard to reopen only to be told shortly before resumption that the regulations have changed again and they can’t. How painful it must be for the hospitality sector in the central belt to once again be shut down after all the effort they have made to adapt their businesses.

Far from being informed by ‘the science’, government policy seems to be informed by a small group of people who are stuck in an echo chamber, and appear to be using limited evidence. Voices of dissent, even distinguished academics, are sidelined and even blocked on social media channels. Anyone attempting to question or present an alternative evidence based view is mischaracterised as selfish, as putting the economy before lives, or as a crazed conspiracy theorist.

Yet the evidence that lockdown and other civil restrictions are effective, is far from settled. Seven thousand scientists and doctors worldwide signed the Great Barrington Declaration, which was dismissed out of hand by the UK government. The inconvenient example of Sweden persists. And the protracted restrictions in Manchester have apparently achieved only an ever increasing rise in cases. Whatever the efficacy, surely it is imperative that a more open conversation is allowed. There is no sentient enemy who will be advantaged by hearing from a wider group of experts, unlike in a war setting. The silencing is not justified.

The effect on the economy and civil rights along with the rise in mental health problems, addictions, domestic abuse and violence and the lack of attention by the NHS to other serious illnesses are reaching a level which shows that the approach to coronavirus is incommensurate to the threat it actually poses. Legal restrictions require to be proportionate, certain and subject to scrutiny. The lack of opportunity for opposition parties to challenge the Scottish government in parliament is allowing unjustified policies to permeate creating as much pain in people’s lives as the virus itself.

The question arises, why would the government do this? The answer might be that having conducted a highly effective psychological fear project against the population, restrictions are really popular. Many people vastly overestimate the risks of Covid-19. A vicious circle has been created where a terrified population reward unwarranted government restrictions with positive poll numbers. To paraphrase FDR, fear itself has become the problem.

Niall McCluskey is an advocate specialising in criminal law and human rights. Christian McNeill is a writer and former advocate and tribunal judge. This is an adaptation of an article that first appeared in the Daily Telegraph.

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