By Prof John Coggon, Professor of Law (University of Bristol Law School)
Legal and policy responses to COVID-19 rest on and express the balance of different basic values and principles. Earlier and current regulatory approaches bring into sharp relief how liberty must be understood and weighed against other values. This is for the sake of liberty itself, but crucially too for other compelling aspects of social justice.
Emergency powers and pandemic ethics
COVID-19 is a global problem, albeit one that governments across the world have been approaching differently. Over the past weeks we have seen fast changes in policies as different countries have sought to anticipate and respond to the extraordinary scale of the challenges that we face and which lie ahead.
As I write this post, the Coronavirus Bill 2020 is being debated in Parliament. Already its aims and effects are being felt, following the Prime Minister’s announcement on 23rd March that we are now in a state of national emergency. In a short space of time, the UK Government has moved between radically distinct regulatory approaches. The previous position sought to control the spread and impacts of the virus by providing information while preserving individual liberty. Advice was being issued on how people and organisations should conduct themselves; on what is good for the community or selfish; responsible or irresponsible; less risky or more harmful behaviour; and why. Now, given the urgency and severity of the situation, the choice people had to act against such advice is gone. In language adopted by the First Minister of Scotland, the UK is in lockdown.
As the scale and reach of this pandemic have come to be understood, commentators have repeatedly noted the unprecedented nature of the challenges it presents. Precedents are, though, being set. The Coronavirus Bill, when enacted, will provide extraordinary powers to a peacetime government. The debates around these are characterised by considerations of necessity, balance, proportionality, equity, and the offsetting of the important value of liberty against the need for a safe (including for the workforce), secure, effective, sustainable healthcare system and wider social infrastructures. They bring into sharp relief questions of what we owe to each other, and what values we will and should prioritise as a society; questions of social justice.
Whatever governments do, from refraining to intervene at all, to providing information, instituting interventions that guide more forcefully, or restricting or eliminating choices altogether, complex moral and political decisions are inevitable. As the Nuffield Council pointed out in its 2007 Report Public health: ethical issues: “Any policy, including a policy to ‘do nothing’, implies value judgments about what is or is not good for people, and requires justification”. Health benefits and harms have to be weighed against one another, both within a context of enormous, potentially unsustainable, demands on healthcare staff and the National Health Service’s overall capacity, and in community settings. And health in turn is being weighed against further, sometimes radically different values. In addition, these matters are being balanced across time; immediate harms and benefits require to be weighed against each other not just right now but as they will, or are expected to, emerge in the future.
The very nature of pandemics underscores our interconnectedness. The social solidarity that underwrites the NHS does so too. Ethical considerations, including in relation to basic rights, must be approached with those points understood.
Liberty: one value amongst others
The predominant framings of government’s rights and responsibilities in the UK clearly give a special place to traditions of political liberalism. As reflected in the Nuffield Council’s report on public health ethics, the importance of liberty within such framings is viewed as fundamental. But this necessarily invites questions of what liberty means, why it should be protected, and what justifies interferences with liberty.
In its barest form, liberty might be taken to mean freedom to be left alone by the government. But if this were all there was to the principle, we could go in one of two directions. Either the importance of liberty would make for no government at all. Or its value would require to be understood as resting alongside other important values, such as autonomy, community, equity, health, family and friendship, fulfilment, and other aspects of flourishing, welfare, and well-being.
Liberty is so highly prized because it is the essence of what allows people to be authors of their own lives. But for that goal to be realised in a shared society, we espouse such other values too. Indeed, even protections of basic liberties themselves come at costs and can require trade-offs to be made. Fundamental civil and political rights do not come without government or without placing obligations on individuals. Rights, for example, to free assembly, not to be subjected to inhuman or degrading treatment, not to be imprisoned arbitrarily, to practise a religion, to enjoy privacy, to vote, to express views, may only be secured within the architecture of democratic institutional frameworks. And for people to be authors of their own lives, social, economic, and cultural rights, such as education, housing, and healthcare, are essential too.
All of which is to say that bald statements of concern about ‘government interference’—whatever a person’s perspective on how to respond to COVID-19—cannot start from a position that government is in itself necessarily offensive to liberty; or offensive because it promotes other values as well as liberty. The starting point rather should be how government exercises the function of according due weight to the different values that bear on its decisions. These questions of social ethics—of public health ethics—must be clear in the ongoing debates and analysis.
The justification given in support of the Coronavirus Bill is stark: the ‘lockdown’ has been deemed necessary to contain the virus; failure to contain it will put unbearable strain on the National Health Service, whose workforce is already too far stretched and working against far from perfect conditions and at personal risk. Given its unavoidably expansive reach, those affected by or engaged in the operation or oversight of different aspects of the Bill, when it is enacted, will continue to highlight important questions about its detail and impacts in different spheres. Ongoing analysis will have to be made with reference to clear principles including those of democratic accountability and the rule of law.
Public health, social ethics, and government responsibility
The current legal measures are driven by the necessity of the situation. As policy unfolds over time, including both through relaxation of rules as well as any more stringent exercise of powers, an understanding of health dynamics at population levels will be crucial. The evidence bases and assumptions on which policy is made need to remain under constant scrutiny, including through the resources of public health and public health ethics. Within biomedical ethics communities, there is recognition of the urgent need for clinical ethics guidance, especially in respect of rationing and prioritisation decisions in clinical contexts. It is right that these are receiving attention.
Of enormous importance too—not least because of their bearing on the demand for clinical services—are broader bioethical questions concerning public health and social ethics, and the control and containment of the transmission of disease and the methods to achieve this. As strong an evidence base as possible is needed: scientific public health advice requires data. We need to be able to predict how the disease will spread: this means we need to see it when it is still, to the untrained observer (such as me), invisible. The better the science, the better tailored the advice can be.
And in exploring the acceptability of measures that might be instituted given our developing understanding, their effectiveness must be understood with reference to conditions as they are, not as they might be hoped to be. This raises many questions. I would highlight just two here, which have come to the fore when we look at the balancing of effectiveness with apparently liberty-respecting policies.
First, insofar as measures rely on people being informed and then making responsible decisions, we should ask how real are the choices that they are being asked to make. This is not about judgments on selfishness, irresponsibility, and so on. Rather, it is about ensuring through shared efforts that the conditions exist for people to make a good choice if that is what is needed: whether this refers, for example, to a person missing work, or being safe if she has to be there; being able to care for a relative; being able to attend to her own physical and mental well-being.
Secondly, even where people can act in ways that serve public health goals, how far may principled reliance on responsible behaviour go where irresponsible behaviour is demonstrably winning out? If people should act in a particular way, but in fact are not, how long can government hold to a policy approach on the basis that things would work if people followed the advice? Public information campaigns are essential, but (rightly) in a liberal democracy are made against a background of all sorts of influential and contradictory views. The answer to the question of where public information campaigns are proving inadequate is not just about the (in)effectiveness of the intervention from a public health perspective: but when the decisions are made, effectiveness needs to take account of how people actually respond to the policy, rather than be defended by reference to how effective it would be if things were different.
Preparation and governance as the situation develops
In responding to COVID-19 over the coming months, collaborative efforts are essential. This is true within and across nations. Lessons are being learned, and must be learned quickly: we need the best possible understanding of the pandemic and its spread. Within the UK, the detail of how scientific understanding leads to policy decisions, especially in the context of emergency powers, requires to be considered and evaluated over time; for our benefit now and for planning for such situations in the future.
The necessity of the situation as I write is born of factors that can be evaluated. Preparations for, and governance of, the next stages need to provide for evidence-based developments and policies that are effective, whose rationales are clear, and that are ethically justified: including account being given to the realities of situations, and keeping to the fore fundamental democratic principles and the rule of law. Inevitably, discussions will arise on the basis of points of disagreement; reasonable and otherwise. But the challenge is one for the community as a whole, is going to run over time, and needs to be approached with recognition of the full range of values that this implies.
*This blog was originally published on the Nuffield Council on Bioethics’ website on 26th March, 2020*