Law, Morals & Covid-19

by Ella Nuttall on 22 February 2021
Law, Morals & Covid-19
Do these laws go too far? Or not far enough? Is it our responsibility to adhere to them, or the states’ to enforce them?

How valuable is a life? What should one sacrifice for the life of another? What are the responsibilities of our governments? What is the purpose of law? What personal responsibility do we have? What punishments are reasonable for non-compliance with laws?

Coronavirus has impacted the lives of the vast majority of humanity, and, at the time of writing, ended the lives of 2.45 million people (this only accounts for those that have been documented). Numbers of this kind have resulted in fierce and ongoing debates about the appropriate measures used to combat this virus. This article explores these questions and the UK’s responses to them. The inevitable variations in people’s beliefs, priorities and morals has resulted in a plethora of responses - moral, legal and practical. Michael Sandel, needle of my own moral compass and author of my personal Bible Justice, argues:

The pandemic caught us unprepared - logistically and medically, but also morally unprepared. It arrived at a time of deep polarization and partisan rancor.

(The Harvard Gazette, August 2020)

COVID-19 also caught the world under-prepared in a legal sense. Admittedly, not all areas of law (or perhaps any), are interesting to large swathes of the population, the laws implemented during the pandemic are of unusual and undeniable importance. They have informed us of the way we have conducted ourselves in unprecedented times. They have set precedent. They have introduced measures unheard of during British peacetime. The question is: do these go too far? Or not far enough? Is it our responsibility to adhere to them, or the states’ to enforce them? 2020 is now a year famous for its series of almost inconceivable events. But after 366 days of carnage we are faced with a set of new laws which were ushered through without extensive debate or discussion. The UK’s legal answer to the challenges posed by COVID-19 was the Coronavirus Act of 2020. Whilst the act contains some predictably pedantic descriptions and definitions, it also contains several sections that have raised eyebrows in civil rights group circles. Most concerns surrounding this act are based on two connected issues: the erosion of safeguarding checks designed to protect the laws that currently exist, and the implementation of stronger security laws with limited parliamentary scrutiny or public discussion.

The two sections considered most offensive are Section 22 and 23. These sections regard investigatory powers, which are established in the Investigatory Powers Act (IPA) of 2016. The IPA ‘Brings together all of the powers already available to law enforcement and security and intelligence agencies to obtain communications and data about communications.’ However, the Act also introduced ‘a ‘double-lock’ for interception warrants, so that, following Secretary of State authorisation […] cannot come into force until they have been approved by a judge. An additional protective component of the IPA was the creation of ‘a powerful new Investigatory Powers Commissioner to oversee how these powers are used’.

These sections (22 and 23) permit non-permanent changes to the IPA. Section 24 (Extension of time limits for retention of fingerprints and DNA profiles), which concerns the handling of biometric data, have been the cause of alarm bells. Biometric data is ‘the science of measuring and analysing biological and behavioural characteristics, used to recognise individuals repeatedly to a high degree of confidence.’ Biometric data is a human rights issue, where it can create an expansive ripple effect. The University of Minnesota states that the consequences of the collection of such data “] are felt across a range of fundamental rights, including […] the rights to life, to liberty and security of person, the right to be free from torture, cruel, inhuman or degrading treatment, the rights to a fair trial, privacy and family life, freedom of expression or movement’.

These potential infringements could apply to the Coronavirus Act. For example, section 24 states: ‘The Secretary of State may make regulations extending, for up to six months, the period for which the fingerprints and DNA profiles may be retained”. Thus this section of the act enables the extension of powers to hold personal data. In practice, this has resulted in ‘1,263 6-month extensions of biometric data retention periods were granted between April 2 and September 3 of 2020’ . This brings us back to the question of whether declining individual rights and increased surveillance is ‘worth’ the potential number of lives saved. Whatsmore, can we be sure that there are no ulterior motives propelling these invasive laws?

The government’s answer to these questions is provided by the Coronavirus Act Analysis which was presented to Health Secretary Matt Hannock in September 2020. The Analysis asserts that ‘a balance has had to be struck between protecting the public’s health, and safeguarding individuals’ rights’. Addressing concerns over checks and balances, the Analysis highlights that the act has ‘a two-year life span for this Act has been chosen to ensure that its powers remain available for a reasonable length of time.’ However, this has not reassured everyone.

Many groups, organisations, and individuals disagree with the ‘balance’ claimed in the aforementioned Analysis, but for a host of different reasons. Some reject any form of restrictions, whilst others are concerned about the holding and dissemination of data. Still others are worried about the discarding of legal safeguards. Concerned specifically with the aforementioned sections (Sections 22, 23 and 24), and the implications on investigatory powers, Barrister Darragh Coffey, wrote on the UK Human Rights Blog that:

Each of these changes represents an erosion – however slight ­– of the safeguards placed on important and potentially intrusive investigatory powers. While it is of course important that police and other resources are appropriately deployed during the crisis, we should not downplay the trade-offs that may be needed to facilitate this.

(Darragh Coffey, UK Human Rights Blog, April 2020)

Coffey’s is anxious that the ‘balance’ being tilted too far towards an unchecked extension of powers, and the disregard of usual legal safeguards and scrutiny. Other lawyers such as Hickman, Dixon and Jone, writing in the Judicial Review, argue that these laws have resulted in the country becoming ‘subject to what are almost certainly the most severe restrictions on liberty ever imposed [in the UK]’.

Big Brother Watch (BBW), a UK-based civil liberties campaign group, agrees that the legislation has gone too far. BBWhas been releasing regular reports regarding the Emergency Powers and the Coronavirus Act 2020. BBW has argued that ‘protecting public health doesn’t require this new authoritarian political order’.

Holding a not too dissimilar stance, StandUpX - a self-described “community of people protesting and standing up for our rights across the UK since May 2020” - have questions of their own:

Is the virus really so lethal that this new normal is justified? Is this the worst virus the world has ever seen? If we keep consenting to masks, surveillance, jabs, and the demolition of human freedoms will we ever be free people again?

(StandUpX Website)

Statements made by StandUpX highlight the dilemma of personal responsibility. Most information campaigns by the UK government during the pandemic have emphasised the responsibility of individuals. This, combined with the introduction of hefty fines, rumoured 10-year jail sentences and increased police powers could be construed as placing sole responsibility on the individual - and criminalising them if they fail to comply.

We do not consent to government social distancing measures destroying public and private life. We do not accept enforced masks. We do not accept a dictatorship of lockdowns, ruthless demolition of small businesses, criminalising peaceful citizens & police brutality.

(StandUpX Website)

To me, the concerns of StandUpX stem from a fear of the individual losing what makes them them, and being penalised for attempting to maintain their pre-COVID lifestyle. This begs the question: what punishment is reasonable for non-compliance with laws? StandUpX views the increased police presence itself as a disproportionate militaristic response. On their website, the group claim: ‘The police marching in formation after formation on the streets of London creates a sinister militaristic atmosphere” , intimidating the population in order to maintain “a dictatorship of lockdowns”.

The implications of lockdowns are another bone of contention for StandUpX. They argue that ‘if the lockdowns and social distancing continues, small and medium businesses will go under permanently’. Perhaps then, it is StandUpX’s view that the loss of these businesses, and income for those who work or own them, is a greater risk than the public health cost of lifting the lockdown. One cannot balance rights and responsibilities without a clear and widely-accepted understanding of the risks on either side: the risks to ‘health’ and ‘liberty’ (one’s own and others’) versus the risks to the economy. These risks have yet to be agreed on, and, where there is uncertainty… there is politics.

The group voices a second concern regarding lockdown: ‘the elderly will continue to live and die in isolation and our children will learn to fear life itself’. This introduces a different dimension to the question of what are we prepared to do to save a life: what is it that makes a life in the first place? It appears StandUpX would prioritise maintaining a pre-COVID lifestyle, which they consider a high quality of life, over prioritising preservation of life.

In contrast, the UK government argues that their policies and laws are not only justified but necessary. The government may consider the purpose of law as being what is best (for the country), even if this goes against (some) citizens’ wishes.

The Coronavirus Act gives us the powers we need to take the right action at the right time to respond effectively to the progress of the pandemic.

(Coronavirus Act Analysis, September 2020)

The ultimate questions are: how far are we prepared to compromise our lives for those of others? And, crucially, how well-informed can citizens expect to be about that decision? Whether you can answer these questions or not, I think it is vital that you consider them.

Ella is an Editor at MRB with an MA in International Law from SOAS and a BA in Arabic and Middle Eastern Studies.

How worried are you about the coronavirus legislation that’s come to pass? Has it set a dangerous new precedent? Email us with your comments and love for this thought-provoking piece: