EMERGENCY POWERS – BALANCE – BEING REASONABLE AND SENSIBLE
New emergency powers enacted, and restrictions imposed by UK Government (UKGOV) to deal with the Coronavirus epidemic (CV), judging by reports, are considered by most, in the round, to be necessary to combat CV. However, from a freedoms perspective, it will be right and necessary that those charged with enforcement on the general population are monitored and held to account, because the powers they have are broad and depend on a deftness of touch in their exercise by the police and local authorities. It is essential for the ongoing freedoms which underpin British values that the limits of the restrictions are adhered to and not extended excessively by additional statements from Ministers and through the pronounced guidelines.
The rule of UK law depends largely on consensus policing. In general it seems, judging from reports and UKGOV statements, that people are complying with the social-distancing rules and the recommended guidelines (such as exercising outside the home only once a day, keeping 2 metres apart). It is important to distinguish guidelines (not embedded in law and so obedience is voluntary) from the legal restrictions, though in practice it is necessary to follow both. However, guidelines must be kept sensible, doable and reasonable. So too, must behaviour by the police as well as the public. Only then will they work.
WHAT ARE THE LEGAL RESTRICTIONS?
Certain businesses must stay closed but the two restrictions generally applicable to the public at large are:
First, Restrictions on Movement which stop a person leaving their home without reasonable excuse. The reasonable excuse is not exhaustively defined but the two most generally relevant examples are stated to be in summary:
- to obtain basic necessities, including food, medical things and supplies for the essential upkeep of the household, or for vulnerable people
- to take exercise alone or with household members.
Second, Restrictions on Gatherings which stop a person participating in a gathering in a public place of more than 2 people, with permitted exceptions including two of most general application stated to be in summary:
- a gathering of members of the same household
- a gathering essential for work purposes.
To get the full position, it is necessary to read the restrictions and exceptions in detail. However, it is clear that much of the key guidelines are separate. But in communications the two naturally get mixed together. For example, journalists and others talk of non-essential travel, which is putting a gloss on leaving home with a reasonable excuse, the application of which will entirely depend on all the circumstances: common sense will be needed on the part of the public and the police. The Daily Telegraph of 31 March reported that No. 10 said, “fishing did not constitute exercise”, which may or may not be correct – perhaps it is best to take a prudent view. Though they did not comment on whether it was “obtaining food”!
THE POLICE APPROACH – FINDING BALANCE
31st March and 1st April saw much reporting of concern about the risk of over-zealous policing, with examples which hardly represent the norm. It is comforting for now that Cressida Dick, the Met Police Commissioner, and Martin Hewitt, the Chair of the National Police Chiefs’ Council, have been clear that persuasion and education to do the right thing is the primary goal. Police actions over time will reveal the practical commitment to that goal. It seems right that the public should have patience with the police as they develop the skills and judgement with new powers which nobody really wants but which perhaps everybody really recognises are necessary, but only for now. If persuasion and education are successful, the police will emerge with their reputation intact. Whilst they are cut some slack, the police too must be patient and not pedantic with the public, giving the benefit of the doubt to their overall good intentions (reports of searching shopping bags get coverage and do not help). The police and all authorities will, it is hoped, remember that they serve the public, not rule it.
The setting up of roadblocks to check drivers’ reasons for travel by South Yorkshire police, while Lincolnshire police reject that approach, serves to confuse. To keep the confidence of the public, police must be reasonable and consistent. Just as the public must not push the law to the envelope’s edge. On a daily basis the anti-social among us spit, literally and metaphorically, or cough in the faces of policemen and women, who constantly encounter the lowest of humanity in protecting the majority, as evidenced by the man jailed for so coughing on 31st March.
Freedoms are so precious, and people will worry that, even after the worst is over, powers and a more authoritarian use of them may carry over into the future, heralding an erosion of freedom. So, as guidelines must be reasonable and sensible, Ministers must be careful not to threaten the public with measures which may not carry public opinion. If the police are expected to enforce the unenforceable, chaos will erupt with a breakdown of consensus. Lord Sumption is said to be warning of creating a police state: police becoming “a disciplined hierarchy” operating at the command of ministers. He says that a police state is “a state in which the Government can issue orders or express preferences with no legal authority and the police will enforce ministers’ wishes”. The words of retired judges, even eminent ones, must be kept in perspective. Currently a police state is a long way off, UKGOV leaders are largely libertarian, and freedom of expression can guard against excesses. But monitoring is essential.
LET THE POLICE FIGHT MAJOR CRIME
It would be a disaster if police resources are now deployed to weeding out offenders of CV restrictions, other than the most serious putting the public at serious risk. (see Sherbhert article https://sherbhert.com/police-resources-never-enough-unless-leadership-forces-change/ ). The demands made on the police render them in normal times unable to deal with all crime, and prioritisation is critical. Their focus needs to remain squarely on fighting violent crime, serious frauds and theft and drug and cyber-crime to name a few. Material CV crimes will most likely be sparse, and most will be minor: peer pressure in the community perhaps will prevent widespread abuse, just as it has dampened stockpiling. If that pressure ceases to be effective, it may well mean that the UKGOV strategy of social distancing will have lost support and be doomed to fail, needing redirection. An article in the Times of 31 March headlined “Drug gangs spread coronavirus crimewave” illustrates how the police focus must not be distracted.
If the public does not abuse its freedoms, and acts reasonably and sensibly, the police can carry on dealing with real crime issues as they normally should.
MEDIA – GUARDIANS OF FREEDOMS MUST ACT RESPONSIBLY
The watchful eyes of responsible reporters will ideally lead to responsible questioning if powers seem to be abused, while respecting the police efforts to maintain law and order in a sensible way. The Times and Daily Telegraph of 31 March and 1st April both perhaps went too far in emphasising the less sensitive and seemingly more heavy-handed efforts to enforce social distancing which they could report. There was no balance with efforts which went smoothly and cooperatively with the public – but those will never be newsworthy. The topic was new and ripe for overkill reporting. However, it was right of them to point out that this is early days; if for example the lockdown creeps into warm summer days, then tempers may fray and patience will be severely tested, not least among the poorer, the younger and bored. As authorities rightly keen on using technology, to fight CV with surveillance and tracking, reach for apps and i-phones, the big brother balancing act will be under the microscope, quite properly. Hopefully the debate can be measured and undramatised. Again, a responsibility lies with the formal media, as social media will probably only mislead.
In addition, broadcasters should not at this time, or arguably ever, be publicising stories which they source from “an NHS worker” (unnamed), “a leaked document” or a “senior source”: such stories resemble the quality of unverified information on social media. Some decisions and actions in the CV crisis will go well, others less well. Newspaper and broadcast publications of first and second April betray journalists and others descending into the blame game, seeking fault and nurturing the blame culture. It is hoped this particular fever will not take hold.
When say 95% of police encounters with the public are successful with good outcomes, it will be incumbent on the journalists and commentators to keep a measured sense on the comparatively few complaints and not allow complainants an unbalanced exposure. The consensus, as long as it is in place, should be the main story.
CITIZENS TO THE FORE
The behaviour of citizens, including sensitive enforcement by those with policing responsibilities, holds the key to defeating CV while maintaining the UK’s values. If that behaviour is sensible and reasonable, even if imperfect; if UKGOV keeps guidelines consistent and reasonable; if restrictions are sustainable and not intolerable, the balance can be maintained in the exercise of the extreme powers now available to preserve and perhaps enhance the consensual relationship between the public and authorities, who serve that public.
