ALMOST everyone has complaints about the policies, innovations, regulations and restrictions created in response to coronavirus. Some claim they are excessive and unnecessary; others that action is vital, but that the wrong approach has been taken; others still that the approach is correct, but badly handled. Any of these stances may be vindicated when we know enough to judge their merits, but that will not be for some time.
The most bizarre position, however, must be to advocate and impose strict conditions, but do almost nothing about them. Yet that is the ground which the Scottish Government, in the person of the justice secretary Humza Yousaf, seems to be attempting to defend.
Quarantine for those entering Scotland from certain countries or territories is a measure that may or may not be necessary. But it is certain that it can be effective only if enforced. Large gatherings may or may not pose a serious risk. But it is pointless to introduce punitive legislation against them if it is never employed.
Yet, by the end of last month, only one penalty notice had been issued: to a Celtic player. In the past few days, that figure has risen by half a dozen or so; a gathering of 300 people at a party in Midlothian led to just one person receiving a penalty. A nurse returning from Bulgaria – which has been on the restricted list for months – was able, without checks, cheerfully to set off for work at a hospital, before being sent home.
If the Government imposes restrictions that have serious implications, not only for individuals’ freedom of action, but the wider economy, it is presumably convinced that they are effective. But that entails recognising that it will be the case if and only if there is compliance with them. If they have no intention of ensuring that, it’s difficult to see the point of awarding themselves the power to criminalise transgressors.
Cases of high-profile individuals on both sides of the border bending or breaking the rules received condemnation in earlier stages of lockdown precisely because the vast majority of the public had been remarkably willing to put up with severe limits on their freedoms. It is still only a very small minority that blatantly ignores the rules – usually out of selfishness rather than libertarian conviction. But if no sanctions are taken against such individuals, the rest of the population is bound to ask why.
And in the long run, if the penalties are never applied, and some are prepared to breach them openly and repeatedly, restrictions will become pointless, and renewed lockdowns – which may be of critical importance – will be ignored.
As Diderot observed, there are two kinds of laws. Some – prohibiting murder, assault, theft – enjoy universal support. Others are created by passing political prejudices or by force of circumstances. Disagreement about the value of the second group is the reason why we elect our legislators, and why consent is essential for those secondary laws to function. It does not invalidate the law against murder that it still happens; but a law uniformly flouted becomes ridiculous, and it becomes unreasonable to expect compliance with it.
We certainly have a remarkable force of circumstances in this pandemic. The public, however, is entitled to certain expectations of any law or restriction imposed upon them by government. Among them are that it should aim to avert some harm, that it should be reasonable, that it should enjoy widespread consent, that it should apply to everyone equally.
It is not a “softly-softly” approach for the police to attend an event where 300 people are breaking the law, and reprimand only one. It is a mockery of the law, and tantamount to an invitation for others to break it. If the pandemic justifies laws that curtail ordinary freedoms, it necessitates their enforcement. Anything else is an insult to those who have put up with the restrictions at considerable personal cost.
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