Covid-19 lockdowns – are we handing over too much unchecked power?

By Robert Freudenthal, registrar in psychiatry, Twitter handle: @robfreudenthal

Since the Covid-19 public health crisis unfurled with great speed at the start of 2020, governments have largely sought a legislative and criminal justice response to the growing public health crisis.  Such responses have been supported by the political left, with most of the criticism of the governmental response in the UK being focused on the delay of instituting a “lockdown” policy.  This has put the left in the unusual position of campaigning for stricter border control, quarantining methods for those entering the UK, and a stricter lockdown, which would involve increased policing of communities to ensure adherence to lockdown measures.

Too frequently the public health response to Covid-19 is framed as a struggle between health versus the economy, and in simplistic terms this has resulted in criticisms of the government broadly being framed as prioritising the economy over the health of the nation.  In reality the tensions and trade-offs that are a consequence of the public health response are much broader than that, and include concerns about mental health, safeguarding, wider health implications of a society living under various degrees of lockdown, civil liberties, concerns about authoritarian policy, issues of over-policing, and impacts on existing inequalities.

The reality of what life is like under lockdown is rarely specifically stated.  It is not hyperbolic to suggest that from March to July of this year we were living in an Orwellian dystopia that would have previously been unimaginable.  This included: the whole society being under partial detention, only permitted to leave our homes once a day, a ban on all in-person political activity, a ban on all in-person religious activity, a lack of freedom of movement on our own streets, a closure of almost all non-emergency services regardless of whether individuals depended on such services, and a ban on any sexual contact with someone you did not already live with.  It is noteworthy that such measures were broadly supported by the general public – which serves as a lesson that if the public are scared enough of a particular threat then even the most authoritarian restrictions are willingly accepted.

Whether a criminal justice approach to the Covid-19 public health crisis is an effective response remains open for debate. It is certainly well-established that criminalising behaviour to tackle other public health problems (as has previously been attempted with regards to the HIV epidemic, or criminalising drug users) has rarely been helpful. 

Six months after British lockdown was first instituted, whilst many of the restrictions that were in place from March to July have eased, the criminal justice legislation has become stricter. Individuals can be fined £10,000 if they fail to self-isolate, and there have been cases where whole groups of individuals, some of whom may not be direct contacts of people who have had coronavirus, have been forcibly detained in their accommodation by security and police. The term self-isolate itself is now an inaccurate term, as it implies that the individual has chosen to remove themselves from society to protect others.  Given that it is now legally mandated for contacts, or those with coronavirus, to stay at home, a more precise term would be to state that they have been placed under home detention by public health legislation.

The public health restrictions have been particularly damaging both for communities that are already marginalised or less privileged, and have been damaging for the left more broadly.  Marx stated “only in community with others has each individual the means of cultivating his gifts in all directions.  In the real community the individuals obtain a freedom in and through their association.”  Yet the lockdown measures have meant that the structures for individuals to meet to form community have been suspended, and for some they may never re-open and recover.  The closure (temporary or permanent) of community organisations has made it all the more challenging to express solidarity, to organise, and to form the relationships needed for the left to succeed.

Now that we are faced with rising cases of Covid-19, it is sensible for those on the left to reflect on progress, and to consider whether lockdowns, as they currently stand, remain a policy approach that Labour and the left more broadly should continue to support in their current form. 

Whenever liberties are restricted and people are detained – whether that be in the criminal justice system, the mental health system with the use of the Mental Health Act, or by Covid-19 public health restrictions – it tends to disproportionately impact already marginalised groups.  This is particularly the case for people of colour and young black men in both the criminal justice system, and the mental health system, with black men being much more likely to be detained (commonly known as ‘sectioned’) under the Mental Health Act than their white peers.

However unlike other healthcare settings, when the Mental Health Act or the Mental Capacity Act is used to detain individuals – both of which have mandatory legal safeguards in place for individuals which include legal representation, advocacy, and a right of appeal with tribunal hearings – no such legal safeguards are in place for those that are detained as a result of the public health restrictions.

A criminal justice response to a public health crisis is rarely likely to be successful in the long term. Even in the short term, however, such a response can only be justified, and supported, if we are confident that the legal safeguards are in place that ensure that such a response will not function to simply disproportionately worsen the civil liberties of already marginalised communities.

Further scrutiny via parliament and other channels, rather than the restrictions all being imposed by government unchecked, may also lead to increased trust in the public health response and therefore higher levels of compliance with the restrictions.  Such scrutiny and safeguards do not need to prevent swift action from taking place where necessary, yet they are essential to protect against the exercising of unchecked governmental power.

The restrictions imposed by the public health legislation related to Covid-19, have such a severe impact on already marginalised groups, and have such a profound impact on every aspect of daily life, including hard-fought freedoms, that they should be supported only if adequate legal safeguards and protections are in place for those who are detained by the legislation, and that there is sufficient scrutiny from parliament and community leaders.  Until this is in place, Labour and the broader left, should not continue to support unchecked authoritarian public health restrictions that, both directly and by the enforcement of the measures, are likely to disproportionately affect less privileged and over-policed communities.

Image: Digital billboard displaying a warning for coronavirus conditions in Leicester, author: Pierre Marshall, licensed under the Creative Commons Attribution 4.0 International license