Democracy, Laws and Viruses

The Issue

We are increasingly used to ‘society’ agreeing to impose restrictions on the freedom of the whole population on the basis that there are benefits to ‘society’, as a whole, that outweigh the encroachment into personal liberty.

In democracies these steps are never taken lightly, as we do prize such personal liberties very highly.

Let us just take the adoption of compulsory seatbelts as an example,

In the UK there was a long debate and many false starts about the relatively simple step of introducing seat-belt legislation. From the introduction of seat belt anchorage point laws in 1965, through a succession of governments promising enforcement throughout the 1970s, the debate raged on – a debate between the over extension of the “nanny state” and erosion of personal freedom on the one hand, and the saving of lives and severe injuries, and NHS resources, on the other. Finally, in 1983, it became compulsory to wear them – in the front. Rear set legislation took another eight years of further debate. Now we regard it as business as usual, and those youngsters who were not yet born in that period may regard the time we took arguing over the whole business as rather odd.

In the United States, we have two further aspects that made the transition debate even longer: firstly, a higher level of devotion to ‘personal liberty’ (thanks to George III and their revolutionary history); and, secondly, the whole thorny issue of ‘States Rights’ versus federal authority (flowing partly from the same revolutionary history, and partly from the fact that their constitution attempted to resolve this issue with a ‘fudge’ that failed to do the job).

As a result, the journey to compulsory seatbelt wearing in the US was equally tortuous, starting with Federal law mandating seatbelt installation in 1968, to State legislation imposing wearing of seatbelts variously from 1986 to 2002.

Over the period after seatbelt installation and before compulsion the civil law in both jurisdictions helped persuade people to wear their seatbelts by reducing personal injury damages by virtue of contributory negligence.

The length of these processes, in two of the world’s stoutest democracies demonstrate that such incursion of the freedom of the individual are not imposed lightly. However, they do establish that – after debate and over time – the principle of circumscribing the liberty of all subjects, for the potential benefit of a fewer number, is acceptable in a democracy.

Even more obvious, one could argue – and I will – that the human race should be able to impose restrictions on the individual liberty of the entire species, if the continued existence of the entire species is under threat.

A Bit of History

We have been here before, we have been most places before, and the most relevant historical examples relate to various instances of global pandemics.

Early examples of the principle of isolating potential disease carriers can be found in Leviticus, and in the Islamic tradition.

The Black Death killed some 75-200 million people in the 14th Century (in Europe this represented about 30% - 50% of the entire population). In Venice, when the authorities felt threatened, they made ships wait anchored at an offshore island for 40 (quarantinario) days. Shortly afterwards instances of similar measures for a number of diseases were taken out in Dalmatia, Spain, Marseille and Bordeaux.

In 1793 in Philadelphia there was a lengthy outbreak of yellow fever, and incoming sailors were quarantined outside the city. Cholera and smallpox epidemics continued throughout the nineteenth century, and plague epidemics affected Honolulu and San Francisco from 1899 until 1901. State governments generally relied on the cordon sanitaire as a geographic quarantine measure to control the movement of people into and out of affected communities. During the 1918 influenza pandemic, some communities instituted protective sequestration (sometimes referred to as "reverse quarantine") to keep the infected from introducing influenza into healthy populations

By this time the principle, and justifications, for such practices were well understood, and generally accepted.

During the post-World War I Spanish Flu epidemic few legal restrictions were imposed, but the authorities in Philadelphia in 1918 promoted the adoption of face masks and the avoiding of large public gatherings. This worked – for a while. Then there was a second wave driven by troops returning from Europe, but by this time the populous, and the City fathers, were fed up with restrictions and wrongly assumed that it was the same strain of flu. As a result, they were determined to hold a long-scheduled Liberty Loan parade - despite being warned that the parade, which was expected to attract several hundred thousand Philadelphians, would be “a ready-made inflammable mass for a conflagration.”

On September 28, a patriotic procession of soldiers, Boy Scouts, marching bands and local dignitaries stretched two miles through downtown Philadelphia with sidewalks packed with spectators – no masks were worn. Just 72 hours after the parade, all 31 of Philadelphia’s hospitals were full and 2,600 people were dead by the end of the week.

I will return to this instance later…

International Conventions

Between 1852 and 1927 there were continuous attempts to agree international conventions as to such practices to help prevent the transmission of infectious diseases between countries. Many of those attempts failed, but there have been a handful of such conventions successfully negotiated, notably the Paris Convention of 1926 that was signed by some 58 countries worldwide.

Typhoid Mary

Most of these domestic and international measures are adopted against foreigners, as it is usually seen as a plague from abroad – after all Spanish Flu was not called Spanish Flu in Spain. It is a bit more difficult to impose radical measures against one’s own population.

A good example of this was the problem that New York had in dealing with the woman known as Typhoid Mary over a 32-year period from 1906 to 1938. Mary Mallon was born in Ireland in 1869 and emigrated to New York in 1884. She became a cook, and from 1900 to 1907 she worked for eight families, seven of which became infected, with 23 people contacting typhoid fever and at least two dying. A private detective tracked down the common link, the cook, and asked her for body samples, but she chased him away with a cleaver.

In 1907 she was detained under local New York ordinances, tested and found to be a healthy person but who had massive amounts of typhoid bacteria in her gallbladder. Nevertheless, both then and forever afterwards, she refused to believe that she was the source of any disease. In 1910 the New York Stage Commissioner of Health decided that she should be released if she promised not to work as cook. This she did, and she started working as a laundress, but it paid less – so after a few years she returned to work as a cook, having changed her name.

For the next five years, she worked in a number of kitchens; wherever she worked, there were outbreaks of typhoid. However, she changed jobs frequently, and with her new name, the authorities were unable to find her.

In 1915, Mallon started another major outbreak, this time at Sloane Hospital for Women in New York City. Twenty-five people were infected, and two died. She again left, but the police were able to find and arrest her. She was then returned her to quarantine on North Brother Island on March 27, 1915. She still refused to believe she was responsible and was unwilling to have her gallbladder removed, a proposed condition for release.

Mallon remained in quarantine for the remainder of her life, a period of just over 23 years. Throughout the period of her incarceration there was a faction in the United States that was outraged by what they regarded as the illegal and immoral detention of Mary Mallon.

The Current Legal Position

One thing is clear, and that is – after the whole thing is over (if we are still around) - we need to establish much more comprehensive and better considered mechanisms for regulating and controlling human behaviour, both on a national and international basis in such circumstances.

In the UK, we have been operating under a combination of generic legislation, the Public Health (Control of Disease) Act 1984, and specific laws and regulations such as the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 and the Coronavirus Act 2020.

However, both the adoption of these laws, and their application and enforcement by the police are facing legal challenges in the UK – on top of the fact that various police forces have already apologised for over-aggressive policing, and that the Crown Prosecution Service has decided to review every single prosecution brought so far under this legislation.

The legal challenge is being brought under three grounds:

• first, that the lockdown is ultra vires because it implemented regulations under the Public Health Act 1984 instead of the Civil Contingencies Act 2004 or the emergency Coronavirus Act 2020

• second, that the government re-imposed the lockdown on a “disproportionate” basis in law, using an “over-rigid” test regarding its effect on containing the disease but not its impact on the economy, jobs and wider health issues

• third, that it breached the European Convention on Human Rights covering the right to liberty, family life, education and property.

At the moment, no-one can predict how the courts will respond to these challenges – but one can imagine that in the heat of the moment they might have one view, and afterwards in the cold light of day, they may have another.

The situation in the United States is made even more complex, as many things are, by the two factors already referred to above: an obsession for personal rights over the general good, just think of the misuse of the 2nd Amendment, and by the Federal/States’ Rights issues.

Thus, only in the US could we see demonstrations by armed masked militiamen against State-imposed lockdown regulations on the basis that it was an outrageous infringement of their civil liberties, and was unnecessary in their view as coronavirus was largely confined to the northern conurbations.

This may have been the case previously, but since May 3rd the numbers infected in New York City have been reducing, whilst in the cavalier provinces, they are on the way up.

Their guns and slogans will not stop Covid-19.

Human Nature

By god we are an awkward, stubborn and recalcitrant species – and so difficult to control.

Here in New York State we have the advantage of a Governor with a higher than average degree of common sense, and a broadly sensible raft of rules have prevailed. In the last week these were relaxed, and inhabitants of New York State were told to get out and exercise, but to wear masks, and keep six feet away from others. Simple, easy and by no means onerous.

We went on a woodland walk with marked trails, and reminders to keep six feet apart. There were many people out, and whilst there were a minority that obeyed the rules and would move to one side of the path to allow approaching walkers to do the same; the majority made it almost impossible to keep six feet apart – they would spread out their party and force anyone who wanted to comply to move way off the path.

After the walk I sat on a stone well away from others, but even then, two people felt it necessary to walk right past me less than one foot away.

On the same day there were photographs of over-crowded trains in London, along with people manifestly failing to stay apart from others in London parks and national beauty spots.

Faced with such a casual disregard of simple safeguards, it is easy to predict a global 2nd wave of coronavirus with much more tragic results – remember Philadelphia in 1918?

At the moment we are juggling (on the one hand) the quite natural feelings of frustration and resentment over lockdown, together with severe disruption on the economy, mental health and the education of a whole cohort of students, with (on the other hand) the need to control the instances of coronavirus and the potential results of a 2nd (and 3rd) wave that may dwarf the effects we have seem so far. You then have to factor in that:

· we still don’t know how much immunity a previous Covid-19 infection imparts (if any)

· there is a myriad of other things we still don’t know about Covid-19

· it may well mutate into an even more deadly strain.

“The Cure Must Not Be Worse Than the Disease!”

We hear this cry, and it may sound plausible, but on close examination, it is fatuous.

Firstly, it assumes that we can, already, correctly gauge the extent of the potential damage of both a continued lockdown, on the one hand, and of the unchecked transit of Covid-19 through the global population, on the other.

Manifestly, we cannot. But what we can gauge is that the potential consequences of the latter, if you factor in our ignorance of it and a likelihood of mutation, could be the entire extinction of the human race.

On the other hand, the worst that we can imagine of the former would be a combination of the worst economic collapse in the history of mankind, combined with severe population-wide mental problems and an entire under-educated generation. That sounds awful. But we can survive that – we have done it before many times over the last million years: remember Thornton Wilder's play The Skin of Our Teeth?

It may take several generations, but the resilience of the human race is as strong as its idiocy, and as a species we can survive all these things.

By definition, we do not survive an extinction.

On this basis, by playing around with variations of lockdown relaxation because people are ‘fed up with it’ we are tickling the dragon’s tail of the continued existence of our own species. What a way to go – the ultimate species-wide Darwin award.

At the risk of repeating myself, I’m going to repeat myself, because risk analysis is something about which we humans have acute cognitive biases that screw up our ability to think clearly.

I may be wrong in the estimation of the level of risk of an unchecked virus; but in any risk analysis you need to consider

• the relative likelihood of something occurring, as well as

• the potential extent of the damage that could result.

With a continued lockdown the likelihood of societal damage is very high, and the extent of the damage is also high, but certainly recoverable.

With an unrestrained virus, the likelihood of damage is high, but the extent of the damage whilst being unpredictable, could be total destruction of the species.

On this basis, the balance of convenience – if you can call it that – must weigh heavily in favour of prudence when it comes to any relaxation in a lockdown that is currently working to reduce the spread of this plague.

First Principles

As we have seen, democracies have always had the right, nay obligation, to impose restrictions on the personal liberty of its population for the good, or health, of the whole.

But how, and to what extent?

In the last few weeks two noted legal thinkers have weighed into this debate, on different sides – of course.

On the one hand we have Jonathan Sumption, Lord Sumption, ex-Judge of the Supreme Court of the United Kingdom, noted historian and often described as the man with the ‘biggest brain in the country’. A rabid Conservative in his youth, he recently delivered a truly brilliant set of annual Reith Lectures on the BBC on Law and the Decline of Politics that were a model of common sense, even liberality.

However, he seems to have reverted to type, and over the last few weeks has written several articles in The Times saying that “Draconian police crackdowns on drivers and walkers during the Covid-19 outbreak are disgraceful”, and that the UK was in danger of becoming a “police state” if other police chiefs mirrored the recent approach taken in Derbyshire as he warned of forces becoming a “disciplined hierarchy” operating at the command of ministers.

The former Supreme Court justice suggested that the UK government’s mandated lockdown in response to the pandemic blocks civil liberties, and it is instead up to the individual to decide their own infection risk, and according behaviour. Another example of ignoring the fact that these decisions cannot be made on an individual basis, that is not how viruses operate.

His view is that all and any historical, common law or legislative authority to restrict human movement can only be based on the danger of someone infecting others, but not because they may meet someone who infects them.

On the other hand, we have Alan Dershowitz, the renowned liberal Democratic lawyer, civil liberties advocate, and Harvard Law School emeritus professor, who is such a libertarian that he recently advised Donald Trump – who he does not support – on the impeachment proceedings in the basis that he thought his prosecutors were wrongly applying the constitutional law of the US.

This famous liberal’s view is that state has a "right" to "plunge a needle into your arm" in a forced vaccination scenario if necessary. Dershowitz’s view is that the US Constitution permits the government to forcibly vaccinate its citizens in an effort to stop the spread of contagion. This principle was clearly established in US Supreme Court case regarding smallpox inoculation laws in Jacobson v. Massachusetts, 197 U.S. 11 (1905).

"Let me put it very clearly," Dershowitz said. "You have no constitutional right to endanger the public and spread the disease, even if you disagree. You have no right not to be vaccinated, you have no right not to wear a mask, you have no right to open up your business." He added that if the disease in question is not contagious — for example, cancer — a person can refuse treatment, but If you refuse to be vaccinated [for a contagious disease, “the state has the power to literally take you to a doctor's office and plunge a needle into your arm."

"You have no right to refuse to be vaccinated against a contagious disease," Dershowitz concluded. "Public health, the police power of the Constitution, gives the state the power to compel that. And there are cases in the United States Supreme Court."

Dershowitz explained that this is all part of living in a democratic society. "That's what a democracy is about," he said. "If the majority of the people agree and support that, for public health measures, you have to be vaccinated, you have to be vaccinated. They should give you an alternative. The alternative is to live in your home, don't get vaccinated, but never ever leave your home or live in a bubble. But if you want to interact with other people, you cannot become Typhoid Mary. The Constitution doesn't give you the right to spread your illness to other people."

Wow. By the way, these musings are not hypothetical; current opinion polls show that 20% of US citizens would refuse to be vaccinated against Covid-19.

Yet, again, on the other hand we have legal experts such as Michael Buerk opining thus:

“The lockdown will continue to be imposed on us [over 70s] for our own sakes, because we are ‘vulnerable’. A very illiberal, rather immoral and [until recently] decidedly un-British idea. Until I’m sectioned, I’ll be the best judge of what’s in my interests as long as I don’t adversely impact others. Advice is fine. I’m grateful for all I can get and will consider it seriously. But being locked up for my own sake just because of a date in my passport is not.”

These are my italics, just to point out that this is the key issue; in the current circumstances you cannot act only on your own best interests because infection necessarily potentially adversely affects others, which could affect others, etc, etc, ad infinitum.

I’m not sure why it is so difficult for some people to accept this obvious principle – but it appears that it is.

Over the next few months, we will battle out these opposing arguments one way or another, as we tickle the dragon’s tail repeatedly. I just hope we remember the principle of prudence and risk analysis and don’t fuck it up. My confidence level is not high.

Next Time

Whatever happens, if we get through this current crisis, we then need a long period of reflection and well-considered legislation to set out:

• new domestic rules and regulations for pandemic control

• new uniform international conventions about pandemic control

• better national and WHO monitoring and preventive and remedial action plans

• a species at least as interested in its own survival than personal freedom.

Post Scriptum

While musing on the above with my ancient historian daughter, I recalled that in time of dire crisis in Ancient Rome they would elected a Dictator (not a bad word in those days) with untrammelled authority for a limited duration, say six months or a year, after which he would be put on trial if people thought he had over-stepped the mark, and could be executed if convicted.

The best example of the true Roman tradition of Dictator is undoubtedly Cincinnatus. He was a conservative opponent of the rights of the plebeians who fell into poverty. Despite his old age, he worked his own small farm until - on two separate occasions - in times of crisis he was called on by his fellow citizens. Both times he came from his plough to assume complete control over the state as Dictator but, upon achieving a swift satisfactory conclusion, relinquished his power and its perquisites and returned to his farm even before his appointed term.

His success and immediate resignation of his near-absolute authority with the end of these crises has often been cited as an example of outstanding leadership, service to the greater good, civic virtue, humility, and modesty.

We can only hope for some such leadership today; on the contrary, I can think of several elected figures who I would love to send back to their 'farms'.