Purely from a civil liberties perspective, I'm not sure a regional approach is better than a national lockdown. The regional approach still means that the PM has the power to shut down everyday life in (say) Cornwall, with relatively little accountability - he just chooses not to make use of that power.
Agreed.
However, inevitably this thread has widened from the civil liberties and constitutional case, to what is practical now. I think largely the discussion has run its course. Still, a regional approach is, to my mind, better than a centralised one, especially if the decisions were properly decentralised, so that e.g. Andy Burnham would have had the decision making power over lockdown in Manchester.
It's still not good, but face it, civil liberty is not that important to most people in England when they're frightened.
I think the key difference is the inclusion of the Bill of Rights in the constitution, elevating it above ordinary legislation. Arguably the Human Rights Act 1998 is part of the UK constitution, but the judiciary in the UK is not as powerful as in the US so doesn't have the right to strike down legislation in the same way. That power is one SCOTUS claimed for itself fairly early, and that is the second piece of the judicial puzzle that makes decisions in US courts so far reaching.
You don't mention freedom of information, but to me that is vital. An individual who was completely clear headed could get the information if it was made public, and when it is made public it can be subject to review and criticism. Secrecy corrodes trust.
What secrecy, exactly?
The problem is not lack of information. The problem is that accurate information about the virus, how it spreads, the best (quite simple) strategies to reduce the spread of it, are competing on the internet with a whole lot of rampant misinformation about how it's a plot, how fake news is exaggerating the threat, how consuming bleach will cure you and so forth.
Okay? The information IS PUBLIC. I don't have some secret stash of data about lockdowns. I have the same access to information to anyone else about why health authorities provide advice that we needed to stop people moving around.
I saw diagrams and animations in February and March explaining the basic concepts of social distancing before any government orders to social distance. This is stuff that epidemiologists and other relevant scientific disciplines have understood for years. The prospect of one day humans encountering an infection that hits that sweet spot of being readily transmissible and sufficiently deadly to be a problem has been exercising the minds of those people for years.
Governments don't generally have access to wildly different information about this stuff than you do. My point was simply that in an institutional sense they are more likely to be able to pick up the phone and talk directly to the experts rather than rely on a one-way publication of information.
But the notion that you would accept lockdowns if only you were privy to this secret information? I call bullshit. All the information you need to basically understand how viruses spread and how lockdowns reduce the spread has been available for 8-9 months. The problem isn't that the information isn't available to you, the problem is that you don't want information that is contrary to your mindset.
I don't believe in the value of lockdowns because I trust my government, I believe in the value of lockdowns because scientists were discussing lockdowns long before the government imposed one (and CERTAINLY before the UK government listened to scientists and said whoops, this herd immunity thing isn't going to fly).
I've recently discovered that New Scientist happened to start a weekly podcast early this year. You might find the first couple of months of episodes instructive. Oh, here's what's happening in China. Here's what's starting to happen in Europe.... and lockdown.
Flattening the curve, social distancing, wash your fucking hands... these are NOT ideas dreamed up by government behind closed doors with secret information. These are ideas scientists were publicly talking about. The reason we end up with government actually deciding to use mandatory measures to force at least some of these things to happen is simply because there are far, far too many people who don't, out of ignorance or sheer ideology, want to accept that action was required and wouldn't change their behaviour on their own.
Freedom of information? The information is free. The question is whether it's going to penetrate skulls or not.
Sumption makes precisely the same point as you in his Reith Lectures (I have to say that I enjoyed them so much that I listened to them all over again during lockdown earlier this year). IIRC, he had much to say about right of free association in the US constitution. This, he says, has been interpreted to include freedom to contract, resulting in the striking down of laws protecting labour, unions, restricted working hours and so forth.
Sumption is hostile to this. He says that it has resulted in judge-made law, as opposed to law made by legislation, via which the public would have had some buy-in. For the same reason he is not keen on the growth of laws made by the ECHR. His basic point is that laws made on the basis of a system of values developed purely by judges intrudes on what should be the role of politics.
This is all entirely consistent with his dislike of Johnson ruling by diktat: it bypasses the political process just as surely as any judge.
In doing this he also defends the UK's unwritten constitution. It's become very fashionable to deride it as archaic, but his defence of it is to my mind very convincing: simply put it's more democratic than the alternatives. It does seem to me that governance in the US is locked into a capitalist, libertarian model due to a document written by some people who have been dead for a very long time.
Flattening the curve, social distancing, wash your fucking hands... these are NOT ideas dreamed up by government behind closed doors with secret information. These are ideas scientists were publicly talking about.
And the evidence that masks prevent transmission of viruses ?
The evidence that sitting socially-distanced in a church is a higher-risk activity than the same level of distancing in other settings ?
Seems to me that the models used by epidemiologists show that lockdowns work. And that a complete lockdown plus border controls eliminates the virus... All such models are simplified approximations to reality.
The evidence that sitting socially-distanced in a church is a higher-risk activity than the same level of distancing in other settings ?
It’s not. But total number of interactions is also a factor, and it’s easier to just ban non-essential activities than to try to get everyone to stick to a maximum number of daily interactions with other people.
It does seem to me that governance in the US is locked into a capitalist, libertarian model due to a document written by some people who have been dead for a very long time.
It is locked that way because of the appointment of justices to SCOTUS requiring the consent not just of the senate but of the majority leader in the senate. The senate leans Republican so most justices now lean (far) right. There are plenty of ways of interpreting the US constitution that aren't as wing-nutty as the current ones. For example, even taking the 2nd amendment textually allows for the "well-regulated militia" clause to be emphasised as a necessary part of the right to keep and bear arms. That would allow (deep breath) registration of guns and owners, regulation of all sales, storage requirements, ammunition control, handgun bans, compulsory safety courses, de-escalation and marksmanship training, and regular militia call-ups and drill.
You don't mention freedom of information, but to me that is vital. An individual who was completely clear headed could get the information if it was made public, and when it is made public it can be subject to review and criticism. Secrecy corrodes trust.
What secrecy, exactly?
The problem is not lack of information. The problem is that accurate information about the virus, how it spreads, the best (quite simple) strategies to reduce the spread of it, are competing on the internet with a whole lot of rampant misinformation about how it's a plot, how fake news is exaggerating the threat, how consuming bleach will cure you and so forth.
Okay? The information IS PUBLIC. I don't have some secret stash of data about lockdowns. I have the same access to information to anyone else about why health authorities provide advice that we needed to stop people moving around.
If we're just talking about the broad outline of the concept of lockdown, I agree. The problem is that the UK government has at various times made a lot of highly specific rules for no publicly available reason. When they partially reopened schools in June, the Opposition had to fight to get the relevant SAGE reports released, and when they were released, they didn't really answer the question. There was a period when pubs were open, but had to close at 10pm, again without any reason. We've just had non-essential shops closed down again - even though the leaked SAGE report that recommended a second lockdown weeks ago also said that non-essential shops make negligible difference to the R rate.
As I said upthread, just because I don't support the anti-lockdown arguments in general doesn't mean that the constitutional questions of due process aren't valid. Ultimately, the government has abrogated to itself a lot of emergency powers and then used them to make crap decisions. The question, for me, is whether there is a better way of organising emergency powers so that the quality of decisions is better.
This Guardian article contains an interesting review of Australia's success compared with other western countries. Specifically the following comparison:
The country’s success in managing the pandemic stands in stark contrast to its western allies. When Victoria recorded 723 new cases on 29 July, the figure was roughly in line with the UK’s 763 and France’s 1,392. Since then, Australia has gone in the opposite direction.
In the UK a record 33,470 were infected with the virus on Thursday and 563 died as the country endures another gruelling lockdown.
Victoria is now at its 16th day of zero cases, and community transmission is almost completely eliminated nationwide.
Our national and state governments abandoned ideology and listened to the scientists, and economists, who advised strict social controls and strong support funding. Another article this weekend pointed out that our epidemiologists have been preparing for this eventuality for years, and our proximity to China and volume of interaction between our two countries ensured that we needed to be early adopters.
One infected crew member in a cruise ship kitchen, and one infected security guard from hotel quarantine have been the likely sources of our worst outbreaks. In the first case, speedy contact tracing mitigated impact, while the second exposed deficiencies in contact tracing prompting massive restructuring.
We have forfeited some freedom of movement and suffered other restrictions. Our state has just imposed QR code check-in for most venues, which link to contact-tracing when required. I'd argue that our situation justifies the actions our governments have taken.
Your trust is touching. There's no point in me debating, and I honestly think you are in a tiny minority in thinking the treatment of the COVID crisis by the UK Government is some sort of model of transparency.
This Guardian article contains an interesting review of Australia's success compared with other western countries. Specifically the following comparison:
The country’s success in managing the pandemic stands in stark contrast to its western allies. When Victoria recorded 723 new cases on 29 July, the figure was roughly in line with the UK’s 763 and France’s 1,392. Since then, Australia has gone in the opposite direction.
In the UK a record 33,470 were infected with the virus on Thursday and 563 died as the country endures another gruelling lockdown.
Victoria is now at its 16th day of zero cases, and community transmission is almost completely eliminated nationwide.
Our national and state governments abandoned ideology and listened to the scientists, and economists, who advised strict social controls and strong support funding. Another article this weekend pointed out that our epidemiologists have been preparing for this eventuality for years, and our proximity to China and volume of interaction between our two countries ensured that we needed to be early adopters.
One infected crew member in a cruise ship kitchen, and one infected security guard from hotel quarantine have been the likely sources of our worst outbreaks. In the first case, speedy contact tracing mitigated impact, while the second exposed deficiencies in contact tracing prompting massive restructuring.
We have forfeited some freedom of movement and suffered other restrictions. Our state has just imposed QR code check-in for most venues, which link to contact-tracing when required. I'd argue that our situation justifies the actions our governments have taken.
And just like that, we have an outbreak after seven months of no community transmission, evidently linked to a medi-hotel for quarantined return travellers, in South Australia. Already other states are implementing quarantine measures for interstate travellers, and widespread community testing and contact tracing is underway.
Flattening the curve, social distancing, wash your fucking hands... these are NOT ideas dreamed up by government behind closed doors with secret information. These are ideas scientists were publicly talking about.
And the evidence that masks prevent transmission of viruses ?
Came in later. I'm actually on record as reporting that there were doubts on this, but further studies as the pandemic developed have supported it. You can go listen to 3 separate episodes of the Science Vs podcast on this as a convenient stopping point. Science. Not government or politics.
The evidence that sitting socially-distanced in a church is a higher-risk activity than the same level of distancing in other settings ?
Define those other settings. 1. If it's outside rather than inside, yes it's lower risk than sitting in church. 2. If it doesn't involve singing, yes it's lower risk that singing in church. 3. If it's for a shorter period of time than a church service, yes it's lower risk than sitting in church. 4. If it's with a smaller number of people, yes it's lower risk than church. 5. If it's with a closed group of people who haven't been here there and everywhere in the past week, yes it's lower risk than church.
None of this is rocket science. It's just science. Some of it is just fucking common sense.
Seems to me that the models used by epidemiologists show that lockdowns work. And that a complete lockdown plus border controls eliminates the virus... All such models are simplified approximations to reality.
Your trust is touching. There's no point in me debating, and I honestly think you are in a tiny minority in thinking the treatment of the COVID crisis by the UK Government is some sort of model of transparency.
But you might listen to the BMJ. I won't extract but the title is: When good science is suppressed by the medical-political complex, people die.
Your complete failure to engage with what I said is instructive. My whole point was to talk about trust in science, not in governments, and you've pretty much ignored that. Ricardus' response was far more meaningful.
And the reason you won't extract that BMJ article is because it doesn't really support you. It certainly doesn't support a notion that lockdowns and gathering restrictions are some evil government idea that scientists never advocated before. Again: go and listen to episodes of the New Scientist podcast from early this year for a time capsule.
You don't mention freedom of information, but to me that is vital. An individual who was completely clear headed could get the information if it was made public, and when it is made public it can be subject to review and criticism. Secrecy corrodes trust.
What secrecy, exactly?
The problem is not lack of information. The problem is that accurate information about the virus, how it spreads, the best (quite simple) strategies to reduce the spread of it, are competing on the internet with a whole lot of rampant misinformation about how it's a plot, how fake news is exaggerating the threat, how consuming bleach will cure you and so forth.
Okay? The information IS PUBLIC. I don't have some secret stash of data about lockdowns. I have the same access to information to anyone else about why health authorities provide advice that we needed to stop people moving around.
If we're just talking about the broad outline of the concept of lockdown, I agree. The problem is that the UK government has at various times made a lot of highly specific rules for no publicly available reason. When they partially reopened schools in June, the Opposition had to fight to get the relevant SAGE reports released, and when they were released, they didn't really answer the question. There was a period when pubs were open, but had to close at 10pm, again without any reason. We've just had non-essential shops closed down again - even though the leaked SAGE report that recommended a second lockdown weeks ago also said that non-essential shops make negligible difference to the R rate.
As I said upthread, just because I don't support the anti-lockdown arguments in general doesn't mean that the constitutional questions of due process aren't valid. Ultimately, the government has abrogated to itself a lot of emergency powers and then used them to make crap decisions. The question, for me, is whether there is a better way of organising emergency powers so that the quality of decisions is better.
Yes, valid points.
Schools has been an issue here too - mostly because when schools weren't closed earlier in the year, frightened people didn't accept that there was modelling that showed that not having children in schools could actually mean more children got sick (being in the community) and fewer adults, and it all balanced out. But any modelling of course has to be based on the current situation/current prevalence and that might change all the time. And yes, I think it's probably better that the models and reports be public.
Similarly, there was an issue when Melbourne had a curfew (similarly to closing pubs at a set time), because I'm fairly sure it emerged that there was no health/medical advice that provided a basis for it. As I understand it the decision was more one based on management, in that it's easier to ping people for being out when no-one is supposed to be out rather than having to assess each person's merits for being out.
And yes I can see that questions of due process are important. Process matters just as much as result. I find that much trickier in the UK because you don't have a written constitution. The boundaries are a lot wobblier. When we're talking about regulations, though, I don't know if it's strictly a constitutional question, more a statutory interpretation one - does an Act authorise making these regulations.
It's far better for a government to go to Parliament to get the necessary power if there's a concern about being able to do things quickly. Regulations are undoubtedly quicker than having to go back to Parliament each time the situation changes, but you do need to get the regulation-making power sorted out first. There's been some disquiet here about the scope of regulation/instrument-making power, but that's on a background (at least for the national/federal laws) where Parliament did clearly supply a lot of wide-ranging powers, including passing new ones in March because no-one really knew when Parliament would even be able to safely meet again. I believe some of those new powers explicitly end on December 31st, meaning that Parliament will have to decide whether to extend them.
If the regulation-making power is not clear, then really a government is just gambling on no-one having the will or resources to go to court to mount a challenge.
A question for anyone sufficiently familiar with the UK legal environment: how common is it for delegated legislation to need to be approved in some way / put before Parliament before it can come into effect? As opposed to just coming into effect straight away with Parliament having a chance to disallow it later?
Here in Australia, the prior approval/delayed effect approach is pretty uncommon. The standard rules are that a regulation or other delegated legislation can, if the government chooses, come into effect straight away, and Parliament has a certain amount of sitting days afterwards during which it can disallow it - but with no impact on the way the regulation operated in the meantime.
And we sometimes have things that Parliament cannot disallow (though Parliament could always pass an Act that effectively overrules it, but that takes the whole Parliament as opposed to disallowance only needing one House).
A lot of the instruments under the Biosecurity Act are not disallowable, instead there are criteria for making them in the first place.
But yes, I'm not sure whether in the UK it's more common to say that a regulation can't just go ahead and start. Because here, just going ahead and starting is standard procedure.
orfeo: First, let me apologise for what was an arrogant tone in my reply, which since your previous posts have been very thoughtful, was not warranted,
Second, I never imagined that the editor of BMJ would share my sceptical views, and I don't think any of what I have written suggests that. The point of referring to the article was that it pointed out the extent to which science and politics get intertwined when national policies are being decided, so that it is not the case that there is pure science uncorrupted by politics. I think he is right to talk about the medical-political establishment, and like him, I would prefer it if major decision makers did not have strong financial connections to Big Pharma. But he also highlights the difficulty with which information has to be dragged out, as in the membership of SAGE (only revealed after a leak).
Can I now respond in detail to your points:
What secrecy, exactly?
Everything about SAGE had to be dragged out. The Spectator has published leaked documents about the worst case scenario driving policy. Why doesn't the Government favour openness since stuff leaks out when they try and keep it secret. Despite requests, no details of the models used to guide policy have been made available.
The problem is not lack of information.
Well sometimes it is. Take the case of the PCR test and one of its chief parameters: the cycle threshold (CT). There is widespread opinion, I would say it is mainstream, that as the CT increases, the probability decreases of actual infectiousness. A commonly quoted range is CT 30-35 as being safe to confirm infectiousness. The BMJ states: the lower the CT value, the more virus there was in the original sample, and the more likely it is thought to be that the case was actually infectious, rather than still carrying leftover RNA, which is not clinically significant. In view of this, the UK guidance on the limit of cycles would be extremely helpful to know. SFAIK no such recommendation exists, although you may have information on this. The BMJ article adds: Sadly, not all forms of PCR testing provide a measurable cycle threshold; and the privatised labs used for “pillar 2” testing in England cannot or will not routinely share CT values.
The problem is that accurate information about the virus, how it spreads, the best (quite simple) strategies to reduce the spread of it, are competing on the internet with a whole lot of rampant misinformation about how it's a plot, how fake news is exaggerating the threat, how consuming bleach will cure you and so forth.
That's true and it a pity. But it's no different from the fact that peaceful protests attract undesirable supporters. But it's not really relevant.
Okay? The information IS PUBLIC. I don't have some secret stash of data about lockdowns. I have the same access to information to anyone else about why health authorities provide advice that we needed to stop people moving around.
Something does not become true just because you say it is. Yes, selected data is public, and other data is not. And a lot that is public had to be dragged out. Are you actually saying, for example, that the full set of assumptions behind the models used by the Government are public? Please send me the link.
I saw diagrams and animations in February and March explaining the basic concepts of social distancing before any government orders to social distance. This is stuff that epidemiologists and other relevant scientific disciplines have understood for years. The prospect of one day humans encountering an infection that hits that sweet spot of being readily transmissible and sufficiently deadly to be a problem has been exercising the minds of those people for years.
Agreed.
Governments don't generally have access to wildly different information about this stuff than you do. My point was simply that in an institutional sense they are more likely to be able to pick up the phone and talk directly to the experts rather than rely on a one-way publication of information.
I just don't think things work like this. I'm not denying that the Government has more access than I have. Obviously.
But the notion that you would accept lockdowns if only you were privy to this secret information? I call bullshit. All the information you need to basically understand how viruses spread and how lockdowns reduce the spread has been available for 8-9 months. The problem isn't that the information isn't available to you, the problem is that you don't want information that is contrary to your mindset.
I'm not denying that I have a mindset that is opposed to lockdown.
But I just don't think that what you say is true. Most of the UK Gov policy is based on models that have not even being subject to peer review let alone been made public. It is my private belief that if full information was made public to enable experts in the relevant fields to critique the famous Imperial College model, it's reputation would be in tatters. The fact that this has not happened is because the information is kept hidden.
I don't believe in the value of lockdowns because I trust my government, I believe in the value of lockdowns because scientists were discussing lockdowns long before the government imposed one (and CERTAINLY before the UK government listened to scientists and said whoops, this herd immunity thing isn't going to fly).
Well the scientists were quite favourable to herd immunity at the start. From what I know there was hardly any discussion of lockdown before the famous Report 9. Can you reference the discussions? As to your statement that this was being discussed "long before" the pandemic, a lot of reference has been made to the WHO document "Non-pharmaceutical public health measures for mitigating the risk and impact of epidemic and pandemic influenza guidance" which presumable is the sort of thing you mean and was published in Oct 2019.
As regards quarantining of exposed individuals: Home quarantine of exposed individuals to reduce transmission is not recommended because there is no obvious rationale for this measure, and there would be considerable difficulties in implementing it. Quarantining of people with no exposure is not even considered, presumably because it was not thought worth discussing. So whether this is right or wrong, it does not support the idea you have that "the science" has always been in support of lockdowns.
I've recently discovered that New Scientist happened to start a weekly podcast early this year. You might find the first couple of months of episodes instructive. Oh, here's what's happening in China. Here's what's starting to happen in Europe.... and lockdown.
Fine.
Flattening the curve, social distancing, wash your fucking hands... these are NOT ideas dreamed up by government behind closed doors with secret information.
These are ideas scientists were publicly talking about. The reason we end up with government actually deciding to use mandatory measures to force at least some of these things to happen is simply because there are far, far too many people who don't, out of ignorance or sheer ideology, want to accept that action was required and wouldn't change their behaviour on their own.
Except that was never really tried.
Freedom of information? The information is free. The question is whether it's going to penetrate skulls or not.
Everything about SAGE had to be dragged out. The Spectator has published leaked documents about the worst case scenario driving policy.
Except that the leaked documents show that the worst case scenario has not been driving policy. Policy is being based on the best case scenario, or rather it is being made to appease political interests who are sceptical as you are, and then when a worse case happens as the science predicted the policy has to lockdown twice as hard to catch up.
The reason the government is trying to hide the SAGE advice is because the government like you wants the advice to be wrong.
Johnson famously admires the mayor in Jaws who kept the beaches open even if that meant a few children were eaten by the shark. And you're arguing that the reason he's suppressing all the evidence that there's a shark must be because the evidence is flimsy.
And you're arguing that the reason he's suppressing all the evidence that there's a shark must be because the evidence is flimsy.
I'd hope we could all agree that suppressing evidence is a bad thing regardless of motive.
Sometimes the only evidence available is flimsy. But pretending that it isn't in order to present oneself as "only following the science" when one bears a lot more responsibility than that is dishonest.
I'm just wondering what would happen if the government said loud and clear stuff like:
"Wearing a mask will do practically nothing to protect you, but if you have the disease it will reduce the extent to which you infect others".
Or
"This test doesn't distinguish between those who have the disease (who should self-isolate) and those who have recently had the disease (and are therefore immune and need to take no precautions at all)."
In other words, do you think that a better outcome can be achieved by dishonesty ?
It does seem to me that governance in the US is locked into a capitalist, libertarian model due to a document written by some people who have been dead for a very long time.
It is locked that way because of the appointment of justices to SCOTUS requiring the consent not just of the senate but of the majority leader in the senate. The senate leans Republican so most justices now lean (far) right. There are plenty of ways of interpreting the US constitution that aren't as wing-nutty as the current ones. <snip>.
No doubt there are. But that ignores the common law method, which holds that the law is constructed case-by-case, creating a sort of legal version of Holy Tradition.
In a Westminster system, this doesn't matter so much because Parliament can simply pass statute law that overrides all the old cases and whatever doctrines and rules they establish. There are plenty of examples of this. It's a bigger problem where there is overriding legislation (ie, a written constitution) for judges to play with, because if the constitution has been interpreted one way, the legislature can't make it say another. In one of Sumption's lectures he sets out how the right of freedom of association, ie, freedom of contract, has been developed by a line of case law going back well over a hundred years. It is by no means a recent thing, and has nothing to do with the Republicans' recent success in getting their appointees onto the US Supreme Court.
Reliance on the common law method will depoliticise judges to an extent. You can't decide one way when the decided cases clearly point another. But it does mean that a certain way of thinking permeates the US constitution.
Several of the current justices on SCOTUS are on record as wanting to overturn certain precedents. Even in common law over time legal opinion can evolve. In English law the responsibility of schools in keeping children safe makes an interesting study, even absent changes in statute.
It's a bigger problem where there is overriding legislation (ie, a written constitution) for judges to play with, because if the constitution has been interpreted one way, the legislature can't make it say another.
This is technically true. However I have a number of counterobservations.
Firstly, that I'm not sure I really want politicians to be able to reinterpret the constitution when the current interpretation doesn't suit them. Admittedly, I'm working from a system where the judges aren't politicised... but I don't think moving from somewhat politicised judges (as per the USA) as interpreters of the constitution to actual politicians as the interpreters would represent any kind of improvement.
Secondly, judges themselves are perfectly capable of reinterpreting the constitution, whether for better for worse. A few generations ago the idea that the US 2nd amendment gave individuals the right to carry guns was regarded as a nutty idea. Unfortunately, people who wanted to make it a mainstream idea worked very, very hard to achieve that turnaround. The question is where is the push going to come to go back to the original position?
And thirdly... not having a written constitution can bring its own kind of problems. The UK does sometimes pat itself on the back for having a nice flexible constitution instead of a rigid one, but there are times when the UK descends into a spot of constitutional crisis because the people playing the game don't actually know what the rules are. And Australia's biggest political mess in 1975 was partly caused because certain things were governed by convention rather than written rules.
... And thirdly... not having a written constitution can bring its own kind of problems. The UK does sometimes pat itself on the back for having a nice flexible constitution instead of a rigid one, but there are times when the UK descends into a spot of constitutional crisis because the people playing the game don't actually know what the rules are. And Australia's biggest political mess in 1975 was partly caused because certain things were governed by convention rather than written rules.
It has almost invariably been fairer to say that crises arise where people who know perfectly well what the rules are don't play by them and think not having a written constitution means they can get away with it.
Unfortunately, sometimes they do.
One of the weaknesses of a fully written constitution is that people can too often get away with using the letter of it, so as to get away with doing what it was designed to prevent.
Another is that putting one's faith in the letter of a constitution as a sacred text means that if it has nothing to say about how to deal with something its writers had never thought of, there's nothing to draw on.
Several of the current justices on SCOTUS are on record as wanting to overturn certain precedents. Even in common law over time legal opinion can evolve. In English law the responsibility of schools in keeping children safe makes an interesting study, even absent changes in statute.
Apologies for not coming back to this until now. I haven't had time to come on here in the last few weeks.
I agree. But the issue is time.
If you're referring to Roe v Wade, it proves my point. Common law can evolve through cases, but it's very, very slow. If there is case authority you don't like, you have to wait for appropriate cases and chip away at it and wait for case analysis on the relevant topics to develop enough for a full-frontal assault. Roe v Wade was decided nearly half a century ago.
I'm not American but I believe it's entirely wrong to suggest that a conservative majority (whatever that means in terms of American jurisprudence) on the Supreme Court means that Roe v Wade will be gone tomorrow. It isn't in the common law method to pretend that all those other cases simply don't matter. And I suspect there are other problems too if freedom of contract is a constitutional right to the extent that legislatures don't have an untrammelled right to permit trade unions to organise and to break up monopolies.
I'm not American but I believe it's entirely wrong to suggest that a conservative majority (whatever that means in terms of American jurisprudence) on the Supreme Court means that Roe v Wade will be gone tomorrow.
Not tomorrow, no, but several red state legislatures have been passing laws specifically designed to test and push back the limits of Roe v Wade. I agree that conservatism doesn't automatically mean the justices would support such moves, but recent appointments have gone beyond mere conservatism to picking from a list of candidates approved by the far-right Federalist Society.
Comments
However, inevitably this thread has widened from the civil liberties and constitutional case, to what is practical now. I think largely the discussion has run its course. Still, a regional approach is, to my mind, better than a centralised one, especially if the decisions were properly decentralised, so that e.g. Andy Burnham would have had the decision making power over lockdown in Manchester.
It's still not good, but face it, civil liberty is not that important to most people in England when they're frightened.
What secrecy, exactly?
The problem is not lack of information. The problem is that accurate information about the virus, how it spreads, the best (quite simple) strategies to reduce the spread of it, are competing on the internet with a whole lot of rampant misinformation about how it's a plot, how fake news is exaggerating the threat, how consuming bleach will cure you and so forth.
Okay? The information IS PUBLIC. I don't have some secret stash of data about lockdowns. I have the same access to information to anyone else about why health authorities provide advice that we needed to stop people moving around.
I saw diagrams and animations in February and March explaining the basic concepts of social distancing before any government orders to social distance. This is stuff that epidemiologists and other relevant scientific disciplines have understood for years. The prospect of one day humans encountering an infection that hits that sweet spot of being readily transmissible and sufficiently deadly to be a problem has been exercising the minds of those people for years.
Governments don't generally have access to wildly different information about this stuff than you do. My point was simply that in an institutional sense they are more likely to be able to pick up the phone and talk directly to the experts rather than rely on a one-way publication of information.
But the notion that you would accept lockdowns if only you were privy to this secret information? I call bullshit. All the information you need to basically understand how viruses spread and how lockdowns reduce the spread has been available for 8-9 months. The problem isn't that the information isn't available to you, the problem is that you don't want information that is contrary to your mindset.
I don't believe in the value of lockdowns because I trust my government, I believe in the value of lockdowns because scientists were discussing lockdowns long before the government imposed one (and CERTAINLY before the UK government listened to scientists and said whoops, this herd immunity thing isn't going to fly).
I've recently discovered that New Scientist happened to start a weekly podcast early this year. You might find the first couple of months of episodes instructive. Oh, here's what's happening in China. Here's what's starting to happen in Europe.... and lockdown.
Flattening the curve, social distancing, wash your fucking hands... these are NOT ideas dreamed up by government behind closed doors with secret information. These are ideas scientists were publicly talking about. The reason we end up with government actually deciding to use mandatory measures to force at least some of these things to happen is simply because there are far, far too many people who don't, out of ignorance or sheer ideology, want to accept that action was required and wouldn't change their behaviour on their own.
Freedom of information? The information is free. The question is whether it's going to penetrate skulls or not.
Sumption makes precisely the same point as you in his Reith Lectures (I have to say that I enjoyed them so much that I listened to them all over again during lockdown earlier this year). IIRC, he had much to say about right of free association in the US constitution. This, he says, has been interpreted to include freedom to contract, resulting in the striking down of laws protecting labour, unions, restricted working hours and so forth.
Sumption is hostile to this. He says that it has resulted in judge-made law, as opposed to law made by legislation, via which the public would have had some buy-in. For the same reason he is not keen on the growth of laws made by the ECHR. His basic point is that laws made on the basis of a system of values developed purely by judges intrudes on what should be the role of politics.
This is all entirely consistent with his dislike of Johnson ruling by diktat: it bypasses the political process just as surely as any judge.
In doing this he also defends the UK's unwritten constitution. It's become very fashionable to deride it as archaic, but his defence of it is to my mind very convincing: simply put it's more democratic than the alternatives. It does seem to me that governance in the US is locked into a capitalist, libertarian model due to a document written by some people who have been dead for a very long time.
And the evidence that masks prevent transmission of viruses ?
The evidence that sitting socially-distanced in a church is a higher-risk activity than the same level of distancing in other settings ?
Seems to me that the models used by epidemiologists show that lockdowns work. And that a complete lockdown plus border controls eliminates the virus... All such models are simplified approximations to reality.
It’s not. But total number of interactions is also a factor, and it’s easier to just ban non-essential activities than to try to get everyone to stick to a maximum number of daily interactions with other people.
It is locked that way because of the appointment of justices to SCOTUS requiring the consent not just of the senate but of the majority leader in the senate. The senate leans Republican so most justices now lean (far) right. There are plenty of ways of interpreting the US constitution that aren't as wing-nutty as the current ones. For example, even taking the 2nd amendment textually allows for the "well-regulated militia" clause to be emphasised as a necessary part of the right to keep and bear arms. That would allow (deep breath) registration of guns and owners, regulation of all sales, storage requirements, ammunition control, handgun bans, compulsory safety courses, de-escalation and marksmanship training, and regular militia call-ups and drill.
If we're just talking about the broad outline of the concept of lockdown, I agree. The problem is that the UK government has at various times made a lot of highly specific rules for no publicly available reason. When they partially reopened schools in June, the Opposition had to fight to get the relevant SAGE reports released, and when they were released, they didn't really answer the question. There was a period when pubs were open, but had to close at 10pm, again without any reason. We've just had non-essential shops closed down again - even though the leaked SAGE report that recommended a second lockdown weeks ago also said that non-essential shops make negligible difference to the R rate.
As I said upthread, just because I don't support the anti-lockdown arguments in general doesn't mean that the constitutional questions of due process aren't valid. Ultimately, the government has abrogated to itself a lot of emergency powers and then used them to make crap decisions. The question, for me, is whether there is a better way of organising emergency powers so that the quality of decisions is better.
The country’s success in managing the pandemic stands in stark contrast to its western allies. When Victoria recorded 723 new cases on 29 July, the figure was roughly in line with the UK’s 763 and France’s 1,392. Since then, Australia has gone in the opposite direction.
In the UK a record 33,470 were infected with the virus on Thursday and 563 died as the country endures another gruelling lockdown.
Victoria is now at its 16th day of zero cases, and community transmission is almost completely eliminated nationwide.
Our national and state governments abandoned ideology and listened to the scientists, and economists, who advised strict social controls and strong support funding. Another article this weekend pointed out that our epidemiologists have been preparing for this eventuality for years, and our proximity to China and volume of interaction between our two countries ensured that we needed to be early adopters.
One infected crew member in a cruise ship kitchen, and one infected security guard from hotel quarantine have been the likely sources of our worst outbreaks. In the first case, speedy contact tracing mitigated impact, while the second exposed deficiencies in contact tracing prompting massive restructuring.
We have forfeited some freedom of movement and suffered other restrictions. Our state has just imposed QR code check-in for most venues, which link to contact-tracing when required. I'd argue that our situation justifies the actions our governments have taken.
All I ask is that you read this latest editorial in the British Medical Journal. I can't expect true believers to listen to me, as I have no status as an expert. Anyhow I don't hide my own bias.
But you might listen to the BMJ. I won't extract but the title is: When good science is suppressed by the medical-political complex, people die.
And just like that, we have an outbreak after seven months of no community transmission, evidently linked to a medi-hotel for quarantined return travellers, in South Australia. Already other states are implementing quarantine measures for interstate travellers, and widespread community testing and contact tracing is underway.
Came in later. I'm actually on record as reporting that there were doubts on this, but further studies as the pandemic developed have supported it. You can go listen to 3 separate episodes of the Science Vs podcast on this as a convenient stopping point. Science. Not government or politics.
Define those other settings. 1. If it's outside rather than inside, yes it's lower risk than sitting in church. 2. If it doesn't involve singing, yes it's lower risk that singing in church. 3. If it's for a shorter period of time than a church service, yes it's lower risk than sitting in church. 4. If it's with a smaller number of people, yes it's lower risk than church. 5. If it's with a closed group of people who haven't been here there and everywhere in the past week, yes it's lower risk than church.
None of this is rocket science. It's just science. Some of it is just fucking common sense.
Yes. What's your point?
Your complete failure to engage with what I said is instructive. My whole point was to talk about trust in science, not in governments, and you've pretty much ignored that. Ricardus' response was far more meaningful.
And the reason you won't extract that BMJ article is because it doesn't really support you. It certainly doesn't support a notion that lockdowns and gathering restrictions are some evil government idea that scientists never advocated before. Again: go and listen to episodes of the New Scientist podcast from early this year for a time capsule.
Yes, valid points.
Schools has been an issue here too - mostly because when schools weren't closed earlier in the year, frightened people didn't accept that there was modelling that showed that not having children in schools could actually mean more children got sick (being in the community) and fewer adults, and it all balanced out. But any modelling of course has to be based on the current situation/current prevalence and that might change all the time. And yes, I think it's probably better that the models and reports be public.
Similarly, there was an issue when Melbourne had a curfew (similarly to closing pubs at a set time), because I'm fairly sure it emerged that there was no health/medical advice that provided a basis for it. As I understand it the decision was more one based on management, in that it's easier to ping people for being out when no-one is supposed to be out rather than having to assess each person's merits for being out.
And yes I can see that questions of due process are important. Process matters just as much as result. I find that much trickier in the UK because you don't have a written constitution. The boundaries are a lot wobblier. When we're talking about regulations, though, I don't know if it's strictly a constitutional question, more a statutory interpretation one - does an Act authorise making these regulations.
It's far better for a government to go to Parliament to get the necessary power if there's a concern about being able to do things quickly. Regulations are undoubtedly quicker than having to go back to Parliament each time the situation changes, but you do need to get the regulation-making power sorted out first. There's been some disquiet here about the scope of regulation/instrument-making power, but that's on a background (at least for the national/federal laws) where Parliament did clearly supply a lot of wide-ranging powers, including passing new ones in March because no-one really knew when Parliament would even be able to safely meet again. I believe some of those new powers explicitly end on December 31st, meaning that Parliament will have to decide whether to extend them.
If the regulation-making power is not clear, then really a government is just gambling on no-one having the will or resources to go to court to mount a challenge.
Here in Australia, the prior approval/delayed effect approach is pretty uncommon. The standard rules are that a regulation or other delegated legislation can, if the government chooses, come into effect straight away, and Parliament has a certain amount of sitting days afterwards during which it can disallow it - but with no impact on the way the regulation operated in the meantime.
And we sometimes have things that Parliament cannot disallow (though Parliament could always pass an Act that effectively overrules it, but that takes the whole Parliament as opposed to disallowance only needing one House).
A lot of the instruments under the Biosecurity Act are not disallowable, instead there are criteria for making them in the first place.
But yes, I'm not sure whether in the UK it's more common to say that a regulation can't just go ahead and start. Because here, just going ahead and starting is standard procedure.
Second, I never imagined that the editor of BMJ would share my sceptical views, and I don't think any of what I have written suggests that. The point of referring to the article was that it pointed out the extent to which science and politics get intertwined when national policies are being decided, so that it is not the case that there is pure science uncorrupted by politics. I think he is right to talk about the medical-political establishment, and like him, I would prefer it if major decision makers did not have strong financial connections to Big Pharma. But he also highlights the difficulty with which information has to be dragged out, as in the membership of SAGE (only revealed after a leak).
Can I now respond in detail to your points:
Everything about SAGE had to be dragged out. The Spectator has published leaked documents about the worst case scenario driving policy. Why doesn't the Government favour openness since stuff leaks out when they try and keep it secret. Despite requests, no details of the models used to guide policy have been made available.
Well sometimes it is. Take the case of the PCR test and one of its chief parameters: the cycle threshold (CT). There is widespread opinion, I would say it is mainstream, that as the CT increases, the probability decreases of actual infectiousness. A commonly quoted range is CT 30-35 as being safe to confirm infectiousness. The BMJ states: the lower the CT value, the more virus there was in the original sample, and the more likely it is thought to be that the case was actually infectious, rather than still carrying leftover RNA, which is not clinically significant. In view of this, the UK guidance on the limit of cycles would be extremely helpful to know. SFAIK no such recommendation exists, although you may have information on this. The BMJ article adds: Sadly, not all forms of PCR testing provide a measurable cycle threshold; and the privatised labs used for “pillar 2” testing in England cannot or will not routinely share CT values.
That's true and it a pity. But it's no different from the fact that peaceful protests attract undesirable supporters. But it's not really relevant.
Something does not become true just because you say it is. Yes, selected data is public, and other data is not. And a lot that is public had to be dragged out. Are you actually saying, for example, that the full set of assumptions behind the models used by the Government are public? Please send me the link.
Agreed.
I just don't think things work like this. I'm not denying that the Government has more access than I have. Obviously.
I'm not denying that I have a mindset that is opposed to lockdown.
But I just don't think that what you say is true. Most of the UK Gov policy is based on models that have not even being subject to peer review let alone been made public. It is my private belief that if full information was made public to enable experts in the relevant fields to critique the famous Imperial College model, it's reputation would be in tatters. The fact that this has not happened is because the information is kept hidden.
Well the scientists were quite favourable to herd immunity at the start. From what I know there was hardly any discussion of lockdown before the famous Report 9. Can you reference the discussions? As to your statement that this was being discussed "long before" the pandemic, a lot of reference has been made to the WHO document "Non-pharmaceutical public health measures for mitigating the risk and impact of epidemic and pandemic influenza guidance" which presumable is the sort of thing you mean and was published in Oct 2019.
As regards quarantining of exposed individuals: Home quarantine of exposed individuals to reduce transmission is not recommended because there is no obvious rationale for this measure, and there would be considerable difficulties in implementing it.
Quarantining of people with no exposure is not even considered, presumably because it was not thought worth discussing. So whether this is right or wrong, it does not support the idea you have that "the science" has always been in support of lockdowns.
Fine.
Except that was never really tried.
So I guess we disagree.
The reason the government is trying to hide the SAGE advice is because the government like you wants the advice to be wrong.
Johnson famously admires the mayor in Jaws who kept the beaches open even if that meant a few children were eaten by the shark. And you're arguing that the reason he's suppressing all the evidence that there's a shark must be because the evidence is flimsy.
I'd hope we could all agree that suppressing evidence is a bad thing regardless of motive.
Sometimes the only evidence available is flimsy. But pretending that it isn't in order to present oneself as "only following the science" when one bears a lot more responsibility than that is dishonest.
I'm just wondering what would happen if the government said loud and clear stuff like:
"Wearing a mask will do practically nothing to protect you, but if you have the disease it will reduce the extent to which you infect others".
Or
"This test doesn't distinguish between those who have the disease (who should self-isolate) and those who have recently had the disease (and are therefore immune and need to take no precautions at all)."
In other words, do you think that a better outcome can be achieved by dishonesty ?
No doubt there are. But that ignores the common law method, which holds that the law is constructed case-by-case, creating a sort of legal version of Holy Tradition.
In a Westminster system, this doesn't matter so much because Parliament can simply pass statute law that overrides all the old cases and whatever doctrines and rules they establish. There are plenty of examples of this. It's a bigger problem where there is overriding legislation (ie, a written constitution) for judges to play with, because if the constitution has been interpreted one way, the legislature can't make it say another. In one of Sumption's lectures he sets out how the right of freedom of association, ie, freedom of contract, has been developed by a line of case law going back well over a hundred years. It is by no means a recent thing, and has nothing to do with the Republicans' recent success in getting their appointees onto the US Supreme Court.
Reliance on the common law method will depoliticise judges to an extent. You can't decide one way when the decided cases clearly point another. But it does mean that a certain way of thinking permeates the US constitution.
This is technically true. However I have a number of counterobservations.
Firstly, that I'm not sure I really want politicians to be able to reinterpret the constitution when the current interpretation doesn't suit them. Admittedly, I'm working from a system where the judges aren't politicised... but I don't think moving from somewhat politicised judges (as per the USA) as interpreters of the constitution to actual politicians as the interpreters would represent any kind of improvement.
Secondly, judges themselves are perfectly capable of reinterpreting the constitution, whether for better for worse. A few generations ago the idea that the US 2nd amendment gave individuals the right to carry guns was regarded as a nutty idea. Unfortunately, people who wanted to make it a mainstream idea worked very, very hard to achieve that turnaround. The question is where is the push going to come to go back to the original position?
And thirdly... not having a written constitution can bring its own kind of problems. The UK does sometimes pat itself on the back for having a nice flexible constitution instead of a rigid one, but there are times when the UK descends into a spot of constitutional crisis because the people playing the game don't actually know what the rules are. And Australia's biggest political mess in 1975 was partly caused because certain things were governed by convention rather than written rules.
Unfortunately, sometimes they do.
One of the weaknesses of a fully written constitution is that people can too often get away with using the letter of it, so as to get away with doing what it was designed to prevent.
Another is that putting one's faith in the letter of a constitution as a sacred text means that if it has nothing to say about how to deal with something its writers had never thought of, there's nothing to draw on.
Apologies for not coming back to this until now. I haven't had time to come on here in the last few weeks.
I agree. But the issue is time.
If you're referring to Roe v Wade, it proves my point. Common law can evolve through cases, but it's very, very slow. If there is case authority you don't like, you have to wait for appropriate cases and chip away at it and wait for case analysis on the relevant topics to develop enough for a full-frontal assault. Roe v Wade was decided nearly half a century ago.
I'm not American but I believe it's entirely wrong to suggest that a conservative majority (whatever that means in terms of American jurisprudence) on the Supreme Court means that Roe v Wade will be gone tomorrow. It isn't in the common law method to pretend that all those other cases simply don't matter. And I suspect there are other problems too if freedom of contract is a constitutional right to the extent that legislatures don't have an untrammelled right to permit trade unions to organise and to break up monopolies.
Not tomorrow, no, but several red state legislatures have been passing laws specifically designed to test and push back the limits of Roe v Wade. I agree that conservatism doesn't automatically mean the justices would support such moves, but recent appointments have gone beyond mere conservatism to picking from a list of candidates approved by the far-right Federalist Society.