24 May 2020

Before condemning Cummings, we should all take a look in the mirror

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I’ve written previously for CapX on the problem of elites who behave as though they’re not subject to the law in the same way as people unlike them. With that as background, some thoughts on the Dominic Cummings lockdown scandal du jour.

The lockdown rules in England permit travelling to one’s “childcare provider” as essential travel. Cummings’s parents don’t appear to fall within the most vulnerable group (they are not shielding) so there’s no reason they can’t act as childcare providers.

The motivations were entirely reasonable: two concerned parents were troubled by the possibility that they may become too ill to care properly for their children. And so to prevent a case of child neglect, they had their children looked after by grandparents whilst isolating nearby.

That said, they were a four-and-a-half hour drive away. The legislation anticipates journeys of that length will only be undertaken where there are no alternatives. Commercial childcare providers are of course closed. Most people, given the choice, prefer young children to be looked after by biological relatives. 

His wife, Mary Wakefield, had Covid-19 symptoms and should have been isolating. Cummings did not have symptoms at the time, but members of the household are also expected to isolate. They drove to Durham in a private car, without stopping, occupied a separate outbuilding on his parents’ farm with no face-to-face contact (food was left on their doorstep). But the current guidelines do (probably unreasonably) require isolating individuals to remain in their current household. Even wholly self-contained transfers aren’t allowed.

Moreover, the whole point of the trip was to transfer the boy from their household to Cummings’ parents’ household. He is young and there is growing evidence that young children are very unlikely to transmit the virus. Cummings would have known this. But moving even young children out of an isolating household is not permitted under the rules as they stand.

At time of writing, there is also unconfirmed speculation about a second trip to Durham. We are still in the fog of news, but if true, this makes the parallels with Professor Neil Ferguson and Dr Catherine Calderwood closer. 

It’s fair to say that Cummings and Wakefield have stepped into the grey zone. It’s difficult not to condemn them after everyone condemned Calderwood and Ferguson (although in both those cases the sins were more grievous and their stated motivations less defensible). There is almost certainly an element here, as there was with Calderwood and Ferguson, of Cummings and Wakefield thinking they were clever enough to take a more discretionary approach to the rules than the rest of the public. That is unacceptable.

Thousands of parents across the country have had to shut up, put up, and obey when they shared the same concerns as Cummings. There are families where parents have died and extended family prevented from intervening. We cannot have a situation where powerful people are exempt and normal people are harassed and fined by the police.

As far as the transmission of the virus is concerned, however, it’s hard to make the case that Cummings and Wakefield have put either the public or any specific individuals at risk. The exception is Cummings’s parents, who took over care of a child from an isolating household with known Covid-19 symptoms. But they accepted the risk in advance (even suggesting it in the first place). I’d be curious to know if they underwent a 14-day isolation from the day they took custody of the boy; they should have.

There is also something to be said about the rules themselves and the nature of the “total” – or all-encompassing –  regulatory state that has been introduced in the UK since March. This is thrown into relief by DCMO Dr Jenny Harries’ comments on the 23rd and 24th of March. She pointed out in no uncertain terms that “family” should come before “friends”.

“Clearly,” she said, “if you have adults who are unable to look after a small child, that is an exceptional circumstance. And if the individuals do not have access to care support — formal care support — or to family, they will be able to work through their local authority hubs.”

If the DCMO meant to suggest that an isolating household with Covid-19 symptoms could travel to leave children with family then it seems sensible to bow to her interpretation of the rules. The problem, of course, is that while her comments are sound, they do not form part of the coronavirus legislation as enacted (after very imperfect parliamentary scrutiny). Whether the rules themselves are reasonable or workable is another question. Properly, it is the courts’ role to resolve this kind of dispute.

It is well known among lawyers that, the more comprehensive the legislature tries to make rules, the more ambiguities are introduced; the harder it becomes to identify like cases, and the more remote each rule becomes from its original purpose (in this case to reduce transmission of the virus). One only has to look on the enormity of the UK’s tax legislation and despair to see what happens when this process occurs over many decades. 

We are in dangerous territory for the rule of law.

Relatedly, everyone in these Islands needs to own up to the “Shy Covidiots” problem. The lockdown enjoys huge popular support, according to polls, but those same polls also tell us a third of people who back the lockdown are routinely breaking the rules. And that’s just the ones willing to make an admission to pollsters. The real figure is undoubtedly much higher.

It’s “Shy Tories” all over again or, in other words, while hanging Cummings, Ferguson, and Calderwood, we would do well to invest in a national mirror.

[PS: At the time of writing, I was unaware that Dominic Cummings’ son is autistic, and it appears the care in question was provided by his sister, not his parents. As for Led by Donkeys, the media scrum on the footpath outside his house, and angry neighbours, the less said, the better.]

[PPS: Cummings has now conducted an extensive presser on this matter; the broader legal analysis in this piece, especially about the ‘regulatory state’, remains salient.]

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Helen Dale read Law at Oxford and won the Miles Franklin Award for her first novel, The Hand that Signed the Paper. Her latest novel is Kingdom of the Wicked; it was shortlisted for the Prometheus Prize for science fiction.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.