I don’t think we’re living in Orwellian times.
In 1984, the future is “a boot stamping on a human face – forever”. Say what you like about the regime, but its objectives were quite straightforward. You never imagine it ended up that way because Big Brother got himself into a bit of a muddle.
Boris Johnson got into a muddle when he was asked about coronavirus restrictions in the North East. He got into a muddle when he was asked about Coronavirus restrictions in Oldham. He will probably get into a muddle when he is asked about the next set of regional restrictions too.
And he was just being asked about the big, headline rules. If you want to advance to the later rounds of the new national quiz – Who Wants to Avoid a £10,000 Fine? – you really need to know about the exceptions to the rules.
These exceptions, by definition, do not apply to most people. Imposed across the population of England, though, they do apply to a lot of people.
For example, say you’ve just come back from France to find a friend has died. Can you go to their funeral? Most people haven’t faced that question, but many will have done so (perhaps thousands if you include the other countries people might have returned from or considered returning from).
If you’ve been following the news you will conclude that the answer is, no, you need to self-isolate for 14 days. With more assiduity, you might do as the Business Secretary, Alok Sharma, suggested on the Today programme last week and check the online government guidance. It says you can leave the house for “compassionate grounds” such as the “funeral of a family member of someone you live with”. No clear exceptions for dead friends.
But suppose you’re a busybody lawyer. Or suppose your best friend is dead so it is quite important to you. What does the law actually say?
The law says it depends on who else is going. So far as I can work out, you are permitted to go, so long as none of the other attendees is someone you live with or a close member of your family. You and 29 friends of the deceased in attendance: fine. You, your flat-mate and 28 friends of the deceased in attendance: a crime. You and your sister in attendance: a crime.
Perhaps that makes sense to somebody, but I think it’s just a drafting error. Parliament isn’t scrutinising these things before they are passed into law. It might not matter. It seems possible that no one has taken a decision – whether to go to a funeral or to fine a funeral-goer – based on what this law actually says.
Next, say you are a mother living with your 18-year-old son in Newcastle, where indoor household mixing is banned. Your boyfriend and your son’s father both live by themselves, alone, nearby. Can you visit them?
The answer is that you can visit one or the other, but not both. And you have to agree with your son who you are going to visit.
Despite the ban on household mixing in Newcastle, a single-person household (your boyfriend or your son’s father) can form a “linked household” with another household, permitting them to visit each other’s houses. For this to happen, every adult member of your household must agree. You will therefore need your son’s permission to visit your boyfriend and the effect of that will be that he cannot visit his father. (Assuming that, on your son turning 18, the exception based on access arrangements with his father fell away).
Oh, and agreement is revocable. If your son withdraws his agreement, visiting your boyfriend will become a crime. Just hope it doesn’t happen while you’re over there.
What if you split up with your boyfriend? Can your son visit his father then? Still no. If you have formed a linked household once, you can’t do so again. No exceptions this time. The regulations expire in six months anyway, so just sit it out.
In case you were wondering, your own household (mother and son) could also become linked with a multi-person household (say, your sister and her husband) depending on when your son turned 18. If your son turned 18 after 12 June 2020, you are a single-person household in the eyes of the law, but not if he turned 18 before that. And if that seems a bit arbitrary – well, you have to draw the line somewhere.
Except, of course, you don’t.
Government should be by consent, not conscription
People’s lives should not be subject to such arbitrary distinctions. The law forces such distinctions to be drawn and so it is the wrong tool. If the Government wants us to fundamentally reorder our lives, that must happen by consent, not by conscription.
To be a bit more forgiving – there is a pandemic on after all – the regulations do represent a kind of sweet diligence. When it created the “rule of six” regulations on 14 September, the Government (unsuccessfully) went about trying to create exceptions for every socially or economically important event in people’s lives.
You could gather in groups of more than six in order to, among other things, “mark or celebrate a significant milestone in a person’s life, according to their religion or belief, such as events to celebrate a rite of passage or entry into a particular faith (other than a birthday) or coming of age”. If “religion or belief” sounded a bit heavy, don’t worry, because belief was legally defined to include a “lack of belief”.
Thus, through some mix of administrative imagination and legal draftsmanship, your daughter’s humanist Bat Mitzvah was saved! Until the exception was revoked on September 28.
Underlying the impossible-to-follow regulations is a sense of the sheer pointlessness of it all. This is a Government whose chief political insight is that in order to move the minds of millions you must repeat three words, over and over, without deviation. What is the point of trying to adjust the transmission of the virus as finely as you would adjust the transmission of the radio? Businesses – in contact with industry groups and used to dealing with red tape – might be able to get their heads around some of this. Not people going about their everyday lives.
What to make of the fact that, if you are self-isolating after returning from holiday, you can leave home for “exceptional circumstances” (which are not exhaustively defined), but, if you are self-isolating after being contacted by NHS Test and Trace, you can only leave home when “necessary” (which is exhaustively defined)? And, if you are self-isolating because you have been told to do so by the NHS App, there is no legal requirement to self-isolate)?
There is a kind of logic behind these distinctions (the second situation is riskier than the first and the Government wants people to download the App). But it is fundamentally illogical – almost crazy – to expect those distinctions to influence human behaviour in any meaningful way.
Which leads to a final, crucial point: virtually no one knows about these exceptions. That people are following these laws is the least likely scenario. Either people will follow their understanding of government announcements, which suggest the law is stricter than it is, or they will follow their own judgement, occasionally being exculpated by exceptions they didn’t know existed. The details of the law don’t matter. It’s just a threat.
In this light, working your way through the exceptions just becomes sad. The Government didn’t create the exceptions because they thought these situations would never come up; they created them because they thought these situations would come up. The exceptions are a list of activities that the Government thought it would be disproportionate to ban, but which many people think are banned anyway. They are an inscription to the loneliness, confusion and misery of the times.
Faced with these laws, it is for a retired Supreme Court judge like Jonathan Sumption to say that people should just do as they think best. I will confine myself to saying that people should not have to live their lives threatened by incomprehensible, ever-changing rules. Over time, it matters less and less whether we ended up this way by muddle or malice. Used like this, the law is a thug.
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