Inside the COVID-19 State: Protecting Public Health Through Law Enforcement

Covid19 is a public health threat yet it is treated as a law enforcement priority. This blogpost criticises this approach and rethinks public safety beyond policing.

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Dr. Lambros Fatsis is Lecturer in Criminology at the University of Brighton and the winner of the British Society of Criminology’s ‘Blogger of the Year Award 2018’.

 

 

 

After three weeks in a state of isolation following the Coronavirus (Covid-19) outbreak, we could be excused for mistaking ourselves for the virus we stay away from. The UK government’s  slogan: ‘Stay at home, protect the NHS, save lives’ has become the mantra we live our lives by, while also setting the tone for a new social contract through which we come together socially by staying apart physically. Accompanying such governmental instructions, new public health regulations were also introduced to ensure compliance through law enforcement. Such emergency measures would be sensible, defensible and desirable even, if being quarantined and policed were to merely supplement rather than nearly substitute the provision of adequate healthcare. Yet, law enforcement has taken precedence over an adequate public health response forcing the government to apologise ‘if people feel there have been failings’.

This is an opportune moment to reflect on why the government chose policing against the public over protecting people from the virus by adopting a law enforcement approach to a public health emergency. The remainder of this blog post will grapple with that question by critically assessing the new “Coronavirus regulations”, and arguing against criminological analyses that disguise the medical nature of the Covid-19 pandemic as a criminal justice matter.

Policing the public as a virus

In the wake of the Covid-19 crisis, the UK government set up a coronavirus action plan to limit the spread of this infectious disease through emergency legislation which created new offences and widened police powers.  These new regulations came in the form of a Coronavirus Bill which passed through Parliament on March 25, 2020 accompanied by a statutory instrument which gave legal force to the new social distancing rules. These rules prohibit people from ‘leav[ing] the place where they are living without reasonable excuse’, during the lockdown, and empower the police to ‘direct’ or ‘remove’  individuals ‘to the place where they are living’ allowing the use of ‘reasonable force, if necessary’. Breaching the prohibition amounts to ‘commit[ting] an offence’ which is ‘punishable on summary conviction by a fine’. Put simply, failure to comply with these instructions means breaking the law and, therefore, committing a criminal offence.

As these laws became daily practice allowing the police to impose fines, disperse gatherings and remove people to their homes, police forces around the country have also issued court summonses, resorted to online shaming, deployed vehicle checkpoints and used aerial drones and roadblocks to enforce the lockdown, targeting ‘bored’ drivers, dog walkers, people sitting on park benches and even shops selling Easter eggs. Such stories may be dismissed as unfortunate, and perhaps inevitable, mishaps, or isolated cases that are harmless if not altogether amusing. Yet other incidents, such as the violent arrest of a man who was moving a tree for his mother, alert us to the danger of extending police powers without due regard for the consequences: especially when their vague nature, broad scope and worrying dependence on discretion render them illiberal, discriminatory and illegitimate too.

Policing as the virus

None of the above is meant as a suggestion that emergency laws should not be observed. However, it must also be stressed that conformity depends on democratic legitimacy, not repressive authority. As they currently stand the new police powers are arbitrary in their design and unrestrained in their force, raising questions about who is more likely to be targeted under such legislation, on what grounds and based on whose interpretation of such laws. For example, whatever may count as ‘reasonable excuse’ or ‘reasonable force’, in The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, largely relies on police officers’ individual judgement, despite additional guidelines that change nothing in the actual legislation. Since there is no explicit prohibition on leaving one’s home only once a day, no time limit by which one has to return home, and no requirement that one may leave one’s home only for exceptional reasons, enforcing such vague regulations ultimately results to their arbitrary application by officers who are given wider powers of discretion to decide what restrictions are breached and what charges are to be made. This is made worse by the realisation that these regulations convert almost all “normal” social behaviour into anti-social behaviour, thereby turning fundamental rights and civil liberties such as freedom of movement and assembly into criminal offences.

Some might dismiss such concerns as little more than liberal hand-wringing, yet policing requires ‘the common consent of the public, as opposed to the power of the state’. This means that without public support, policing becomes a fraudulent imitation of its legally-defined remit, and the law morphs into a counterfeit image of itself. In the light of the two-year time span of the Coronavirus Bill and the lack of parliamentary scrutiny or approval of the Coronavirus regulations, references to a “police state” may sound flippant, but they are not unfounded. Such warnings may cultivate alarmism, but they also nurture attentiveness to what happens when citizens’ activities are supervised by diktats from government instead of democratic consent.

Protecting the public from the virus

As critics and supporters of policing as a tool for managing public health emergencies clash, the question of whether policing has any role to play in the Covid-19 crisis asserts itself and demands credible answers. Although the government introduced the Coronavirus Bill ‘for the purposes of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination’,  it is not clear why the onlyrelevant persons’ for enforcing these regulations must be ‘constables, police community support officers (PCSOs)’ or ‘those designated by local authorities and by the Secretary of State’. Given that Covid-19 is a public health threat, it might be sensible to suggest that it requires a medical rather than a criminal justice response.

Accustomed though we have become to consider ourselves a public health risk, as potential hosts cells in which Coronavirus multiplies, it does not follow that the only, the best, or most urgent response has to be the policing of our movement or the restriction of our civil liberties. At least not without testing on a mass scale, and ensuring that the NHS is adequately equipped with enough Protective Personal Equipment (PPE), ventilators, healthcare staff and hospital beds. The decision to prioritise policing over healthcare, therefore, is based more on politics and expedient crisis management than on the prevention, detection, containment, and eradication of Covid-19. As public health experts, Prof. David McCoy among them, note: a ‘greatly expanded testing regime combined with aggressive case detection and contact tracing, coupled with continued physical distancing and improved hygiene’ would have helped us ‘avoid the harms of draconian, population-wide lockdown’.

This is not to suggest that we should disregard the current rules and regulations, but to abide by them in the full knowledge that we are being policed as the virus instead of being tested for the virus. Staying at home to protect the NHS is eminently sensible and truly commendable, but it is done in order to protect the NHS from the initial and ongoing failures of the state to take action. It is a collective effort we willingly make as a result of state failure. Not only did the UK government procrastinate, missing important deadlines to bulk-buy PPE and ventilators, despite shortages in the NHS, but testing also lags behind, ignoring the World Health Organisation’s message to ‘test, test, test’ when Covid-19 was still treated as an epidemic rather than a full-blown pandemic.

Rethinking policing in times of crisis

In the absence of adequate support for the NHS, the government’s public health agenda has ultimately resulted in policing instead of protecting the public, thereby attempting to police itself out of a public health threat. Policing Covid-19 away, however, does not just reek of state negligence by breaching its duty of care to the public. It also invites police- friendly criminologists and dyed-in-the-wool crime scientists to rethink their approach to policing by situating it into its political context, instead of pretending that it is a neutral civil institution. In the context of the Covid-19 crisis this involves asking not what the police should do to respond to a public health crisis, but whether the police should (ever) have a(ny) role in managing such crises.

Designing public safety, be it from violence or infectious diseases, is not and should not be the exclusive property of the police. It can also be practiced in non-coercive means through investment in healthcare, welfare and upheld through social solidarity and mutual aid, not tainted by suspicion, surveillance, punitiveness, or shaming. This involves thinking about who and what the police is, what it does, who does it do it to, and who does it do it for, therefore heeding Raymond Chandler’s oft-quoted yet otherwise largely ignored observation that ‘cops are like a doctor that gives you aspirin for a brain tumor, except that the cop would rather cure it with a blackjack’.

 

Contact

Dr. Lambros Fatsis, Lecturer in Criminology, University of Brighton

Twitter: @lfatsis

 

Images: courtesy of the author and Pexels

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