These are not glad times for individual liberty. Covid-19 has occasioned some of the most sudden and far-reaching extensions of state power seen in peacetime. Government ministers dictate our holiday plans, the number of worshippers who may congregate in church and even who we allow into our homes.
Worst of all, at the very moment liberty is most vulnerable, the business of defending it has been left up to cranks and conspiracy theorists.
Let us dispense, then, with some housekeeping: coronavirus is real; comprehensive measures are required to suppress it; restrictions on basic liberties are not part of a nefarious plot; ministers and scientists have and will get some of this wrong; where they do, it is a function of human fallibility and institutional dysfunction, not cunning conspiracy.
The mainstream has failed to articulate both the need for a robust response to the virus and alertness to the impact of restrictions on fragile freedoms. Yet only by recognising the gravity of the health crisis we face can we begin a serious discussion about what remedies are necessary, which ones work and don’t and the balance between eradicating the virus and upholding precious rights and liberties.
Nothing dramatises the need for this quite like the sight of university campuses transformed into impromptu detention centres. For young people on the cusp of adulthood, living away from home for the first time, this is not what they envisioned their fresher experience to be. University is constant movement, from lecture hall to library to tutorial room to student union, stopping to take in a protest or two along the way. Confining undergraduates to halls of residence not only restricts their movements, it guts university life of its very spirit.
For parents watching helplessly from home, there is mounting anger about the double injustice dealt their offspring. The school pupils put through a week of anguish by the exams scandal are now the university students barricaded into cramped accommodation, far from their families, cut off from friends and social events and stuck with distance-learning software that is sleek and shiny but which cannot replicate the interactive learning that university is all about.
Some retort that, while these circumstances are not ideal, earlier generations of 18-year-olds were sent to war or suffered other privations to which a few partyless weeks cannot compare.
In a sense, this is true and a much-needed reminder that, despite the extreme scenario that grips the globe today, we live in a world of choice and convenience our grandparents could not have dreamed of and their grandparents could not have imagined.
But our world is not theirs. It is a society structured around the individual and an architecture of self-government, a rights-based order that maximises autonomy and limits what burdens the state can place upon our freedoms.
Coronavirus has slammed into the foundations of our way of doing things like a wrecking ball from out of the blue.
Two weeks ago, I argued for the Scottish parliament to have a vote on the imposition of fresh restrictions. On Thursday, Central Scotland MSP Graham Simpson made much the same case to Nicola Sturgeon at First Minister’s Questions. The First Minister responded with a voice that visited me a few times while writing that column: this is a fast-moving, global pandemic; parliament can’t be convened every time the rules require to be updated for this council area or that.
That is a reasonable voice, but so is the one that says: we have no idea how long the current emergency will last. It may be years before this pandemic becomes endemic and ministers cannot believe that retaining emergency powers until then is either politically sustainable or democratically healthy.
Regulations of the kind currently in situ are not inconsistent with democracy but, kept in place for a number of years, they will begin to become inconsistent with the particular genre of democracy that we favour in this country. A parliamentary democracy rooted in individual liberty and which has evolved to encompass defined legal rights requires a political and statutory environment that is both stable and transparent.
We shouldn’t get too hung up on the constitutional theory. What matters is that long-term emergency powers, imposing regulations that change sharply and wholesale, exercised with no parliamentary approval beyond post facto review, makes for an unpredictable and opaque form of government.
MPs at Westminster are growing concerned about the operation of these powers in England. Sir Graham Brady, chairman of the 1922 Committee of backbench Tories, has tabled an amendment requiring that MPs get a vote on any further lockdown measures. Labour grandee Harriet Harman has emerged as one of the motion’s most prominent backers.
This is not about party politics. It is about ensuring restrictions to suppress coronavirus are accountable to Parliament. Any such right of approval should apply not only to the Commons but to Holyrood, Stormont and the Senedd, but absent that MSPs ought to find a way of securing a similar arrangement for the Scottish Parliament.
Boris Johnson must worry about what Tory backbenchers think because they are not programmed to follow him into whichever division lobby he toddles. While the Commons seeks to hold the executive to account, the same is not the case at Holyrood. The automaton bloc-voting of SNP backbenchers, hardwired into them by the monopolitics of nationalism, renders Holyrood subservient to the First Minister. Perilously, this muffles the early warning system backbenchers provide to a government becoming too insulated from the country it rules over.
Laws made behind closed doors will always want for the legitimacy of those debated and decided in the open forum of parliament. Not only opposition members, but Nationalist backbenchers should grasp the value of including the citizenry, via their elected representatives, in the crafting of regulations to be imposed upon them.
Fidelity to parliament is a higher loyalty than that owed to party. This is a test for Holyrood and for those who want it to be a better legislature, in particular those who say it should have even more powers or all of the powers.
It should not require a parliamentary revolt for the First Minister to reassess the present arrangements. She has nothing to fear from the electoral power of students, a chronically apathetic group who, when they do vote, are typically attracted to the idealistic and impractical. (So, they’re already on board with independence.) Their parents are a different matter and so, too, are the wider public.
The country is with the Government for now, but the longer these impositions continue, the more aggressively they will wear away at popular consent. Most of us have written off 2020 and made peace with a lost year of our lives, but how many are prepared to take the same view of 2021, 2022 and beyond?
The case for a rethink is ethical, not electoral. The more months that go by with ministers enacting the advice of public health officials into law with scant legislative scrutiny, the further we inch away from parliamentary democracy and the closer to rule by technocrats. A scientocracy might sound benign enough — who better than scientists to take the important decisions during a pandemic? — but it would soon come to collide with popular sentiment.
Epidemiologists will always err on the side of caution and there will always be something to be cautious about. Where parliament has a say, a workable balance can be struck between public health and the public’s desire for a normal life. Where ministers act as enforcers for an enlightened expert class, every new restriction will be even more essential than the last. Good data and good intentions are not enough for good government.
Restoring parliament to its rightful place as maker of laws and scrutiniser of executive power is important, but it is not enough. If Covid-19 is to be with us for years to come, we will need to rethink the use of national curfews and blanket restrictions in favour of more tailored measures. Coronavirus must be eradicated – but our liberties cannot remain in lockdown until it is.