There is simply no equivalent in modern Britain to these disproportionately high fines. As I said in Chapter 7, ‘The tools of the trade’, they have more in common with the Weregild and ‘blood money’ of the Dark Ages than any modern-day fixed-penalty notice. ‘Recklessly’ leaving self-isolation and potentially transmitting the virus would cost you about the same as murdering a ‘non-prospering Welshman’ would have in the ninth century. Welcome to neo-feudal justice.
‘Emergency legislation was alright at the beginning but it’s not alright now,’ echoed Adam Wagner, a human rights barrister. ‘If I was in charge it’s what I would do if I could get away with it too.’ This was an interesting admission, if a little surprising. I challenged him – would he really? ‘If you are in the teeth of a crisis and you think you are saving lives, I can understand the motivations.’
Wagner expanded his reasoning: ‘When society is fearful, people search for strong man approaches to politics. These are danger times. Physical danger leads to the legislation (IRA, terrorism, coronavirus) and people will allow a devil’s bargain with the state to address it. And I am very sympathetic to it myself. I’ve spoken about feeling threatened after 9/11. It felt like the world was coming apart. In my feelings, in my mind, I felt the pull of ‘go to war’, let’s blow something. I wouldn’t have supported torturing people, but I felt the pull. I realised if I felt it, then anyone else can. What do we do in these times when our values change temporarily?’
This was a refreshingly honest and important insight into how fear of physical danger can shape our reactions to law, society, even war. Wagner agreed that we ‘fight the same battles every generation. The same stuff happens in human societies over and over again. If people have too much power they will abuse it.’
I questioned what lessons we had forgotten from previous generations. ‘When I first started out at the bar I was involved in an inquiry on the use of torture on Iraqi detainees,’ said Wagner. ‘They used the five stress techniques of psychological and physical torture that were used in the time of the IRA. The military said in the 1970s that they would never use those tactics again. By the 2000s no one knew about this judgement. Both possibilities are troubling: they either forgot or ignored it.’ This seems to encapsulate our problems in one depressing example.
Silkie Carlo, Director of Big Brother Watch, put it to me plainly that we are living through ‘the greatest loss of liberty in modern Britain and it has happened by diktat. This is how autocracies and dictatorships emerge, for the “greater good”, measure by measure.’
Carlo said we should be vigilant about the Big Tech response and state surveillance. ‘I’m struggling to understand how some of the mistakes have been made. It’s been a cacophony of disaster. With contact tracing, the government wanted to collect as much data as possible and hold it centrally. They were basically asking people to be on a state-issued digital tag. We warned them that there are serious risks with this. A lot of public money has been wasted. The government doesn’t understand that they need public trust, but that doesn’t come from rhetoric and finger-wagging. You can’t force people, you need a high degree of trust. That trust did not exist with the app.’ Also, more covert surveillance powers may be being used, including ‘sentiment analysis’. I asked if she meant our private Facebook timelines? ‘Facebook and “private” don’t belong in the same sentence,’ she shot back.
Normally the use of new technology in policing would follow substantive public debate, but Covid has accelerated the take-up of drones and facial recognition software. Carlo cited the example of a police force in Wales using a drone to disperse people who had been standing in line outside a pharmacy for prescriptions, a ‘dehumanising and intimidating’ form of policing.
She was also cautious about the introduction of thermal scanning. There is no evidence it is an accurate measure of whether someone has a fever. It also ignores that people know better than an infrared scanner when they are ill. After all, we don’t send our children to school or visit the Apple Store with a fever. It can also lead to what she called ‘surveillance stacking’: ‘First it’s thermal scanning, then they might add facial recognition, then automated age, gender and behavioural data-gathering. We have to be cautious it doesn’t lead to a society with diminished freedoms.’ Of course, if it doesn’t actually work, it’s also a pointless pantomime of public health and a waste of money.
I had to agree to one of my sons having his temperature taken before a dental appointment, or he would have been declined care. As though I would not know if he had a fever and was ill? I’ll admit I sent one son on a Duke of Edinburgh trip with a slightly broken arm, but I definitely know when they are so ill they have a fever. More to the point, they know when they are ill. Pointing temperature guns at our heads before we cross thresholds does not improve public health.
Like Sumption and Brimelow, solicitor Stephen Jackson explained that he was so concerned about the misrepresentation of guidance as law that he felt compelled to act. He founded the website Law or Fiction to help ordinary citizens as well as employers make sense of the emergency legislation. ‘I was astounded to read that the government had only “requested” schools to close in the Simon Dolan4 case. But I watched the Prime Minister tell us all on television that schools must close. The government has behaved duplicitously towards
