In what must surely have been a deliberate piece of political iconoclasm, Boris Johnson declared on Sunday that there was indeed such a thing as society, repudiating the infamous contrary assertion by Margaret Thatcher. What does society actually mean though, in legal and political terms? The OED offers the following definition: “an aggregate of people living together in a more or less ordered community”. The coronavirus crisis has brought home the reality that all humans on the planet are an aggregate of people living together in a more or less ordered community, and the futility of our attempts to contain the disease within quarantined areas have been made abundantly clear.
Yet it is also true that in legal and constitutional terms, the centre of gravity and control is the sovereign State. It is at state level that enforceable legal norms are determined for individuals, and in many respects also for communities, as national Governments have decided upon the appropriate response to the global pandemic within their boundaries, and we continue to see considerable variation. This is dependent on the school of scientific opinion which has prevailed in that nation, and the resources available, but also upon the “Constitutional Culture” of the context in question. Constitutional Culture, for our purposes, signifies the widely accepted rules and norms of collective and political life in that country. Many of these will be enshrined in legal documents, but others are simply observable realities about the way in which things operate. In concrete terms, respect for the rights in the ECHR is an example of one aspect of Constitutional Culture in the United Kingdom which is contained in a particular text, namely the Human Rights Act 1998. In contrast, Parliamentary Sovereignty is a famous example of an element of our Constitutional Culture which stems from our shared habits and understanding. However, in addition to this, there are many other, often far more subtle, instances of Constitutional Culture. The concept includes all of our widespread expectations and assumptions about what may be done by the State and in what manner, and often these are only articulated when they are transgressed.
So far in the current global emergency we have seen some “push back” against breaches of the Constitutional Culture within the United Kingdom, and also serious conflict in the international arena caused by clashes of Constitutional Culture between States. Looking firstly at the internal tensions, there has been sharp criticism of the tactics employed by some police forces in encouraging compliance with social distancing guidance. Derbyshire police, in particular, have come under fire for attempting to shame members of the public away from exercising at the Peak District, and especially for having used drone-captured footage to do this. The retired Supreme Court judge, Lord Sumption, has been especially vocal, denouncing the tactics as “disgraceful”. In a BBC interview, he made the following comments:
“The tradition of policing in this country is that policemen are citizens in uniform, they are not members of a disciplined hierarchy operating just at the government’s command.”
“The police have no power to enforce ministers’ preferences but only legal regulations which don’t go anything like as far as the government’s guidance,” he said.
“I have to say that the behaviour of Derbyshire Police in trying to shame people into using their undoubted right to travel to take exercise in the country and wrecking beauty spots in the fells so people don’t want to go there is frankly disgraceful”.
“This is what a police state is like. It’s a state in which the government can issue orders or express preferences with no legal authority and the police will enforce ministers’ wishes”.
“I have to say that most police forces have behaved in a thoroughly sensible and moderate fashion. Derbyshire Police have shamed our policing traditions”.
It is not accidental that Lord Sumption refers to “tradition”, rather than hard legal rules. The debate, and anger, stems from perceptions around expectations about how the police operate in using their (necessarily) wide range of powers and discretion, and in many respects, it turns much more on cultural norms, rather than black letter law. This intangibility makes the discussion more complicated, given the scope for widely differing perceptions, but as can be seen from the tone of Lord Sumption’s remarks, it does not lessen the seriousness of depth of feeling. Whilst emotion is usually not an especially relevant concern to lawyers, ironically it is crucial when it comes to the very building blocks of the rule of law. The truth is that State authorities have limited resources in terms of people on the ground, equipment and time. When push comes to shove, it is impossible to force a population to comply with any rules, whether hard law or guidelines, unless sufficient people are prepared to respect them voluntarily. Consequently, pragmatically, Governments have to work within the boundaries of societal values, and what their citizens generally recognize to be the rules of engagement. Yet, these things are by their very nature culturally dependent, and different considerations are in operation in diverse national paradigms.
This has been one major factor in the war of words between Member States of the EU over responses to the pandemic, which has opened up fissures serious enough to jeopardize the future of the Union in its current form. In the Anglophone press, the friction between northern and southern Europe has largely been reported as a row over fiscal policy. Undoubtedly, the reluctance of the rich to help their poorer neighbours has played a part, with the Dutch finance minister implicitly (but unsubtly) accusing Spain and Italy of being culpable for their lack of economic preparedness. Furthermore, the proposal (backed by France, Spain and Italy) to create “corona bonds”, which would have been issued collectively by all eurozone countries, spreading the risk of default and also allowing countries in difficulty to access lower rates of interest, was firmly blocked by Germany and the Netherlands.
Nevertheless, the conflict has also stemmed from fundamental differences in terms of cultural outlook and understanding of how societies should behave. Germany and France had both initially banned exports of essential medical equipment to Italy, at a time when their neighbour was pleading for aid, and although the prohibition on exports has since been lifted, it is inevitable that its imposition will have left a very bitter taste.
Furthermore, countries like Belgium have adopted a very different attitude towards their elderly citizens, and therefore, the formulation of policies in response to the crisis. Doctors treating patients in residential facilities in Belgium have been requested not to admit older persons with coronavirus to hospital, and have been asked instead to provide them with palliative care in their current setting. For a nation which accepts euthanasia, this was seen as a pragmatic, even humane measure, intended to prevent hospitals from being overwhelmed and avoiding prolonging the suffering of those with only a small chance of recovery. However, for Spain and Italy, both societies with strong cultural traditions of family and treasuring older relatives, the thought of not giving every individual the best possible chance of survival would be unthinkable.
Equally, to many outsiders looking in, the lack of choice being offered to patients and families in the Belgian context appears deeply disturbing, especially since there are news reports of at least one British patient in their mid-nineties having made a good recovery after a period of hospitalization from coronavirus. A blanket ban on treating a particular category of citizens is difficult to justify in terms of personal rights and dignity, and is especially alarming since the scope for individual challenges is slim. When you consider that administrative and judicial systems are presently not able to operate with anything like their usual capacity, and that time is of the essence in treating a critically ill patient, the outlook for any given family seeking to fight the policy is bleak.
When it comes to international cooperation, differences in Constitutional Culture inevitably have the potential to pose serious stumbling blocks, and reactions to a situation in one context are sometimes determined by factors which do not apply, or are even seen as repugnant, in another. From a southern European perspective, there was no conceivable option other than to pull out all of the stops to treat every coronavirus victim who wanted to accept hospitalization, whereas in some other national settings, such an approach would not be viewed as responsible, or necessarily even kind. Nonetheless, even allowing for cultural differences, a general policy of withholding treatment to a specific category of the population, as opposed to making a tailored clinical decision about the benefit of aggressive treatment, versus the pain and distress caused, is difficult to comprehend.
Crucially, we can see that both nationally and internationally, the range of responses at the disposal of Governments are not simply those set out in the text of legal instruments, but they can also be found in the unwritten (and sometimes even unspoken) expectations held by members of each society.
N.B. We are grateful to our friend and colleague Prof Oscar Celador Angón, Catedrático de Derecho Eclesiástico de la Universidad Carlos III (Madrid), for drawing our attention to the Belgian context in respect of this issue.
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