Personal responsibility versus legal obligation? Why simplistic binaries make for bad pandemic responses

John Coggon is a member of the Nuffield Council on Bioethics and the UK Pandemic Ethics Accelerator, and Professor of Law at the Centre for Health, Law, and Society, University of Bristol Law School

Restrictions regulations and political framings of responsibility for the population’s health in the pandemic

Since March 2020, coronavirus restrictions regulations have become a feature of everyone’s lives in the UK. They have spanned national and local ‘lockdowns’, as well as lesser—but still enormously limiting—controls. The Westminster government has announced that it is now making the final steps in what has been billed as an ‘irreversible’ return to freedom in England.

This move away from legal regulation has stimulated much public agonising, amongst other things, on how the purported freedoms that will follow correspond with ideas of public safety and personal responsibility. Are they recklessly restored, bare, ‘negative liberties’ that will be the cause of a further wave of disease that will hit England, and beyond, like a tsunami; whether because of poor social coordination, poor collective understanding, alienation, or plain unsocial spirit? Or are they a proportionate and respectful return of fundamental rights that people should enjoy, and which they will exercise with proper regard for their own and others’ well-being?

The language used—notably of diktats versus individual freedom—implies a dichotomy between our legal obligations as imposed by governments and our personal behaviours. This creates a false binary of legal—and thus governmental—and personal—and thus individual—responsibility. Such a framing is wildly simplistic. First, it cannot go without saying that ‘hard’ legal regulations will anyway persist after the next easing of restrictions. But the very framing of diktat or freedom itself has the potential to do great harm, while shifting any blame off the shoulders of political decision-makers and onto each of us as individuals. This is a product not just of current political framings, but of framings throughout the course of the pandemic.

Government-created ambiguities on the meaning and authority of ‘the rules’

Since we first entered lockdown, libertarian critics have prominently called into question both the legitimacy and effectiveness of restrictions regulations. Lord Sumption, a former Justice of the Supreme Court, has been one of the most forthright of these. He has caused stirs, while also winning acclaim, by acknowledging his own disrespect for coronavirus laws. And he has made repeated arguments against the use of restrictions regulations, voicing ideas such as this:

The vision painted by the Prime Minister last week looks very similar to what Lord Sumption has argued for all along; with all its stark lack of subtlety in appreciating quite how firmly different social realities and pressures may, and do, impact people’s ability to “fine-tune” their situations. Health inequalities, and wider, socially-created disparities, have been long known to governments, worsening, and laid bare through the unequal impacts both of COVID-19 itself and of policy responses to it. ‘Freedom day’ may be as much about abandoning people and communities as it is about empowering them.

Beyond such important critiques, regard should be given to the damage that has been done to public understanding of, and respect for, the authority of coronavirus laws and guidance by the political framings. I would highlight here two problems in particular that have been created by the politics of a hard ‘follow-the-rules’ approach, and the equally blunt politics now of suggesting there will be no rules. Each of these chips away at the authority and trust that are needed to sustain practically-effective collective actions to overcome the challenges of the pandemic without the threat of legal sanction.

First, since the onset of coronavirus restrictions, the idea of ‘the rules’ has had its own in-built ambiguity or equivocation. Restrictions regulations have created legal obligations. But these have been supplemented by official guidance that itself is just that: advice that people have good reason to follow, but which they may take or leave. Although the distinction between hard laws and ‘mere’ guidance has come to the aid of senior government employees when they have sought to justify behaviour that flouts the latter, general messaging has implied that laws and guidance together constitute ‘the rules’ and must be followed. Guidance and advice have been passed off in practical senses as if they were law.

Secondly, there have been serious challenges to the moral authority of the rules given behaviours of those who have set them. Most starkly this has come through scandals associated with senior members of government. They naturally, and fairly, lead to questions of why a public official should be empowered to take liberties while restricting liberties. But in addition, laws have been passed extremely quickly with little scope for scrutiny or for allowing people to prepare for fundamental legal changes. This applies as much to those charged with enforcing the rules as those who are supposed to follow them. These points, combined with avoidable inconsistencies in messaging, do not make for steady, open, accessible public discourse or understanding.

The rhetoric and framing of ‘the rules’, and of where responsibility lies when ‘the rules’ are not based in law, have significant implications from practical and ethical perspectives. Hitherto in the pandemic, the idea of the rules has tended towards melding law and guidance into one. Now, the government seeks to shift the responsibility to individuals, with guidance being billed instead very much as just that. It ought, however, to be the case that responsibility is recognised as being, and as having been, shared at individual, societal, and governmental levels. Effective health outcomes are being balanced against considerations of fundamental rights and differential impacts and experiences across different groups and communities. We cannot address the question (and have not been able to at any point during the pandemic) as if responsibility is a click switch: between absolute legal obligation and the government being uniquely responsible; or absolute freedom and responsibility residing uniquely with the individual.

A significant danger here is that where coordination is needed, it is lost, and where buy-in through a sense of political unity and social solidarity is needed, it is undermined by both current and earlier practices and messaging. The Nuffield Council on Bioethics emphasised in its 2007 report Public health: ethical issues that even a policy choice of not regulating is exactly that: a political decision that requires justification. The report also emphasised—and explained through its representation of a ‘ladder of interventions’—that methods of regulation are not exhausted by a binary of either having a hard legal rule or absolute individual freedom. The discourse from and around the Westminster government’s move towards the next stage of lessening restrictions regulations in England suggests that things are simple: there is either ‘lockdown’ or ‘liberty’. Both in its direct effects, and in the forms of social coordination it requires, the coronavirus creates restrictions; and as I have noted, legal regulations will continue after ‘freedom day’.

Shared responsibility beyond unfettered individual choice or unfettered legal control

The challenges for ethical governance as we progress through the next stages of the pandemic (it is not behind us, or even nearly behind us) must account for the mix of principled and practical concerns that we face. We need a clear and accessible discussion about values and trade-offs, including for whom and when. We need to learn from and respond to the different reasons that people have to act in different ways, and the different methods of regulation that might be called into aid of striking the optimal balances against the concurrent threats to freedom, health, and other values that matter to us all.

When seeing these points, it is essential that we keep to the front of our minds that the impacts of coronavirus reach across sectors and settings. Activities that people previously enjoyed will still be restricted, and we will find that there are rationales—and compelling ethical justifications—for forms of government regulation; whether legal regulation, or other methods of intervention. These—the methods and the justifications—need to be discussed openly, and with sensitivity, across our diverse communities. We cannot and will not get by either with a view of outright legal governance or of outright individual freedom.