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Winter of the world: a reflection on the implications of COVID 19 in the United Kingdom


Christopher Muttukumaru argues for an independent inquiry in the UK, using an inquisitorial process to learn lessons from the handling of the Covid 19 pandemic. [1]



Winter of the world: a reflection on the implications of COVID 19 in the United Kingdom
 
  1. The famous English War poet, Wilfred Owen, might have described the coming of the Covid 19 catastrophe in the way that he described the coming of the Great War: “ [Covid 19] broke; and now the Winter of the World /With perishing great darkness closes in/The foul tornado…/Is over the width of Europe whirled…”[2].
  2. In any personal reflection on a current set of disastrous events, time will inevitably change perceptions. If I were asked today, I would highlight five themes:
  • Lockdown and the law.
  •  Rainbows.
  •  Bluebells.
  •  The need for future international collaboration.
  • The need for a future independent public inquiry to learn lessons.
  1. In a few short weeks from 23 March 2020, life in the United Kingdom turned  upside down, just as Spain’s life must have done when emergency provisions were introduced on 14 March. Lockdown restrictions on personal liberty were introduced which were intended to reduce the burden on the UK’s National Health Service (“NHS”) so that it was not overwhelmed by the spread of Covid 19 and, in turn, to save lives.
  2. Lockdown and the law
How did lockdown happen? The first communication about the impending emergency, resulting in the most intrusive restrictions on personal liberty since World War II, came in a speech by the UK Prime Minister on 23 March. By 24 March, a text had been sent by the Government to every household to say that “new rules in force now. You must stay at home”. Yet, while the lockdown was de facto in operation, until 26 March it was not underpinned by legislation approved by the UK Parliament.
 
  1. There is no doubt that, in the absence of effective vaccination, the UK authorities had to act very fast. There was indeed a health emergency which was resulting in deaths at an alarming rate [3]. The potential for overwhelming the NHS was very real. A Parliamentary Bill was rushed through the UK Parliament [4]. That said, the key restrictions on personal liberty were made under powers to make secondary legislation (“the Regulations) in an earlier Act of Parliament  [5]. The Regulations declared the existence of an emergency period [6]. The Regulations also required the closure of business premises as listed [7] and set out the restrictions on the movement of people [8] and a ban on public gatherings [9]. The prohibition on movement provides that “no person may leave the place where they are living without reasonable excuse”. A reasonable excuse may be one of the thirteen listed potentially reasonable excuses, such as buying basic necessities. These restrictions have been slightly relaxed since they were first made.
  2. There are two observations to make about the use of emergency powers, which demonstrate the importance of adhering to constitutional principles even when responding to an emergency. First, the Regulations were properly and exceptionally made without any parliamentary scrutiny [10]. Therefore, they were rightly time-limited [11] and subject to review [12]. Secondly, however,  the Government text and related communications  (even to explain quickly the nature of the lockdown to a large non-expert electorate) were misleading in implying that officials had the power to issue mandatory instructions or rules which were enforceable in the courts in the absence of legislation.
  3. What have been the consequences of excessive haste? The speed with which the legislation was introduced has resulted in some wrongful prosecutions. As a consequence, there has been an unprecedented review of every prosecution that has been launched under the Coronavirus Act or the Regulations [13]. As a result of the review, of the first 200 cases brought, 56 cases [14] appear to have been withdrawn or referred back to the courts because they were wrongfully brought by the police or the Crown Prosecution Service.
  4. The Regulations list the types of retail outlets that may remain open as “essential”. Restrictions were also placed on the businesses which needed to close, or which could remain open, for example, so long as they move to an “online” operation. As a consequence, many small and medium-sized enterprises were, and will continue to be, at serious risk of failure. Therefore, measures were put in place to protect the business, ranging from grants to loans under the Coronavirus Business Interruption Loan Scheme [15]. The support schemes have been approved by the European Commission since the UK is still under an obligation to seek approval during the transitional period under the EU/UK Withdrawal Agreement [16].
  5. The social cost of the epidemic cannot be understated. With businesses at high risk of failure, companies and their employees were also protected by a system of furloughing of staff to avoid large scale redundancies. As a result of these measures, the UK’s budget deficit is likely to rise significantly. Based on the suggested fiscal and spending increases announced by the Chancellor of the Exchequer, as at 23 April, the extra spending is likely to amount to at least £100 billion [17] On 7 May, the Governor of the Bank of England said that, for the coming year as a whole, the economy is expected to contract by 14%. If so, it would be the sharpest annual contraction since 1706 [18].
  6. The NHS – the Rainbow service.
Has the NHS been protected adequately as a result of the lockdown? Overall, the numbers of new Coronavirus cases notified have passed their peak, as have the numbers of people in hospital. The number of new cases and of deaths of patients in all settings are falling. But the numbers of deaths among NHS staff are significant – over 100 [19].
  1. But Covid 19 has unleashed immense support for the public services, The Thatcher era oversaw the growth of privatisation. The Cameron/Osborne years witnessed the culling of large swathes of the public services. The pendulum has swung. Now everyone in the four home nations has begun to understand what the public services and the care sector do for the community. There has been an outpouring of gratitude for those who risk their lives to save others, in the NHS, the care sector, the transport services. Every Thursday, people come outdoors and clap these services. The rainbow represents the NHS. Rainbow motifs have been displayed in house windows, in parks, on trees in woodland and even on carrier bags from Marks and Spencer.
  2. International action.
The growth of nationalism and populism has seen the rise of an inward-looking perspective. The USA has moved to the right, as has the UK and as have many other countries. Even within the EU Schengen area, national barriers to free movement of people have been erected [20]. But the development of a vaccine and its manufacture are best done at an international level. The development of short-term measures to reopen the world pending the development of a vaccine must also be the subject of international action, for example, if the international aviation sector is to survive, it will need to develop common standards which are recognised world-wide.
  1. Bluebells.
In the UK, the first full month of lockdown was accompanied by the sunniest April on record. In Beckenham Place Park, the second-largest green space in south London, people have reconnected with the simple pleasures of walking on parkland below the park’s imposing mansion, built in the 1750s, or exploring its ancient woodland. In the woodland are carpets of bluebells in hidden glades and scarcely accessible. It is hard to reconcile the beauty of the bluebells and the lurking menace of Covid 19.
  1. A public inquiry to learn lessons.
John McCrae, another World War I poet, wrote: “We are the Dead. Short days ago, / We lived. Felt dawn, saw sunset glow, /Loved and were loved, and now we lie/ In Flanders Field”. Now there have been 35000 deaths in the UK.
  1. There is international pressure for an independent investigation into the actions of WHO [21] and WHO has now agreed to hold such an investigation. But national governments too should have the humility to learn lessons for the future provided that the inquiries do not become a “blame game”. It is widely thought that the UK Government acted too slowly at the outset. In the view of The Times, for example, “the government was slow to respond to the virus and still has yet to get to grips with ensuring the safety of workers, testing and clarifying the exit from lockdown” [22] On 19 May a UK Parliament Select Committee wrote to the UK Prime Minister with a series of ten lessons learned from the shortcomings in the Government’s handling of the Covid 19 pandemic [23]. Whether this was the result of inadequate risk assessments or a failure to act on them or for other reasons is not clear.  It will need an independent public inquiry to determine the facts through an inquisitorial , not adversarial process, and to learn lessons [24] so that some positive action results from a terrible catastrophe. The deaths of so many people require nothing less.
 
 

[1] This reflection is based on a talk given by the author during an online global conversation at an event hosted by Xavier College, Melbourne, at which a number of alumni from New York, Paris, Hong Kong and Melbourne were also speakers.        
[2] 1914: Wilfred Owen
[3] According to the Guardian, on 23 March, the relevant UK Government Department had recorded 335 deaths from Covid 19. These must have been an underestimate because they did not included deaths in care homes.
[4] Coronavirus Act 2020
[5] Section 45C and 45P of the Public Health (Control of Disease) Act 1984
[6] Regulation 3 of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 SI 2020 no 350. The Regulations were made at 1pm on 26 March 2020; they were laid before the UK Parliament at 230pm on the same day; but they had already come into force at 1pm on 26 March.
[7] Regulation 4 (ibid)
[8] Regulation 6 (ibid)
[9] Regulation 7 (ibid)
[10] Section 45R of the Public Health (Control of Disease) Act 1984 which permits regulations to be made without a draft of them having first been laid and approved by Parliament if the Secretary of State or minister states his or her opinion that , by reason of urgency, the legislation should be made without scrutiny. If so, the legislation expires after 28 days.
[11] Regulation 3(1) and (3) (ibid)
[12] Regulation 3(2) (ibid)
[13] The Times: May 2, 2020: “CPS will review every charge under new law”.
[14] CPS News 15 May 2020 “CPS announces review findings for first 200 cases under coronavirus laws”
[15]]url:#_ftnref15 The Coronavirus Business Interruption Loan Scheme is described at Gov.UK 23 March 2020
[16] On 25 March 2020, the Commission raised no objections to the UK aid notified as the Coronavirus Business Interruption Loan Scheme. The notifications were justified under article 107 (3)(b) of the TFEU (remedy serious disturbance in the economy of a Member State) and consistent with the conditions in the Temporary Framework which will be in place until the end of 2020.
[17] BBC News: 23 April: Coronavirus: UK borrowing to see “colossal increase” to fight virus. See interview with Paul Johnson, Director of the Institute for Fiscal Studies
[18] BBC News 7 May 2020: “Bank of England warns of sharpest recession on record”.
[19] BBC News: 28 April: “Coronavirus: Remembering 100 NHS and healthcare workers who have died”
[20] European Commission: Coronavirus response: Migration and Home Affairs: Temporary reintroduction of Border Control: “ The Schengen Borders Code provides Member States with the capability of temporarily reintroducing border controls at the internal borders in the event that a serious threat to public policy …has been established…The reintroduction of border control is a prerogative of the Member States. The Commission may issue an opinion with regard to the necessity of the measure and its proportionality but cannot veto such a decision if it is taken by a Member State”.
[21] 18 May 2020 BBC News “Coronavirus: global push for inquiry into Covid-19 response.”
[22] The Times 20 April 2020. In a fast moving environment, the questions for consideration are bound to change.
[23] UK Parliament: Science and Technology Committee: Lessons learned so far from the Covid 19 pandemic: 19 May 2020.
[24] Letter of 20 April 2020 to the Guardian from Christopher Muttukumaru. In Australia, for example, on 8 April 2020 the Senate resolved to establish a Select Committee to inquire into the Australian Government’s response to the Covid 19 pandemic.

Christopher Muttukumaru

CB, DL.
Chair, International Committee, FIDE Fundacion




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