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Why the Lockdown Legislation must not be extended

The legislation which permits lockdowns was set to expire on 9th November last, but the Oireachtas extended it. It is expected the government will push for it to be extended yet again, beyond the current expiry date of 9th June. That should not happen.

The legislation is Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020. Part 3 is the source of power for virtually all the restrictions we have been existing under for over a year now. The question for us is whether to sit silently and tolerate the continuation of this draconian legislation, which has enabled restrictions causing untold devastation in people’s lives for well over a year – or to speak out and say this has gone too far already, it must stop and it must not recur.

The very slow easing of this third lockdown does not undo the past and ongoing damage done by these restrictions – nor does it change the reality that, if Part 3 is extended, lifted restrictions could be imposed again. We all hope that will not happen, but we cannot assume. The Taoiseach recently refused to rule out another lockdown, and the actions of his government have shown us their willingness to resort to dictatorial measures repeatedly and for months on end. Accordingly, with a vote on extension of Part 3 likely to occur soon, it is an important time.

The most obvious reason to oppose the extension of Part 3 is to end the destructive effects of these restrictions on millions of people across Ireland. It is well worth reading the April 2021 report of economist Jim Power, which assesses in considerable depth the social, economic, financial and health costs imposed on the country by the government’s restrictions. The report observes:

It is inevitable that Government expenditure on healthcare, water and sewage, education, social services, infrastructure, transport, housing, clean energy and childcare, will be constrained over the coming years by the economic and fiscal costs of the very stringent restrictions regime that the Irish Government has pursued since the beginning of the pandemic. This will undermine future quality of life and wellness.

 Cost-benefit analysis in a number of countries suggest that the costs of the restrictions outweigh the benefits by a considerable margin. It is estimated that at a global level the lockdowns cost a minimum of 5X more WELLBY (a measure of quality of life) than they save, and more realistically could cost 50-87X more…. It is important to point out that the cost-benefit analysis does not seek to compare COVID-19 deaths with economy as prosperity, but rather it compares COVID-19 deaths with recession deaths.

Power is referring there to analysis undertaken by Ari Joffe, a critical care doctor, who says that analysis “of the response to COVID-19 finds that lockdowns are far more harmful to public health (at least 5–10 times so in terms of wellbeing years) than COVID-19 can be.”

On top of that, multiple detailed, data-driven expert analyses contest the claimed efficacy of lockdowns for saving lives. The subject of lockdowns doing more harm than good, as well as the availability of better alternative strategies, is covered very well by several writers on Gript.

Beyond that though, even if lockdowns were the best course of action for dealing with Covid-19, extending Part 3 would still be wrong. None of us should be permitted to wield such extraordinary power over others, and this government have proven themselves especially unfit to be given those Part 3 powers. They imposed more days of workplace closure than anywhere else in Europe.[i] While restrictions are finally beginning to ease here, overall the Covid regime in Ireland has been one of the most stringent on Earth.[ii] We have had month after month of astonishingly dictatorial restrictions, imposed by a government with a disturbingly high-handed and controlling attitude toward the people they were elected to serve. They criminalised ordinary activities of daily life, and denied us the very core elements of what it means to be free.

Why do they think themselves entitled to treat their fellow human beings like this? Without even a referendum, the government have turned a free society into one in which the most basic freedoms of millions of people depend on the advice and opinions of a small group of experts, whose advice is elevated to the status of criminal law. It is categorically unacceptable for our freedom to engage in the activities of ordinary daily life to depend on the views of experts or politicians. These freedoms were not given to us by government, and no government should be regarded as entitled to take them away. Such a radical, extremist and unprecedented level of State control over individual conduct has no place in a free society. It is the stuff of far-left and far-right ideology (which of course makes it particularly ironic and absurd to see some in the media and politics trying to portray people who peacefully protest against authoritarianism as somehow ‘far-right’).

In a recent interview in The Bar Review, retired UK Supreme Court Judge Lord Sumption (rightly in my view) characterises the Covid restrictions in the UK and Ireland as a form of totalitarianism. He also observes:

Interaction between human beings is not a luxury, it’s not an optional extra. It is one of the most basic necessities that we experience as social animals. And that is why it seems to me that the lockdown is immoral. It’s immoral because it is an attack on our humanity.

Lockdowns do not favour those who are at significant risk from the virus either, because excessive State control is injurious to them too. They are entitled, like the rest of us, to decide individually what level of risk they are prepared to accept, balancing that risk with the quality of life they wish to maintain.

It may be said that the government ‘have to’ do this. But even leaving aside the jurisdictions which have better outcomes than Ireland with less or no such oppression, government do not ‘have to’ do this because they are not entitled to do it. If they are not entitled to do it then it follows that they do not ‘have to’ do it. To argue that a legitimate public health objective entitles them to do whatever it takes is to contend that the ends justify the means – a maxim which is a hallmark of totalitarianism.

The government and NPHET have faced a truly difficult task, but it is important to understand what that task is. It is not to respond to the virus in the most effective way possible regardless of fundamental rights, but to respond to it in the most effective way consistent with fundamental rights. That requires willingness to rely on voluntary measures, even if less effective. There are some legitimate objectives (such as crime prevention) that can be better achieved by oppressive State control, but a free society prefers liberty over the full attainment of those goals. If a government cannot achieve a legitimate objective as effectively as possible without resorting to oppressive means then it must settle for less effective means. The great benefit of this is that it ensures achievement of essential objectives such as respect for human rights, mental health and people’s emotional, economic and social wellbeing.

Unfortunately though, the government’s approach has been driven by NPHET instead of being driven by respect for fundamental freedoms – as if the Constitution envisioned a society in which the common good and the dignity and freedom of the individual (which that great document expressly upholds) could be held hostage indefinitely to the perceived needs of an under-resourced health service. It is perhaps unnecessary to point out how dangerous that approach is, particularly in our country where even pre-Covid the health service seemed to be struggling almost every winter. Health service capacity is important, and the government have had plenty of time now to do what could be done to improve it. Their disappointing performance in that regard, and the failure of successive governments to adequately resource the health service, should not entitle them to violate the rights of the people. Lord Sumption makes a somewhat similar argument regarding the British health service and adds:

It seems to me that public health services exist to promote life and that it’s a distortion of that purpose to use them as an argument for preventing people from living life as they are entitled to live it.

 

Without at all detracting from its importance, there are other values besides protecting the health service. It is not commendable to prioritise short-term health service capacity fears over both people’s mental health and the cumulative total of other aspects of human welfare. Besides, as the Power report referred to above highlights, the impact of the restrictions has long-term adverse consequences for future expenditure on healthcare too. Ultimately this is not about health service capacity, it is about recognising that politicians are simply not entitled to treat people like this.

To say the government are making tough decisions obscures the reality that they are making decisions that are tough on other people. The tough decision for government would have been to face up long ago to the obvious reality that we cannot go on like this regardless of what critics may say. The government are not the ones most affected by these radical restrictions. They have already built lives for themselves, because they got the chance to do so. For a long time now, they have denied that chance to other people. These restrictions have robbed us of time we cannot get back. This is terrible for people generally, but especially for younger people who are trying to build a life, and for those who (due to age or other reasons) do not have much time left to live.

It has been difficult to see what is too precious for the government to force us to sacrifice repeatedly at the Covid altar. Clearly not mental health, not joy, not quality of life, not livelihoods, not liberty, not human connection – not even the sum total of all of those things combined and more. Those things do not belong to them, they are not theirs to sacrifice. Yet this government, with the benefit of their enablers in the political and media establishment, have shown clearly that they are so lacking in any sense of proportionality that they are willing to derail the lives of millions of people repeatedly, for outrageously long periods of time, because of a virus which is non-lethal in over 99% of cases and which for most people poses no significant risk of death at all. In short, the government have themselves shown the necessity of removing the Part 3 powers from their hands.

Moreover, Part 3 is far too unbalanced in its terms, showing a concern for little else but Covid-19 and giving the Health Minister almost unfettered power to introduce such severe controls on us. It is reasonable to argue some alternative Covid legislation should be put in place for a short time to come, provided it is a very great deal less restrictive. It is not reasonable however to vote for continuation of Part 3. Part 3 is a disastrous statutory embodiment of destructive, controlling, panic-fuelled tyranny that has resulted in incalculable suffering.

The Irish Council for Human Rights has launched a campaign for people to contact their TDs to oppose extension of Part 3. Our elected representatives in the Dáil and Seanad do indeed urgently need to hear from us that we need them to vote against any such extension, to leave such damaging policies in the past, and to stand instead for a brighter, more broad-minded recognition of shared human needs and rights that does not compel us to sacrifice all for a short-sighted and narrow Covid tunnel vision.

 

References

[i] https://graphics.reuters.com/HEALTH-CORONAVIRUS/FINANCES/oakverxqapr/

[ii] Oxford University Covid-19 Government Response Tracker data, available at

https://www.bsg.ox.ac.uk/research/research-projects/covid-19-government-response-tracker

 


 

Geoffrey Sumner is a barrister

 

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