The impact of The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 on our liberty is huge. Even a few months ago, when news reports started to fill with images of the empty streets of Wuhan, it was unthinkable that we would soon be in a similar situation. Yet, in the short time since social distancing and lockdown became part of our daily vocabulary, the questions being asked have not always been those which we would have expected. The need to limit the spread of the virus and to decrease the impact on health services has been widely accepted as a legitimate justification for a disruption to society which would previously have been unfathomable. What then follows for many is a question of enforcement. If it is accepted that social distancing is necessary then how does society persuade those who do not wish to comply to do so?
The Regulations, as well as setting out the rules to be followed, go some way to dealing with compliance by creating a regulatory offence. Regulation 8 of the statutory instrument makes it an offence to contravene the earlier provisions, including to leave the place you are living without a reasonable excuse, or to gather in a public place, in a group of more than two people (subject to exceptions). In this way, social distancing can be enforced, to the extent of the letter of the law, by way of fines. It can be policed by the state.
Regulatory offences tend to have a different character to other crimes as they are not in themselves morally wrongful acts. The Coronavirus regulations are no different. It is not inherently wrong to travel to the beach and meet a group of friends for a picnic, in the same way that it is not inherently wrong to drive through an urban area at 45mph. However, as the law currently stands in Scotland both could attract penalties.
When an act which is not in itself morally reprehensible becomes wrong in the eyes of the law, compliance usually requires some kind of punishment as a deterrent. This is generally the threat of a fine, penalty points or even a short custodial sentence, should an individual be caught committing the regulatory offence. Unlike with acts which are in themselves wrong – the example commonly used being murder – it takes the threat of these state sanctions to ensure widespread compliance. In a society without any punishments for criminal offences, it is likely that the vast majority would still be deterred from committing murder by the moral and social implications, but it is less obvious to see what would act as a deterrent to exceeding the speed limit on a straight and quiet stretch of road.
Another key feature of many regulatory offences is therefore that there needs to be a real possibility of being caught. At the moment, you can read the comments on any news article or social media post regarding the Coronavirus Regulations and see some people crying out for a heavier police presence, or for the army on the streets, to enforce the rules. There are more than 5.45 million people in Scotland and the reality is that the police cannot monitor every single person at all times to ensure that no offence is committed, including in respect of contravening the rules on social distancing.
With more serious, inherent wrongs, there is a good chance that an individual will be reported even if they are not caught in the act by the police. If you looked out your window and witnessed a violent assault there is likely more chance that you would contact the authorities than if you saw your neighbour driving 15mph over the speed limit on their way to work each morning. But what would you do if you noticed that a family on your street were repeatedly having visitors and socialising in contravention of the Coronavirus Regulations?
Some regulatory offences, either over time or in limited circumstances, take on a moral character. An example of this is drink driving. When the law first started to prescribe the legal limit of alcohol, above which operating a vehicle was an offence, there was not an immediate social or moral backlash for those who continued to drive over the limit. If an individual caused a serious accident this may be the exception but, for others, it was seen as an arbitrary rule and something in respect of which you could “get lucky” and avoid being caught. It has taken decades of education and slowly changing mind-sets but we are now at a stage where the majority of people see drink driving as something which is inherently wrong, given the risk it causes to others. However, the issue of driving the morning after still attracts less moral outrage and, in some more remote and rural areas, anti-drink driving campaigns still require to be pushed.
Rules against driving under the influence of alcohol, or even speeding, clearly have safety and public health aims but have either taken time to attract any morality or remain largely regulatory in nature. On the other hand, the reaction of many to the Coronavirus regulations indicates that social distancing is not just a regulatory matter.
There have already been instances of members of the public reporting neighbours and strangers who appear to be contravening the regulations. Even more apparent, is the emerging trend of social distance shaming. Essentially, this is where individuals are publically passing judgement on the behaviour of others where they believe there is non-compliance with the rules or objectives of the Regulations. A lot of the public discussion on what constitutes an essential trip to the supermarket, or how long can be spent exercising outside, is not coming from the Regulations, lawmakers or even the police. It is coming from individuals who have attached a morality to what would likely be viewed as arbitrary rules in other circumstances. Neighbours may not be going as far as to call the police on each other for any perceived contravention, but most people are taking a negative view of those flouting the rules.
The Covid 19 pandemic is a novel public health situation and it is uncertain and at times frightening for many. It is perhaps not surprising that the reaction to the Regulations has been different than to regulatory offences introduced in other contexts. Few would argue that ignoring rules or guidance on social distancing is worth the risk of the virus spreading further or quicker.
However, it is unusual for regulations to so quickly take on a moral character and, we are in a unique situation whereby the reaction of others may already be more of a motivating factor to follow the rules than the punishment attached to the offence. For the small number who are not complying, it is true that the police may not spot them on their non-essential journey, but what would be the response if they told their family about that trip to the beach? This may have just as big a role to play as formal enforcement.
Blog by Amy Haughton, Solicitor
