Updated: Jul 23, 2021
By: Sylvie Armstrong.
Sylvie is a second year PhD Candidate in Law at the European University Institute, having graduated from the University of Cambridge with a BA in Law in 2018. Her research focuses primarily on the commercial surrogacy industry, but other academic interests include the relationship between sexuality and marriage and the gendered impact of atypical forms of employment.
This contribution is something of a departure from these interests, as it is primarily a product of personal experiences during the COVID-19 pandemic. Living abroad can be challenging at any time, but living in Italy as a UK national during the lockdown brought particular frustrations and difficulties: language barriers exacerbating the challenge of already unclear guidance, distance from family and friends at a time when loneliness was already rife. As a lawyer, questions inevitably arise as to how officials might help mitigate such difficulties. This contribution discusses one particular aspect of this.
Find her on Twitter: @s_armstrong97
Should a lack of adherence to social distancing measures be punishable by law? Why or why not?
For many states, the ongoing international lockdown marks the most draconian use of sovereign power in modern times. Though widely considered justifiable in the face of an enormous death toll and consequent pressure on medical services, the urgency of the situation does not exempt states from the need to comply with basic constitutional principles. In light of this, I argue in this essay that many states may currently be in violation of two requirements of the Rule of Law: certainty and consistency. Uncertainty in interpretation and application of the law is rife in numerous national guidelines around the world, leaving citizens unsure as to what exactly the law demands. If penal sanctions are to be used, clarity must be at the core of the social distancing enforcement regime. Without this, lack of adherence to social distancing measures ought not be punishable by law.
The Rule of Law
The Rule of Law lies at the heart of constitutions throughout the world. Though complex and multifaceted, one undisputed aspect is that any law passed must be sufficiently clear and precise. This ensures citizens understand the obligations they are under as soon as it is enacted, and can adjust their behaviour accordingly. In addition, laws must be enforced consistently: each citizen should be held to the same standard, or not at all. Again, clarity is essential to avoid such arbitrariness. For example, speed limits are generally quantitative: drivers are told not to exceed 50mph, rather than being told to keep a ‘reasonable’ speed. This ensures clarity and objectivity in enforcement, in turn making the road a safer place to be.
The importance of this is largely intuitive. It seems unfair to punish someone who fails to comply with demands that are not clear. Equality in enforcement is also important to ensure legitimacy. It is difficult to persuade people that a law is just and worthy of compliance if it is a postcode lottery, with enforcement depending on the attitudes of local police rather than a centralised democratic decision. This becomes the case, however, when objective interpretation is not possible. In times of crisis, the importance of such legal clarity is all the greater. The anxiety produced by the global state of uncertainty cannot be underestimated. People are worried about their health, their families, and their jobs. The situation remains unstable and enormously unpredictable. States should not add to this burden by leaving citizens unclear whether their actions will leave them criminally or civilly liable.
The Current Situation
Despite this, many regulators have failed to achieve such clarity and certainty when laying out social distancing measures. A notable example is the United Kingdom, where the current advice is to ‘stay alert’. This is clearly an impossible task in the context of an invisible and highly unpredictable virus. Moreover, even concrete provisions have appeared contradictory and muddled. For example, whilst it was possible for a nanny to come over and care for children, initially their grandparents could not. It is difficult to understand how and where such lines were drawn. Another example of this problem arose in Italy as it shifted out of lockdown. There, visiting one’s ‘congiunti’ – or kinfolk – was deemed permissible, but residents were left unclear on what this meant. With initial guidance indicating only that it included relationships of ‘steady affection’, citizens were left confused as to when they could leave the house and who they may visit. In both states, however, failure to comply risked heavy fines. Unsurprisingly, when citizens are confused as to what exactly the law requires, so too are the police and law enforcers. Naturally, this has led to contravention of the second mentioned aspect of the rule of law: inconsistent enforcement. Whether people are stopped, the extent to which their stories are investigated, and the penalties they face all appear to vary. This vague and uncertain picture has emerged in states worldwide.
To some extent, this ambiguity may seem inevitable. Governments and institutions are juggling huge amounts of information and constant developments. Scientific understanding of viral transmission and prevention; decisions regarding international borders and health policies - all of these have been changing by the day. It is unsurprising that the need to be responsive to this, whilst ensuring that guidelines are clear, accurate, and widely disseminated, has presented challenges. Vital, however, is that states do not try and unsettle people into compliance. Citizens should not have to self-restrict their behaviour for fear of accidentally breaking the law. Practically speaking, this risks people becoming simply more willing to push boundaries to try and determine what it is they can get away with – manifestly counterproductive. More fundamentally however, it is a misuse of the law. If penalties are criminal, the permanent record that results can hold people back in myriad spheres of life. Moreover, even purely administrative fines have the potential to cause severe problems – particularly in these times of economic hardship. If the state is to use its penal powers, therefore, then even in times of crisis the Rule of Law must continue to be respected.
This appears to leave states with a choice: flexibility or enforceability. If governments prefer to give people scope to use their own judgement, then legal sanctions need to be removed. Otherwise, there must be major clarifications regarding what social distancing requires. Constitutional principles should not be violated by trying to straddle the two.