14-July-20 COVID-19 and Accountability

Photo by Markus Spiske from Pexels

Initially there was scepticism from the UK Chief Medical Officer and his colleagues about the value of wearing face masks.  People might not wear them correctly, may become complacent and forget to prioritise handwashing and social distancing.  In the US, Trump said in April 2020 that he would not wear a mask and mocked his rival for the presidential election, Joe Biden, for wearing one. The World Health Organisation (WHO) did not initially advocate mass wearing of face coverings, believing that it was needed only for health and care workers and for those showing symptoms. 

But emerging evidence on the transmission of COVID-19 suggested that asymptomatic individuals were passing the virus through droplets.  The WHO changed their guidance in June, encouraging the use of masks and homemade cloth face coverings where social distancing was not possible.  England accordingly moved to make coverings a requirement on public transport from 15 June 2020. 

Chancellor Rishi Sunak was out serving people food in Wagamamas on Thursday 9 July without a mask; UK Prime Minister Boris Johnson wore one publicly on 10 July, at a photo opportunity in a shop in Uxbridge; then at the weekend, cabinet minister Michael Gove said relying on people’s common sense was preferable to legal enforcement. By this morning, it was confirmed that face coverings would be compulsory in indoor shops from 24 July 2020, backed by a £100 fine.  Trump too appears to have changed his tune: he wore a mask in public for the first time visiting the Walter Reed military hospital outside Washington on 12 July.

The prevarication on face masks is one of many policy stutters during the COVID-19 crisis, particularly in the US and UK.  As the July/August 2020 issue of Foreign Affairs explains clearly, while it is true that managing an issue of this scale is a challenge for any leader, there has been some catastrophic leadership in evidence. This includes nationalist posturing rather than multilateral responses; delayed decision-making; unclear messaging; a failure to adopt track and trace technology early; and neglected populations, including in Britain care home residents, BME communities and front-line health and care workers.  While geography, higher levels of social trust and compliance, individualist versus collectivist cultures, and luck are important factors, undoubtedly other countries (Germany, New Zealand, South Korea, Australia, Singapore, Greece and Argentina, for example) have shown what is possible with good governance.

The WHO has been slow to act at times, but it is under-resourced and dependent on its paymasters; powerful nation-states who, when they needed to work together and seek WHO expertise, have been reluctant to. 

The pandemic experience raises the question of governance, harm and accountability.  In studies of crime and harm, this area of work is termed ‘harms of the powerful’ (similar to crimes of the powerful, but looking beyond just those actions and omissions defined in a given jurisdiction as a ‘crime’).  A common mechanism in the UK to hold government to account is through a public inquiry, and undoubtedly there will be one into the Government handling of the pandemic and what lessons can be learnt for future such outbreaks.  The public may also vote out a government at a general election, although, with excellent timing, the current Government secured their 4-year term in December 2019.  Mass demonstrations and social unrest are another route, although the nature of the pandemic (which mitigates against gathering) and the current economic fragility (which instills fear and protectionism), appears to stymie such action for the time being.

The Government is likely to face a number of civil claims in relation to NHS staff over failure to provide adequate PPE provision; failure to protect precarious workers; the distribution of expired PPE and deaths in care homes, for example.  

An interesting and perhaps overlooked report was published in 2014 by the Department for Business, Innovation and Skills (DBIS) entitled ‘Scientific advice to government: legal liability’. The document was prepared in response to the conviction of six Italian geophysicists in 2012 who were found guilty of manslaughter and sentenced to six years in prison, following the earthquake in L’Aquila in Italy in 2009.  In his written reasoning of the verdict, the Italian judge made it clear that the scientists were not convicted for failing to predict the earthquake, but rather, for their failure to analyse and explain the threat.  In other words, for their failure to communicate. The DBIS document goes on to explain the relatively high bar that has to be met in UK law to be convicted of negligence and explains how other measures such as ‘gross negligence manslaughter’ and ‘corporate manslaughter’ may be applied (albeit rarely) to select government departments or to scientists working for them. The Italian scientists were cleared by the Italian Supreme Court in 2015.

While there is perhaps room for such legal action if the negligence is egregious, convictions of public health officials over the pandemic handling, without similar censure of politicians, would be scandalous.  Although British politicians insisted in the early days that they were ‘following the science’, evidence will inevitably be contested. Scientists from around the world may offer different interpretations on the nature of, and appropriate responses to, COVID-19. So it is the job of politicians to come to a judgment on the available evidence and to translate it into practical policy.

At the same time, if politicians act in good faith, conscientiously and with care, they should not be unduly admonished by those who enjoy the benefit of hindsight.

What will be unforgivable, however, is if we do not the heed the lessons of COVID-19 and make ready now for the next pandemic.

© Natasha Mulvihill and Criminology Tales, 2020. 

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