uk police lockdown

A police car patrols London's Greenwich Park in April at the height of the first lockdown
What is a police state? It is a state in which individuals are answerable to the police for the most routine acts of daily life. It is a state in which the police and not the law decide what is allowed. It is a state in which people have to hide their doings from their neighbours for fear of the twitching curtain and anonymous call to the police. It is a state in which ministers denounce activities of which they disapprove and the police are their compliant instruments.

These things have happened in every totalitarian state of modern times. It is an unattractive spectacle. We are fortunate to live in a country with a tradition of ministerial reticence, the rule of law and sensitive policing. We are unfortunate to live at a time of national hysteria, when that tradition has been cast aside and every one of these classic symptoms of a police state can be seen all around us.

The lockdown regulations confer powers of enforcement which no policeman should have in a society with even the most basic standards of governance. They authorise the police to give orders to members of the public if they "consider" that they are out of their homes without a "reasonable excuse". If they "consider" that two people are together without a good enough reason, they can separate them by force. They do not have to be right, or even reasonable.

Some police forces have exceeded even these ample powers. The two young women fined £200 by Derbyshire Police for taking exercise ten minutes' drive from their homes were doing something which the regulations specifically identify as lawful. The only people acting illegally in that instance were the police.

Yet more shocking than the incident itself was the way in which the authorities tried to justify it. Derbyshire Police said that the young women were not acting "in the spirit" of the regulations. They declared that it was up to each officer to decide what was reasonable. This is not just wrong. It is sinister. If the law says that it is reasonable to go out to take exercise, it is not for a policeman to say that it isn't. If the law does not forbid driving somewhere to take exercise, then it is not for the police to forbid it.

Matt Hancock appeared on television to support Derbyshire Police, just as Derbyshire Police were backing down and cancelling the fines. He appeared to be ignorant of his own regulations, but it was obvious that he didn't care. He supported the police right or wrong, because he thought that it would serve the ends of government policy. Priti Patel took the same line on Sunday when she declared that people resting on a park bench while taking exercise (as they are entitled to do) should be fined. This is the doctrine that the end justifies the means. It is the principle on which every authoritarian state operates.

A large part of the problem arises from the Government's manipulative use of "guidance". The regulations are the only things that amount to law, but they are complex, technical and opaque. The guidance is more accessible but it is simply advice, dressed up as commands. It is not law. Some of it is good advice. Some of it is pointless or disproportionate. But every one is free to disregard it if they choose.

Yet police officers are being encouraged by the likes of Hancock and Patel to treat it as law. This is presumably what Derbyshire Police meant by the "spirit" of the regulations. Yet police constables are independent officers. It is not their function to enforce the wishes of ministers. It is not their function to do whatever is necessary to make government policy work. Their function is to apply the law. If the law is not tough enough, that is not a matter for them but for ministers and Parliament.

Behind this issue looms a larger one. Many of the things forbidden by the regulations are perfectly harmless in some circumstances but potentially harmful to others. Driving a hundred miles to walk in a lonely beauty spot does no harm to any one. Going a hundred yards to walk in crowded Green Park may be different. Sitting alone on a park bench is no more harmful than running past it. People who have had the disease can go out without risk to themselves. People who have been vaccinated will not become unwell because they have met a friend. Healthy young people are at very low risk of getting seriously ill, let alone dying. There is little scientific evidence that pre-teen schoolchildren are significant vectors of disease. The old and clinically vulnerable are in a different position but can isolate themselves if they wish to.

These are vital distinctions. But Government policy ignores them, and indeed sometimes tries to pretend that they do not exist. The reason is that they are distinctions which cannot easily be enforced by the police. The Government proceeds on the basis that what cannot be done by fining people is not worth doing at all.

This will become a progressively more serious problem as a higher proportion of the population become immune, either by having had the disease or by vaccination. How long are people going to tolerate a policy that locks every one down when the issue has only ever seriously affected a minority, and the minority is dwindling?

The problem with brutal policing is that it is counterproductive. Ultimately, compliance with these regulations is voluntary. We could turn ourselves into a surveillance society like China or pre-1989 East Germany, with microphones in every living room. We could put road blocks on every street corner. But short of that, no amount of police action will make them enforceable unless the public are willing to comply.

There is a good deal of evidence that in spite of the high levels of support for the current lockdown, compliance is lower than in the first one. This is because many people are making their own judgments about risk. Some of their decisions may be foolish. Most are probably perfectly sensible. Indiscriminate toughness by the police is not the answer. It will only make the regulations look even more arbitrary than they already are and reduce compliance still further.
Lord Sumption is a historian and a former Supreme Court judge