Turning and turning in the widening gyre. The falcon cannot hear the falconer; Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world, The blood-dimmed tide is loosed, and everywhere. The ceremony of innocence is drowned; The best lack all conviction, while the worst are full of passionate intensity.
The Second Coming, WB Yeats
By Warren Pyke
Following the High Court’s judgment in Borrowdale v Director-General of Health [2020] NZHC 2090, legal measures for implementing pandemic management tools were tightened.
Bespoke primary legislation was enacted, along with a suite of subsidiary notices, orders and rules governing the exercise of governmental and official power for the purposes of managing the pandemic. These measures empowered the government for at least two years to deploy levels of social control that are unprecedented in New Zealand.
The purpose of this article is not to finely analyse these legal measures or the Borrowdale judgment. Instead, I explore important policy issues to answer the question of whether the High Court’s dictum in Borrowdale, at [1] was correct:
Warren Pyke
“But even as this country returns to a state of semi-lockdown, there is one thing on which most commentators are agreed. The decisions taken by the New Zealand government in March this year to ‘go hard and go early’ were the right ones.”
In Borrowdale, the parties adduced no evidence about the social and economic costs of the ‘hard and early’ use of so-called ‘lockdowns’ as an epidemic-management tool.
Nor was there any evidence, let alone contested evidence, of the scientific basis for lockdowns. While the court cited impressive statistics about the rolling storm that was the pandemic, it was an unexplored question as to whether the government’s measures were empirically supported and proportionate (the High Court held that the first nine days of the lockdown were not lawful, but that the exercise by the Director-General of a general power under s 70 of the Health Act 1956 authorised the lockdown after 3April 2020: this is a question under appeal to the Court of Appeal).
The coronavirus 2 (SARS2) viral epidemic has precedents: for example, it displays similar virulence to the 1958 and 1968 influenza virus pandemics, which did not result in governments locking up most of the population in their homes.
SARS2 is nowhere near as virulent or lethal as the1918 influenza virus. Serious illness or death from Covid-19 disease is rare for the young and middle-aged (consider one of the worse national mortality rates, from the United States: 3.96% for those aged under 45 years (in this group there is a lot of obesity), and 0.06% for those aged under 18).
Although not mentioned in the High Court’s judgment, the use of stay-at-home orders was said by the WHO to be “unprecedented in public health history” (WHO representative in China – Reuters. January 23, 2020).
The court mentioned the Prime Minister saying it was unprecedented in New Zealand but then qualified this by pointing to closures of schools, theatres, music halls, sports and recreation grounds, and restrictions on public assembly and travel of children in 1925. However, based on the court’s survey, there has never been a nationwide confining of people to their homes. To my mind, the Prime Minister was right – the lockdown was unprecedented.
Serious questions have been raised about the effectiveness of population-wide measures. Recent research shows that the evidence for the efficacy of highly-restrictive nonpharmaceutical measures is weak (see E Bendavid, C Oh, J Battacharya, JPA Ioannidis, Assessing mandatory stay-at-home and business closure effects on the spread ofCovid-19, Eur J Clin Invest. 2021:51; compare the critique of nonpharmaceutical measures generally, in a leading article authored by Dr Donald A Henderson (Distinguished Professor and Dean Emeritus at Johns Hopkins University; Chief of the World Health Organization’s global smallpox eradication program), TV Inglesby, JB Nuzzo, and T O’ Toole, Disease mitigation measures in the control of pandemic influenza, Biosecur. Bioterror 2006;4(4):366-75.). The authors of this 2006 study conclude that: “Disease-mitigation measures, however well intentioned, have potential social, economic, and political consequences that need to be fully considered by political leaders as well as health officials.”
There is no evidence this was done before the March 2020 lockdowns.
The word ‘lockdown’ is jarring and was previously heard only in prison yards. ‘Lockdowns’ of all types involve an abrogation of fundamental freedoms, bringing to mind this passage from Wordsworth’s Intimations of Immortality from Recollections of Early Childhood (1803-6):
“Shades of the prison-house begin to close upon the growing boy… Though nothing can bring back the hour of splendour in the grass, of glory in the flower; we will grieve not, rather find strength in what remains behind, in the primal sympathy which having been must ever be, in the soothing thoughts that spring out of human suffering, in the faith that looks through death, in years that bring the philosophic mind.”
Why did the High Court say nothing about whether a population-wide lockdown can be reconciled with individual autonomy and democratic norms?
First, the court held that the lockdown limited rights and freedoms (at [199]). Second, the lockdown was held to be authorised by law following the initial nine-day period, although the order covering the following three weeks is challenged on appeal.
The question of whether the lockdown constituted a reasonable limit on protected rights (as can be demonstrably justified in a free and democratic society, see Hansen v R [2007] 3 NZLR 1) did not arise for the court’s opinion. That is because Andrew Borrowdale conceded that the lockdown was a reasonable limit.
I disagree. The case for such an extreme measure ought to be compelling; to my mind it was not. As already noted, the disease that develops from infection with SARS2 is generally mild in the middle-aged or younger. The actual extent of theCovid-19 disease is not well-established: estimating the infection severity of SARS2 is made challenging by inconsistencies in the available data (O’Driscoll, M., Ribeiro Dos Santos, G., Wang, L. et al, Age-specific mortality and immunity patterns of SARS-CoV-2, Nature 590, 140–145 (2021)).
Moreover, the number of deaths associated with Covid-19 is often used as a key indicator for the size of the epidemic, but the observed number of deaths represent only a minority of all SARS2 infections.
Cause of death is often assumed as being the disease if a deceased person has tested positive for the SARS2 virus, but many of the recorded deaths cannot be causatively shown to be the result of Covid-19 disease, since many have died from other causes, albeit with the disease.
This level of detail, if it is available, is not discussed in the public messaging about the severity of the pandemic, which tends to highlight the numbers, sometimes enhancing public anxiety by showing footage of graves and coffins. The emotional impact of such coverage overlooks that people die every day, every year, in large numbers; they die in their hundreds of thousands of respiratory illnesses and infectious diseases; many tens of thousands of women still die annually in childbirth, and hundreds of thousands are claimed by cancer, AIDS and tuberculosis. We are not shown their coffins, nor are we told about these deaths, or the fact of inevitable death from some cause or other, in nightly news statistics.
Henderson et al observed, in their 2006 study, that beyond widespread vaccination, isolating symptomatic influenza patients, either at home or in the hospital, is probably the most important measure that can be taken to reduce the transmission of a virus within a community.
The sickest and presumably most contagious patients are most likely to seek hospital care. They add that: “The critical importance of hospitals in providing health care during a pandemic cannot be overstated.” Close examination of what occurred in the early stages of the SARS2 pandemic in some of the severely-afflicted population centres shows that vulnerable people were not being adequately protected by health authorities; for example, in New York, patients were being sent home from hospitals in circumstances where they carried the virus back into rest homes (many workers were employed in more than one rest home, who also carried the virus between homes).
This, predictably, took a high toll on the vulnerable (the Governor of New York State is currently facing an inquiry over this issue). Public health institutions had been run down in some of the countries where the toll was heavier, hence Boris Johnson’s plea to “stay home, save the NHS”. Coincidentally, in November 2019, John Pilger had published a documentary highlighting the massively reduced bed capacity of the NHS, which was a result of successive UK governments selling off or running down bits of the NHS.
To gain compliance with the restrictions of lockdown, governments appealed to community spirit (for example, the New Zealand PM’s ‘team of five million’).
Speaking extra-judicially, Lord Sumption has observed that a problem with appeals to solidarity is that they amount to a call to abandon rational thought and logical analysis in favour of emotion, saying: “Solidarity in an ill-thought-out cause helps no one” (Lord Sumption, Mail on Sunday, 27 September 2020).
The temptation is for governments to make restrictive legal measures said to exist to protect people permanently, the enduring Patriot Act in the US being an obvious example. Seeing how efficacious lockdowns have been in controlling the movement of people, coupled with the fanning of fear, governments may make them a permanent feature of health legislation.
During the first six months of the pandemic governments, supported by cheer-leading and uncritical mainstream media, generally refused to consider alternative policies, even when scientifically-sound alternatives were advanced by eminent specialists, such as Professors Carl Heneghan and Sanetra Gupta of Oxford University, Professor Mark Woolhouse of Edinburgh University, and the Nobel Prize winner Professor Michael Levitt of Stanford University.
The politics of doing anything other than locking down occurs because politicians think that they will be criticised for inaction, even if action causes grave social and economic harms. This narrow approach did not take sufficient account of previous research, such as that coming from the University of Ottawa’s McLaughlin Centre for Population Health Risk Assessment (Patrick R. Saunders-Hastings and Daniel Krewski, Reviewing the History of Pandemic Influenza: Understanding Patterns of Emergence and Transmission, Pathogens 2016, 5, 66 at 14):
“Pandemics are inherently uncertain, necessitating policies that are flexible in responding to outbreaks as they develop. While insights can be gathered from past experiences of pandemic influenza, it is unlikely that the next event will mimic those of the past. Continued efforts are required to improve local, national, and international surveillance, coordination, and resource planning to most effectively mitigate and contain future pandemics.”
Commanding people to stay put at home for weeks or months is lazy and authoritarian. It appeals to the insecurities of the immature mind. It is not ‘following the science’. It is conducting an experiment. Parliament should be asking how we avoid such measures in the future, not how to perpetuate their availability to successive governments.
The UN’s Framework for the Immediate Socio-Economic Response to the COVID 19 Crisis warned that, “The Covid-19 pandemic is far more than a health crisis: it is affecting societies and economies at their core. While the impact of the pandemic will vary from country to country, it will most likely increase poverty and inequalities at a global scale.”
The economic and social costs of stay-at-home orders have not been proportionally shared. Those involved in the supply of essential services placed themselves at greater risk, and those who work in lower-paying jobs, where face-to-face public contact is required, are suffering permanent loss of employment.
Online shopping enterprises such as Amazon have considerably increased sales, lining the pockets of their already filthy-rich owners. Depression, financial hardship, increased family break-ups and suicides: the social harms of the restrictive measures are great.
Money has been printed, without counting the cost of future inflation; the younger generation’s schooling has been seriously disrupted; tertiary students have been required to continue paying high fees without receiving face-to-face teaching contact. Many of those graduating will either be unable to find work and/or be forever unable to afford to buy a home, owing to the housing and capital asset bubbles caused in part by current monetary policy.
No amount of motorway signage urging us all to be kind and safe will assuage people who cannot pay their bills. I quote Lord Sumption again:
“[T]hose who believe that wise governments can triumph over epidemic disease will say that this Government failed because it was not wise enough. Those who believe that governments cannot, Canute-like, bid the incoming tides to retreat, will blame them for their blighted job-prospects, increased taxes, empty pockets and lost months. Either way, the Government will be damned.”
Warren Pyke is an Auckland barrister. He was the first to publicly question the legality of the lockdown.
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