During the Second World War, the I8B detainees were imprisoned – without trial. Ministers believed that they were a threat to national security.
In the landmark case of Liversidge v Anderson, in which the former appealed against his detention, the judges backed up the Government. Lord Atkin issued a famous dissenting decision.
When the state takes an inch, it often goes on to take a yard. So one might have thought that the 18B imprisonments would set a precedent. But they turned out instead to establish a high watermark for the suspension of habeus corpus.
Yes, people have been locked up without trial since. But the decision by Tony Blair’s Government to do so in response to Islamist terrorism was hard fought.
And while Lord Atkin was on his own at the time among his colleagues, their successors have suggested that he was right all along – not least when the courts ruled in 2004 that the Government could no longer hold terrorist suspects without trial.
It eventually introduced control orders, but these were whittled down from Blair’s original proposal of 90 days. In 2011, the Coalition watered down these orders – or, to put it another way, replaced them with Terrorism Prevention and Investigation Measures (TPIMS).
ConservativeHome thinks that there are lessons from locking up a few people indefinitely without trial for locking up nearly all of us indefinitely without trial – in other words, for shutdowns imposed for the sake of the National Health Service.
For it is fear of the NHS collapsing under the strain of Covid – whether with high admission numbers, death numbers, or both – that has driven the recent lockdowns from the start.
We don’t believe that these shutdowns have made future ones inevitable, any more than the 18b orders made future indefinite detention without trial inevitable.
Furthermore, we hold, for what it’s worth, that it’s possible to take a middle position. In other words, to believe that Winston Churchill’s Government was right to issue the orders, but that detention without trial is a bad thing, as a rule.
Similarly, it is possible to believe, as this site does, that Boris Johnson’s Government was right to legislate for the lockdowns, but that these too are in principle a bad thing. And that we should all be watchful of our broader economic, healthcare and civil welfare going forward.
It all boils down to numbers. There have been 152,606 deaths with Covid on the death certificate. The virus itself will not have caused all of them.
But it will in turn have contributed indirectly to some of those it didn’t cause directly. And that total is some six times higher than the number of people who die during an average flu year.
This being so, it’s not surprising that the shutdowns, and the less comprehensive tiering system, were put in place. Voters would not have tolerated Tuscany-type TV pictures of patients choking to death on hospital trolleys.
Or of ambulances parked outside A & E departments unable to discharge their patients. Or of seeing relatives dying at home without palliative care.
Nonetheless, we should all be as watchful, as next winter approaches, as MPs were over Labour’s plans to intern without trial, and as the judges have been since Liversidge v Anderson.
For as Covid and flu cases rise, the Government’s advisers are likely to call for more lockdowns “to protect the NHS”. But Ministers can’t shut down much of the economy and society if the dangers don’t justify it.
As we say, it all comes down to numbers, and it’s impossible for anyone, here in July, to give death and hospitalisation figures for, say, December that would necessitate another nationwide shutdown.
But the principle should be clear. The NHS was made for the people; not people for the NHS. In other words, governments shouldn’t close normal life down just because our healthcare system comes under strain.
Since such testing times will come sooner or later, the better course for Ministers to take is to help build extra capacity in the NHS, rather than close down more or less everything else because it isn’t there.
We should all be in no doubt that such calls for lockdowns are likely to come as flu, Covid and other cases rise later this year, regardless of the actual hospitalisation and death numbers at the time.
For the Government’s advisers have warned that there is “significant risk” if the number of cases rises more rapidly, as they will surely do after July 17, assuming the end of the present measures on that date.
The end of restrictions is set to come because none of the other options make sense. Delay in opening up until September doesn’t do so, because schools go back then. And waiting until winter even less so, because cases will then rise more rapidly.
And a small delay would make no significant difference. So Johnson might as well go now while death numbers are lower and hospitalisations are manageable.
He is under political pressure to do so. The last Conservative backbench Covid rebellion saw the number of dissenters touch almost 50. And the replacement of Matt Hancock by Sajid Javid has changed the balance of power at the top of Cabinet.
The Health Secretary will be powered by a mix of conviction and calculation. Conviction-wise, he clearly has a feel for the economic and social cost of lockdowns. Calculation-wise, this former leadership contender’s future aspirations may not be extinguished.
In cricketing terms, he likes to play the ball early, at least as far as Covid is concerned, and has swung decisively behind the lifting of restrictions.
But there are still big questions about the future, even without those arising from “building back better”. For example, when will the Coronavirus Act be repealed and the Covid regulations scrapped?
We should find out anout the future of school bubbles today. What about travel for the fully vaccinated? Then there are the consequences that arise from the uncertainties that this article is trying to describe.
For example, the entertainment industry is flagging up market failure in insurance. Finally, there are implications from the publication of the Covid case, hospitalisation and death figures.
Mark Harper says, contrary to the view of some other lockdown sceptics, that there is no point in calling for these to be downplayed. To do so would only fan the flames of the conspiracy theorists. And the stats are available in any event.
He argues that the Government, rather, should give other death figures similar prominence. We think he has a point – even if the average voter has a fear of pandemics that he may not have of driving a car.
We compare the two because an American study found that “for those under age 20, the infection fatality risk is equivalent to driving a car for 7,500 miles”.
Therefore, as the article put it, “there are tens of millions of Americans who voluntarily expose themselves to that level of risk without giving it a second thought”.
The big point we are trying to make is that Ministers have the hard task, going forward, of trying to persuade voters to have a sense of proportion about Covid – to be alert to its dangers without fixating on them, especially to the exclusion of other health conditions.
This is part of what Rishi Sunak was on about last year when he said that we must all learn “to live without fear”. The Government’s gamble now is that the vaccines plus – yes! – herd immunity will see the virus off.
And as for the NHS serving the people rather than the people serving the NHS, well, that was the rationale for awarding it the George Cross, wasn’t it?