12:16, April 01 131 0 theguardian.com

2020-04-01 12:16:04
Policing under coronavirus: the real test is yet to come

At the end of The Long Goodbye, Raymond Chandler’s detective Philip Marlowe bids farewell to his readers and to the characters in the novel. “I never saw any of them again – except the cops,” muses Marlowe. “No way has yet been invented to say goodbye to them.” Chandler was expressing a wider truth. In the words of the British criminologist Robert Reiner: “Welcome or unwelcome, protectors, pigs or pariahs, the police are an inevitable fact of modern life.”

Especially, we are again learning, in a national emergency. The Coronavirus Act 2020 has given a ratchet to three of the most persistently controversial themes in British policing history: police powers, police discretion and police coordination. All three are back in the spotlight in the Covid-19 lockdown. But this week’s arguments, prompted in part by the former supreme court judge Jonathan Sumption’s warnings about the growth of a police state, are only the start. The real test for the policing of the pandemic is yet to come.

Ever since the creation of London’s Metropolitan police in 1829, issues like these have been recurrent in the often volatile evolution of relations between politics, the police and the people. When the state took wide new powers last month they again became a source of argument. Police chiefs have not always appeared in control of events at a time when government is itself struggling to coordinate public discipline over travel, exercise and shopping.

The Coronavirus Act is in some ways a recognisable descendent of the draconian emergency legislation that Britain adopted at the start of the world wars of the 20th century. But in some ways it is different. By and large, the wartime emergency legislation granted wide new powers to central government, which was then free to make regulations to apply them. But the 2020 act also gives many powers to the devolved authorities and confers other powers directly on public health, immigration and police officers at local level. As a result, a degree of potential inconsistency between nations, localities and even individual services was baked into the legislation at the start. Devolvers will approve. Centralisers will not. Much remains in need of sensible clarification.

The different approaches so far are often arbitrary. Derbyshire police have used drones to highlight people walking in the Peak District and dye to deter swimmers from a quarry pool near Buxton. This attracted the wrath of Lord Sumption, who called the policing disgraceful. But other forces are also doing things that, in other circumstances, would be highly controversial too. North Yorkshire are using soldiers to conduct roadblocks. Cumbria issued a unilateral decree that the Lake District was “closed”. Devon and Cornwall police asked the public to report “illegal gatherings”. The Metropolitan police are challenging users of the London Underground to justify their journeys. Some of these acts can reasonably be justified, but others are plainly excessive.

Some of these interventions echo wartime restrictions. At some stage in the current outbreak there may well be a protest picket somewhere against, perhaps, a supermarket over food prices or a bank for not lending to small businesses or the self employed. The picket may comply with all the physical distancing guidance and be dignified and orderly. But it would probably elicit the same response as a protest reported by the civil rights campaigner Ronald Kidd in his wartime book, British Liberty in Danger. In June 1940, police tried to ban a meeting in south London against high food prices because, the police said, “it was undesirable that ‘ill-feeling should be stirred up at a time of crisis’”. That meeting eventually took place. A protest today might run up against the same response and be banned.

Today’s events are reminding a new generation of police chiefs and officers that relations with the public are always contingent. For generations, police in this country have set great store by the notion that they police “by consent” rather than by imposition. They like to think it distinguishes them from an un-British “gendarmerie”, against whom the Chartists protested in the early days of the Met. But “policing by consent” is often used, by both police and their critics, in unrealistic and idealised ways. Margaret Thatcher, for example, once said the police need “support and not criticism”. Approaches like that bear no relation to complex social realities, not least in emergencies.

Policing is a public good, but it is simultaneously a confrontational activity. It is a mistake to dismiss all policing as authoritarian. But nor is it the case that policing is just another public service. Consent, whether to policing or anything else, is always conditional. Consent has to be won and given, negotiated and sustained. Consent routinely involves invoking and accepting some degree of power. What is consent for some may be imposition for others. That goes with the territory.

Consent may be problematic, but it is nevertheless crucial. Today’s police chiefs properly invoke policing by consent. Greater Manchester’s chief constable Ian Hopkins, in his public statement this week said, rightly, that mistakes had been made in policing the lockdown and that some officers would get things wrong. The Met’s assistant commissioner Neil Basu did the same thing when he wrote that policing by consent remained the mantra even in “a period of readjustment to our new responsibilities”.

No one should be surprised that the appropriateness of various forms of policing has come to a head again in a time of pandemic. The state, after all, has just claimed unusual powers to direct our lives for the common and individual good. Those powers need to be debated – which parliament did not do – before they receive consent. The entire episode embodies what the philosopher Benedict de Spinoza wrote in 1670. “It is not, I contend, the purpose of the state to turn rational beings into beasts or automata, but rather to allow their minds and bodies to develop in their own ways in security and enjoy the free use of reason …. Therefore, the true purpose of the state is in fact freedom.”

These early days of the policing of the pandemic are nevertheless relatively straightforward. Public consent is currently high. Most of us probably think that it is irresponsible to test the law to the limits by, say, heading off in the car to climb Snowdon.

The much more difficult and demanding test will come in a few weeks, when someone in authority says that we have probably reached a stage where some of the restrictions can be lessened and aspects of the old normality resumed. That will be the point when Spinoza’s “free use of reason” will pose a far larger threat to the state’s coronavirus policy. That will be the moment when the policing of what is normal and abnormal, responsible and irresponsible, good freedom and bad freedom will become more complex, chaotic and confrontational. It could be a long hot summer. We all need to start thinking about it now.

Martin Kettle is a Guardian columnist



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