How to Design Better COVID Rules

At a recent wedding, the attendees picked up their glasses of champagne and began to stand to toast the new bride and groom. “Stop” shouted the COVID Marshalls supervising the event. Under the COVID rules, a person is not allowed to stand with a glass of alcohol in their hand at a licenced venue.

“But…” protested the attendees, “no-one is getting any closer, as we are already seated this distance from each other, and the toast will only be for a brief moment before resuming out seats.” But the COVID Marshalls were not for turning, as the establishment could risk large fines and a loss of their liquor licence.

I was told this story by one of the guests at my own wedding, a couple of weeks later, which despite having a similar number of guests, was allowed to have attendees freely wander with drinks in their hand by virtue of being held at a private, unlicenced, venue.

While good-intentioned, it does not seem to me that those rules were well made.

Making Good Law

Social distancing to impede the spread of COVID is one of the many worthwhile reasons why government might make laws. Some laws follow a “natural” morality and merely codify something that is inherently a rule. For example, it is morally wrong to steal, assault or murder, and laws relating to those acts are merely codifying a societal wrong and providing a systematized punishment for them. There is a high compliance with these laws (99.99% of people don’t commit murder), and it is almost unheard of to have unintentional breaches of the law – even murderers know what they are doing is unlawful.

In contrast to natural laws, there are laws that serve a function but which do not derive from a moral basis. For example, most tax law (beyond the basic need to pay for government services in some way) has no moral basis. A person does not know intuitively that it is wrong to deduct certain eligible relevant expenditure unless otherwise provided for, in accordance with s82KL. In which case, it is necessary to make the law in a good way. Lon Fuller, in The Morality of Law (1964), uses the allegory of the inept King Rex to illustrate eight ways to fail to make law. Relevant for present purposes, these include:

    • Failure to make rules understandable
    • Enactment of contradictory rules
    • Failure to publicize rules
    • Introducing frequent changes in the rules

Unfortunately, many COVID rules have not been good law. There have been complex and poorly described restrictions, such as which businesses can open and which cannot. Or some gatherings and venues will be restricted to tens of people, but yet sports matches or protests of tens of thousands are allowed. There have often been frequent changes to these rules. The result are laws that are not considered “good” laws by at least some proportion of the population who are then contemptuous to them, lowering compliance.

Some rules are well made but not fit for purpose. For example, up until its sudden (fortunate) removal a couple of weeks before my wedding, there was no dancing allowed at weddings – except – that the bride and groom were allowed to dance. But only to dance once! While the notion of preventing dancing at an event makes sense from a social distancing point of view, allowing a newly married couple to dance only once is nonsensical. If 3 minutes of dancing is acceptable, surely 6 minutes is. But what happens if the song chosen is a long one? Or a one-hour extended mix where multiple songs are joined together into one? And, of course, everyone should be aware that customarily the bride and groom get very close later on their wedding night – what could possibly be achieved by having them limit their closeness to each other?

Co-Opting Compliance

A plainly ridiculous rule such as this has a very unfortunate effect: it encourages contempt for the rules and reduces compliance. Ultimately most laws require voluntary compliance for them to be effective; the government cannot monitor all citizens at all times. For example, while there are many instances where mask-wearing could be monitored, it is easy to fail to wear one in a crowd or at a private location. It is easy to subvert rules by wearing a mask so that it is comfortably on one’s chin, or wearing something like a scarf that appears to be a mask but which does not function properly. Therefore it is important that people actively want to follow such beneficial rules as wearing a mask in crowded spaces.

Accordingly, I make the following suggestions for making better COVID rules:

    1. Make the rules simple and understandable. “Wear a mask while outside your house.”
    2. Create exceptions that are purposive and encourage voluntary compliance. “You don’t have to wear a mask if you have a critical reason not to, provided that you are using best efforts to social distance.”
    3. Don’t have highly complex rules. I am a lawyer who reads complex tax law for a living (like s82KL) and there are many rules that I cannot fathom.
    4. If rules need to change, set out the different categories that they may change to ahead of time. For example, have lockdown stages 1 – 5 with 1 being unable to leave the house to 5 being freedom from restrictions. Move between the stages as necessary, but don’t constantly change the definition of those stages. This way, people only have to learn 5 sets of rules, not dozens.

Use a mix of language to appeal to different political motivation. For progressives, highlight how everyone, no matter what background needs to follow the rules in order to look after society’s sick and most vulnerable. For libertarians, highlight how these rules are the minimum needed, are designed to give them maximum freedom while preventing the spread of disease, and that they are asked to voluntarily do what they can. And for conservatives, highlight that they are being asked to sacrifice and endure in order to prevent a destruction of society and its institutions.