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Moving Into The 2020s

Social Distancing



25 January 2020

Inevitably a change of Prime Minister means changes in policy - necessary changes in policy - and that is no reflection on predecessors. Though I have designed parts of railway stations and so have no lack of a soft spot for railways, it is hard to see how, say, severe reductions in benefits, which can cause hardship, can be combined with spaffing (to borrow the word) the same amount of money on HS2, especially by advocates of the first policy. Neither can raising taxation for it, which can also cause hardship and depress badly needed economic activity, be seen as sound. The project, interesting in some respects, is highly uncommercial and already projected to cost 10 times HS1.

The civil engineering industry has some of the least good management attitudes of all Britain's engineering industries - witness Carillion - and so it cannot be the recipient of all infrastructure spending any more than the PFI package providers can now be the recipient of all sums for new hospital building, which they are not going to be.

Some revised thinking is needed and some longstanding civil service policy has to go. The north and Midlands cannot be regenerated extensively by infrastructure spending without the bias of business taxation, indeed all taxation, switching to favour smaller enterprise.

Token schemes run by the civil service for smaller business do not really work - only making it attractive through the taxation system for people not to be employees and instead take on commercial risk will work. The civil service is a place of secure long term employment and though it contains some of the most thoughtful minds, it finds it hard to make this intellectual leap.

Brexit will mean the exit of many large companies going off in a huff.

Others will arrive attracted by the reduction in EU regulations, traditionally gold plated more than in any other country by the civil service (spurring the perception of a need for Brexit) and now frequently unenforceable due to reductions in trading standard officer numbers - but they will not greatly outweigh those leaving, if they manage to do so.

Only regeneration of enterprise from below can work, otherwise consider forgetting about it.

Any immediate alternatives? Literally fix the roofs of schools and police stations, and the pavements outside, while the sun shines, training people in construction skills and putting in solar panels at the same time.

The benefits of mega-infrastructure spending alone may not endure. The bigger the contractors the less likely this is to be the case. Look at the legacy of many overseas Olympic projects for evidence.

The same will have to apply to who the banks lend to and take risk on. They can, of course, continue to skew their lending to big corporates and wait to take the big losses in the next downturn. Who wants owners of out of town shopping centres or diesel engine manufacturing plants now?

Only multiple and expanding smaller businesses encouraged by taxation policies and better non-bureaucratic lending can provide the aggregate scale of new economic activity needed everywhere in Britain.


28 February 2020

Something that needs to be established fast is whether the coronavirus, Covid-19, dies quicker the stronger the sunlight.

If it does then the virus will survive less time in outdoor environments when a hot sun in shining. The spring equinox (or vernal equinox) is on 20 March, so we are three weeks away from a turning point in sunshine levels. If it does, after the equinox it will become less easily transmitted in the northern hemisphere and more easily transmitted in the southern.

We are not qualified to comment on what medical action should be taken but we can comment on the political.

China, Iran, Italy and South Korea should consider voluntarily suspending nearly all travel in and out of their territories until the equinox when the suspensions can be be reassessed. (The markets, too, would welcome such firm action over the weekend).

Other countries are probably still in a position where they can contain the outbreaks on the basis of the contacts made by those infected.

This is the biggest issue of the decade so far. Bigger than climate. Bigger than Brexit.

Every week that passes without it being acted upon will double the amount that central banks and governments will have to eventually pump in to stabilise the world economy.

Two weeks is the time for the virus to cease being infectious. We are entering the month most critical for the wellbeing of human kind.


6 March 2020

Arbitrators are constantly asking themselves two questions: do I have jurisdiction and I am being scrupulously impartial? These are the grounds on which their awards are ultimately most likely to be set aside and not on the facts or the law without a broader appellate mechanism being written into the system.

Arbitrators can make jurisprudence these days that extends wider in its effect than that of national courts but you have to be a lucky arbitrator to be appointed to decide cases with that reach.

Any trade agreement between the EU and the U.K. is fated to have disputes resolution clauses providing for arbitration. (I would argue - but this is not a legal forum and this is a piece of journalism - that this is necessary in the interests of justice).

The European Court of Justice gets its jurisdiction from treaties between sovereign states. The U.K. is not party to those treaties so it cannot be subject to its jurisdiction except by treaty with those sovereign states. The EU is not a sovereign state.

It eventually became a matter of fact that Napoleon was an emperor and Queen Victoria was an empress - they each had sovereigns who were their vassals.

But what jurisdiction did the Congress of Vienna have to declare Napoleon Bonaparte sovereign and emperor of the island of Elba? If the congress had been an arbitral panel the correct decision would have been to rule that it did not have jurisdiction.

Queen Victoria at Temple Bar and G.E. Street's atmospheric Royal Courts of Justice

The Court of Arbitration for Sport was established in 1984 by the International Olympic Committee in Lausanne and it is subject to the arbitral law of Switzerland which does not provide for its arbitral decisions to be challenged.

So parties that have referred cases to CAS have chosen it to be final arbiter.

However, you could argue before CAS and elsewhere that it does not have jurisdiction.

Likewise, though CAS has largely distanced itself from its founder, you could argue that it is not impartial.

In the Caster Semanya case, an argument has been advanced that CAS was not qualified to decide matters of human rights.

Challenges as to jurisdiction, impartiality and lack of effective choice of forum have already been made and an outcome in a national court is awaited.

However, jurisprudence with global reach has been made. It is said that the alternative to a case brought to CAS would have been one before the South African courts and its persuasive force beyond the reach of that country would have been, in most likelihood, limited.

For sport there are clear advantages in going to arbitration. If you want to lift a ban on competing in the Champions League you want a decision in days or a few short weeks not after months or even many years as might be the case for a case before a national court.

Whilst the U.K. was a member of the EU you could theoretically have referred a matter of EU law from a U.K. arbitral tribunal directly to the European Court of Justice for a decision - if national recourse had been exhaused as it could have been as appeals are limited - which is not to say it happened.

The point, though, is that the European Court of Justice is probably best able to decide difficult points of EU law if the trade dispute arbitrators want to refer them prior to making an award just as the U.K. courts would be best able to decide difficult points of U.K. law. What surely must be the case is that none of these courts has automatic jurisdiction.

At the moment, however, it is a matter of politics so it would be interesting to hear the competing arguments.

A law firm in the City where I met some who decide or advocate in CAS cases


2 April 2020

We could not rely on a herd immunity strategy during the foot and mouth outbreak because there is no herd immunity.

We cannot rely on herd immunity for Covid-19 because there is no herd immunity.

In the event of another foot and mouth outbreak in Britain we must proceed at once to an immunisation strategy and stick to it thereafter accompanied by emergency herd isolation on a temporary basis.

Assuming a vaccine can be available one year on from the genetic sequencing of Covid-19 we must also move to an immunisation policy as the medium term solution.

For a virus so virulent herd immunity is only in practice achievable through immunisation.

An antibody test is useful to release healthcare personnel back into the frontline and to tell a few people who might otherwise be considered at high risk that they are at lesser risk because they have had the virus. The risk will always be lesser because a test may not have 100% accuracy and the virus may mutate though it is said to be fairly stable at present.

An antibody test is also very useful and should be extended to the whole population but it does not of itself reduce the risk to those in the population that have not caught the virus.

As a means of allowing widespread release of people back into the workforce it is flawed. It will be full of risk and practically divisive. As an extreme example you cannot tell politicians that they can be defence ministers because they have had the virus but that their colleagues who have not cannot.

The absolute priority must be the saving of life followed by the preservation of livelihoods.

The economy will recover but not in this quarter and will be irrecoverably changed. Businesses will therefore have exit strategies that take advantage of different opportunities not the status quo ante.

Social distancing must remain in force for at least two or three calendar months.

Those who fail to endeavour to maintain social distancing are not only putting lives at risk they are also endangering the livelihoods of those they know. Businesses will not seek to return to former operations if they know it will put lives at risk.

Should the virus not merely peak but decline to being residual the strategy should then move to testing all the contacts of those who have the disease in order to isolate it. Planning and providing for this testing should begin now.

Beyond that only an immunisation programme can deliver security.


21 April 2020

To continually say that you will be guided by the science is at times to abrogate sound political judgement. Occasionally it is trotted out by those who are not good enough politicians themselves, especially in the community that advises politicians. It also skirts the facts that science is continually being subject to new hypotheses that have to be tested against reality and that peer review approval does not necessarily mean that a piece of science is right, merely that it has won the argument for now amongst peers.

Yet we must give science much weight.

Then there is professional judgement and experience we must have regard to.

For Covid-19 that of the medical profession is probably more important than streams of data, and possibly more so than science, however much we have witnessed over decades the withholding of medical information from patients, inbuilt into the culture in Britain, costing lives and patronising them, and leading to an informed distrust of public health policy.

Engineering expertise must intrude, too.

Most sophisticated air conditioning systems do not merely extract used air and deposit it outside, though they could be set to do that in the warm weather we have now. They condition the air and recirculate part of it at a desirable temperature and humidity and at a rate that conserves total energy usage. This may result in flawed ways of doing things in the time of Covid-19.

So it is not merely what distance you are from someone but what air you are likely to share, especially with multiple people.

This tends to rule out certain activities and places in the first stages of relaxation - partying, dancing, audiences standing or sitting tightly packed, the indoor spaces of bars and pubs and intensely occupied open plan offices.

In a relaxation the two metre rule may not be critical. If you work in a factory coming closer than that regularly to a person working next down the production line may be of little risk and manageable in terms of keeping a record of your contacts. (You may not be allowed to take a mobile onto the production line so contact tracing apps do not work for all cases).

Closing the national borders of infected countries has come too late. On a continent scale level this may not work - the U.S., Schengen etc although it might for Australia. This is because outbreaks are likely to spring up from internal sources of infection at least as much as from border crossing.

So in a relaxation it may not be so critical to insist on particular distancing or restriction of travel as to limit the number of contacts made.

Law enforcement officials cannot go into a restaurant and say that table is not two metres apart because serving staff pass them anyway. What you can say is you can travel to the restaurant's outdoor area but you must only go alone, in your family group or to meet one other person sitting opposite. So you could meet your accountant for lunch in place of an open plan office.

Some business has to start again in a relaxation and there will always be limited risk until vaccination is widespread but the political judgement calls have to be made.


10 May 2020

For countries which have taken a big infectious hit from Covid-19 due to acting too slowly and the wrong type of testing and contact tracing infrastructure, insisisting on masks and quarantining of international arrivals at this stage are the wrong policies.

They need to stay in lockdown for a greater number of weeks than other countries and then move to allowing limited travel based on necessity, a switch to outdoor activities in preference to indoor, strongly limiting the number of contacts a person can make in a day, meeting people one person at a time and keeping a log of who they are manually on their mobiles or in a notebook with the dates so that in the event of infection they can report contacts and, finally, reducing the social separation distance to one metre.

That way some modicum of normal life and trading can return.

A contact tracing app as originally proposed by NHSX for Britain is likely to produce chaos if it is the mainstay going forward.

Everything suggests that the number of people who have had the disease in Britain is over a 100 times the number of deaths. That produces a number of at least 3 million people.

To these people the app will be close to useless based on proximity for 15 minutes or more with someone who self-reports infection. They are not themselves carriers as far as current knowledge can ascertain. They cannot catch it either. They will simply be receiving a call telling them that they must self-isolate, not go into work or go about their business.

This is the same public health nonsense that has prevented families getting their relatives out of care homes to where they can be better isolated from infectious risk.

The sight of Public Health England refusing to use offers from the animal health community of testing and the underuse of private hospitals and their staff to treat Covid-19, though contracted to provide capacity, is unappealing.

The obsession of public administration for nearly two decades with establishing prerogatives of governance over the population instead of providing services by which it can be loved has been exposed in public health policy. The NHS was meant to be the one example to show that the state could still do things itself and properly but it has been hamstrung by public health policy.

Care homes have not been able to access the best testing and treatment. Even now animal health testing facilities and private hospitals, under contract to the state, could rescue them.


29 May 2020

Experience over the past three months in the U.K. has shown that the concepts of imposed shielding and herd immunity are incompatible with liberty. No one who believes in liberty should be advocating them.

Experience has also shown over the same period that renewable lockdown periods and social distancing have been remarkably effective at braking the rise in infection and, thanks to the individual and collective resolve of citizens, bringing down the incidence of infection. The emphasis on outdoor activity in preference to indoor during warm and hot weather will also reduce transmission within indoor spaces.

Lockdown and social distancing have not been incompatible with liberty, except when they have crossed humane behaviour. What they are is a brake on economic activity.

If families and individual institutional organisations had been free to make their own judgements as to where and how people could be kept protected in detail from Covid-19 the outcome in the number of deaths would have been lower than with the shambolic behind the scenes regulation that we have had. Never again must the health of people be managed centrally by the state in this illiberal manner. Especially if the civil service is to retain respect.

People should nominate themselves if they have a need to be protected and then taken at their word. I have observed couples in their thirties stay indoors throughout receiving nothing but deliveries from supermarkets and online. That is okay.

I have also seen people in their seventies and beyond go out every few days to buy what they need from supermarkets and elsewhere and none have come to harm. The taxi drivers, who provide a useful service outside supermarkets, and whose services they decline, speak among themselves of colleagues who have gone down.

For the purposes of economic activity there have to be exceptions from lockdown.

For economic activity to resume fine judgements have to be made.

It is hard to see how the airline industry can return to activity if the social distancing, at least for it, remains at two metres in Britain. The same can be said of the hospitality industry. One metre might work for them. Airports might be asked to do basic temperature testing.

Heathrow has been the transport hub of Europe, Britain the place you send your children to be educated. A blanket 14-day quarantine on arrivals says the U.K. has no ambition for either to be restored.

By all means suspend flights and quarantine detoured arrivals from countries that temporarily have measurably higher incidence of infection than London, the location of arrival for most air travellers.

As for citizens, they can be made aware of a greater risk existing when using both transport and hospitality venues and be permitted to arrive at their own judgements. This is because Covid-19 is likely to be around until a vaccine speeds its elimination but economic activity must return and people need to be offered the health benefits of being outside during the warm weather.

Forget herd immunity. What we need to temporarily do is suspend pack behaviour. That can be policed. We might, indeed, like to go clubbing or employers might like packed training seminars but the guidelines have to say these are out, as they already do in effect.

We should allow individual judgement to have much more rein. "British common sense" would be the outcome.