“We cannot do nothing.” Once these magic words were uttered and acted upon, billions of people worldwide silently and obediently went home and locked themselves away. They isolated and wore masks. Doctors refused to treat patients, ministers of religion refused to administer last rites, loved ones left family members and lifelong friends to die alone, and so on.
It must now be clear that these magic words are very powerful indeed. They are more powerful than presidents, generals, legislators, and judges.
The existence of magic words is well-known. To the magician the word is “Abracadabra.” Once the magician utters this word, magic happens.
The Covid saga was quite remarkable, indeed unprecedented. Almost seamlessly virtually the world acted in consort. Without delay, country after country, within days of the virus appearing, went into lockdown. Legislators played virtually no part in the process, and courts did not intervene. It was pure, untrammelled, state power. The world acted as if there was a world parliament which had spoken, and a world government which acted.
“We cannot do nothing” has a long history. Part of this history gives the magic words some legitimacy: The common law has always recognised a narrow version of the magic words in the form that “Neccessity knows no law.” If someone is forced to harm others out of necessity, then they will not attract a legal sanction.
In the famous UK case of R v Dudley and Stephens 1884, four persons were adrift on a lifeboat. Two, Dudley and Stephens, decided to kill and eat the 17-year-old cabin boy. Were they guilty of murder and thus liable for the death penalty? The court decided that defence of necessity did not extend to murder, and the two were found guilty. The sentences were however commuted to six months imprisonment.
In South Africa’s S v Goliath 1972, a gang of thugs indicated that they would spare the life of one innocent person if that innocent person took the life of another innocent person. He was given a choice: kill his friend or they would kill him. He killed his friend.. The court declined to follow the UK’s example, and ruled that compulsion (or necessity) was a complete defence.
Necessity indeed knows no law.
Another development was when the government is faced with a “clear and present danger,” the government may act despite the law. Historically the scope to act was very narrow and involved freedom of speech matters. The government can take action against an individual if the government believes the conduct of the individual creates a clear and present danger. The doctrine evolved from the US case of Shenck v the United States 1919. In this free speech case, the court ruled that if the conduct of the accused created a clear and present danger, the speech is not protected by the First Amendment and steps can be taken against the individual.
This leads to “we cannot stand by and do nothing”.
We cannot do nothing
The Irish Famine was brought about by a potato blight, causing an estimated one million deaths. The question arose: what should government do in the face of the crisis? Two obvious steps were to halt exports of food from Ireland, and to ship in emergency food from other countries. But that is not what happened. The newly elected Whig government decided that it should do nothing. To do something would create a moral hazard. It should not interfere with the course of nature or the free market. Food continued to be exported out of Ireland while the Irish starved. The Irish never forgave the English, regarding the inaction as genocide.
A strong view developed, especially in the United States, that when faced with a crisis, the government “cannot stand by and do nothing.” The Irish situation would not be repeated, it was thought.
In the case of the Great Depression, unlike the Irish Famine, where the action which was needed was clear, the remedy was not clear. The Great Depression largely coincided with the presidency of Herbert Hoover, and he decided to do nothing. His reputation suffered as a consequence, and in the grand scheme of things he is not rated as a good president.
In contrast, Franklin D Roosevelt proposed his New Deal. He decided “we cannot stand by and do nothing.” Do this day the controversy rages as to whether or not the New Deal actually achieved anything, but in the US the message was clear: “In the face of a crisis we cannot stand by and do nothing”.
Those who do little or nothing in the face of a crisis – even when the appropriate response is to do nothing – will not long remain in office.
In the wake of the 2008 global financial crisis, I attended a conference in the US which discussed government’s response. Speaker after speaker made it clear that doing nothing was not an option. Doing “anything” was preferable to doing nothing. “We cannot stand by and do nothing” was now the established mantra. In his memoir, Ben Bernanke, who had taken over the chairmanship of the Federal Reserve, stated the logic of his actions. The title of his memoir explains it all: The Courage to Act: A Memoir of a Crisis and its Aftermath. There would be no more doing nothing. What was needed was the courage to act. So the Fed launched the programme of quantitative easing (QE).
Things started off differently in the United Kingdom, since the regulation of banks had been removed from the Bank of England. The UK was ill-equipped to deal with the 2008 crisis. In 1995, after the collapse of Barings Bank it was decided to have a single peak regulator and thus the Financial Services Authority (FSA) was formed. That was a mistake. The UK leg of the global crisis was brough about by the closure of two capital market funds in France. With the closure of these funds, a bank The Northern Rock faced calls of about £90 billion. It advised the Bank of England and the FSA it faced a liquidity crisis.
They followed the Irish Famine approach and did nothing. As the deadline approached to honour the calls, the plight of Northern Rock became public knowledge resulting in a run on the bank, the first of its kind in Britain in over 130 years.
The Governor of the Bank of England appeared on TV indicating that the Bank of England will not be assisting Northern Rock since this would create a moral hazard. What he did not seem to appreciate, at that point, is that the collapse Northern Rock would most likely cause the collapse of the entire British banking system.
Gordon Brown, the Prime Minister, looked at the actions of the Governor with disbelief, as did the Chancellor of the Exchequer. Ways were considered of getting the Bank of England to intervene as the lender of last resort. That turned out to be unnecessary, as the Governor changed his mind and followed the US by introducing QE. In end, the Bank of England generated about £350 billion and only stopped when the banks indicated they would not accept any additional funds. One bank, Barclays, decided not to accept any funds from the Bank of England, and sorted out their own problem. Barclays was unsuccessfully criminally prosecuted for its efforts!
So the 2008 financial crisis cemented the manta that “in the face of a crisis we will not stand by and do nothing.”
Covid – lockdown
The scene was set for the Covid response of 2020, by which time the mantra had become well established “we will do anything just as long as it is not doing nothing.” Governments would follow each other and do whatever came to mind, seamlessly. Magic was at play.
A new strategy emerged from the shadows of that of dogmatic assertions enforced by bigotry. Whatever the government asserted, was substituted for the truth. The assertion became the truth. So the dogmatic assertions became “lockdowns save lives”, “masks are essential to stop the spread”, “a vaccine had been developed”, and then the “vaccine stops the spread”, “unvaccinated persons pose a risk to society”, and so on.
A bigot is a person who holds a particular view and prohibits any dissent from that view. So, no dissents to the dogmatic assertions were tolerated. Persons who dissented were cancelled. So it was: take the vaccine or lose your job.
Governments did as they pleased.
Unacceptable
This is clearly unacceptable, but that is now where society now finds itself.
Economists have a very simple rule: To understand something, follow the money.
QE produced trillions of printed dollars. Any cynic could point out that when a crisis appears, money is no constraint. This led to a new way of thinking about monetary policy: Modern Monetary Theory (MMT), or what Sir Merwyn King dubbed the “magic monetary tree” – money could appear from nothing. The money-making machine did not stop after the 2008 crisis but was slowing down till the Covid crisis appeared, when it was once again stoked.
In order to justify the trillions which were created, global crises appeared: the global financial crisis and the worldwide spread of Covid. It would seem further worldwide crises are due appear in the future. No doubt should another crisis appear and the old adage, “Never let a good crisis go to waste”, will be put to good use.
During the Covid crisis, parliaments were uninvolved, and courts did generally not intervene. It can be argued that the actions of governments worldwide were totally arbitrary. Governments could do as they pleased – they did not need laws to act. The truth may however be somewhat more complex and even more troubling. Most bureaucracies, commissions, and agencies could argue they acted within the law. Laws are nowadays framed so broad that whatever action government takes can be argued to be legally permitted.
To illustrate the point, in the US the Federal Health and Safety Agency (OSHA) issued a directive that virtually every employed person in the US had to be vaccinated. Of course, individuals could decide not to be vaccinated and become unemployed and unemployable. The proposed action by OSHA was stopped by the majority decision of the United States Supreme Court, but the problem identified herein can be seen from the dissenting minority judges, who argued:
“[This court by stopping OSHA from insisting employees be vaccinated] stymies the Federal Government’s ability to [insist on vaccinations and thus] … [In so doing this court is] acting outside of its competence and without legal basis, … displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.”
The dissenting judges believe the bureaucrats were already possessed with untrammelled legal power to do anything they thought should be done. The judiciary should not interfere. Fortunately the majority judges disagreed.
This is thus the problem which society now faces. Increasingly every Act of Parliament gives wider and wider, more general, vague, and overlapping powers to an ever-growing army of unelected bureaucrats. It is becoming increasingly difficult to say bureaucrats are acting unlawfully since the law is so broad that every action is purported to be lawful. All they need do is utter the magic words and no one will be the wiser or able to stop them or voice any objection.
This needs to be changed – and soon!
