Introduction and roadmap

In this chapter, I argue that an emergency public health response is most effectively implemented when liberal democratic nation states recognise that their mandate to govern stems from their adherence to the core principles that underpin ideals and notions of democracy. There has been substantial critique of the way in which ‘illiberal democracies’ deployed measures justifiable during the pandemic to entrench authoritarian power. Drawing from case studies and the empirical, deliberative research of the Ada Lovelace Institute and the Bingham Centre for the Rule of Law, I show that the impact on the health of liberal democracies was also markedly damaging and profound.

Core principles, such as the rule of law, human rights and good governance principles, were systematically undermined and overlooked in numerous liberal democratic governments’ COVID-19 response. The effect of this was, I argue, to undermine the quality, effectiveness and legitimacy of government intervention – at a time when the government most relied on the confidence of its people – contributing to the longer term erosion of the health of democracy itself. In particular, the citizen juries undertaken during the lockdown by the Ada Lovelace Institute and the Bingham Centre for the Rule of Law found that, despite the state of emergency implemented during the lockdown, people continued to expect good governance during the pandemic and did not readily accept that democracy itself could be paused (Patel, 2020a).

In future crises, democratic nation states need to create participatory infrastructures, adapted to enable real-time collective dialogue, that complement the blunt instruments of emergency decision-making and act as a check against the risks of executive power overreach through (in effect) ‘pausing democracy’ or placing democracy itself in ‘lockdown’. Such participatory infrastructures would support the maintenance of the quality and health of democracy. In this chapter, by reference to six short inter-related discussions and four evidence-based case studies (both from the coronavirus pandemic and other public health crises), I will take the reader through my developing argument. In concluding, I suggest that our empirically tested citizen jury model, piloted and adapted specifically for emergency situations, could (and, I argue, should) be adopted by policymakers going forward.

Discussion 1: Democrats relied on the social contract in a crisis, but also eroded it

The use of emergency powers (as set out in the Public Health Act 1984 and Coronavirus Act 2020) imposed as a direct result of the UK government’s COVID-19 response undeniably, eroded most people’s sense of agency – their natural desire to ‘be somebody’, and to be free (Berlin, 1969).

This generated widespread resistance from some members of the public, manifesting in outright rejection of particular governmental policies such as mask wearing, vaccine uptake and lockdown restrictions (Kleitman et al., 2021). While policymakers, scientists and researchers opted for the simplistic narrative of assuming these individuals were ‘misinformed’ or ‘disinformed’, many risked overlooking substantive differences of viewpoints, values and perceptions that needed to be understood and engaged with directly (Nuffield Council on Bioethics and Involve, 2020). The state of emergency also contributed towards a concern among some members of the public that they were being reduced to passive ‘recipients’ of government policy in the crisis rather than active co-creators of the crisis response.

However, while specific individuals expressed concerns about their individual rights and freedoms being compromised due to the pandemic, the majority of people in liberal democracies did comply to some great extent with policies designed to manoeuvre their societies out of the crisis. However, their compliance does not suggest that they necessarily agreed that all exercise of emergency power was proportionate or accepted that democracy itself was a luxury in the pandemic that needed to be paused for the greater good.

On the contrary, I argue that compliance reflects adherence to a different viewpoint about democracy, even in a crisis. Social contract democracy theorists, for instance, propose that true liberty can only emerge from active participation in a society that secures the wellbeing and rights of its citizens through the establishment of a social contract (Rousseau, 2004 [1762]). This notion of a social contract is therefore founded on the premise that, without the existence of government and governmental intervention, life would be ‘nasty, brutish and short’ (Hobbes, 2008 [1651]).

In a more contemporary context, the work of both Rousseau and Hobbes has been adapted by Rawls to indicate that the social contract grounds justice itself in a democratic society – recognising that the source of these principles of justice and equity are themselves necessarily social (Rawls, 1999 [1971]). As the pandemic and the responses worldwide from governments and their citizens illustrate, without the existence of democratic infrastructures and government intervention at all, life would have indeed been nasty, brutish and short or, at the very least, nastier, more brutish and shorter – COVID-19 was a very real threat that required a swift, broad brush and collective societal response to contain its spread. This is borne out by research into compliance that suggests the key factors facilitating compliance were first, a desire to reduce risk to oneself and one’s family and friends and then, to a lesser extent, to the general public. Also of importance were a desire to return to normality, the availability of activities and technological means to contact family and friends, and the ability to work from home (Wright et al., 2022). It was this notion of democracy that citizens accepted. Rather than a pausing of democracy itself, people continued to expect good governance during the pandemic, as findings from numerous citizen juries undertaken during the lockdown demonstrated (Patel, 2020a).

On the whole, politicians and policymakers did not understand that this was expected of them during COVID-19. Politicians asked people to both consider others and the long term in acting to address the pandemic but did not demonstrate their own trustworthiness in navigating the crisis (Annweiler et al., 2021). In failing to reassure and persuade their citizens that they were committed to the protection of democratic rights and liberties in the long term, and thereby to justify the extraordinary measures that they needed to take, politicians and policymakers created a crisis of confidence rather than confidence in a crisis (Patel, 2020a). In short, policymakers did not recognise that they were both relying on and seeking to reconstitute the ‘social contract’ at a time of crisis and asking citizens actively to co-create the (worse) new deal.

Internationally, a Freedom House (2020) study found that democracy itself was weakened in eighty countries, including liberal democracies, due to the pandemic. Among the study’s 398 global civil society survey respondents, 27 per cent reported government abuse of power as one of the three issues most affected by the coronavirus outbreak. Worldwide, officials and security services perpetrated violence against civilians, detained people without justification and overstepped their legal authority (Freedom House, 2020).

I argue, with reference to UK and US examples, that these actions had the long-term effect of undermining the legitimacy of governmental actions and, thus, confidence in government, at a time when it was most needed to generate buy-in and compliance. It also impacted on the likely effectiveness of their interventions.

Discussion 2: States of emergency

Despite the fact that ministers required democracy itself to operate with confidence and legitimacy from the public, politicians in liberal democratic states almost universally entrenched executive power through a variety of mechanisms. Emblematic of this were the ‘states of emergency’ declared worldwide, which enabled governments to deal swiftly with the emergency, but also had the effect of actively concentrating untrammelled executive power and contorting the democratic state into an ‘Emergency State’ by eroding fundamental democratic constitutional checks and balances (Wagner, 2022). This was a worldwide phenomenon – in Israel, for example, the judiciary was suspended, electronic surveillance and the tracking of patients was implemented, and parliament was shut down for four days (Wagner, 2022), leading to claims that emergency powers had been pushed to their limits.

Even particular day-to-day choices in the UK, such as parliamentary and council decisions to return to deliberating in person during the pandemic while social distancing and mask wearing were necessary, had the effect of undermining the quality of debate and discussion (White and Lilley, 2021). This, therefore, had the effect of corroding the very institutional frameworks and structures on which government demands for public compliance relied. Fukuyama, for instance, found that the factors responsible for successful pandemic responses were state capacity, social trust and leadership and that even those historic liberal democracies that lacked those features struggled in their response to the pandemic (Fukuyama, 2020).

Discussion 3: Abrogation of the rule of law

Lord Bingham defined the rule of law in its essence in the following way: ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’ (Bingham, 2011).

During the pandemic, governments found they needed to ask, and sometimes require, or enforce, people to give up their individual freedoms to realise societal freedoms – crucially to enable a successful navigation out of the pandemic for everyone. Challenges arose when people decided not to comply, particularly when the rules were ignored by the very individuals responsible for creating them, as the trip to Barnard Castle by policymaker Dominic Cummings served to illustrate.

The ‘Cummings effect’ significantly shaped how the public perceived government policymaking – surveys undertaken during lockdown show that confidence in the government stabilised and improved in the fortnight prior to Cummings’ trip to Barnard Castle, but that confidence suddenly decreased further after that event (Fancourt et al., 2020). Subsequent public and societal anger about the Downing Street parties underline this point – there remained the clear expectation that the application of all laws to all persons should remain, without exception. The independent investigation led by Sue Gray into the civil service Downing Street parties held during lockdown rules found: ‘At least some of the gatherings in question represent a serious failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time’ (Gray, 2022: 7).

Discussion 4: Surveillance technologies

Unique to the COVID-19 pandemic was the rapid acceleration of technologies and the onset of electronic surveillance worldwide. At the same time as policymakers recognised how technologies could help citizens extend their sense of agency in day-to-day life through enabling remote work, remote education, remote council meetings, and opportunities to share knowledge and learning digitally, by way of example; some other technologies were rapidly accelerated in ways that did the opposite – they sought to exercise some level of government control over, or power to influence and shape, the behaviour of citizens.¹

In Singapore, for instance, a COVID-19 digital contact tracing app, TraceTogether, was being accessed by the police for criminal investigations, despite reassurances of privacy from ministers (Han, 2021). Privacy experts increasingly expressed concern that governments would accumulate more personal information, with a view to shaping and influencing their citizens, than was necessary or proportionate to respond to the public health crisis, and would otherwise use that information to contravene the principles of individual autonomy and freedoms.

Despite substantial concerns about democracy and rights in the context of their use, they relied deeply on the conception of the social contract for their use and uptake, thus creating a highly compromised and ambivalent approach to their use at the outset by both citizens and policymakers. Two case studies follow, by reference to which I exemplify these concerns.

Case study 1: NHS Test and Trace contact tracing app (UK)

The UK’s digital contact tracing app was a mobile application developed by the UK government to assist in the identification and notification of individuals who may have come into contact with someone infected with COVID-19. The app used Bluetooth technology to detect when two app users were in close proximity to each other for an extended period of time. If one user later tested positive for COVID-19, the app would alert other users who had been in close contact with that person and provide guidance on what steps to take next. The app was launched in September 2020, after a prolonged development period and some controversy due to concerns expressed by privacy organisations. It was initially only available in England and Wales, with Scotland taking a distinct approach.

The Test and Trace app was problematic for a number of reasons. There was a fundamental concern about its effectiveness in identifying close contacts. In addition, there were concerns over privacy and data protection, a lack of transparency in the development process, the potential for misuse and commercialisation of data and accessibility for people with disabilities. Additionally, the app was initially centralised, meaning that data were stored on a central server rather than on users’ devices, raising concerns about government surveillance. Following an initial trial on the Isle of Wight, the Information Commissioner’s Office² undertook a Data Protection Impact Assessment, and indicated the lack of clarity about data collection gave rise to concerns that its collection was not proportionate (Civil Service World, 2020). Overall, these issues highlighted the need for a more democratic and transparent approach to the development and implementation of digital technologies for public health purposes.

The UK’s National Audit Office (NAO) published a report in December 2020 on the government’s approach to Test and Trace during the COVID-19 pandemic, including the digital contact tracing app. The report highlighted several issues and challenges, including the delayed launch of the app and the need to integrate it with the existing manual contact tracing system.

The NAO also raised concerns about the effectiveness of the app, noting comparatively low levels of uptake for the level of public investment that development of the app had necessitated, and identifying that it was unclear what impact the app had had on reducing the spread of COVID-19 in the UK. It concluded that ‘for as long as compliance is low, the cost-effectiveness of [NHS Test & Trace]’s activities will inevitably remain in doubt’ (National Audit Office, 2020).

An international review of similar apps, including in Australia (New South Wales) and in Switzerland, found that digital contact tracing itself is a complex public health intervention depending not just on the functioning of the technology but also on its adoption by its users and on its wider integration into the broader public health response system. Despite the fact that similar technologies were rolled out internationally, levels of uptake and confidence varied enormously, suggesting that social factors (trust and confidence) played a key role in enabling uptake.

The [Swiss] study found that ‘the optimal implementation of a digital contact tracing app must account for the epidemic context and deal with acceptability, privacy, and the respect of civil liberties’ (Poletto and Boëlle, 2022). I go a step further than this to suggest that where there was a lack of confidence more broadly in the government’s pandemic response, there was a lack of uptake.

Case study 2: Vaccine passports (UK)

Vaccine passports are documents or digital certificates that provide proof of a person’s vaccination status against a particular disease, such as COVID-19. The purpose of vaccine passports is to allow vaccinated individuals to show that they are protected against the disease, thereby reducing the risk of spreading the disease to others.

In navigating the pandemic, numerous governments and nation states mooted the development of digital health and vaccine certificates. This generated considerable societal debate and controversy. Individual rights concerns arose from the potential for vaccine passports to be used as a tool for government surveillance and control. There were concerns about the potential for these passports to be used to restrict individual freedoms, such as the freedom of movement, and to create a ‘two-tier society’ where those who are or choose to be vaccinated have greater freedoms and opportunities than those who are not.

Others expressed the concern that vaccine passports did not guarantee immunity from infection or reinfection, and thus that the implementation of the initiative may risk increasing the prevalence and spread of COVID-19 inadvertently (Ada Lovelace Institute, 2021).

Despite those concerns, digital vaccine passports were also contextualised by proponents and governments as enabling democratic freedoms – yet again, manifesting the ambivalent democratic positioning of policymakers in relation to their use of the technology. As well as using the technology to exert some level of influence or control over citizens’ freedom of movement, arguments positioned the technology itself as mediating increased access to individual rights and freedoms.

For instance, vaccine passports were suggested as a way to enable increased individual freedoms (presenting an opportunity to emerge from lockdown while minimising risk or exposure through vaccine certification) – the Tony Blair Institute for Global Change described them as the ‘ultimate exit strategy’ (Tony Blair Institute for Global Change, 2021). They were proposed as a mechanism to facilitate the safe resumption of activities such as international travel, large-scale sporting events and attendance at bars, restaurants and hotels.

However, in reality, they were often used in implicitly coercive ways – for instance, they were mandatory for international travel and thus enjoyed success and uptake due to people’s appetite for travel. However, appetite for their use in domestic contexts remained limited – in the UK they were initially required for some venues in all of the four nations but were later phased out (White and Lilley, 2021).

This followed the finding from the Public Affairs and Constitutional Committee that the government should abandon its ‘unjustified plans’ and that the government had ‘failed to make the scientific case’ for their use (Public Administration and Constitutional Affairs Committee, 2021).

Discussion 5: The undermining of democracy in turn undermined the quality of science and data

Beyond the day-to-day of the pandemic response, this ambivalence also manifested at a different level – the ‘science-led’ approach claimed by policymakers existed in tension with the practical constraints of resourcing and truly enabling a data-driven approach. This resulted in the critique that ‘following the science’ mantra often adopted by policymakers had the effect of transforming science into a ‘fig-leaf’ for decisions that were predominantly values-laden and political in nature (Wagner, 2022). The narrative of ‘scientism’ from the UK government served to mask the reality of decision-making in the pandemic: while it was important for the government to be guided by scientific advice, good judgement and interpretation of societal values were equally (some might argue more) important. This, in turn, required collective intelligence at a time when the power to make decisions was concentrated in the hands of comparatively few. As events in the UK illustrated, there was a need for both more principled approaches to governance and more principled approaches to government itself, particularly by the front benches.

One of these approaches is epistemological pluralism, which essentially means an acceptance that we can know and understand things in alternative ways. This, despite the increasing evidence that points to the value of epistemological pluralism, and the importance of ‘self-consciously recogniz[ing] the limits of [one’s own] epistemology … and engag[ing] with other approaches without attempting to usurp them’ (Beaumont and de Coning, 2022).

Policymakers struggled with the epistemological openness that marks the feature of democratic society – what Popper described as the ‘open society’ (Popper, 1945). In such a society, epistemological pluralism is able to thrive – there is the recognition that knowledge itself (particularly the approach to science and policymaking) requires pluralism to develop and advance rather than the proposition of a single viewpoint.

In their efforts to deliver clear and consistent messaging about what was required for compliance from citizens, policymakers found themselves at times masking the rationale for their decisions or presenting only a singular perspective on the data. In so doing, they delivered a simplified view of COVID-19 itself, rather than acknowledging that their work was founded on assumptions and itself subject to an ongoing process of continuous and rapid epistemological inquiry.

In illustrating the risks generated by such an approach I turn to two further case studies – one from the time of cholera in the nineteenth century, and one from the COVID-19 pandemic itself.

Case study 3: The pump handle and John Snow

There is a saying, incorrectly attributed to Mark Twain, that states, ‘History never repeats itself but it rhymes’. We can look towards the nineteenth-century cholera outbreak in London’s Soho to identify some ‘rhyming patterns’ that might inform politicians’ and policymakers’ often conflicted and ambivalent approaches to data use and evidence (and thus, to a genuinely ‘open society’) in times of crisis.

In 1854, Snow’s use of a dot map to illustrate clusters of cholera cases around public water pumps, and of statistics to establish the connection between the quality of water sources and cholera outbreaks, led to a breakthrough in public health interventions – and, famously, the removal of the handle of a water pump in Broad Street.

Although John Snow had persuaded government officials to remove the handle of the water pump he had linked to cholera cases in Soho, his own explanation of the cause of cholera outbreaks – that it was a water-borne disease – was rejected for months. The Board of Health issued a report that said, ‘We see no reason to adopt this belief’ – prompting Snow to continue to gather data about cases of cholera, tracing them back to the pump.

Scientific orthodoxy at the time preferred the ‘miasma’ theory – that cholera was caused by the inhalation of vapours in the atmosphere – and it took considerable time for Snow’s hypothesis to be taken seriously. In the meantime, people were falling ill and dying.

There can be a discrepancy between what the data say we should do, and what governments want to do – other short-term economic and political pressures push against the evidence base, compounding a natural resistance to change.

Furthermore, as the examples of both NHS digital contact tracing and vaccine passports illustrate, how the data is generated is of great significance and importance. Equally likely to be the site of political contestation is the purposes for which the data is used.

The John Snow Society, at its annual Pumphandle Lecture, commemorates, through a ceremonial removal and reattachment every year of a pump handle, the medical world’s ongoing struggle against such forces (Patel, 2020c). This example illustrates the importance of both data and other types of knowledge in addressing the crisis.

Thus, epistemic pluralism, a core feature of an open and democratic society, is itself central to liberal and democratic states navigating their way out of the pandemic, saving lives and offering timely responses to public health emergencies.

However, Case study 4 uses a more contemporary point from the pandemic to illustrate a similarly ambiguous relationship with evidence and data that policymakers exhibited worldwide.

Case study 4: Johns Hopkins data dashboard (USA)

Despite their claim to be ‘led by science’, many actions by policymakers served to suggest otherwise. A key example of a real-time resource established in the early days of the pandemic was the aggregated database established by Johns Hopkins University – a web-based dashboard that mapped (very rapidly) the growth rate of incidences of COVID-19 deaths and recovery cases across the world. This source of data was vital for policymakers and researchers to understand and track the incidence of COVID-19 worldwide.

The Johns Hopkins data dashboard became essential for decision-makers as it enabled them to track the spread of the virus worldwide, with the university reporting that the dashboard was viewed more than 2.5 billion times and that more than 200 billion requests for data were received.

However, the dashboard encountered (over time) significant resistance, with a number of US federal agencies and states failing to share data in a timely fashion, or at all. It also encountered barriers when it came to the standardisation and consistency of data collection worldwide.

Ultimately, the dashboard closed, due to the lack of adequate participation from governments around the world to provide an accurate perspective on transmission (Torkington, 2023).

The Coronavirus Research Centre (CRC), which hosted the data dashboard, found that, from 2021, US states and counties began to consistently reduce the amount of publicly reported data, leading the CRC to discontinue hourly reporting for testing and vaccine data. Public reporting continued to decline from then onwards.

Meanwhile, the federal government significantly expanded its data tracking and reporting capacities (Donovan, 2023).

As these examples illustrate, despite claims of being ‘science led’, the behaviour of policymakers, when it came to access to and control of data about the pandemic, contributed towards concerns that the science was instead being led by politics. This contributed to widespread societal concern, in turn undermining the spirit of epistemological inquiry that characterises a genuinely democratic and open society, but also undermining the potential for the effective functioning of science at a time when this was crucial for the effectiveness of policymaking (Popper, 1945). Yet again, the task for policymakers was to interpret and apply the principles of epistemological openness to the context of the crisis – rather than to reach immediately for and adopt the ‘closed’ epistemological model. The lessons of history (the cholera outbreak) as well as the instance of the Johns Hopkins database serve to illustrate this point.

Discussion 6: Towards confidence in a crisis – where next?

As part of a UKRI COVID-19 rapid-response grant, I was a co-investigator on behalf of the Ada Lovelace Institute, with researchers from the University of Edinburgh and the Bingham Centre for the Rule of Law, exploring citizens’ views and values in the UK through the use of citizen juries. Our participants (n = 50) were demographically sampled to represent the diversity of the UK population, while including a significant number of individuals from clinically vulnerable groups and disproportionately affected minorities (Bingham Centre for the Rule of Law, 2020). The group was purposively sampled with a broad distribution of age, gender, ethnicity and location (rural, market town and urban split), with slight overrepresentation of those who were asked to shield due to COVID-19 vulnerability in the pandemic, to ensure adequate representation of their perspectives. They were recruited by the agency People for Research to meet the pre-identified quota sample and remunerated for their time to contribute.

This project, at the intersection of law, ethics, citizen deliberation, public health and data science, aimed to develop a values-based framework to help understand and address the challenges posed by data-driven responses to public health emergencies and the need to build public trust.

The juries that deliberated as part of this work examined a range of data-driven technologies deployed in response to the pandemic, including digital contact tracing, vaccine passports to enable freedom of movement, and the use of the Shielded Patients List to identify those most vulnerable.

The two online citizen juries were held during summer 2021. Each jury deliberated for four consecutive days. The jury process combined short briefings by experts, followed by extensive deliberation within the jury group and a final presentation of preferred regulatory frameworks to policymakers from the NHS, UK government and devolved administrations.

Jurors met for two-and-a-half hours each day from Monday to Thursday in a single week, to hear presentations and take part in facilitated discussions in breakout groups. Each jury followed the same structure:

• Day 1: Jurors were introduced to the project, provided with an overview of data-driven technologies deployed in response to the pandemic, and given some initial provocations around challenges for the rule of law and good governance to aid their deliberations.
• Days 2–3: Jurors were given presentations about their chosen case studies – vaccine passports, risk-scoring algorithms and the General Practice Data for Planning and Research programme (GPDPR) – from experts who spoke either for or against each case study. Following these discussions, jurors discussed the technologies in depth in their deliberations – articulating ‘green lights’, ‘red lines’ as well as conditions and safeguards relating to the technologies themselves.
• Day 4: Jurors reflected on all they had heard in the previous days and discussed conclusions across the technologies – developing and co-creating principles for good governance in emergencies.

The process aimed to identify areas where there were substantial points of disagreement, as well as consensus, crystallising their deliberations into a set of principles for good governance of the use of the technologies that were discussed.

The process provided a fascinating window on the extent to which good governance and the rule of law were considered important by members of the public, not only in the context of pandemic response measures but also in relation to other democratic developments in data-driven technologies that could be anticipated in future (Patel et al., 2022).

Importantly, through the method of deliberation itself, we aimed to reflect in the juries the ambivalence, nuance and the wide range of values and views held by citizens more broadly, both in terms of the restrictions on their lives during lockdowns and in the context of the use of rapidly developing technologies.

The deliberative process also challenged participants to work together, putting the ambivalent and wide-ranging views to work as a tool for developing each jury’s own views on good governance in a crisis. Informed by these deliberations, the Ada Lovelace Institute synthesised the seven key principles required for good governance of technologies.

I suggest that these principles need not be constrained to the technologies themselves, but have wider relevance, even to inform how democratic states might best govern themselves to (more) successfully navigate similar crises in future. This would help address the gap in the literature at which this book is directed – an initial review indicating that, despite the breadth of literature reviewing the impact of the pandemic in retrospect, there is markedly limited research and work seeking to articulate good governance, particularly by understanding the views of citizens themselves.

Thus, the work of the Ada Lovelace Institute and the Bingham Centre for the Rule of Law represents a contribution, not just to the debate about the good governance of technologies, but more broadly, to an understanding of good governance for a public health response to a pandemic, mediated by rapidly developing technologies. In Table 7.1 I have adapted these seven principles to suggest how they might inform successful public health emergency decision-making and governance more widely.

In addition, participants articulated numerous ‘red lines’ – clear boundaries that public health decision-makers ought not to overstep. Again, while these were initially generated for the use of technologies as a public health intervention, they can be extrapolated more widely for public health measures in general. The citizen juries’ ‘red lines’ were:

• Public health measures should not create a two-tiered society that disproportionately discriminates against or disadvantages certain groups.
• Any measures exceptionally and temporarily accepted during the pandemic should not be extended into the future, after the pandemic ends.
• Public health measures should not be used to surveil, influence, profile or predict the behaviour of individuals.

Institutionalising deliberation at a time of crisis: a conclusion

The process of public deliberation piloted by the Bingham Centre for the Rule of Law and by the Ada Lovelace Institute (through the pandemic) itself illustrates the potential for governments to operate in a deliberative and democratic manner, even at a time of significant pressure and crisis.

At a time where executive decision-making is concentrated in the hands of very few, there are significant benefits to broadening out consideration of decision-making on issues as controversial or challenging as vaccine passports or contact tracing to a broader range of viewpoints. The ‘mini public’, adapted to convene rapidly, represents a practical and feasible way to do so (Patel, 2020b).

Our work demonstrates the feasibility of creating an open society that can operate in an epistemologically pluralist way, combining policy and science with citizen values and expertise. I suggest it points to the potential for developing a scalable, real-time, responsive model that would enable policymakers to embed the principles of a democratic dialogue and a more open society even (and maybe especially) at a time when policymaking risks ‘closing’ societies and thereby ‘locking down’ democracy.

It is no surprise then, that as we emerge from the pandemic structures – for instance, the sunset clauses that provide for the expiry of emergency legislation such as the Coronavirus Bill in the UK (Davis and Cowie, 2020) and the broader return to due parliamentary process – we are tracing a shift away from ‘scientisation’ towards a deliberative and ‘participatory turn’ in policymaking, with policymakers and scientists increasingly appreciating the value of turning to the experiences of diverse citizens to help shape and inform better science, and better policymaking (Krick et al., 2019).

Our citizen jury data suggest that, in preparation for future crises, it is crucial that democratic nation states reflect (honestly and transparently) on their recent experiences, learn from these ‘online deliberative debate’ models and adopt them to help shape increasingly participatory and deliberative infrastructures for democracy in a crisis. These models of deliberation have the potential to engage policymakers and scientists in dialogue with the public and to co-create a vision for a future in which we are all shaped by the pandemic, but seek, constructively, to move beyond it.

More broadly, this chapter has shown that the best course for liberal democratic states to chart in effectively implementing their public health responses is to recognise that their mandate to govern stems from their adherence to core rule of law, human rights and good governance principles. We have seen that these key tenets of democratic government matter in protecting and promoting legitimacy, compliance and broader societal support and consensus around key policy measures during a major public health emergency.

During the pandemic, governments succumbed to the strong temptation to overreach their powers through the blunt instrument of the emergency powers at their disposal. They sought to control, nudge and influence the public, and to impose control in a ‘top-down’ manner.

However, as the case studies discussed above illustrate, there is limited evidence to demonstrate that this approach is (in the long term) wholly effective in enabling a swift and effective response to crises. Indeed, we might conclude such an approach is largely ineffective, the tendency to ‘overreach’ contributing towards diminishing trust and confidence in policymakers during the pandemic.

Numerous public deliberation exercises in the pandemic (Patel et al., 2022) found that, while citizens are willing to accept that policymakers face unusual pressures and may need to resort to unprecedented mechanisms and powers at their disposal, they expect the broad overarching frameworks of rule of law, good governance, proportionality, democracy and human rights to remain in place – and for public health measures taken to be transparently and clearly justified. Democratic states depend on their democratic mandate, even in a crisis, and must actively engage their citizens in reshaping their social contract if they are to avoid crises of confidence and, instead, create confidence in a crisis.