Was there anyone who in truth was surprised to see that drone video tweeted by Derbyshire Police? I fear the only thing which surprised me was the novelty of the police’s excessive behaviour, the new terrain they had found for their performative urges. And as we now know that was merely the beginning of a whole series of quite silly responses by the police — and the rest of officialdom — as the lockdown restrictions took hold. These include a spectacularly bad mess where the BTP prosecuted someone for what appears to have been not even a crime; Lambeth Council closing a park; and that bizarre viral photo of a police car with a megaphone.

The police have always had a twin role. Being the strong arm of the law is obvious. But equally they have often given good advice. Which might range from the banal but important, “make sure you lock your car”; to the quite pointed but effective, “you were driving too fast, sir, but not illegally so”. Notice in the latter case it didn’t finish “and I am booking you anyway”. That is a vital distinction which several police forces seem to have forgotten in the past fortnight. Advice must not find itself being enforced like a law.

The police have always had a twin role. Being the strong arm of the law is obvious. But equally they have often given good advice

In many ways, the issue is not with the innocent — or sometimes innocent-ish — victim of “advice” pretending to be “law”. We already have procedures to rectify their situation, although as many lawyers will tell you those are not always very good procedures. Instead, we need to look at the wider message and its effects.

When a police office, or a council employee, or a health and safety inspector, goes beyond what the law requires and tries to impose a requirement that doesn’t exist, faith and trust in the whole edifice is reduced. Why? Because when he or she is caught out, and these days with social media they rightly will be, people correctly start to confuse what is the law and what is advice.

The net result is then when a constable needs to enforce an actual law, say for example someone not closing their café as required, there is a risk this correct enforcement is mistaken for advice. Which needlessly complicates the whole process of enforcing the lockdown. It also provides unnecessary fuel for the twitter inns of court to start their wisdom alongside the inevitable videos exposing the original official inadequacy.

If, instead, the police stuck to only enforcing the regulations as they are written, perhaps accompanied by non-binding but helpful advice (notice: advice, not compulsion) this risk is avoided. In addition, it obviously makes enforcement easier for two interrelated reasons. One is so obvious it is easy to miss it: enforcing bonus but illusory regulations takes up police time. The second is that people will simply do the right thing for you, understanding that when you say something is prohibited it really actually is, but that equally, just like locking your car door, it’s probably a good idea not to do something which while not technically illegal is unnecessary.

The problems are magnified if the police then gloat about their excessive enforcement of non-existent rules and hector people into following them. I am entirely unsure if being seen to enjoy enforcing a lockdown is the image the police want to project.

This applies mutatis mutandis to local authorities who do silly things like closing a park because too many people were in it — which, as an aside, is the wrong metric in any case, since it is the density of people that matters not the bare total. The overwhelming majority of people are following the regulations (the real ones, that is, not whatever is in the police or local authority’s collective intelligence). So closing a park needlessly simply creates resentment and confusion.

What was especially annoying about Lambeth’s decision was no attempt was made to actually use the extant regulations and fine anyone causing issues. Instead the council went for the easy option of closing the park and thereby turned advice — please don’t go to parks except for exercise once per day, etc. — into a collective punishment.

And it has a risk on the other side too. Now, when you re-open it, people may incorrectly think something has changed which makes parks less of a risk. Interestingly, in some of the press conferences from Downing Street each day, the scientific advisors have made variants of this same point — that reversing a restriction could paradoxically have a worse effect than not having the restriction in the first  place. This is obviously doubly bad when the restriction was not even a government mandated one, since we now have two different actors pulling the virus suppression levers.

Reversing a restriction could paradoxically have a worse effect than not having the restriction in the first place

The end result here is an accidental perfect storm. A population dealing with very severe, yet necessary, restrictions on their liberty. But a population which also sees a minority of the police being quite excessive, and a larger minority of local government officials deciding they know better than the government. The end state of this is people simply stop following the regulations — the real, necessary, ones — altogether. In all probability, this would not even be out of sheer bloodymindedness, but instead a mix of resentment and genuine confusion. Entirely avoidable resentment and confusion. There is a certain irony though, in seeing the police zeal to enforce the lockdown making a rod for their own backs.

Which is why there needs to be quick, and effective, methods of stopping pettifoggery. This could be as simple as a directive from the government (or my least favourite institution, the College of Policing) to all police forces that, henceforth, no “instructions” are to be given in excess of the exact provisions of the regulations; “advice” is to be clearly described as such; and hectoring and gloating about enforcement must cease immediately.

If people see this happen, and happen quickly, all the negative problems can be effectively mitigated. Counter-intuitively it might actually increase compliance by clearly highlighting exactly what is and is not allowed.

And if that doesn’t work, to prevent a repeat of this in the next emergency — for as sure as it is that the good times will return, it is equally sure that one day we will have another pandemic — some sort of penal sanction for enforcing non-existent regulations may need to be designed. If we call it “acting in excess of powers” then I can think of innumerable non-emergency scenarios where it might apply as well. The police would do well to contemplate this helpful advice before it one takes the form of law, as it would be a law their own current folly brings down upon them.