![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
danieldwilliamI have been thinking a little about vaccine passports and nightclubs and mulling over two concepts from jurisprudence and public policy; magical legal thinking and the chilling effect
Some time ago David Allen Green wrote about magical legal thinking, the notion that just passing some legislation on it's own doesn't change the world. Banning something by law doesn't make it stop in and of itself. Something else must happen for their to be an effect, typically some enforcement action. He wrote about it more recently in relation to COVID lockdown regulations.
https://twitter.com/davidallengreen/status/1312773215903772676?lang=en
The chilling effect is what happens when some rule might or might not apply to you and you are worried that either you will suffer some enforcement activity or have to perform some onerous compliance tasks. A recent example is the impact on third sector organisations of the Transparency of Lobbying Act 2014. Which regulates the campaigning behaviour of charities during election periods. For fear of non-compliance many charities restricted their campaigning activities.
And so to vaccine passports. What then is the purpose of a vaccine passport? What in law is a nightclub? What is the effect we are trying to have.
I think the proposed regulations are mostly not about regulating a specific risky behaviour undertaken by a specific group at particular risk. Lots of unvaccinated people crowded in to a small space, drinking and talking or singing loudly and moving around energetically sounds like risky behaviour during COVID, whether that's in nightclub or a sports arena or a theatre or whatever. The venue being a nightclub or not being a nightclub doesn't strike me as important to the additional risk. The risk is not changed by the magical legal application of a ban on unvaccinated people in nightclubs - as defined in the interpretation section of the relevant legislation or the dictionary. I think the regulation is mostly aimed at encouraging unvaccinated people to get vaccinated by harnessing the chilling effect. The chilling effect is the mechanism by which the ban on some behaviours has the desired policy effect of increasing vaccination rates and reducing opportunities for transmission of COVID.
Do you want to go to a nightclub - or a similar venue that might or might not be a nightclub? Then get vaccinated. That avoids you risking being turned away from the venue you want to go to.
Are you a nightclub? Or perhaps a similar type of venue? Not sure and want to avoid criminal prosecution or civil actions for damages? Then start asking your customers to prove their vaccination status?
Some ambiguity is actually helpful in achieving the policy aims as it spreads the chilling effect more widely.
People are entitled to be able to understand the law in advance. It should as much as possible be clear, unambiguous and actionable by citizens. An unclear definition of nightclubs is unfair in much the same way that an unclear definition of cafe was unfair earlier on in the pandemic and businesses were being closed. However, I think there is a crucial difference here - the level of harm from the ambiguity in definition is much less. In the earlier situation some business were being closed, some allowed to open under certain circumstances. Some closed businesses or the people working in them would be entitled to financial support from the state. Closing your business and putting your staff on furlough is a big thing. A big thing to get wrong. A big risk for the state to pass to you with an unclear set of rules.
Less serious I think to have an ambiguous definition of nightclub for the purposes of vaccine passports. Some venues that are not properly nightclubs might employ a few extra security staff. They may turn away some customers. Compared to being closed or not closed that is relatively small impact. The state may bring some prosecutions and lose them. That is not good, but in the grand scheme of things not terrible. The state may end up having to pay some compensation to those wrongly accused to operating a nightclub improperly, but not close to the same order of magnitude of compensation or support required when closing bars but leaving open cafes.
And the legislation does not have to operate for long to have the desired policy effect. If I am correct in my view that the primary aim of the legislation is to encourage twenty-somethings to make sure they are vaccinated then the mere threat of the legislation may be sufficient to drive up vaccination rates. If in six months time the courts decide that the definition of nightclub in the legislation is useless or narrows it so that it only applies to a handful of places in Scotland, but in the meantime 50,000 additional vaccinations have happened as a result of the chilling effect then the law has achieved its policy goals and at modest cost too.
Some time ago David Allen Green wrote about magical legal thinking, the notion that just passing some legislation on it's own doesn't change the world. Banning something by law doesn't make it stop in and of itself. Something else must happen for their to be an effect, typically some enforcement action. He wrote about it more recently in relation to COVID lockdown regulations.
https://twitter.com/davidallengreen/status/1312773215903772676?lang=en
The chilling effect is what happens when some rule might or might not apply to you and you are worried that either you will suffer some enforcement activity or have to perform some onerous compliance tasks. A recent example is the impact on third sector organisations of the Transparency of Lobbying Act 2014. Which regulates the campaigning behaviour of charities during election periods. For fear of non-compliance many charities restricted their campaigning activities.
And so to vaccine passports. What then is the purpose of a vaccine passport? What in law is a nightclub? What is the effect we are trying to have.
I think the proposed regulations are mostly not about regulating a specific risky behaviour undertaken by a specific group at particular risk. Lots of unvaccinated people crowded in to a small space, drinking and talking or singing loudly and moving around energetically sounds like risky behaviour during COVID, whether that's in nightclub or a sports arena or a theatre or whatever. The venue being a nightclub or not being a nightclub doesn't strike me as important to the additional risk. The risk is not changed by the magical legal application of a ban on unvaccinated people in nightclubs - as defined in the interpretation section of the relevant legislation or the dictionary. I think the regulation is mostly aimed at encouraging unvaccinated people to get vaccinated by harnessing the chilling effect. The chilling effect is the mechanism by which the ban on some behaviours has the desired policy effect of increasing vaccination rates and reducing opportunities for transmission of COVID.
Do you want to go to a nightclub - or a similar venue that might or might not be a nightclub? Then get vaccinated. That avoids you risking being turned away from the venue you want to go to.
Are you a nightclub? Or perhaps a similar type of venue? Not sure and want to avoid criminal prosecution or civil actions for damages? Then start asking your customers to prove their vaccination status?
Some ambiguity is actually helpful in achieving the policy aims as it spreads the chilling effect more widely.
People are entitled to be able to understand the law in advance. It should as much as possible be clear, unambiguous and actionable by citizens. An unclear definition of nightclubs is unfair in much the same way that an unclear definition of cafe was unfair earlier on in the pandemic and businesses were being closed. However, I think there is a crucial difference here - the level of harm from the ambiguity in definition is much less. In the earlier situation some business were being closed, some allowed to open under certain circumstances. Some closed businesses or the people working in them would be entitled to financial support from the state. Closing your business and putting your staff on furlough is a big thing. A big thing to get wrong. A big risk for the state to pass to you with an unclear set of rules.
Less serious I think to have an ambiguous definition of nightclub for the purposes of vaccine passports. Some venues that are not properly nightclubs might employ a few extra security staff. They may turn away some customers. Compared to being closed or not closed that is relatively small impact. The state may bring some prosecutions and lose them. That is not good, but in the grand scheme of things not terrible. The state may end up having to pay some compensation to those wrongly accused to operating a nightclub improperly, but not close to the same order of magnitude of compensation or support required when closing bars but leaving open cafes.
And the legislation does not have to operate for long to have the desired policy effect. If I am correct in my view that the primary aim of the legislation is to encourage twenty-somethings to make sure they are vaccinated then the mere threat of the legislation may be sufficient to drive up vaccination rates. If in six months time the courts decide that the definition of nightclub in the legislation is useless or narrows it so that it only applies to a handful of places in Scotland, but in the meantime 50,000 additional vaccinations have happened as a result of the chilling effect then the law has achieved its policy goals and at modest cost too.
