When forensic lawyer forgets forensic mind

On 2 November BusinessDesk published my article on the politics of the Labour government’s pandemic traffic lights: https://businessdesk.co.nz/article/opinion/the-politics-of-pandemic-traffic-lights.

I argued that the traffic lights were an important part of an after the event narrative to publicly rationalise a major error by the Government to take Auckland out of Level 4 lockdown too early.

This decision was also contrary to the advice of its modellers. The effect was to help let the delta variant of Covid-19 run amok and most likely lead to the combined length of lockdown (Levels 3 and 4) being a month longer than it needed to be.

This led to a published firm rebuke from high profile Queen’s Counsel Hugh Rennie. Although I don’t know Rennie personally (two brief discussions over three decades from recollection) I know his reputation as an admirable lawyer with a forensic mind. One would not relish being cross-examined by him in court.

Flattered but…

In a strange kind of way I felt flattered that such an impressive figure would deign to respond to something written by a mere mortal. But I was also struck by the lack of forensic analysis in his response. I would have anticipated better.

Rennie’s response is repeated below in full:

The weakness in this analysis is that it assumes that the government had the actual ability to enforce a Level 4 lockdown when you say it should have occurred, and (even more relevantly) that under such a Level 4 lockdown the public could live viably with jobs to go back to. Neither was the case. The government had to balance the calculations of the scientists (mathematics not modified for the real world) against what the community would accept, the authorities could enforce, and the country could afford.

What is world leading this time around is the remarkable tolerance shown by the vast majority of New Zealanders, when the need now for that tolerance ais [sic] caused by very late vaccinations programmes which should have been well advanced months ago. 

Politics did not replace the health of the population as you claim, but rather pragmatism has prevailed over unworkable theory.

Dissecting his critique is revealing as it represents a thought process based on assumptions and anecdote rather than rigorous forensic analysis.

Level 4 lockdown

Rennie claims I assumed that “…the government had the actual ability to enforce a Level 4 lockdown when you say it should have occurred…”

If the Government had followed the expert advice of its modellers (as it had previously with success) then this would have been for a little over two weeks followed by a shorter time in Level 3.

The Government was commending public compliance with Level 4 at the time it lowered the alert level. It was open about its confidence on the success of Level 4 and how Level 3 would then work. However, the immediate effect was to increase people movement, a pre-condition for virus spread.

Further, the Government’s articulated confidence had the inadvertent effect of encouraging public complacency.

The inevitable outcome was significantly increasing daily infections rates that have continued ever since. There was a leadership failure to recognise that Level 3 was ineffective once delta was widely circulating. It was getting close to effective containment at least but was not quite there when it lowered Auckland’s alert level.

The length of lockdown increased more than might have otherwise been the case reinforcing virus spreading growing non-compliance and public protests.

Economy and jobs

Rennie then asserts I assumed that “…under such a Level 4 lockdown the public could live viably with jobs to go back to.” In doing so he falls into the trap of a false dichotomy between health and economic performance.

No less than the Organisation for Economic Cooperation and Development (OECD) has debunked the notion that the two are opposites or opposed to each other. It ranked New Zealand as the best performing member country under the pandemic for both the health of its population and economic performance including our unemployment rate.

There is a greater likelihood under the current delta outbreak that had Level 4 continued in Auckland a little longer then the total lockdown length would have been less (perhaps by a month) and as a result better protected the job market.

Putting down scientists

Next Rennie creates an artificial construct by putting down the scientists. He declares that the “…government had to balance the calculations of the scientists (mathematics not modified for the real world) against what the community would accept, the authorities could enforce, and the country could afford.”

By his demeaning description of scientists (he may as well stereotyped them as ‘pointy heads’) Rennie diminishes the fact that these scientists were wide-ranging well beyond mathematicians. They included specialists in epidemiology, immunology, infectious diseases, respiratory systems and intensive care.

From the beginning of the pandemic it was their advice that the Government accepted leading to the saving of thousands of lives and the best economic performance in the OECD. This may not be Rennie’s real world but it is Aotearoa’s.

Vaccine rollout

Rennie then proceeds to repeat a misleading claim on the vaccine rollout in a clumsy sentence blaming the current situation of delta spread on “…very late vaccinations programmes which should have been well advanced months ago.”

To the extent that he might be referring to low vaccination rates in more economically deprived and geographically isolated communities (disproportionately Maori and Pasifika), he has a point. There was a failure to engage effectively with Maori and Pasifika health providers early on and we are now in desperate catch-up.

But, as far as vaccine supply is concerned, Rennie is off-beam. New Zealand is a small economy with limited bargaining leverage with monopolistic international pharmaceutical companies and we are a long way from vaccine producing countries.

Our vaccine rollout was (past tense) very low within the OECD but perspective is required. Most OECD nations are in the European Union which negotiated as a block. Other countries like the United Kingdom, United States and Canada are far bigger economies that New Zealand.

The only comparable OECD country with a similar population size not in either situation is Costa Rica.

Unworkable theory

Rennie concludes his rebuttal by confidently asserting that “…pragmatism has prevailed over unworkable theory.” Empiricism says otherwise.

Of the six Australian states, four (around 42% of Australia’s population) continued with the elimination strategy (zero tolerance of the virus rather than zero cases). Where the delta variant appeared it was effectively dealt with quickly by a hard lockdown, much shorter than Auckland’s. By preventing its spread it meant that subsequent delta cases have been dealt with by much small localised public health measures.

By his logic New Zealand should have followed New South Wales and Victoria (something the Government said at the beginning of the delta outbreak it would not do!

I for one much prefer the forensic Rennie to his non-forensic twin.

2 thoughts on “When forensic lawyer forgets forensic mind

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