Public health experts: The technocratic takeover of democracy comes at a high price for all of us

Emergencies require governments to operate differently. In Australia, the changes wrought by the COVID-19 pandemic have been profound. Emblematic of this change are the daily press conferences to which Australians have become accustomed, with the Prime Minster or Premier (as the case may be) standing side-by-side with their respective Chief Medical Officer to announce the daily death toll and infection numbers, and new restrictions to prevent more of them.

These arrangements have all the hallmarks of an autocratic technocracy. "Autocratic" because political power has been concentrated in the hands of a small group of people (in this case, the executive) absent the checks and balances that normally control the exercise of that power. The role of parliaments have been marginalised; inter- and intra-government review is abridged (if it exists at all); the oversight courts provide generally is not being accessed; and civil society and the media have largely been circumspect in their criticisms.

And "technocracy" because of the dominant role played by medical-scientific experts. Extensive legislative and executive decision-making authority has been delegated to these experts – directly in some jurisdictions, indirectly in others. Severe restrictions on an individual’s freedom of movement, association, and to earn a livelihood have been declared by them, or on their advice. How many times have we heard Prime Minister Scott Morrison, or a premier, say they have to follow the medical advice?

There are advantages of an autocratic technocracy in times of emergency. It facilitates timely, decisive and evidence-based decision-making, and gives that decision-making a rational and apolitical character. By bringing politicians and experts together, it minimises risks of miscommunication and misunderstanding, and by placing the expert at the forefront, clothes government decisions with the legitimacy of expertise and trust.

This later point is important. Successfully combating COVID-19 requires near universal community compliance with severe restrictions on nearly every aspect of social and economic life. Research establishes that persons are more likely to comply with such restrictions if the necessity of the measures is communicated to them by a source they trust.

Research also consistently demonstrates that doctors, medical scientists and other health professionals are perceived to be more trusted and legitimate sources of advice and instruction than politicians. It therefore makes sense that governments place medical-scientific experts at the centre of their public health emergency response plans.

A risky business

But autocratic technocracies are not without their risks. Expertise is a very powerful resource – and more so when the expert transitions from adviser to decision-maker, and combines the reputation and trustworthiness of their profession with the authority and power of the state.

The medical-scientists’ expertise enables them to participate in public debate asymmetrically with other participants. Not only do they have a knowledge advantage, they also have a perceived purity of motives, especially when compared to political, business and commercial interests.

It also can be difficult for governments to ignore the advice that comes from persons they have put forward as experts. All of this can combine to marginalise consideration of alternative views and solutions, freeze deliberation and locking-in certain policy directions.

Absent other voices, public health emergency response measures risk being overly prescriptive and unnecessarily wide-reaching. 

Experts also can make errors. The nature of an emergency means that decisions are being made based on incomplete information in a rapidly changing environment. The data and modelling upon which experts base their opinions and emergency measures is uncertain at best; some of their interventions experimental in nature. Yet the traditional checks that come from public consultation, parliamentary debate and considered intra-government review are absent.

One can only speculate as to whether (and if so, how) those measures might be different if the daily counts of infections and deaths were accompanied by daily counts of suicide, mental illness and domestic violence, and of businesses destroyed and jobs lost, as a result of those measures.

Medical-scientific experts also can be overly narrow in focus. They tend to work within disciplinary and institutional communities of like-minded professionals who share their world views, and hold the same beliefs, expectations and hypotheses about the issue at hand. This can lead them to interpret evidence in ways that are partial to those existing beliefs, expectations or hypotheses, and to overvalue their expertise, and devalue others.

They also are susceptible to missionary bias (where their certainty in the moral and intellectual righteousness of their positions directs their judgement), and noble cause bias (where a desire to "save others" creates an "end justifies the means" mentality). This can result in them taking the position that public health trumps all other considerations, and failing to attribute appropriate weight to the economic and social dislocation and costs of their measures, or to their impact on human rights and personal freedoms.

Absent other voices, public health emergency response measures risk being overly prescriptive and unnecessarily wide-reaching. One can only speculate as to whether (and if so, how) those measures might be different if the daily counts of infections and deaths were accompanied by daily counts of suicide, mental illness and domestic violence, and of businesses destroyed and jobs lost, as a result of those measures.

So, what to do?

The answer lies in broadening the technocracy and reducing the autocracy. Deciding how best to manage a pandemic requires consideration of economic, social and civil liberty factors, in addition to health. The heavy reliance on medical-scientific experts does not reflect this. A broader suite of expertise needs to be involved in decision-making.

Second, balancing these various factors is an inherently political decision. Emergency directions should be made by our elected representatives informed by a diversity of perspectives.

And third, parliament’s primacy as a check and balance on that decision-making needs to be restored. The making of emergency directions should trigger the automatic recall of parliament and/or the creation of a parliamentary committee to provide timely oversight of the government’s use of its emergency powers.

Doing so would make transparent the tension between public health measures and their economic, social and civil liberty consequences, and place a greater onus on political leaders to explain and justify the balance struck. That can only be a good thing.

This article is based on a recently-published paper in The Theory and Practice of Legislation entitled ‘Governing in a pandemic: from parliamentary sovereignty to autocratic technocracy’, and a presentation given as part of the Bingham Centre for the Rule of Law’s webinar series on global legislative responses to the coronavirus.