Emergency state

And what did the judges do to stop it? Should they have done more?

Adam Wagner’s book Emergency State is not published until next week but he’ll be talking about the issues it raises on Start the Week this morning. So I don’t think anyone will mind if I write about it today.

Wagner, a barrister at Doughty Street Chambers, started to keep a tally of the emergency coronavirus regulations when the first of them was published on 26 March 2020. As he points out, Boris Johnson’s “very simple instruction” to the British people on 23 March — “you must stay at home” — had not been mandatory at all: it did not become law for another three days. More than 100 such regulations were issued between then and 18 March 2022, when the last of them was revoked.

Wagner’s list, which he soon shared online, became a hugely valuable resource. As he says:

my somewhat geeky table also took on a political significance when, in late 2021 and early 2022, I used it to explain how government officials had broken their own laws when holding lockdown-breaching parties behind the doors of Downing Street.

A state of emergency had been declared in February 2020. But Wagner draws a distinction between that and what he sees as the emergency state that followed. As he sees it, emergency states have six characteristics:

• They are mighty

• Power is concentrated

• They are ignorant

• They are prone to corruption

• An emergency state is self-reinforcing

• Often, we want the emergency state to happen

Perhaps the last of these is the most counter-intuitive. Wagner explains:

As a child in the Jewish community I had learned about the horrors of the Holocaust, when an entire society conspired to murder millions of Jews. I had always assumed that this was a terrifying but unique historical event, which must have involved a society so different to my own that it might as well have happened on a different planet.

But… all it takes is a threat, followed by a series of lines being crossed as freedoms are gradually whittled away, and what would once have seemed extraordinary becomes quite ordinary — we want it to happen, even if we might regret our decisions once the heat of the emergency has subsided.

I think it’s the benefits of the emergency state that we want rather than the restrictions: we wish to be protected against the peril, whether it be war or plague. But Wagner is right to say that many of us will willingly accept restrictions if we think they are for the common good. Indeed, we may urge the government to go further.

Wagner’s book reminds us of the laws that were made by parliament and the regulations that were made by ministers: how they were introduced without debate; how they differed from the guidance given to the public; how they varied across the United Kingdom; how the police badly misunderstood them; how they were inappropriately enforced by prosecutors and courts; and, of course, how they were ignored by officials and ministers at the very highest levels of government.

He also admits to having been troubled by a fundamental question: at a time when lockdowns were a regular part of life for us all, what should he, as a human rights lawyer, have said about them? A barrister’s job, he decided, was not to pontificate about policy but to understand the law.

At the same time, I was approaching the issue from the opposite direction. Launching this blog in August 2020, I reported a judicial review challenge to the lockdown regulations made by a businessman called Simon Dolan.

Dolan’s application was ultimately unsuccessful — although we “did see some wins along the way”, he said in March 2021 — and, despite substantial crowdfunding, he was left to pay a bill of more than £220,000 for his legal fees and the government’s costs.

Returning to the issue in June 2021, I wrote:

The most interesting thing about the coronavirus regulations, in my view, is not that they were so far-reaching. What I found even more remarkable was that there were no significant challenges to them in the courts — certainly, none that created any difficulties for the government.

One reason for this, as Wagner tells us, is that in some cases the threat of legal action was enough make the government back down. Another was the Dolan case itself, which sent a clear signal to potential litigants. Wagner argues that the courts should not have dismissed Dolan’s claim without a full hearing, which would at least have forced the government to justify its actions with evidence.

He adds:

The Dolan case was by no means the last word from the courts, but it remains probably the most important as it shut down any possible general challenge to lockdown laws.

Towards the end of 2021, Wagner acted in a challenge to the government’s hotel quarantine scheme for those arriving from abroad. Refusing his clients permission to apply for judicial review, Mr Justice Fordham said the question a court would have to decide was whether there was a less intrusive way of achieving the the government’s public interest objectives. In Fordham’s view, there was not. Though subject to scrutiny by parliament and the public, said the judge, evaluative policy questions were matters for ministers.

Wagner accepts this, while pointing out that more than 200,000 people had been detained with virtually no scrutiny by the courts or anyone else.

There was one notable success. In March 2022, the High Court ruled that the Metropolitan Police had acted unlawfully a year earlier in breaking up a vigil on Clapham Common, at a time when there was a limited ban on public gatherings. But that judgment was delivered a week before the state of emergency ended.

Over a two-year period, people in the United Kingdom suffered the greatest restrictions on their human rights that any of us has ever seen. For many months, there was even a ban on sex between people who didn’t live with each other. Broadly speaking, these restrictions were permitted by courts in the United Kingdom. There have been no adverse rulings on lockdowns from the European Court of Human Rights either.

Views may differ over whether the courts protected the public. But they certainly protected the government.

That, in turn, set up the UK Covid-19 Inquiry, chaired by Lady Hallett. The inquiry’s work has barely begun: it holds its first preliminary hearing tomorrow. In the meantime, Wagner has given us a comprehensive but accessible account — objective but critical, anecdotal but authoritative — that has rightly drawn widespread praise from those of us who have been shown an advance copy.

It’s a book that needed to be written — and nobody could have done it better.

Update 5 December: here’s an interview I recorded with Adam Wagner last week: