Adam Wagner: How a state of emergency became the Emergency State

‘From this evening I must give the British people a very simple instruction – you must stay at home.’

On Monday 23 March 2020, shortly after 8:30 p.m., Boris Johnson broadcast these eighteen startling words to the nation. For the first time in the country’s history, a twenty-four-hour curfew was imposed upon the population. All ‘non-essential’ businesses would be shut. Schools closed. Families divided. Group worship banned. Life as we knew it replaced by a new reality, where our singular focus would be to slow the spread of a deadly new coronavirus.

For the millions watching, the new reality the Prime Minister was imposing was hard enough to digest. The lockdown, which had seemed so far away, which the government had suggested just days before would not happen here, was suddenly a reality. But the shock of the new reality was accompanied by another huge shift for our society. Not only was the lockdown rearranging the basic reality of our social lives, it would also create a new legal universe. For the next two years, the tiniest details of our lives – from whether we could leave the house, where we could work, even whom we could hug – would be decreed by ministers, controlled by strange new laws the likes of which had no precedent in living memory and enforced by what often resembled a police state.

In his statement, the Prime Minister called COVID-19 the ‘invisible killer’. But something else was invisible that spring evening – the law which was to back up his unprecedented instruction. He had stated that there were four limited purposes for which people would be allowed to leave home, and if they did not follow the rules ‘the police will have the powers to enforce them’. But no such powers existed. This was no small detail. It meant we did not know, as the country was thrust into the lockdown, the legal basis for the police powers, what kind of enforcement and penalties would be meted out to lockdown breachers – and most importantly, we did not know exactly what the rules were. The Prime Minister’s statement was bracing but vague, mentioning people could leave their homes to shop only for ‘basic necessities’, to take ‘one form of exercise per day’, to provide care for a ‘vulnerable person’ or travel to and from work if it was ‘absolutely necessary and cannot be done from home’. This was not sufficiently clear for people to know whether they were breaking the law. As a human rights lawyer, this lack of certainty over the sudden dismantling of basic freedoms rang the loudest of alarm bells.

So, where was the law? I asked the question on Twitter and was given various answers. It could come through the Civil Contingencies Act 2004, an act of Parliament designed to grant sweeping powers in times of ‘emergency’, defined as an event or situation which threatens serious damage to human welfare or to the environment of a place, or war or terrorism threatening serious damage to security of the United Kingdom. Perhaps the rules would be in the Coronavirus Bill, a vast collection of powers and rules which was being rushed through Parliament at breakneck speed even as the Prime Minister stood up to address the nation. Or maybe through an obscure public health statute which had provided the basis for the law which – at the stroke of a ministerial pen – closed non-essential businesses two days earlier. It was like a legal murder mystery. Which law would be used to remove our freedoms?

The answer was that the law did not yet exist. It would not appear until three days later, around 3 p.m. on Thursday 26 March. In eleven short pages, the new regulations would lock down tens of millions of people, forcing them to stay at home, banning public gatherings, giving police powers to use reasonable force to disperse gatherings and take people back to their homes, and creating criminal offences to punish people if they were caught breaching the new rules. Fixed Penalty Notices (FPNs) would offer the opportunity to avoid criminal prosecution by paying a penalty of between £100 for a first offence and £960 for a third. By March 2022, two years later, over 100,000 FPNs would have been issued, including, most notoriously, to the Prime Minister himself, along with 125 other officials at the heart of government. Almost 2,000 people would be prosecuted for offences under the regulations, including people who were protesting the regulations themselves, and many whose cases were heard in private hearings from which the public and press were barred.

Since the lockdown law restricted our rights more than any other in history, you might have expected such a bonfire of liberties to be fiercely debated in Parliament before becoming law. But it was not debated at all. Using an emergency procedure, the law came into force the moment it was signed by the Health Secretary, Matt Hancock. Hancock utilised what turned out to be almost unimaginably vast powers under the Public Health (Control of Disease) Act 1984. This act of Parliament had last been in the public eye when the Thatcher government used it to detain infected people during the AIDS epidemic. But since those days, the 1984 Act had been quietly upgraded – turbocharged – meaning it could now be used not just to detain individuals but to place millions under effective house arrest. And, with huge implications for our democracy, these powers could be used without Parliament having any say until weeks later. When Parliament was finally able to vote on the powers, the vote would be a simple yes or no, with no opportunity to amend the law.

It is important properly to set the scene for any criticism of what happened to our laws, constitution and democracy by remembering what it felt like to be facing a swiftly emerging social catastrophe. The country, and the world, were confronted by a true emergency, one long foretold but not experienced for a century. A pandemic which, according to the World Health Organization, killed almost 15 million people worldwide in its first two years, and over 200,000 in the UK, including tens of thousands in care homes during the first wave. It is therefore possible to excuse a lot of what happened in those frantic, at times terrifying, early weeks of the COVID-19 pandemic.

But worrying aspects of those first few weeks – the disconnect between what politicians announced and what the law said, mass confusion caused by unclear laws, the downgrading of Parliament to a glorified rubber stamp, the basic lack of accountability and scrutiny of those making vastly restrictive laws – would become a pattern lasting two years, and even beyond. As we faced two years of severe restrictions on our freedoms, these issues would rear their heads again and again, corroding our democratic institutions and our trust in the government’s ability to act fairly and without corruption.

Nothing remotely like this has happened before in the UK. The Second World War saw huge restrictions on civilian life, but in many respects this went further. Government decisions with vast implications for our lives were taken at speed, some of which are still being felt today. Events also happened at massive scale and with breathless pace, from lockdowns to variants to hotel quarantine to Partygate. The UK’s constitution is not written down in one place, but it is uncontroversial to say that Parliament is at its centre. Only a handful of the laws were meaningfully debated in Parliament, and just nine were considered before they came into force. With the government lurching from crisis to crisis, and new laws appearing on an almost daily basis, it was almost impossible to keep up with, let alone keep track of, the constitutional damage being done.

But I kept the receipts. For over a decade I have worked to make human rights law accessible, to explain the law and comment on legal developments through social media, blogs, podcasts and a charity I set up. At the same time, I act in prominent court cases involving human rights abuses. As the pandemic began, it seemed like the different aspects of my work were suddenly aligning, as new laws appeared almost on a daily basis, restricting rights on an extraordinary scale. Over one hundred emergency laws were passed to restrict our lives, roughly one per week on average. I created a table to keep a tally of the everchanging coronavirus laws. As the government’s own efforts were causing so much confusion, I decided to put it online. It developed into an essential resource which included links to my Twitter threads on the changes, threads which were, as events moved on, being read by millions of people. Unexpectedly, 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.

I wrote my new book to tell the story of the pandemic through the extraordinary restrictions on our freedoms, which made criminal offences of socialising, worshipping, singing, dancing, exercising, even having sex – the most basic activity of our human existence. I explain how the strange and unprecedented lockdown laws were made, and why we need to worry about the implications of the government exercising such enormous power for over two years.

During that period of over two years, ministers used the state of emergency to create laws which would control every element of our lives. Within a short period, the state of emergency became an Emergency State, showing aspects of an authoritarianism alien to our way of life and history which many, including myself, would have thought impossible before this crisis began.

It is tempting to put the first two years of the pandemic behind us, to move on from COVID-19 and focus on other important issues, to assume that world events left us with little choice but to shut down society and hand immense power to a small group in government. That temptation is understandable, not least because it is painful to revisit a genuinely traumatic time in our recent history. But it would be a mistake to gloss over what happened in those 763 days, as the state was turned upside down and freedoms we thought untouchable were torn away with hardly a whimper. It is vitally important that we understand how that Emergency State was created – in significant part through accident rather than design, and certainly without being predicted or planned – how the lack of accountability and democratic process led to errors and corruption, what damage the brute force of emergency law-making did, and how we can avoid making the same mistakes again.

This article is adapted from the preface of Emergency State: How We Lost Our Freedoms in the Pandemic and Why it Matters by Adam Wagner. The book now available in all good bookshops and you can purchase it as a paperback and audiobook.