More than two and a half years since Boris Johnson confined the nation to its homes, the Guardian has finally decided it’s time to run some criticism of it. In what I’m sure you’ll agree is a timely piece entitled “Boris Johnson’s Covid laws took away our rights with flick of a pen. Don’t let that happen again” (as though Boris did it without any encouragement from, I don’t know, the Labour Party and the Guardian, whose only objections were that he hadn’t gone harder and faster) barrister Adam Wagner (who has written a book on the subject, Emergency State: How We Lost Our Liberties in the Pandemic and Why it Matters) sets out the case against the Government’s illiberal response to the pandemic.
It’s just over two and a half years since Boris Johnson gave us a “very simple instruction”, that we “must stay at home”, followed – three days later – by a law that for the first time in our history would impose a 24-hour curfew on almost the entire population. The years, months, weeks and days since have been so relentless – and at times almost beyond belief – that it is difficult to begin to process them. Many of us have experienced personal bereavement, and everyone has been touched in some way.
But as tempting as it is to move on, to focus on other important issues vexing our society, there are some aspects of the past three years we must face up to.
There are a hundred lenses through which to view this important period in modern history, but as a barrister I have looked at the more than 100 laws that placed England in lockdown, imposed hotel quarantine, international travel restrictions, self-isolation, face coverings and business closures.
These were probably the strangest and most extraordinary laws in England’s history, imposing previously unimaginable restrictions on our social lives, bringing into the realm of the criminal law areas of life – where we could worship, when we could leave home, even who we could hug – that had previously been purely a matter of personal choice.
By early 2020, the Johnson government already had form for seeing democracy as a gadfly to be swatted away, having tried, and failed – thanks to the Supreme Court – to shut down Parliament for weeks to ram through a Brexit deal. When the pandemic hit, it is no surprise that it took the same approach to involving parliament in the most consequential decisions and laws in living memory.
The Public Health (Control of Disease) Act 1984 allowed for ministers to enact the coronavirus regulations with almost no parliamentary scrutiny. Of 109 lockdown laws, only eight were considered by parliament before coming into force, usually only a day before. The rest became law (literally) as soon as Matt Hancock, the then Health Secretary, put his signature at the bottom of the page.
I am not suggesting that emergency law-making would ever be straightforward and neat, following all the processes of ordinary legislation. During public emergencies, events move swiftly and mercilessly. But it did not have to be like this.
Also troubling was the constant refrain that the Government was ‘following the science’, by which it meant its scientific advisory group, SAGE. But decisions were ultimately taken in the extremely powerful but opaque COVID-19 Cabinet committees, presided over by four ministers – Boris Johnson, Rishi Sunak, Matt Hancock and Michael Gove. No minutes were released and no explanation offered of how decisions were made. This was the most powerful Government committee since the Second World War, but received no scrutiny. Important political decisions need to be understood, scrutinised and tested. These hardly were.
Parliament relegated itself to a “1,400-person rubber stamp”, Wagner says; the police, “floundered between excessive and unjustified intrusions into our private lives” and “attempting to stay out of the fray altogether”; the courts ducked responsibility, repeatedly ruling that pandemic policy, “even when it interfered with fundamental rights” was “a matter for Government and Parliament, not judges”.
It should be a wake-up call, he says – “the ease with which ancient freedoms such as the right to protest, to worship, to see our families, were removed essentially by decisions of a tiny group of ministers” – as it is only a matter of time before a new crisis will arise.
Many of the comments underneath the article agree Wagner’s got a point, but say it’s about the principle of how the emergency laws were made and scrutinised rather than the measures themselves being wrong or harmful.
Baby steps.
Worth reading in full.
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