Bodley Head: 2022
ISBN 9781847927460
Reviewed by Charles Holland

‘The British public have proved again and again, not that it was ever in doubt, that they can be trusted to do the right thing and to do it with common sense.’

So said Boris Johnson when announcing the roll-back of the first lockdown at a Downing Street press conference on 23 June 2020. No more would ‘virtually every aspect of our behaviour … be the subject of the criminal law’ – the public would be trusted to follow guidance on limiting social contact, ‘rather than forcing them to do so through legislation’.

This aspiration turned out to be short-lived. A blizzard of new and ever more complex legislation followed: mandatory face-coverings, the rule of six, the 10pm curfew, bans on ‘mingling’, local interventions, tiers, snap lockdowns, steps, the mushrooming of 12 pages of regulations into 120 pages, all gilded with guidance that often overstated the law and police forces seemingly enthusiastic to treat that guidance as law.

Navigating the public through this morass with patience and good humour was the indefatigable Adam Wagner, a human rights practitioner at Doughty Street Chambers, founder and chair of the human rights education charity EachOther, Visiting Professor at Goldsmiths University, and host of the Better Human Podcast. Every new regulation brought a flashing red alarm emoji on Wagner’s Twitter feed and a new row on his soon-to-be-legendary spreadsheet. Like the Schleswig-Holstein business, the suggestion was that only Wagner really understood the English regulations.

Hot on the heels of this invaluable public service, Wagner has now published Emergency State, a pithy survey and review for non-lawyers of the two-year period when – but for the brief hiatus coming out of the first lockdown – virtually every aspect of the public’s behaviour was indeed the subject of the criminal law.

Wagner formulates six features of what he describes as the ‘Emergency State’: might, concentrated power, ignorance flowing from reliance on limited and potentially unreliable sources of information, susceptibility to corruption, self-reinforcement, and public support.

As such, Emergency State is a stress test for liberal democracy and human rights and, as he sets out the ebb and flow of the restrictions over the 763 days they were in force, in Wagner’s view it was a test our democratic institutions failed in multiple regards – legislation that permitted regulation by the diktat of a ‘Covid Politburo’ regardless of what, if any, scrutiny a submissive Parliament might subject it to, ‘courts keen to stay out of complex policy decisions’ where a codified constitution might afford them with real teeth, policing that wrongly penalised the innocent, and an absence of human rights at the heart of decision-making.

Wagner accepts that wielding of lockdown powers engages ‘agonising policy questions’, and recognises that there are few if any straightforward answers to the questions of whether those powers worked, justified the damage they caused, were made too late, too soon, too hard or not hard enough.

As Wagner observes, pandemics, and the emergency powers to deal with them, have been a feature of human history for millennia. What distinguishes the Coronavirus of the early 21st century from the Spanish Influenza of the early 20th century is not merely the ability of mass commercial air travel to distribute the virus globally within days, but the rise of the internet to facilitate the instantaneous viral transmission of information, including the very demands for lockdowns themselves. It is here that Wagner’s international comparisons are of particular interest: the one fixed penalty notice per 500 people issued in England and Wales stands in contrast to the one fine per 80 in France, or the one in 43 initially handed out in Spain. The first month of French lockdown saw 12.6 million police checks.

As the bill for the lockdown comes to be reckoned, in a mixture of currencies including undiagnosed and untreated health conditions, damaged education and prospects, and ballooning government debt, Emergency State is an informative and important opening step towards what must become a global debate as to how the world should respond to future pandemics of the internet age.