Review: Emergency State. How we Lost our Freedoms in the Pandemic and Why it Matters, by Adam Wagner

Adam Wagner is a human rights barrister at Doughty Street Chambers—Keir Starmer's old outfit—who, documenting the legal ramifications of coronavirus restrictions on Twitter, and acting in key cases on the human rights impacts of the pandemic, became one of the UK's go-to experts on pandemic-era laws and their civil liberties implications. He has now written an important, if flawed, book on the subject, Emergency State.

Emergency State begins by offering a quick theory of the nature of government and its laws in a time of crisis, highlighting the way power is concentrated and freedoms curtailed to tackle them. Wagner then gives a short account of the legal, political, and historical underpinnings that enabled the creation of the Covid-19 ‘Emergency State’, from the restrictions of the Second World War to the power of the Public Health Act 1984 to detain HIV and AIDS patients, and on to the precedents established by this century's SARS, Ebola and swine flu outbreaks. He then moves on to a chronological account of the coronavirus pandemic.

Authoritarian restrictions

The book's subtitle is How we Lost our Freedoms in the Pandemic and Why it Matters, and Wagner's book is full of detail about the level of authoritarian restrictions implemented during the pandemic. 210,000 people were subject to hotel quarantine, many of whom were traumatised by the experience and harassed by those assigned to guard them; police often had little idea of what rules were in force and carried out their duties without clear guidance, and expensive fines were handed down to people who had little sense of the legality of what they had done; punitive legislation was made public hours before it became law. In these sections Wagner cites cases he has acted in. Here, the force of his book is most felt. The author has a lawyer's sense of injustice and he conveys well the sheer scope of these restrictions’ impact on people's lives, and—often—their lack of precedent.

Some of the strongest threads in the book come from Wagner's commentary on the side-lining of parliamentary democracy. The Coronavirus Act, Wagner tells us, was based on the ‘Pandemic Flu Bill, a bill developed in secret between 2016 and 2020…whose existence was not made public before the Coronavirus Act came into force and which received no scrutiny from the public or parliamentarians’.

This secrecy removed the opportunity for meaningful scrutiny as the legislation was developed. This, Wagner argues, was to be a feature of the UK's pandemic response. The ‘extremely powerful but entirely opaque’ Covid-19 Cabinet committees released no minutes and made decisions behind closed doors; a ‘democratic black box’, as Wagner puts it. Legislation was subject to an up or down vote in the House of Commons, without the possibility for amendment; creating the possibility to amend emergency legislation is one of the book's key suggestions for improving state emergency response.

Wagner argues that another key problem was that Boris Johnson's government was uninterested in parliamentary democracy and scrutiny. This tendency was demonstrated, the author argues, by the government's attempted prorogation of Parliament in 2019 and would be heightened by the rollout of the ‘Emergency State’ to tackle the pandemic.

In a review whose mean spiritedness undermines its arguments, in the magazine The Critic, Yuan Yi Zhu argues that Wagner falls back on ‘liberal proceduralism’, because he considers being opposed to lockdown a ‘low status opinion’. This is not a fair reading of Wagner's work; it does, however, get at the book's key problem, which is that Emergency State sits at the difficult intersection of politics and law, and never manages to resolve the tensions between them. As such, it lacks the courage not of its convictions, but of its conclusions.

Balancing trade-offs

What Wagner's book is discussing are not just issues of systemic competency, a matter of better, more balanced and democratic procedures for how we reckon with emergencies, but also how we balance the trade-offs between fundamental rights—to freedom, to education, to life. This is ultimately a question that goes beyond the legal and institutional metrics this book approaches it with.

Wagner's book, attempting an assessment of political choices through a legal frame, was perhaps destined to fall into this trap. It is too political, with its diatribes against Boris Johnson, for its lack of political reflection on the broader questions of which trade-offs we should be making not to seem like an oversight or an evasion. Wagner often approaches such, but ultimately shies away from them, to reassert that he is simply offering a legal walkthrough.

However, just because Emergency State is imperfect, does not mean it is not important; more developed books on the civil liberties implications of lockdown will be written, but for the time being Wagner's is a first draft I hope every politician in the UK reads.