This article is taken from the December/January 2023 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

Barristers tend to make awful writers, a fact which has not stopped them from filling the shelves of WH Smith with the sort of paperbacks people buy for indifferent aunts. The latest example of the genre is Emergency State: How We Lost Our Freedoms in the Pandemic and Why it Matters by Adam Wagner who, as the blurb cheerfully tells us, is “one of the UK’s leading human rights barristers”.

During Covid, Mr Wagner kept a useful tally of lockdown legislation on Twitter, which made him “the country’s pre-eminent expert on covid-19 laws”, again according to the blurb. The book certainly is not lacking in endorsements, with every legal eminence from Baroness Hale to The Secret Barrister expressing their admiration.

Part undergraduate thesis, part apologia pro Twitter sua, Wagner’s book is written straightforwardly, enlivened by charming digressions into his personal life. We learn, for instance, that he chose to become a human rights lawyer after suffering from a bout of unaccustomed patriotism after 9/11 from which he recovered, and that his lockdown hobby was to stop policemen in the streets to quiz them about lockdown regulations.

His core argument is straightforward: the UK’s Covid lockdowns, which restricted the freedom of millions of people, went from being a state of emergency to an “Emergency State, showing aspects of an authoritarianism alien to our way of life and history”. The result was corruption, misery, and the wholesale destruction of civil liberties.

That is where Mr Wagner starts to run into trouble, for opposing lockdowns and other Covid restrictions are low-status opinions, in the same category as voting for Brexit or wanting to send criminals to prison. As he ruefully notes, he was assailed by many from his own side for pointing out inconsistencies in Covid legislation.

Wagner gets around the problem by saying that as a mere barrister, he would refrain from “pontificating on the huge questions of whether lockdowns could be justified”, but instead use his legal skills to talk about “the dangers of emergency laws, and how human rights laws could be used as an early warning system”.

But this narrow proceduralism is nonsense

But this narrow proceduralism is nonsense: if the lockdowns were beneficial to the community, procedural irregularities would be a second-order issue at best. If the lockdowns were harmful, the fact they were enacted with strict adherence to democratic procedures would be of no significance. And indeed, Wagner often breaks his studied agnosticism, such as when he defends arresting anti-lockdown protesters who did not socially distance, relying on Mill’s harm principle.

To reassure his readership that he was not one of them, Wagner makes a point of regularly condemning other lockdown opponents. Chief among them is Lord Sumption, for months almost the only respectable voice in British life to oppose lockdowns (and whom Wagner derided as “Ayn Randian” back then although he accepts much of his critique now).

His ire is particularly directed against the Johnson government, with the usual litany of horrors about prorogation, Brexit, and Partygate. At one point, he invokes Adolf Eichmann when discussing the government’s efforts to define “relevant outdoor activity”. 

But his most serious charge is that the government, by gutting legislative scrutiny of Covid laws, turned Parliament into a “1,400-person rubber stamp”.

Hansard tells a different story. No piece of lockdown legislation was rejected by Parliament, even though it had full powers to do so. The Coronavirus Act 2020, for instance, passed without a single MP or peer forcing a vote; it was then renewed every six months by the House of Commons, by 330 to 24 in September 2020, 484 to 76 in March 2021, and without a vote in October 2021 and March 2022. 

The leader of the opposition, another of “the UK’s leading human rights barristers” and the former head of Mr Wagner’s Doughty Street chambers, constantly attacked the government for not locking down hard enough; indeed, some of his MPs and many in the media bought into a conspiracy theory that failure to do so was a form of eugenics by stealth. 

All the legislative scrutiny in the world would not have changed the fact that there existed an overwhelming political consensus in favour of lockdowns: the harder the better. Mr Wagner has little to say about this awkward fact.

What would have been different under a codified constitution

This hodgepodge of a book ends with a laundry list of recommendations, including the codification of the UK constitution. But what would have been different under a codified constitution given the popularity of lockdown? Have other countries with codified constitutions and lockdowns fared any better? Wagner does not say.

This book is the logical endpoint of liberal proceduralism: rules without beliefs, forms without substance. As a work of analysis it is sophomoric; as a work of history it is a piece of self-serving revisionism. 

Like our erstwhile prime minister, Wagner wants to have his cake and eat it too, to criticise the lockdown restrictions without incurring the anathema of respectable opinion. He succeeds in the latter by not saying anything meaningful about the former. Our lockdowns still await their Jonathan Swift.