This article is taken from the November 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

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“Desperate times call for desperate measures.” In moments of crisis when we are afraid and want a national paternal figure to keep us safe, the usual system of checks and balances, of political and legal accountability, can seem like procedural time-wasting. Why bother with a chamber of waffling MPs when we can all see that there is an emergency and something must urgently be done? 

In March 2020, Covid-19 was spreading rapidly around the world and there were powerful images of hospitals in northern Italy and elsewhere being filled with people infected by the virus. In response to increasingly frantic calls for action, Boris Johnson announced to the nation on 23 March that “we are giving one simple instruction — you must stay at home”. Those who did not do so would be breaking the law and at risk of being fined by the police. 

The restrictions on individual freedom which the Prime Minister announced prevented people from leaving the house except for four reasons: to buy food and medicine, to exercise, to seek medical attention, and to travel to a job if it could not be done from home. These measures were extreme — the most invasive curbs of basic liberties certainly since the Second World War and arguably since the Civil War period in the seventeenth century. 

Yet perhaps the most surprising aspect of Johnson’s first lockdown diktat was that it had no legal basis whatsoever.

The regulations which gave force to the first lockdown did not come into force until 26 March, three days after we were told not to go out. They were not the product of an act of parliament —primary legislation debated in the House of Commons and the Lords — but of a statutory instrument (secondary legislation). There had been no parliamentary debate about them of any kind. 

Parliament did pass the Coronavirus Act, which gave police powers to quarantine infected people, ban gatherings, which postponed local and mayoral elections for a year, and weakened safeguards for detaining people under mental health law. It was a vast bill, containing 29 schedules and more than 100 sections, spread over 329 pages. Nonetheless it was debated for just a few perfunctory hours. 

Even the limited scrutiny was not quite what it seemed

Even the limited scrutiny was not quite what it seemed; MPs and peers could only vote “yes” or “no” and could not table amendments. It was proposed by Matt Hancock on 19 March 2020, was passed by the House of Commons on 23 March, went through the House of Lords and received royal assent on 25 March. This was brisk work, done without reflection. 

A cynic might ask: so what? The leader of the opposition was not in the business of opposing the Prime Minister — Sir Keir Starmer intervened to compete with Johnson in expressing unqualified support for “our NHS”, and he pledged to work with the government rather than ask any questions about the merit of the policy. What difference would parliamentary debate have made? 

But there were dissenting voices in the House of Commons. Had the government troubled to put its proposals before the House, Steve Baker or Sir Charles Walker might have pointed out some of the more glaring anomalies, and for example asked how the police were to enforce a rule that a person could only leave their house for one hour per day. 

The dysfunction of the government during the Covid-19 pandemic is one of the themes of Emergency State, a new book about the legal aspects of the lockdown, written by Adam Wagner, a prominent human rights barrister and Twitter enthusiast. His account illustrates not only why the lockdowns and other emergency laws amounted to rule by diktat of very doubtful legitimacy and legality, but also why the public health quasi-tyranny was a failure even on its own terms. 

Lockdowns were first deployed against Covid-19 in China in January 2020 — a totalitarian measure for a totalitarian society. But despite their obviously illiberal nature, they attracted support from unexpected and very different quarters: the World Health Organisation commended the strong measures that China had taken to contain the outbreak, while Pope Francis praised China’s “great commitment” to contain the outbreak.

Johnson and his advisors felt that the government had to move fast because people were dying — information was usually incomplete, the situation was dynamic and delay might mean the NHS was overrun. There was no time to talk or think. But that was precisely why scrutiny was so important, not because of an ideal about perfect democracy but because democracy works, however imperfectly, by exposing government policy to public debate.

The government saw parliamentary democracy as an inconvenience to be swatted away. It used a relatively obscure statute, the Public Health Act 1984, as the basis for the lockdowns despite the fact that it was not intended for the purpose. 

The Civil Contingencies Act 2004 was passed precisely in order to give government powers to deal with large scale emergencies, but it required frequent parliamentary scrutiny. Dominic Cummings said that the Civil Contingencies Act was disregarded because of Cabinet Office advice that if they relied on it, the courts would “strike stuff down causing chaos”. 

By contrast, the virtue of the Public Health Act was that its powers could be exercised by secondary legislation without oversight — in effect by a stroke of Matt Hancock’s pen. It was a deliberate choice to use a solution that gave the government most power and was least open to challenge. 

It did not have to be like that. In Singapore, a jurisdiction where very strong and illiberal measures were deployed, the extension of any emergency powers had to be made by parliament as opposed to the Minister of Health. There was meaningful oversight in Sweden, Finland and elsewhere. 

There were attempts to test the lockdown rules in court, but they made very little progress. Simon Dolan, a wealthy businessman, launched a judicial review of the March 2020 lockdown regulations, arguing that they went further than the Public Health Act allowed and were unlawful. The High Court and the Court of Appeal dismissed the claim entirely. 

The courts felt that the issues involved political judgments for the government, which is accountable to parliament, and were not suited to determination by the courts. Dolan’s challenge did not even get permission to go to a full hearing; the judges decided that it was not arguable that the lockdown regulations violated human rights. It is right that elected politicians should make political judgements, and that courts should be reluctant to entertain challenges to them. But if the justification for that is democratic accountability then the democratic mechanism must be solid.

There is an historical irony. In September 2019, the Supreme Court ruled on the legal challenge brought by Gina Miller in her legal opposition to Brexit. It decided that Johnson’s government had acted unlawfully in attempting to prorogue or shut down parliament for five weeks in order to ensure that the United Kingdom left the European Union. In the judgement of Baroness Hale and Lord Reed:

The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. This means that it is accountable to the House of Commons and indeed to the House of Lords … The first question, therefore, is whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account.

It would be difficult to suggest that the government had not prevented parliament from holding it to account about the lockdowns — that was the whole point. But many of the people who cheered the court for deciding against the government on Brexit were, nine months later, clapping for “our NHS” and banging on their pans, even as Johnson and Cummings removed fundamental liberties; on this occasion there was nothing wrong with parliament being prorogued.

The rules led to inconsistency and chaos — the police had varying ideas about how to deploy the coronavirus rules. Some forces preferred to take a light touch, and rather than issue Fixed Penalty Notices or even arrest people, they would advise rule-breakers to go home. Other forces overreached themselves — Derbyshire Police used drones to track people exercising outside, warned people that walking a dog in the Peak District was “not essential”, and used dark dye to ruin the bluish colour of a lagoon in Buxton hoping that people would not congregate there. 

Wagner records that the regulations were very difficult to enforce. One senior officer complained to him that members of his force read news articles about legislation which they were expected to enforce within 28 to 48 hours, before they had received any official communication about the existence of new offences, never mind what the strategy was supposed to be. 

The chair of the Police Federation gave evidence to the Joint Committee on Human Rights that nine out of ten officers felt the regulations were not clear. One officer expressed surprise at the number of calls the police received from “neighbour reporting on neighbour”. 

The Secretary of State for Health, Matt Hancock, described the rules as Napoleonic, by which he meant that everything that was not expressly permitted was forbidden. The purpose of Napoleon’s Civil Code was to make the law clear and accessible to the average person. The opposite happened with the lockdown rules — they became more complex, and the problem of the police not understanding them got worse. 

In the March 2020 lockdown, the officers only had to deal with eleven pages of regulations. By the third lockdown in January 2021, the law was more than 100 pages long before the extensive guidance documents were taken into account. This left the police in a difficult position and the public exposed to the enforcement of the wrong rules. 

When the Crown Prosecution Service reviewed prosecutions, of the 295 prosecutions under the Coronavirus Act, every single one was incorrectly charged and had to be withdrawn. At least 39 fixed penalty notices were issued to children, despite the law only allowing them to be given to people aged 18 and over — they too were rescinded following a review.

The sheer volume and density of the rules was without precedent

The sheer volume and density of the rules was without precedent — it has been estimated that the law changed more than once a week, and regulated questions such as whether a Scotch egg was a “substantial meal” for the purposes of public health. The rules were absurd and often unenforceable, as well being wasteful and expensive. 

At times they enabled abuse. In 2021, the hotel quarantine regime introduced a legal requirement for anyone arriving from a Red List country to self-isolate in a hotel. The scheme effectively detained hundreds of thousands of travellers, including thousands of children, but it was not approved by parliament until months later. In June 2021, four women told the BBC that they had been sexually harassed by G4S staff security guards while in hotel quarantine.

Enormous spending commitments were made which will take decades to pay back. Out of more than 100 emergency regulations, among the most controversial in history, not one was amended by a single word, let alone voted down. The voluminous laws which resulted were internally inconsistent, and often contradicted by official guidance. Ministers were frequently unable to explain them satisfactorily. The few court challenges brought against the regulations failed, making it clear that the government has a wide discretion when making complex emergency decisions. 

So what is to be done to stop the Matt Hancocks of future generations from engaging in Napoleonic law-making? Wagner suggests legal safeguards, including a codified constitution — but it is hard to see that that would be a panacea. Law-makers rarely foresee a crisis decades in advance. 

There are numerous examples of countries where the constitution has failed to prevent political misconduct — Brazil, Russia, Turkey — and the grand phrases of the founding documents resemble the Maginot line after 1940. The American constitution has fortified the gun lobby and enabled regular mass shootings.

There will be a commission, headed by retired law professor and judge Sir Jack Beatson, which will review whether “current legal frameworks and parliamentary procedures protect the Rule of Law and human rights, and how far they promote accountability, transparency and parliamentary control of executive action”. The commissioners will be academic lawyers, doctors and researchers, and Wagner has been appointed to their number. Its report is expected in autumn 2023.  

Individuals can express their discontent by writing to their MPs, joining political parties and protesting. But the sad truth for those of us who feel that health decisions are public rather than private matters is that we are a minority. Boris Johnson and Rishi Sunak were at their most popular when requiring people to sit at home and watch television in exchange for the government signing cheques for billions of pounds. Truly, strong men got things done.