How a state of emergency became an Emergency State

‘From this evening I must give the British people a very simple instruction – you must stay at home.’ On Monday 23 March 2020, shortly after 8:30pm, Boris Johnson broadcast these 18 startling words to the nation. For the first time in the country’s history, a 24-hour curfew was imposed upon the population. All ‘non-essential’ businesses would be shut. Schools closed. Families divided. Group worship banned. Life as we knew it replaced by a new reality, where our singular focus would be to slow the spread of a deadly new coronavirus.

For the millions watching, the new reality the Prime Minister was imposing was hard enough to digest. The lockdowns which had seemed so far away, which the government had suggested just days before would not happen here, was suddenly a reality. But the shock of the new reality was accompanied by another huge shift for our society. Not only was the lockdown rearranging the basic reality of our social lives, it would also create a new legal universe. For the next two years, the tiniest details of our lives – from whether we could leave the house, where we could work, even who we could hug – would be decreed by ministers and controlled by strange new laws the likes of which had no precedent in living memory.

In his statement, the Prime Minister called COVID-19 the ‘invisible killer’. But something else was invisible that Spring evening – the law which was to back up his unprecedented instruction. He had stated that there were four limited purposes for which people would be allowed to leave home, and if they did not follow the rules ‘the police will have the powers to enforce them’. But no such powers existed. This was no small detail. It meant we did not know, as the country was thrust into the lockdown, the legal basis for the police powers, what kind of enforcement and penalties would be meted out to lockdown breachers – and most importantly, we did not know exactly what the rules were. The Prime Minister’s statement was bracing but vague, mentioning people could leave their homes to shop only for ‘basic necessities’, to take ‘one form of exercise per day’, to provide care for a ‘vulnerable person’ or travel to and from work if it was ‘absolutely necessary and cannot be done from home’. This was not sufficiently clear for people to know whether they were breaking the law. As a human rights lawyer, this lack of certainty over the sudden dismantling of basic freedoms rang the loudest of alarm bells.

So, where was the law? I asked the question on Twitter and was given various answers. It could come through the Civil Contingencies Act, an Act of Parliament designed to grant sweeping powers in times of ‘emergency’, defined as an event or situation which threatens serious damage to human welfare, or to the environment of a place, or war or terrorism threatening serious damage to security of the United Kingdom. Or perhaps the rules would be in the Coronavirus Bill, a vast collection of powers and rules which was rushing through Parliament at breakneck speed even as the Prime Minister stood up to address the nation. Or, maybe through an obscure public health statute which had provided the basis for the law which – at the stroke of a ministerial pen – closed non-essential businesses two days earlier. It was like a legal murder mystery. Which law would be used to remove our freedoms?

The answer was that the law did not yet exist. It would not appear until three days later, posted on a government website at around 3pm on Thursday, 26 March. In 11 short pages, the new regulations would lock down tens of millions of people, forcing them to stay at home, banning public gatherings, giving police powers to use reasonable force to disperse gatherings and take people back to their homes, and creating criminal offences to punish people if they were caught breaching the new rules. Fixed Penalty Notices would offer the opportunity to avoid criminal prosecution by paying a penalty of between £100 for a first offence to £960 for a third. By March 2022, two years later, over 100,000 fixed penalty notices would have been issued, including, most notoriously, to the Prime Minister himself, along with 125 other officials at the heart of government, including the Chancellor. Almost 2,000 people would be prosecuted for offences under the regulations, including people who were protesting the regulations themselves, and many whose cases were heard using the ‘single justice procedure’, without the defendant present, and from which the public and press were barred.

Since the lockdown law restricted our rights more than any other in history, you might have expected such a bonfire of liberties to be fiercely debated in Parliament before becoming law. But it was not debated at all. Using an emergency procedure, the law came into force the moment it was signed by the Health Secretary, Matt Hancock. Hancock utilised what turned out to be almost unimaginably vast powers under the Public Health (Control of Disease) Act 1984. This Act had last been in the public eye when the Thatcher government used it to detain infected people during the AIDS epidemic. But since the days of the AIDS crisis, the 1984 Act had been quietly upgraded – turbocharged – in 2008, meaning it could now be used not just to detain individuals but to place millions under effective house arrest. And, with huge implications for our democracy, these powers could be used without Parliament having any say until weeks later. When Parliament was finally able to vote on the powers, the vote would be a simple yes or no, with no opportunity to amend the law. In 2008, Parliament had approved the vast new powers for ministers after a few hours’ debate where the idea of using the powers to lock down an entire population was not considered, let alone discussed. This is hardly a surprise: the first national lockdown did not happen until much later.

A worrying aspects of those first few weeks – the disconnect between what politicians announced and what the law said, mass confusion caused by unclear laws, the downgrading of Parliament to a glorified rubber stamp, the basic lack of accountability and scrutiny of those making vastly restrictive laws – would become a pattern lasting over two years, and even beyond. These issues would rear their heads again and again, corroding our democratic institutions and our trust in the government’s ability to act fairly and without corruption.

In my new book, Emergency State, I tell the story of 763 days, from 14 February 2020 when Hancock made an emergency declaration that COVID-19 constituted a serious and imminent threat to public health, to 18 March 2022, when the latest regulation made under a state of emergency was revoked. For over two years ministers used the state of emergency to create laws which would control every element of our lives. Within a short period, the state of emergency became an Emergency State, showing aspects of an authoritarianism alien to our way of life and history which many, including myself, would have thought impossible before this crisis began. It is vitally important that we understand how that Emergency State was created, in significant part through accident rather than design, and certainly without being predicted or planned, how the lack of accountability and democratic process led to errors and corruption, what damage the brute force of emergency law making did, and how we can avoid making the same mistakes again.