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“We are uniquely unprotected” from our own government: Adam Wagner on the Emergency State

The self-confessed activist lawyer believes Covid legislation showed how vulnerable human rights are in the UK.

By Rachel Cunliffe

When Boris Johnson announced on 23 March 2020 that the British people “must stay at home”, the barrister Adam Wagner had a question: if freedoms as fundamental as the right to leave our houses were being suspended, which law was being used to remove them?

The prime minister’s televised edict offered no clues. “As a human rights lawyer, this lack of certainty over the sudden dismantling of basic freedoms rang the loudest of alarm bells,” Wagner writes in the introduction to his book Emergency State: How We Lost Our Freedoms in the Pandemic and Why It Matters, published 13 October. The answer was that at the moment Johnson sentenced the British population to virtual home imprisonment, no law existed that enabled him to do so nor that gave police the powers to enforce the new rules. It would not exist until three days later, when 11 pages of emergency legislation were signed into law by the health secretary without any debate or parliamentary scrutiny.

“I’ve tried not to be melodramatic,” Wagner tells me when we meet at his chambers on Doughty Street near Kings Cross ahead of the book’s publication. “I didn’t want to write a polemic. But I wanted to try to tease out some of the more complex realities of what living in a state of emergency was like for us.”

It might come as a surprise that England was formally in a “state of emergency” for over two years – 763 days, from 14 February 2020 to 18 March 2022. (As health is a devolved issue, policy differed between the four nations during the pandemic. Wagner’s focus is primarily on England.) For that period the government had unprecedented powers to make and change legislation at will, with parliament downgraded to “a glorified rubber stamp”, as Wagner puts it, and a striking absence of accountability for those making the rules. Our country, Wagner argues, was not just in a state of emergency: it was transformed into an Emergency State. His book is an attempt to document exactly how that happened – legally – and propose how we can guard against it happening again.

“The story of the pandemic will be told through a million different lenses,” he says. “I’m telling it through the story of the laws that locked everybody down.”

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Those laws (which in the first year of the pandemic changed on average every four and a half days) were documented meticulously – not by the government, or by the police, but by a lone barrister. Wagner kept a spreadsheet of the changes, along with up-to-date Twitter commentary on what each new amendment meant and its implications for civil liberties. Was it law or guidance that exercising more than once a day was not allowed? Were you really not permitted to buy Easter eggs? Ministers were tying themselves in knots in interviews and at the daily Covid briefings but Wagner knew the answers. His “lockdown hobby” was going up to police officers patrolling parks or supermarkets and asking them if they understood the rules they were there to enforce. Inevitably, they did not. Nearly two years later, when Johnson was under fire for breaking the rules himself, Wagner helpfully used his spreadsheet to highlight the vacuity of the government’s excuses.

In a deeply polarised media landscape, with public health officials pitted against anti-vaxxers and conspiracy theorists, Wagner became an unlikely voice of reasoned criticism. “There’s always classically been a tension between safety and liberty,” he tells me, making clear he understands the need for restrictions in the face of such an existential threat. But the way those laws were being made – with no debate, no oversight and no real way for anyone to challenge their absurdities – worried him.

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“We are uniquely unprotected from government in this country because we have no written constitution,” he explains. Most other democracies have statutes that dictate how a government can enact a state of emergency, which the courts can strike down if necessary (as happened in Spain during the pandemic). In England, Covid rules were brought in under little-known public health legislation passed during the HIV epidemic and then “turbocharged” in 2008, giving the health secretary wide-ranging powers. “Combine it with a group of politicians who really are not that interested in parliamentary scrutiny, who see it as an irritation, and that’s a bad cocktail democratically.”

You don’t need to oppose Covid regulations to see the dangers. On 29 August 2020, Piers Corbyn (brother of Jeremy) was detained and fined £10,000 for staging an anti-lockdown rally. The law he had broken, which authorised such life-ruining penalties for organisers of gatherings of more than 30 people, had only come into force the day before and hadn’t been widely reported. The government’s plans to crack down on raves might have been trailed in the Daily Telegraph (“behind a paywall, don’t forget”), but the legislation’s implications for everything from protests to children’s birthday parties hadn’t been. “It is trite to say that ignorance of the law is no defence,” Wagner writes in Emergency State. “But that is not the end of the story. Sometimes a law is so unclear, so impossible for a person to know, that is becomes unfair to enforce it.”

[See also: We can’t consign Boris Johnson to history yet]

While frustration with lockdowns was predominantly expressed by those on the political right, associated with the extreme fringes of the Tory party in the UK and with Donald Trump in the US, Wagner is a proud left-wing liberal who has spent his career fighting for human rights, with a particular focus on terrorism legislation. Before going into law he was a leader in the left-wing Jewish youth movement Habonim and he remains closely involved with his local synagogue. In 2010 he founded the UK Human Rights Blog that provides free, accessible updates on issues from data protection laws to civil liberties, and set up the charity EachOther (originally named RightsInfo) in 2015.

At 41 he talks with a boyish, enthusiastic energy, bouncing from topic to topic: the draconianism of legislation during the Second World War; his work acting for the Campaign Against Anti-Semitism in the Equality and Human Rights Commission’s investigation into the Labour Party; the significance of the Reclaim These Streets verdict. Wagner represented this women’s rights group against the Metropolitan Police, who refused to authorise a vigil for Sarah Everard in March 2021. That decision was found to be unlawful – a ruling he believes is crucial to protecting civil liberties. “Protest is the basic currency of a democracy, even in a dangerous pandemic.”

For Wagner, “human rights are all about warning signs”. Societies don’t become authoritarian overnight; it’s the erosion of principles such as the freedom to protest or to worship that you have to watch out for. And when countries face existential threats – pandemics, wars, natural disasters – the need for codified protections of human rights is greater than ever. Wagner is doing his bit to try to ensure the UK learns from its mistakes. He was a specialist adviser to an inquiry by parliament’s Joint Committee on Human Rights on Covid, and will be working on the Independent Commission on UK Public Health Emergency Powers, announced today, chaired by Sir Jack Beatson and supported by the Bingham Centre for the Rule of Law. He tells me he’d like British courts to get “a big shot in the arm” and become more involved with controversial issues.

When asked if he sees himself as an “activist lawyer” (the preferred insult of Conservative ministers angry at legal challenges), he happily agrees. “I think it’s a compliment. I became a lawyer to be an activist lawyer… We got tote bags made for one of our events that say ‘I’m An Activist Lefty Lawyer’.” He notes the hypocrisy of politicians disparaging the legal profession when they’re “perfectly happy to instruct lawyers when they need them… They go to the law. So I think it’s all pretty self-centred and selfish, to be honest.”

The attacks on lawyers aren’t specifically a Conservative phenomenon (New Labour had its own frustrations with the courts over its terrorism laws), but the escalation is worrying. The judiciary is meant to be a safeguard against excessive government power, in normal times and during states of emergency; ministers who seek to weaken it are playing a dangerous game. “Those politicians should just think about what’s going to happen when they’re not in power,” Wagner warns. “And we’re going to be representing them.”

[See also: The death of “Boris” the clown]

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