‘The light of democratic scrutiny was switched off for two years’ – interview with Adam Wagner

Adam Wagner is a barrister at Doughty Street Chambers, London, specialising in human rights and public law. He has acted in some of the leading human rights cases arising from the pandemic, as well as in inquiries into child sexual abuse, and antisemitism in the Labour Party. He is a Visiting Professor of Law at Goldsmiths University, and was founding editor of the UK Human Rights Blog. Before switching to law, he read PPE at Oxford and Political Science (MA) at Columbia University.

Since 2019, he has hosted the Better Human Podcast; its episodes have covered many of the difficult issues that arose in the pandemic, including the limits of free speech, older people’s rights, the vaccine pass, and the finer points of the lockdown restrictions. In 2020-2021, he was Specialist Advisor to the Joint Committee on Human Rights Inquiry into the government’s response to Covid, and often appeared on television and radio to discuss the latest rules.

Wagner is the author of Emergency State: How We Lost Our Freedoms in the Pandemic and Why it Matters.* His book examines the way in which Boris Johnson’s government used and expanded emergency powers during the lockdown, and the impact on our democracy. It is likely to be significant both as an historical record and an informed legal analysis of the limitations of the UK’s political system.

I met Wagner in September at a café on the Finchley Road, somewhere in the outer reaches of north London. One of his children was ill, and he initially wanted to sit outside, in case he was contagious; I was more concerned about traffic noise. We settled on a table in the emptiest corner of the room.

Over a cup of tea and a bottle of water respectively, Wagner spoke to me about why he wrote Emergency State; whether lockdowns were ‘the worst option apart from all the others’; his ‘Liberty debate’ with Jonathan Sumption at the Oxford Union; why Labour did so little to challenge Johnson’s policies; and why legislative reform is needed to guard against executive overreach in the future.

Emergency State was published on 13th October. The national press responded with its customary impartiality: the Guardian gave Wagner space to write in effect his own introduction, while the Telegraph published a three-star review by Sumption. As always, we leave readers to judge for themselves; comments are open below.

~ Emma Park, Editor

What are the essential characteristics of an emergency state?

An emergency state is really what happens when the state contorts itself to deal with an emergency. It can do that for a very short period, it can do it for a long time – every emergency is different. But the features of an emergency state are quite similar. The main one is that the people who are exercising the power become a much smaller group. In a democracy, power is ordinarily dispersed quite widely. But in an emergency state, power becomes very concentrated, and that has all sorts of consequences.

The positive consequence is that the state can deal with the emergency. In such a situation, the state does need to change. It needs to make quick decisions, and do things that are extreme, such as suddenly allocating enormous resources to some new threat, and taking away resources from something else. It becomes a command-and-control structure which is much more like a military operation than a democratic state. This is necessary because if you do not move quickly and drastically, you might not be able to repel the army that is infiltrating your borders – or to deal with the virus just about to hit your shores.

The negative is that, as with any state where power is concentrated and the democratic and deliberative safeguards are taken away, there are some dangers. The reason democracies are big, complicated and slow is because you need a huge amount of information to flow between what is happening on the ground and the people in charge. If you do not have that information flow, there is no prospect of the person at the top knowing what is going on in every city in the country and amongst millions of people. So you get simplicity, but on the other hand you get simple-mindedness. You have just a few people who think they know the right answer. And when such people are able to impose their view on millions of people, it usually ends badly, because people tend to be wrong about what they think the right answer is. It takes a huge amount of effort to be right.

When you put a few people in charge of a state, it can also lead to corruption and bad decision-making. The inputs in a normal democratic state come through committees, parliament, councils, the media, and so on. In an emergency state, which is small and concentrated, you just have a few guys. I would say it was four: Boris Johnson, Rishi Sunak, Matt Hancock and Michael Gove. They were the Covid committee throughout the whole crisis. They may have been joined by officials, but they were the decision-makers. There was some cabinet involvement, but there was no parliamentary involvement in any of those decisions.

Some people have said that SAGE had too much power, that the politicians involved used ‘this is what the scientists say’ as a way of abdicating their own responsibility. How would you respond to that?

I have read a lot of SAGE minutes. I think that generally, SAGE presented options, and the politicians decided what to do. One of the points I make in the book is that this ‘following the science’ mantra became a bit of a figleaf. I am not a scientist, but it seems like a decent enough system. They make recommendations, the government either accepts them or does not. But the problem is, it was only ever in one direction. SAGE would meet, they would publish their minutes of their meetings. These would then go to the Covid cabinet committee, which would make its decisions – but we would not know what factors were going into that decision-making. And new laws got spurted out at the other end.

There were over 100 new laws that created the Covid state. The lockdowns, the gathering restrictions, travel restrictions, self-isolation restrictions, travel rules, Covid passes, hotel quarantine, local authority powers – all this sort of complex interwoven set of laws that would come out roughly about once every five days, on average, through the period that I looked at, which is 14th February 2020 to 18 March 2022 – 763 days. That was the Covid state: from when the emergency declaration was made to the end of the emergency declaration, when laws were made by Matt Hancock signing a piece of paper – all under the Public Health (Control of Disease) Act 1984.

During that period, the way those laws were made was very opaque. Usually you would either hear about them at the moment they were published, which was sometimes five minutes before they went into force, and once three days after. Sometimes, if they were pre-planned, there would be a leak of it to the Daily Telegraph, which is a paywalled newspaper. This was a very strange way of making the rules.

So it was government by decree rather than by democratic processes?

It was literally government by decree. There was a minister, and the minister would sign the piece of paper, and the law would come into force the moment that he signed it. There were 119 laws over those 763 days. Only eight of them were voted on before they came into force, and only 45 were debated.

What about the closure of schools? That was announced by Boris Johnson, but was it signed into law?

Never. Schools were never closed. Every school remained open throughout the whole of the period. People were told not to come; but legally, there was no change. The only change was that the government said they were not going to punish people for not going to school. The Secretary of State directed at certain points for schools to provide online education. After the first lockdown, there was a direction by the Secretary of State for Education to educate kids – because schools have to provide education, and they were told not to during the first lockdown. During the second lockdown, they had to provide a certain number of hours of online education.

Both of my kids were at primary school at the time. The school did not do anything, really, during the first lockdown, apart from sending a few pdfs, because they thought that they were not allowed to have Zoom lessons because of GDPR. There was one point where schools were threatening to stay open. Some school board, before the lockdown of January 2021, was saying, ‘We’re not closing.’ The Secretary of State for Education told them that if they did not do what they were told, he would direct them and they would have to. There was a bit of dissent and the government said, ‘Nah,’ and that was it – the dissent disappeared.

The government did that without any legal basis?

It was not mandated in law. Whether there was a legal basis was never challenged – whether you can legally say that kids are not allowed to go to school in the absence of sufficient online learning.

I was involved in a case about digital access to digital laptops and tablets, which settled because the government suddenly said that they were going to put in £100 million to provide them.

The problem was that for many kids, the idea that they might have online education was a joke, because they were living, say, in a two-bedroom flat with five kids and two mobile phones, the parents were working from home. The argument against the government was either they had to provide the resources, or let the children come into school, or some sort of other solution; otherwise, it was unlawful to prevent them from going to school.

Schools have been closed in pandemics before lots of times. In the Spanish flu pandemic (1918), schools were closed in England and in the US. It is a standard thing to happen because it is obvious that filthy, snotty children spread viruses. But the issue was that there was no planning or the provision of online education – which was a new idea anyway.

Returning to SAGE, is there a line to be drawn between scientific advice and government policy-making? Do you think the politicians might have different factors to consider in making laws from scientists? The scientists were (presumably) asked to advise about the effect of a particular virus, as opposed to the effects of lockdown on every aspect of society.

I think SAGE often did advise on other aspects. If their remit is health, they can look at mental health and physical health – they can give insight. The government has extra considerations, such as the impact of people not being able to go to worship, which for a proportion of the population is a very serious imposition, or the right to protest. Group worship was only banned during the first lockdown, and after that it was absolutely fine. You could have a thousand people in a church, but you could not have two people outside protesting.

That goes to show how the government skewed priorities. 60,000 people died in three months from December 2021 to the end of February. But in the November 2020 lockdown, they allowed unlimited-size Remembrance Day events outside, as long as they were socially distanced, but no outdoor protest. They allowed group worship, but no birthday parties, school or university. The priorities were skewed to reflect the individuals who happened to be in the room.

What were the worst particular consequences of having such a small government?

This is the bit I find very difficult as a lawyer, because the work has not yet been done to study the impact. From a public health perspective, I think that the government’s decision to delay lockdown on each occasion probably cost tens of thousands of lives.

Was that because of the issues I identify in my book? I do not know. Maybe – or maybe it was just the inclinations of the leaders, who were always going to make their decisions no matter who was influencing them, because that is the way the Tory party is set up, and that was the way Boris Johnson operated.

Is the point that you are making in Emergency State that we just lost democratic accountability – whether or not they made the right decisions in the end?

Yes. When you harm the state and democracy in that way, you leave scars.

What scars are we seeing?

In the book I talk about the right to protest, partly because I was involved in the Reclaim the Streets cases. The way that the right to protest was dealt with during the pandemic is emblematic of the way we approached democracy.

In Israel, at the beginning of the Pandemic, even during the first lockdown, the worst, they went out and they drew chalk marks on the ground where people could stand in public squares for protesting lockdowns. They had a straightforward approach, allowing people to protest as long as they were socially distanced. And Israel had one of the harshest and most draconian lockdowns: the secret services were even monitoring people’s phones to start with.

In the UK, they banned outdoor protests for almost the whole pandemic – when at the same time the state was intruding on people’s private lives in the most severe way it had done since the Second World War. It is almost unbelievable, and before the pandemic, you would not have believed that it could happen.

Another thing that was lost, as well as the sidelining of Parliament, was all the benefits that come from public dissent and discussion. We lost the ability to scrutinise what was going on.

Hotel quarantine, to take another example, was one of the strangest and most severe public policies in decades. Over 200,000 people were detained in hotel rooms, including tens of thousands of children. It was not even debated in Parliament – it was published in the Daily Telegraph and then it just happened. People were being sexually assaulted in hotel quarantine. I dealt with clients who definitely should not have been there for medical reasons.

There were all sorts of things going on –  just as happens in authoritarian states behind closed doors – which people were losing the will to challenge.

Is it your impression that people started to behave worse during the pandemic? For instance, because they were encouraged by the government to snitch on their neighbours; or in the many instances of aggression against people who were not wearing masks or socially distancing. Did we as a society become more irrational ourselves – and if so, was this partly because the government no longer respected people’s civil liberties?

I don’t know. I was very vocal about police encouraging people to snitch, which I thought was terrible from the perspective of social cohesion. SAGE always said it was a bad idea as well. The advice from the behavioural subgroup in SAGE throughout was positive reinforcement – to encourage people. Negative messaging does not work, behaviourally; it just makes you think everybody else is breaking the rules. I think most people knew that. My understanding of the most recent research is that the vast majority of people kept to the rules, except in very limited ways.

But the members of our government were lax with their own compliance from the very beginning.  Take Partygate, for instance; or the Dominic Cummings scandal; Matt Hancock‘s breach as Health Secretary, or the behaviour of the SNP MP Margaret Ferrier.

The signals this sent to the public was that we were not ‘all in this together’. In the book, I quote research from UCL which said that, after the Cummings scandal, something broke in people’s perceptions. Instead of thinking that everyone was keeping to the rules, they started to think that people were trying to get away with things. This led to a breach of trust between the public and the government.

Clearly, Boris Johnson and certain other politicians and advisers acted as though they were above the rules – when, as the rule-makers, they should have been the first to obey them. But could it be argued that, these cases aside, the rules were too harsh and authoritarian in the first place? Was the bigger problem with the fact that the rules were broken, or with the rules themselves?

I do not think they were so harsh that they could not be kept. The interesting thing about the way the politicians broke the rules is that it was not the way that most people broke the rules. It was not about having a kids’ birthday party with seven people instead of six. The government had wild parties with fights and puke on the walls. However lax the rules might have been, they would never have allowed for people to have big drunken parties indoors. If you look at Daniel Defoe’s diary, Journal of a Plague Year (1722), which is strictly a work of fiction but based on real events, centuries ago, ‘bear-baiting and tippling’ have been banned during plagues.

They did not know about how diseases spread back then, did they?

Yes, but they had the right idea. They thought there were vapours spreading through the air. They knew that interpersonal contact spread disease. The Old Testament had strict rules about leprosy, which they knew spread through touching, so they excluded lepers.

But going back to original question, is there an argument that the fact that the rulers were not keen on the rules shows that they were too harsh? There are two ways of interpreting that proposition. The first one is that the rules were so harsh they were impossible to keep. The second one is the ‘conspiracy theory’ interpretation: that the rulers knew that things were not as bad as they were saying, and therefore they did not bother keeping to the rules – which I think is quite wrong.

It is entirely possible that the rules were too harsh. Lockdown is a new idea. The first ever national ‘lockdown’ was, as far as I could tell, in 2009. Curfews, banning social gatherings, closing schools, face coverings, those are all pretty old, at least 100 years old, and probably hundreds and hundreds of years old. Total lockdown – that is brand new. And before 2020, the longest lockdown had been for five days, in Sierra Leone. So it was a huge social experiment.

Do you think that, from a policy or scientific perspective, there was a tendency to treat people as statistics, or to manipulate them en masse? For instance, Laura Dodsworth, in State of Fear (2021), argues that there was a deliberate campaign to frighten people through advertising. How far was this approach adopted, in your view, and were there any difficulties with it?

I deal with that in the book in relation to Lord Sumption. It is a point which I am sure Laura Dodsworth makes as well, about this ‘emotive messaging’ in the Behavioural Committee of SAGE. One of the big revelations of that theory is that SAGE recommended fearful messaging. I have read the paper, and I do not think they were saying that. They were saying that you have got to somehow communicate to the people for whom the risk from Covid is low, that by socialising and going about their ordinary lives, they are nonetheless, first of all, exposing themselves to a risk which is not quite as low as they think, and second of all, exposing others to the risk.

That is the big ethical problem of public health, particularly dealing with a new infectious virus: how do you square the fact that people are individuals – but, in terms of the way a virus spreads, like nodes. There is really only one question: do I have it or not?

This is a virus that spreads asymptomatically. That makes it different from Ebola, SARS, leprosy. It changes the rules, because what is otherwise a harmless social interaction, like us sitting here, drinking tea and chatting, becomes potentially two nodes meeting. Ethically, it is hard to know what the answer is. Probably, you need to weigh up as many different factors as you can, and reach some kind of decision which takes into account all those factors, and then you keep your decision-making dynamically on top of all the impacts you are having.

Is your criticism of the government that they failed to take into account all the factors they should have done, because they did not have enough people involved in the decision-making?

There were lots of views about lockdown. People certainly were expressing their views during the pandemic, especially from the summer of 2020. But the government allowed itself to be autocratic in the way it approached things. That is wrong in principle.

I do not have a very strong view about lockdowns, as strange as that sounds from a human rights perspective. I can see the enormous difficulty of those decisions and the differing viewpoints. I find it very hard to come down one way or the other, or say, as Lord Sumption did on 24th March 2020, that lockdowns are wrong and they should never be allowed – end of.

Suppose we agree that lockdowns are not necessarily wrong in principle, in some extreme circumstances. What about the specific case of Covid? The fact was that this virus did not attack everyone equally: according to a report by the Office for National Statistics in January 2021, the mean age of death ‘due to Covid-19’ was just over 80. Was this a factor that should have been taken into consideration in deciding how far the whole country should have been locked down? What about the many harms that resulted to others, who were not likely to die of Covid, from being locked down for extended periods?

That is possibly the case. But it is a very, very dangerous virus for those people. A very large percentage – in public health terms – of people over 60 were impacted. 200,000 people in this country died from Covid over a two-year period in the UK. 

That is still a very small proportion of the population as a whole.

But it is still a lot of people compared to the number of people that die every year, and a lot of people losing ten, twenty years of their lives. Those are really big numbers – certainly big enough to legitimately weigh up against other important things like my children’s education, people’s work, the risk of domestic violence, or the risk of being hauled over by the police in a semi-police state or getting a criminal record when you do not deserve it.

The Covid period was always going to be some kind of horrific national disaster one way or the other. If Covid had run unchecked, it would have been a horrific national disaster. Hundreds of thousands more people might have died.

Not all lockdowns are equal. Even compared to France, Spain, Italy, we had a pretty lax lockdown, and they got much more lax. France gave out a million tickets in a month. We gave 125,000-odd in the whole period. In China they cart people with Covid off to detention centres, and have drones enforcing the rules. They do not let people out at all – people die in their houses. And that is a horrific disaster of a different kind, because the population is basically being imprisoned. That type of lockdown is too far and too much.

You say you have not made up your mind. On what basis do you think that the opponents of lockdown in this country were taking their view too far?

They might end up being proven right – I do not know. The problem with the anti-lockdown argument is the question of the alternative.

You have mentioned Jonathan Sumption, who led the intellectual opposition to lockdowns. Where are the objections to his approach?

Lord Sumption never seemed to me to have considered what you should actually positively do in the situation we were in. Over the last five centuries of pandemics, states have tended to impose curfews, close schools, close pubs, ban gatherings, get the homeless off the streets, impose mask-wearing – many of the same things that we did during the Covid pandemic. Curfews have always been an element of local outbreaks of things like the bubonic plague. Once you have a suite of measures like these, you have a situation similar to a modern lockdown. The only missing element, in the past, was the stay-at-home order, because there was no internet, no working from home.

The two main points of the opponents of lockdown were, first, that rules should have been guidance, not enforced in law. This is really a behavioural science point – a point of practice rather than principle: it assumes that guiding people is better than forcing them through the criminal law and the police. The second point was that there should have been no restrictions at all. To me, that is unreal. I am not a scientist, but given basic knowledge of how a virus spreads, it was verging on madness to go about as if nothing was happening when there was a new virus that was killing and maiming lots of people.

What about the argument that the response to Covid should have been to balance shielding those at risk from this particular disease – largely the very old – with allowing other people who were less at risk to carry on with their lives?

My understanding is that this kind of shielding was not practically possible. Those at risk still have to be fed, to go for walks. If they are in a society where millions of people have Covid – which was already the case, notwithstanding the lockdowns – imagine what it would have been like if everyone else had been guided to go about their everyday lives.

The shielding argument also underestimates the fact that many people became very ill from Covid, had long Covid and died from Covid, who were not old. From a public policy perspective, it would not have been workable.

Take care homes, which contained hundreds of thousands of the people most vulnerable to Covid – who were very old and may have had underlying conditions. 20,000 people died in care homes on the first day of the pandemic. If the approach had been to shield the vulnerable but let everyone else continue as normal, that would have raised the question of who was going to work in the care homes, and how they were going to ensure they did not have Covid. You could have put them into glass boxes, I suppose. But detaining old people for two years is a really serious imposition on their rights. It might not be bad from a younger person’s perspective, selfishly, but it is not good for society. It is not very moral.

Were the benefits to the lives of those who were saved by the lockdowns worth the costs to the economy, which affects everyone, and to many people’s lives in different ways – especially the young? How far is it acceptable to risk long-term damage to the whole of society in the interests of protecting a relatively small group, who are themselves nearing the end of their lives?

I do not think society works like that. We do not live in silos. You could not realistically, practically, or workably have tens of millions of people having Covid at the same time, because of the numbers of people that would catch severe Covid, go to hospital, and have to be treated there. What happens to the old people that are already in hospitals for other reasons, or cancer patients – where would they go?

Statistically, even if you shield everyone over 70 and let the virus just run wild, my understanding is that tens of thousands of people would still end up in hospitals, completely overwhelming the system.

Throughout the three periods of serious upswings of Covid, hospitals were disaster zones. Despite the lockdowns and their partial suppression of the virus, the state of hospitals was absolutely horrific. Lots of healthcare workers died who were not elderly. I acted in a case with an ambulance driver who was 56, and had no underlying health conditions, but died in the first month of the pandemic just because he was exposed to so many Covid patients.

The shielding argument is made without much thought as to how it would be operated in practice. Of course no one wanted to stop kids going to school, stop people going to work, or to concerts, churches, debates – all the nice things that they do. But that was not practical, and there would have been unintended consequences. I am very sceptical of the claim that there was an easy answer that was better than the answer that we came up with.

In October 2021, you faced Sumption in a debate before the Oxford Union. You spoke in support of the motion, ‘This house would give up liberty for safety.’ What were your key arguments?

Lord Sumption’s argument was that, from a principled perspective, we should not have imposed this social experiment on the population by law – it was the wrong way to do it. I have a lot of sympathy for his argument. He was a very important voice during the pandemic – which I often did not agree with. My objection to his argument, as I say in the book, was that there was no realistic alternative solution.

I think Sumption approached the matter from a pure, libertarian perspective: the idea that a man’s house is his castle, and that the state should never interfere in one’s private life. He had taken that position before Covid. He supports civil and political rights, freedom of speech, no torture, but as to issues of privacy, personal identity, gay and trans rights – these are not for him. I think he comes from a very specific perspective because he is a very privileged, wealthy man.

One of the privileges of privilege is that you do not come into contact with the police. You are not the focus of public order laws. If you are poor and downtrodden, you frequently come into contact with immigration authorities, state authorities, the police – the state is in the lives of those people all the time. The way the state behaves, but also what it provides for you, becomes very important. Lockdown gave Sumption the experience of being like those people.

As far as Parliament goes, do you think that the opposition should have done more to question Boris Johnson and his administration over their Covid policies?

Definitely. The problem for the opposition was that they did not have the numbers. Because Johnson had such a big majority, there was no real prospect of opposing the measures, short of an alliance between some Conservatives and the opposition. At a certain point in the summer of 2020, a message could have been sent to the government saying that the way they had been acting would not be tolerated unless the others were given greater involvement or there was a government of national unity or a committee process.

Keir Starmer, particularly in the autumn of 2020, supported locking down sooner rather than later. I think Starmer was playing the long game: he did not want to be seen as irresponsible, but as a safe pair of hands. That was the way he read the public mood. There were reasons why the opposition were fiddling around the edges rather than being an opposition.

The problem with that approach is that the government’s policy might have been right, or it might not. But the whole point of democracy is that the assumption should be that people are wrong when they act according to imperfect information or on instinct. Then the arguments are subjected to scrutiny, debate and a harsh light.

That light of democratic scrutiny was switched off for two years. If it turns out that the lockdowns did not work enough to justify them, then there was a missed opportunity. If the lockdowns were in fact the worst option apart from all the others, but they were done badly and so carried on for longer than necessary, that would also have been a missed opportunity.

What do you think needs to change in British politics now to ensure we have a better outcome the next time there is a pandemic?

It is time to write down our constitution. We do not know enough about this murky, unwritten thing. One of the main purposes of a constitution is to protect countries during crises – to protect us from ourselves, subject decisions to scrutiny, and set red lines. We do not have red lines in our country. Prorogation is an example: the government actually shut down Parliament before the move was overturned by the Supreme Court. They adopted a similar approach during the pandemic with the Public Health Act.

On Valentine’s Day 2020 in the London Gazette, there was a declaration of a ‘serious and imminent threat to public health’ which no one knows about. There are all sorts of things happening behind closed doors – you have to be a nerd to follow what is going on. That is not the right way to run a modern state.

We need to sort out public health laws, because they give too much power to ministers. I suspect that the Covid Enquiry will conclude that the Public Health Act is not fit for purpose. We have to face up to how little power citizens have in circumstances when an executive wants to do something drastic. We need stronger powers for the courts and much better Parliamentary oversight. But we have known about all these problems for a long time, and in the end, I do not know whether anything will change or not.

Adam Wagner, Emergency State: How We Lost Our Freedoms in the Pandemic and Why it Matters, Penguin: Bodley Head, 13 October 2022

*Clicking on this link will take you to the book’s Amazon page and earn us a small referral fee.

Enjoy this article? Subscribe to our free fortnightly newsletter for the latest updates on freethought.