It is almost three years since the first case of a novel coronavirus was identified in Wuhan, China.
It’s just over two and a half years since Boris Johnson gave us a “very simple instruction”, that we “must stay at home”, followed – three days later – by a law that for the first time in our history would impose a 24-hour curfew on almost the entire population. The years, months, weeks and days since have been so relentless – and at times almost beyond belief – that it is difficult to begin to process them. Many of us have experienced personal bereavement, and everyone has been touched in some way.
But as tempting as it is to move on, to focus on other important issues vexing our society, there are some aspects of the past three years we must face up to.
There are a hundred lenses through which to view this important period in modern history, but as a barrister I have looked at the more than 100 laws that placed England in lockdown, imposed hotel quarantine, international travel restrictions, self-isolation, face coverings and business closures.
These were probably the strangest and most extraordinary laws in England’s history, imposing previously unimaginable restrictions on our social lives, bringing into the realm of the criminal law areas of life – where we could worship, when we could leave home, even who we could hug – that had previously been purely a matter of personal choice.
By early 2020, the Johnson government already had form for seeing democracy as a gadfly to be swatted away, having tried, and failed – thanks to the supreme court – to shut down parliament for weeks to ram through a Brexit deal. When the pandemic hit, it is no surprise that it took the same approach to involving parliament in the most consequential decisions and laws in living memory.
The Public Health (Control of Disease) Act 1984 allowed for ministers to enact the coronavirus regulations with almost no parliamentary scrutiny. Of 109 lockdown laws, only eight were considered by parliament before coming into force, usually only a day before. The rest became law (literally) as soon as Matt Hancock, the then health secretary, put his signature at the bottom of the page.
I am not suggesting that emergency law-making would ever be straightforward and neat, following all the processes of ordinary legislation. During public emergencies, events move swiftly and mercilessly. But it did not have to be like this.
Also troubling was the constant refrain that the government was “following the science”, by which it meant its scientific advisory group, Sage. But decisions were ultimately taken in the extremely powerful but opaque Covid-19 cabinet committees, presided over by four ministers – Boris Johnson, Rishi Sunak, Matt Hancock and Michael Gove. No minutes were released and no explanation offered of how decisions were made. This was the most powerful government committee since the second world war, but received no scrutiny. Important political decisions need to be understood, scrutinised and tested. These hardly were.
We still live in the state that permitted ministers to rule by decree for more than two years, and where basic freedoms were removed without democratic scrutiny or accountability. In 2008, the Public Health and Wellbeing Act was amended to include vast powers for ministers to use in the case of a public health emergency. And because ministers would have the power to impose laws without parliament having to review them for four weeks (or sometimes longer), they could, as one prescient member of the House of Lords put it during the brief 2008 debate, “at the stroke of a pen … limit and constrain the daily lives and freedoms of citizens”.
Parliament, meanwhile, allowed itself to play the role of a 1,400-person rubber stamp. The police, tasked with enforcing the ever-growing mass of legislation, often being changed more than once a week, floundered between excessive and unjustified intrusions into our private lives, or – as was initially the case with the Partygate investigation – attempting to stay out of the fray altogether. The courts, for their part, also played a limited role, ruling repeatedly that pandemic policy – even when it interfered with fundamental rights – was a matter for government and parliament, not judges.
Why does this matter now? Because the pandemic – and the ease with which ancient freedoms such as the right to protest, to worship, to see our families, were removed essentially by decisions of a tiny group of ministers – should be a wake-up call. It is only a matter of time before a new crisis will arise – either connected to Covid-19, to another virus or to another kind of emergency altogether.
We must face up to the fact that we are not well protected from a government if it wanted to use a state of emergency to corrode our freedoms. We have no written constitution, meaning it is more difficult for people to claim their rights, and – unlike in many other democracies – the courts are reluctant to become embroiled in cases involving fundamental rights that involve political controversy. Government power has been on the rise for years, not least through the ever increasing use of secondary legislation to set policy. And our public health legislation remains extraordinarily broad.
CK Allen, scholar of the vast emergency powers built up during the second world war, reminds us that freedom “is not easily gained, and, once surrendered – however necessary the surrender may be – is even less easily regained”. As tempting as it is to put this dark period in our history behind us, it is only by looking back that we can, finally, hope to move forward.