Emergency State by Adam Wagner: having and eating cake?

Adam Wagner has written a very interesting, highly readable and thought-provoking book about law and the pandemic, based on his professional experience in a number of important court challenges to aspects of the restrictions, not just as an ordinary citizen. I’m very late to review it, but I recommend it. If you have an interest in law you really should read it.

None of which means I agree with its premises, arguments or conclusions. What Wagner’s right about is the extreme departure from normal social life we experienced during the pandemic, and that Britain could have handled better the legal aspects of that abnormal period. Many of his criticisms of the government and the police are hard to argue with.

He’s right that the government was too anxious to avoid Parliamentary scrutiny, and MPs insufficiently anxious to insist on more. He’s right about “dog law” (you’ll need to read the book to find out what that means), that the regulations were often very complex, perhaps too complex, that they were often published too late, and confused with guidance, and that police sometimes enforced them wrongly or excessively in many cases, particularly over the Sarah Everard vigil. He’s right I think the Civil Contingencies Act should have been used rather than public health legislation. He’s absolutely right to criticise the Johnson government’s tendency to authoritarianism and arbitrariness, and its contempt for Parliament and law. Right too to disagree with “lockdown sceptics” like Lord Sumption. So he’s right about a lot of things.

He’s also balanced. He accepts that it was very difficult for government and police to get to get everything right, especially when time was critical with lives at stake; and doesn’t suggest any country obviously did much better. Unfair, this book isn’t.

Still, Wagner’s approach is flawed in ways that I think lead him astray on the big picture. He says sometimes that we “lent” our freedoms during the crisis, but sometimes that we “lost” them, and because of this ambiguity his detailed critique carries throughout (intensified by its key conceit, the ominously capitalised “Emergency State”) a implication that we’ve lived through something like a Carl Schmitt-style “exception“, a suspension of legal and constitutional order in which we “lost our freedoms” to absolute dictatorship. But that’s not something that happened, or felt likely to happen. Wagner doesn’t go full Giorgio Agamben by any means (and rightly condemns grotesque comparisons to Nazi laws), but there is a logic in “states of exception” thinking that can feed conspiracism and scepticism of science and democratic government, and I worry that this book flirts a little with that logic.

A second significant flaw is how non-committal the book is on the big question of whether national lockdowns (for example the original order to “stay at home”) were justified. Wagner defends this stance on the basis that it’s not a question for lawyers, and only time and science can tell us how many lives were saved:

What I will not do is tell you whether every aspect of the restrictions was justified. These are issues of vital importance. But they are not ones on which a lawyer has the expertise to reach a conclusion. In truth, I doubt we have reached a stage when some judgments can even be made.

But it just isn’t good enough to duck this. Whether lockdowns were justified in terms of public and human rights law is a question squarely within his expertise; it’s not one that can be outsourced to scientists, any more than its political and moral aspects can. And it must be judged on the basis of what was known at the time the decision is made, or else no lesson can ever be applied at any future moment of crisis, by a minister or a court who will again have to act on uncertainty. The only reasonable conclusion is that by and large pandemic restrictions, including national lockdowns, were justified—and should in some cases have been introduced earlier than they were. It’s disappointing that Adam Wagner’s unwilling to say clearly that he agrees.

The conclusion I reached was that as a human rights lawyer my efforts would be most useful spent not pontificating on the huge question of whether lockdowns could be justified: I could no more reasonably answer that than any other non-scientist.

I said he disagrees with Lord Sumption’s lockdown scepticism, and he does. But he also concedes too much to Lord Sumption, I think, and ends up too generous to Sumption’s position.

looking back now, I agree with much of his critique. 

There’s another strand of “cakeism” in his discussion, which I see as linked to hypercritical thinking about proportionality. On one hand Wagner’s concerned about the untargeted, broad-brush national lockdowns that affected everyone equally, whether infected or exposed to the virus or not. On the other, once geographically targeted restrictions come in, he’s worried about how they discriminate. He says that to be proportionate, measures must be

as close as possible to the precise restrictions necessary to contain COVID-19

while also complaining about constantly changing rules with ever increasing exceptions, and a “summer of micromanagement” in 2020. But of course when circumstances are constantly changing this is the only way to stay as close as possible to what’s precisely necessary. You can’t be against both rough simple rules that apply equally, and precisely targeted, calibrated measures—unless you’re against both. To be fair Wagner himself identifies these tensions in his thinking and is right, of course, that there are human rights considerations favouring one approach in some circumstances, and others favouring the other. He concludes that human rights thinking needs to be at the heart of emergency response; but really what this all shows is that human rights can’t tell you what you need to do. He admits that when he says—

It is beyond the scope of this book to reach a scientific conclusion as to which methods should have been used and which not.

Proportionality is a key concept in human rights law, and Wagner’s approach and my criticism of it may be explained by different instinctive approaches to proportionality. How critical of a unwelcome measure should we be when asking whether it was proportionate to some threat, and therefore justified? How much latitude should we allow the decision maker? How intense a review is the proportionality analysis lawyers and courts should apply? Perhaps my background as a former government lawyer makes me tend to allow a substantial margin for a range of different policy approaches all to be justifiable, whereas some very human rights-minded lawyers can seem to think proportionality is a search for the one and only exquisitely calibrated ideal response, with all “really existing” options presumptively unjustified. I see this approach as hypercritical, and making it difficult to recognise, acknowledge or support proportionate measures when you see them. This is a particularly telling paragraph:

One of the odd aspects of the government’s covid-19 strategy was that, from a proportionality perspective, it seemed to be happening back to front. Ordinarily you would expect the state to begin by quarantining those most likely to be affected and isolating those who are infected. If that does not work, you can cast the net wider. But the UK government did the opposite. It began, in March 2020, with the quarantining of the entire population, regardless of the likelihood of infection.

The point he misses is that nothing short of lockdown was at the relevant moment sufficient to be confident of contain the pandemic and saving lives, and therefore only lockdown was proportionate to the threat. Proportionality does not in all circumstances require a graduated response.

There is one part of Wagner’s argument that I think he blows up out of proportion—when he discusses the so-called “sex ban”. It’s true that when it was illegal to visit someone else’s home, you couldn’t go round to your girlfriend’s or boyfriend’s and have sex with them there (or eat a meal with them or share a bottle of wine, to mention other possible activities). This was of course a huge limitation on many people’s lives, for as long as it lasted. But sex was not being targeted any more than meals or wine were—there was no criminal offence of having sex, or criminal law penalisation of sex, as he implies even if he doesn’t seriously mean to. And if a ban on social visits was necessary, as I think it was, then a “sex exemption” would have blown a huge hole in it, since anyone could have claimed they were having sex at any private residence they wanted to visit. To call this a “sex ban” is I think tabloid-like, and no more accurate than to suggest Boris Johnson was fined “for eating cake”. It’s the point of the discussion at which I think Wagner’s human rights-mindedness comes close to resembling the dodgy “libertarian instincts” that led Boris Johnson into (for other people) fatal errors.

Wagner says

It is perhaps a feature of our prudish culture that it was treated as a sniggering but not serious criticism of the lockdown rules

But actually the “sex ban” complaint was a typically British sniggering reflex, thinking about the consequences of extreme legislation in the same way teenagers might look up the rude words in a dictionary. Wagner’s point would be more persuasive if he plainly argued that some lesser restriction on home visits would have been sufficiently effective: but of course that’s the sort of judgement he doesn’t want to make.

I must mention his conclusion that we need a written constitution. This is a standard demand of centre-left liberals and many public and human rights lawyers, but there’s really nothing about the pandemic that suggests we need one, or would be better off with one. Wagner admits that restrictions were more, not less, rigorously enforced in some other European countries with written constitutions.

At one point he quotes Orwell, writing that whether you lose or keep your freedom depends on “the general temper in the country”. Orwell was right of course, and his insight tells us why, in Britain, the pandemic felt like lending but not losing liberty. The general temper favoured justified restrictions, but only justified ones. Wagner agrees, fundamentally, that there was in Britain no great historic clash of freedom versus unfreedom.

But that thoroughly sensible view is obscured by some mixed messages. They make “Emergency State” ultimately an ambiguous, conflicted book that sometimes evades key questions, unjustifiably implying more than it justifiably says.

But Adam Wagner makes many good points, and has a lot to contribute to preparation for the next pandemic or similar emergency. I look forward to disagreeing with his next book.