18th October 2022
The legal blogger Adam Wagner has written a book about the coronavirus regulations.
But the internet does not need another post by one legal blogger saying another legal blogger is wonderful, and so I asked someone else to review it.
Richard Horton was a police sergeant in Lancashire tasked with making sense of and enforcing the regulations on a daily basis, and so I asked him to do the review.
Horton also happens to be the legendary former police blogger known as Nightjack, winner of the Orwell Prize in 2009 – and it is a great honour for this blog to publish his guest post.
**
Emergency State by Adam Wagner
Review by Richard Horton
A few years ago I was a jobbing Police Sergeant on a response team in South Lancashire. My hair was short, my beard was goatee and life was good, busy, but good.
Enter stage left the wily Chief Inspector of my parish with a cunning plan. “Richard” he said, “we have a job that needs doing at Licensing Sergeant. Could you take it on?”
I was on the far side of 50 with a borked right knee. Retirement was only a few years away. The joys of managing an ever increasing workload with ever decreasing resources and dealing with the belligerent antisocial at weekends were beginning to fade.
I was being offered one of those fabled “glide path to retirement” jobs. This was the Licensing Department, a small team that knew the job better than me, lots of meetings, the occasional licence review. This was the job to see me out to my pension, and all I had to do was to get my head round the Licensing Act.
Of course I snatched his arm off.
*
I settled into the new post fairly quickly. There was a first month punctuated by my wise staff coughing gently and saying “Errm Sarge, you can’t actually do that” and I was lucky enough to do some barrister-led training in licensing.
I had my feet underneath me, everything was going well and then March 2020 happened.
From then on, my colleagues and I had to operate in a rapidly mutating landscape of laws and regulations that soon resembled the hedge in Sleeping Beauty.
The world had caught a virus and here in England, the Government tried to take control.
*
Nightly, ministers appeared on radio and television making policy pronouncements about the State of Emergency. From the start, there was a disconnect between what was being said and what was being written into the regulations.
On one notorious occasion, a local night club operator understood this and used better reading and barrister advice on those regulations to stay open until the last possible minute when the local council and I had convinced ourselves that the venue should close.
My team and I would literally huddle round our little office radio waiting for the latest press conference. I would wait expectantly for the publication of each iteration of the regulations. We then had to go out and enforce this stuff.
The simple life of a Licensing Sergeant was suddenly complicated. I vividly remember right at the start taking a police van out along the Merseyside border to check on some outlying pubs. I passed many groups of people, families as far as I could tell, who were going on a walk for exercise. In many cases they looked very uncomfortable seeing a police van approach. I just smiled and waved. Some smiled and waved back. Some didn’t. It felt very strange.
Despite my best efforts, I could not reconcile the briefings to what was coming out in the regulations. Guidance from above was still some distance away. Policing was taking a “let a hundred flowers bloom” approach to enforcement. Things were getting muddled.
I thought I understood what it all meant. I became a sort of one eyed go-to for colleagues but in truth I just was not sure.
Into that chaos stepped Adam Wagner, a human rights barrister at Doughty Street Chambers. He was doing the hard work of reading, understanding and explaining the Coronavirus regulations for the rest of us. It came as some relief to have his work as a reference that proved more reliable and helpful than any amount of briefing and policy announcements.
*
Almost inevitably, having stepped into the very centre of the storm, Wagner has now written a book about the State of Emergency and called it Emergency State.
As a history of the times it struck me as entirely accurate. As I read the book there were may moments where I was right back in the Licensing Office reading the latest regulation and thinking “Umm, OK, how are we going to make this work? Actually can we make this work?”
What was a substantial meal? Did a Scotch Egg count? Was the rule of 6 households, acquaintances, indoor, outdoor, socially distanced, masked? What distance was a social distance? How loud could you sing at the karaoke? Was it a nightclub or a multi-use licensed venue? What actually was a nightclub? What parts of my responsibilities were in what tier?
*
As soon as my copy of Emergency State arrived I was inevitably drawn to pages 66-68 of the book, Police – understanding of rules.
Wagner dip sampled police officers on their understanding of the regulations and as I feared, he found that the unenforceable guidance had been rolled up into the law by some of my colleagues.
He is generally sympathetic to our plight but rightly points out that in the State of Confusion, many people were given police instructions that were not based on any legal power and many fixed penalty notices were given out that should not have been.
This is important stuff when the police had been given such great power and authority. Policing should learn from this because in the cold light of hindsight, it will diminish our legitimacy.
*
From the beginning Wagner sets out that this was a real emergency. There was a virus, it was killing many people, there was no cure, little effective treatment and no vaccine. There was a real prospect of NHS resources being overwhelmed.
He doesn’t claim any special medical knowledge but he understood early the value of bringing his experience and knowledge as a barrister to bear on getting a proper understanding of the scope and power of each development of the Coronavirus regulations. It is a balanced and thorough view. Many times as a I read Emergency State I found myself thinking “Yes Adam but….” only to find that my but was addressed a few paragraphs later.
*
The book is helpfully organised chronologically with each chapter headed up by the relevant dates and poignantly the cumulative Coronavirus death toll.
Chapter 6 – Patchwork Summer took me back to that incredibly good summer in 2020 when I spent time patrolling parks with local council staff because there was a local political opinion that somehow groups of people gathering legally in a public park to enjoy picnics and cold beers from the local off licences was a thing to be stopped. Those gatherings were not stopped but we had to look.
*
If I had to pick one chapter to survive it would be Chapter 8 – Step By Step.
We should never forget “Partygate” and Wagner sets out persuasive evidence that inside government, things were much closer to the Versailles court of the Sun King than to say, Battle of Britain era Fighter Command.
I read this chapter with a near constant smile. Who had kept all the receipts? Who knew what regulations were being flouted on which dates? Who could definitively say “You broke your own regulations, the ones that you made”? Who could point out that the Metropolitan Police policy on retrospective enforcement of the regulations explicitly allowed and indeed encouraged retrospective investigations into something like “Partygate”?
This comes as a conclusion to one of Wagner’s central themes that for about two years there was an exercise in strong use of state power with very little effective scrutiny. As a country we largely rolled with it but those thorny thickets of regulation were often poorly thought out, impractical and unfair. All the while, behind the palace walls there was hedonistic exceptionalism.
*
As I read this book, I could always feel Wagner setting out his evidence and heading towards conclusions. It is well written and accessible and it has to be to coherently draw together the ratcheting of fiat law into everything from the public joy of a walk in the country to the private joy of the bedroom. This is no dry legal telling of the tale. It takes the reader back into the daily history, the tragedies and the fear of Coronavirus. It has a narrative that you can feel.
If I were to clumsily summarise it, I would say that a State of Emergency was necessary but we somehow ended up with an Emergency State.
There are lessons to be learned about keeping that state in some sort of effective balance and on this occasion neither the courts or the legislature were particularly effective.
We (mostly) willingly surrendered many freedoms and although they were eventually returned to us, a blueprint for making further lock downs and restrictions on our freedoms with weak scrutiny and little ongoing accountability is now known. Without scrutiny and accountability we may be left solely reliant on the wisdom and responsibility of our state which is a bad thing. Will those lessons be remembered when we pass this way again?
Probably not I think but if they are, this book Emergency State will be a good start for anybody that wants to know what really happened and more importantly, how it happened.
Richard Horton
TAFKA NightJack
***
I am so pleased, excited, nervous and generally grateful that TODAY IS PUBLICATION DAY! Thank you to everyone who has helped me get to this day.#EmergencyState is in all good bookshops, online, audio book (read by me). All info here: https://t.co/JOxsl3IpUf pic.twitter.com/HvCfKwiBsD
— Adam Wagner (@AdamWagner1) October 13, 2022
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
The comments policy is here.
Apologies for those of you who received a premature email of this post – I was so excited to host this post I pressed ‘send’ too quickly.
Excellent review! The book sounds as though it will be worth reading (which doesn’t surprise me).
Excellent review, but now I will have to buy the book.
There is an interesting study described here
https://histecon.fas.harvard.edu/climate-loss/civil_liberties/index.html
of how people in different countries viewed the loss of civil liberties during the pandemic. I suppose ‘Leviathan’ would rear its ugly head in extreme cases.
An excellent review. A model to be followed in fact, with just the right amount of personal anecdote which is lightly written. Thanks to Richard Horton for pointing us in the direction of what he explains is a very worthwhile book by Adam Wagner. And thanks to DAG for publishing it.
A balanced review from Lancashire. Compare and contrast with their Humberside colleague on Radio 4.
Good review. I will have to buy the book. (I was thinking about it anyway, but this has convinced me).
One key takeaway from the review, and I suspect from the book when I get round to reading it, is that the police need to consistently enforce the actual legislation, and not allow themselves to be misled by political or public pressure into thinking they can enforce the guidelines or, indeed, their own preferences.
During Covid, that was mostly about trying to stop people going for a walk in the park, or the hills. But now, we’re seeing exactly the same kind of mistakes when it comes to “hate crime”, particularly on social media.
There’s no doubt that there are real laws to be enforced here, and real crime to be prevented or prosecuted. Those laws, though, are brought into disrepute when they are used to justify an over-zealous (and legally unsustainable) approach to things that the police, or their political advisors, merely think are undesirable.
I hope we can learn lessons from Covid. And I hope one of the lessons we learn is the perils of policing overreach.
What an excellent and engaging review. At the end of it, I thought what a pity Richard no longer blogs as Nightjack (or indeed anyone else). I’d add his writing to my list of regular reads. Yes, that’s a hint, Richard.
Anyway, speaking of lists, Adam will be pleased, if not delighted to read, that his book is going on my Christmas list. I’d buy it now but that would needlessly annoy my wife, who objects to my buying potential presents in the vicinity of Christmas.
I think I can add to this debate by expanding it to the prison population at the of whom I was one. I spent two periods of 14 day solitary confinement with time out of cell limited to a brief shower and phone call. No fresh air at all and I speak as a chronic claustrophobic.
When not in quarantine fresh air was limited to 20 minutes a day if staff were available. so if you got your excersise at 8.40am it could be 3.50pm when it happened next so a 32 hours bang up. It was hell.
I know this is outside the scope of Mr Wagner’s superb book but 23 hour bang up is still the norm meaning around 30 hours at a stretch locked up. I hope we can do better than this next time.
In this reader’s view the very finest of our neighbours, the British, are almost invariably the most modest and self-effacing, the people who do not seek the limelight but who get on with the job quietly and with the utmost integrity.
Asking Nightjack, whose blog I used to read with interest, to review Adam’s book strikes me as an inspired and characteristic action by David. In the world of intrigue, cynicism and outright corruption and authoritarianism in which we now live it is heartening to read a thoughtful blog post from the front line of the conflict between the better and worst angels of of the agents of the state.
Adam, David and Richard: thank you, and a hat tip to all of you.
Thank you to David and Richard, it was an excellent review and really interesting to get some insight from a police sergeant.
Makes me want to buy the book.
The regulations can be as restrictive or as loose as you like; what matters is the degree of trust deservedly placed in the sincerity, integrity, competence and good will of the regulators by the regulated. The obvious contrast which springs to my mind is between Boris Johnson and Major Attlee, here moving the Second Reading of the Emergency Powers (Defence) Bill in May, 1940*:-
https://hansard.parliament.uk/Commons/1940-05-22/debates/4c996122-750a-4895-ba01-ac46013df9b8/EmergencyPowers(Defence)Bill
*which I may have cited here on an earlier occasion, but which, like a great poem, always rewards a return visit.
Interesting. The massive Coronavirus Act 2020 was put together within days and banged through Parliament with almost no critical comment. Much of it now dismantled but some still remains.
https://commonslibrary.parliament.uk/expiry-of-the-coronavirus-acts-temporary-provisions/
Most of the focus was on the various Coronavirus Restrictions imposed under Public Health (Control of Disease) Act 1984 (as amended). This gives Ministers a power to impose restrictions and provides for regs to be made and only approved later by Parliament. Such later scrutiny as existed was often well after the Regs had been made and was, to say the least, cursory. This procedure continued to be used even when, later in the pandemic, Regs could have been presented for prior approval.
Lord Sumption was one of the few notable early voices to point out that the Police were enforcing what they thought hould be the law and not what the law actually was. Stopping people having a walk in Debryshire. Sending up drones to catch them. Targeting old ladies sat on park benches etc.
It was not a good time for British policing but, in fairness, officers needed better leadership and official guidance than they appeared to have especially in the earlier stages of the pandemic. The College of Policing eventually got something of a grip on advice to Police Forces.
Did Adam Wagner actually do a blog? I don’t remember it or was it on Twitter which I don’t use. I do remember some blogs covering some aspects of the pandemic. There was a barrister called Charles Holland and ObiterJ’s Law and Law and Lawyers blog did some interesting stuff on it including building a record of events – Coronavirus Log.
The Covid-19 Inquiry is underway – well just about – with a huge team of KCs and junior barristers. It is going to cost a mint and will produce reports that will be far too late. There is already endless analysis in numerous reports already published by parliament. Any government worth its salt – (this one isn’t) – would have already conducted lesson learning in depth and published the results for scrutiny by parliament.
We can all of course play Captain Hindsight. The government did eventually follow advice from SAGE. It put into law restrictions that were, at the time, considered necessary and which were, on the whole, supported by the public as a means to trying to reduce the impact of what proved to be a massively serious virus in the days prior to any vaccines.
Perhaps not a shining example of brilliant governance and there were clearly serious mistakes – (care homes perhaps the most notable).Action was required and they acted – albeit sometimes late.
I hesitate to be totally condemnatory of the government on this one.
Fascinating reading. The point about the importance of keeping all the receipts is very timely as some commentators step up efforts to re-habilitate Boris Johnson by again trying to reduce PartyGate to a fuss over a bit of cake.
There is a mechanism to correct the situation of the police misapplying the law – when the matter gets to court a legal expert will notice and throw out the case. This will work well as long as the courts are not bypassed by some sort of fixed penalty system. Oops!