Do we now need permission to be free?
The government's lockdown regime has transformed the very idea of civil liberties.
As Britain was heading into lockdown on 23 March 2020, UK health secretary Matt Hancock was busy introducing the accompanying legislation in parliament. ‘To defeat [Covid-19]’, he said, ‘we are proposing extraordinary measures of a kind never seen before in peacetime’.
He was underselling them. In their repressiveness, their illiberalism and often their sheer arbitrariness, the ‘extraordinary measures’ the government was then about to impose on British society had never been seen before in wartime, either. They exceeded powers granted by the Defence of the Realm Act 1914. And they went beyond those of the Emergency Powers (Defence) Act 1939. These were draconian pieces of legislation, placing people and property at the service of the state. But they certainly didn’t authorise the de facto imprisonment of every single citizen in his or her home.
Because that is what Hancock’s ‘extraordinary measures’ amounted to: the quarantining of everybody, regardless of health. As Lord Justice Hickinbottom described it, the government’s response to Covid represented ‘possibly the most restrictive regime on the public life of persons and businesses ever’.
Take the Coronavirus Act itself. This hulking 348-page document, rushed through parliament in just four days, was focused mainly on marshalling the nation’s medical resources and authorising the massive public expenditure that was to come. But it still found room to stamp all over civil liberties. It granted the state unprecedented powers of detention, allowing police, public-health officials and immigration officers to detain for up to 14 days those whom they have ‘reasonable grounds’ to suspect of being ‘potentially infectious’. Which gave them the power to detain, well, anyone. The act also invested the government with the powers to close premises, cancel events, prohibit gatherings and ban protests.
That act is now halfway through its two-year lifespan, but, troublingly, it can be extended if the government decides ‘it is prudent to do so’.
Not that it seems to need the Coronavirus Act to deprive us of our most basic freedoms. No, for this the government has principally used the Public Health Act 1984 (as amended in 2008). This authorises it to create a regulatory regime ‘for the purpose of preventing, protecting against, controlling or providing a public-health response to the incidence or spread of infection or contamination’. Indeed, it was on the basis of the Public Health Act that the government first created the regulations that, in steadily expanding form, have dominated and restricted our lives for a year, from closing all businesses to confining people to their homes unless they had a ‘reasonable excuse’.
You might be wondering why the government has been using the Public Health Act, rather than including a general lockdown clause in the Coronavirus Act, or even using the Civil Contingencies Act 2004, which was designed precisely for an emergency such as Covid-19. The reason is simple: to avoid parliamentary scrutiny. General lockdown measures in the Coronavirus Act would have rightly demanded a lot more interrogation. And, under the conditions of the Civil Contingencies Act, regulations have to be put before parliament in draft form before they are issued. And even if approved, they will lapse within 30 days.
But it is different with regulations authorised under the Public Health Act. They can be drawn up and issued without parliamentary approval, ‘by reason of urgency’. And it is on this statutory footing — regulations authorised by the Public Health Act — that the government has imposed and sustained the lockdown.
So, not only has the state assumed an unprecedented regulatory control over our lives since March last year — mechanisms it has used to do so have rendered it largely unaccountable. The result? An ever-expanding regulatory regime, consisting of often ill-thought-out and confusing rules, issued, as it so often seems, on a ministerial whim. As Lord Sumption puts it, ‘The sheer scale on which the government has sought to govern by decree, creating new criminal offences, sometimes several times a week on the mere say-so of ministers, is in constitutional terms truly breathtaking’.
The effect has been dystopian. Empowered by the government’s regulatory regime, the police have been busily treating once taken-for-granted freedoms as potentially criminal acts.
There are myriad individual examples: the dad who, seeking a bit of respite from his kids, went to sit in his car, only to be confronted by a police community support officer, who told him ‘sitting in your car is not a lawful reason to come out in lockdown’; or the dog walkers given a warning by the police for having a socially distanced cup of tea in her communal garden; or the nurse fined £10,000 for organising a protest in favour of a higher pay rise for NHS staff.
There are tens of thousands more like this. As Big Brother Watch reported in February, the police have issued nearly 70,000 fixed-penalty notices (FPNs) since March 2020 for alleged lockdown breaches. Many will be for two- or three-figure sums. But not all. Since August last year, people could also be fined £10,000 for organising gatherings of more than 30 people, as four university students in Nottingham discovered when the police interrupted their house party. That is a huge, life-altering amount to have to pay for the crime of doing something that was perfectly legal a few months ago.
But then that is what is most disturbing about the regulatory regime imposed over the past year. What we were once free to do, we now have to be permitted to do. The state hasn’t just encroached upon the domain of civil liberties — it has thoroughly colonised it. The citizen has been transformed into a ward of the state. His liberties are now the state’s permissions. As noted by human-rights lawyer Adam Wagner, health secretary Matt Hancock was well aware that this was happening right at the start of lockdown, when he described the new regulatory regime to fellow cabinet members as ‘Napoleonic’ – because it reversed the usual principle of English law: that whatever is not explicitly prohibited is permitted. In lockdown, he said, ‘people would be forbidden from doing anything unless the legislation said, in terms, that they could’.
This reversal, transforming the relationship between citizens and the state, has continued to inform the further development of the regulatory regime. That is why, as it has developed, it has become more complicated, not less. The regulations of the first lockdown were 11 pages long, notes Wagner. Those for its current Tier 4 iteration are 120 pages long. There are more caveats, more exceptions, more micromanaged outcomes. Because our liberty to do X or Y is now being defined as something that we must be expressly and specifically permitted to do by the state. This explains why, paradoxically, the more restrictions are eased, the more extensive and complicated the regulatory regime becomes. This is because the state is routinely treating our everyday freedoms as activities it now has to authorise. The easing of regulations therefore entails an expansion of regulations.
Not that one is able to protest against these restrictions. At least not without violating them. Until September last year, protest was implicitly limited by the regulations on household mixing and gatherings – the Black Lives Matter protests aside. An exemption for the right to protest was then introduced (until it was removed in November). But, even then, those expressly protesting lockdown regulations were still subject to rough police treatment, as those who took part in the Save Our Rights march discovered on 26 September. Police cleared Parliament Square using batons, injuring 20 protesters in the process and arresting over 30 more.
Yet, as oppressive as lockdown regulations have been, and emboldened as state forces have become, something else is also now clear. The expanding and mutating range of regulations, combined with the Coronavirus Act and a ministerial tendency to issue guidance as if it was law, has not only sown confusion among those enforcing the law; it has also led to them enforcing measures that are not law.
Incredibly, as of February, every single one of the 246 prosecutions launched under the Coronavirus Act has been found to be unlawful. And in September the Joint Committee on Human Rights revealed that six per cent of the many more charges brought against people on the basis of the lockdown regulations were also found to have been unlawful.
The JCHR attributes this to the government’s tendency to conflate laws and mere guidance in public communications, and the often ambiguous wording of regulations. The rule-of-six regulations brought in in September, for instance, prohibited the ‘mingling’ of households at large gatherings. Even home secretary Priti Patel was unsure what exactly unlawful mingling might entail.
But it indicates a deeper problem with an increasingly complex regulatory regime that has been spared the necessary scrutiny. Not only is it woolly and often not fully thought through — it also tends to undermine the rule of law itself. It still creates the conditions for rule – after all, there is the semblance of law to enforce. But the regulations are so complicated and so vague, and the messaging so confused, that as Wagner puts it, they are ‘impossible for a non-lawyer (including the police) to digest’. And the result is often rule without law – arbitrary rule. It means that whether you are in breach of the regulations depends on which policeman you encounter.
So, we have a government ruling, in the main, by decree; a vast regulatory regime strangling what remains of freedom; and a law-enforcement apparatus that is engaged, at points, in arbitrary rule.
There are many who will downplay this vast, unprecedented assault on our most basic of freedoms. They will say it was necessary to deal with the threat posed by Covid. And so, they argue, once the emergency is past, so these emergency powers will cease.
But it is not that simple. For a start, the powers themselves – enshrined in the Coronavirus Act and the vast regulatory edifice built on the back of the Public Health Act – will hang around our necks for a while yet. They may have been formulated for the specific purpose of tackling Covid, but they will not be exhausted by it. Governments can always find a new use for old laws. As they did with regulations issued during the Second World War, requiring citizens to ‘place themselves, their services and their property at the disposal of His Majesty’. These, incredibly, were renewed annually until 1964. The Terrorism Acts of 2000 and 2006, as Lord Sumption points out, are no longer limited to tackling terrorism. They have underpinned the expansion of police stop-and-search powers, and allowed the government to freeze the assets of Icelandic banks to protect their UK depositors. So it’s not difficult to imagine the state powers used at the moment to tackle one so-called existential threat being repurposed for the tackling of another. After all, there’s enough of them to go round in this most apocalyptic of eras, from the next pandemic to climate change.
But the problems go deeper. The legal assault on liberty leads to and reinforces its cultural devaluation. What would have been thought an unacceptable incursion on our liberties before the imposition of the lockdown regime becomes all too acceptable during and after it. The government’s Policing and Crime Bill, currently making its way on to the statute books, is a case in point. It will make permanent the de facto restrictions on the right to protest established under lockdown regulations. In authoritarian conditions even the most draconian measures can appear sensible.
Perhaps most worrying is the extent to which our conception of freedom has been forcibly transformed under the regulatory regime of lockdown. It really has started to become Napoleonic. We are free when the state determines we are free. Civil liberties are being transformed into state permits. Freedom from the state is being transformed into the permission of the state. After all, what are ‘vaccine passports’ if not permission slips?
Fighting back will not be easy. The official opposition has proved itself nothing of the sort, championing lockdown, and the broader regulation of every aspect of social life, with more zeal than the Tories. And in this, sadly, Labour merely reflects the attitude of its constituency on the broader middle-class left, which increasingly views freedom with suspicion, if not outright animosity. It prefers to throw its lot in with the state, as an instrument of coercive ‘enlightenment’. Indeed, its identity politics, in which it campaigns for the state to legally ‘recognise’ and ‘protect’ certain identity groups, is the politics of a left that thoroughly identifies itself with state power.
These are not new observations. But they do help to explain why the new identitarian left has betrayed liberty with just as much enthusiasm as the old law‘n’order right during the pandemic. Its members see state power as their power. They think it’s on their side. To be deployed against those they disagree with. That is why they only woke up to the threat to civil liberties when the authorities, invoking Covid regulations, turned on a cause they supported, in the shape of the vigil at Clapham Common.
But then this is how we lose our freedom. Not because it’s taken from us by tyrants. But because too many are willing to give it away.
Tim Black is a spiked columnist.
Pictures by: Getty Images.
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