Adam Wagner’s Emergency State, reviewed by an immigration lawyer

Well-known human rights barrister Adam Wagner, based at Doughty Street Chambers, recently published Emergency State: How we lost our freedoms in the pandemic and why it matters (Bodley Head, 2022). I’m going to start this blog post with a short fairly conventional review of the thrust of the book. But then I’m going to reflect on the book from the point of view of an immigration lawyer. My conclusion: the vast, invasive powers taken on by the emergency state during the pandemic apply day in and day out to the lives of immigrants in this country.

Pandemic powers

On one level, Emergency State is a concise and easy to read run-through of a period many of us already consider dream-like. It felt so real at the time but it is increasingly hard to recall the details or the sequence of events. They say that to remember dreams you have to write them down upon waking. Adam has done the job for us. 

But the real purpose of Emergency State is a liberal critique of authoritarian government. Adam does not attack the imposition of the lockdowns. As he rightly says at the outset, he is a lawyer, not a scientist. Nor a politician I might add. One of my own criticisms of governance during that period was the use of scientists as human shields for decisions that should have been and were made by politicians. For a politician, science is one the relevant factors — perhaps the single most important in this context — but other considerations also have to be weighed. Further, a lockdown is not a binary choice because there are different ways of doing it and mitigating the socially and economically harmful effects. Adam returns to this issue in the conclusion to his book.

Adam begins by defining what he means by an ‘emergency state’, by which he means when a ‘state reorganises itself to face an existential threat’. He sets out six criteria. Firstly, an emergency state is mighty and powerful. That power is highly concentrated, whereas in a democratic state it is diffused and subject to scrutiny. An emergency state is ignorant, Adam suggests, in the sense that decision-makers become isolated and have to rely on limited and potentially unreliable information. There is a high risk of corruption because of the lack of scrutiny. It is also self-reinforcing, in the sense that untrammelled power is addictive; once powers are assumed, politicians and civil servants find it hard to surrender them. Finally, most devastatingly, one of the features of the emergency state is that we want it to happen. We yearn for a strong leader, we feel a sense of collective action and we disapprove of those who swim against the tide.

As a lawyer, Adam is primarily concerned about the law-making process, the lack of parliamentary scrutiny, the use of summary justice and the lack of clarity in the law at that time. The initial wave of laws were genuinely made on an emergency basis and effective scrutiny was impossible in those early days. But after that, there was no real excuse to carry on making laws in the same authoritarian style, with no meaningful parliamentary discussion or voting on key laws taking away our core freedoms. While the criticisms may appear to some to be abstract, Adam is at pains to explain that they are not.

It is impossible to know exactly what difference it would have made had there been greater scrutiny but it is not that hard to imagine. Had ministers needed to explain their laws in parliament, for example, they might have been clearer and more accurate in their public pronouncements. Had ministers needed to defend the detail of proposed laws in committee meetings, some of the absurdities of the rules would have been exposed before legal changes came into effect rather than after. Had the second, third and subsequent waves of legislation been considered more carefully, the police might have received better guidance and training on their new powers.

These things really mattered. Bad law making makes bad laws, which in this context may well have cost lives. Around 120,000 Fixed Penalty Notices were handed out by police forces who themselves had a very shaky grasp of the laws they were supposed to be enforcing and many, many mistakes were made.

I highly recommend the book, which should certainly be read by politicians of all parties as well as all senior civil servants. It is surely a question of when not if the next global pandemic hits us, and there are without doubt important lessons to learn from the way the last one was dealt with.

Immigration powers

There is another, admittedly rather esoteric, way of reading Emergency State. The thought that repeatedly struck me as I read the book was that this stuff happens to immigrants all the time. Immigrants always live in an emergency state. This is not an angle that Adam will have considered as he wrote the book, but Emergency State stands as a pretty good guide to life as an immigrant.

Immigrants to the United Kingdom experience all of the defining features of Adam’s emergency state all of the time. The state holds tremendous, terrifying powers over the lives of migrants. They can be indefinitely detained. They can be arrested in dawn raids, forced onto aeroplanes, tagged and subjected to house arrest. Exercise of these powers is mainly reserved for those who infringe the reams and reams of confusing, complex, sometimes contradictory rules and regulations governing everything from their intimate relations to their hours of study, their pay, their place of work, their residence and more. But as an immigration lawyer I see migrants who have broken no rule of which they are aware — and sometimes no rule at all — subjected to these powers.

The power to regulate almost every aspect of the life of an immigrant is vested almost entirely in the Home Secretary. She is solely responsible for issuing immigration rules, she signs into law all of the regulations and it is her opinion that counts when it comes to deciding what is or is not conducive to the public good when a person is to be deported or even deprived of their British citizenship.

Parliamentary scrutiny of rules is a sham. As Adam puts it, Parliament has become so accustomed to its own diminished role that it has effectively prorogued itself. The various immigration rules and regulations come into force with no debate and no vote. The rules can be ‘approved but never improved’. We are constantly seeing ‘sloppy language’ from ministers, inconsistencies between guidance and law and, unsurprisingly, inconsistent application of these so-called ‘rules’ by those responsible for enforcing them.

As during the pandemic, the courts give the government huge leeway to make and interpret rules and regulations as it wishes. The idea that the courts interfere with immigration rules and immigration decisions is a laughable myth. As with the hotel quarantine rules introduced in January 2021, where the law theoretically allows for exceptions to be made, officials follow an incredibly strict, nugatory approach. At least, they do unless someone manages to somehow bring a legal challenge or get some sympathetic press coverage.

Inconsistency reigns. Adam notes the oddity of the ‘eat out to help out’ scheme for which Rishi Sunak was responsible. At a time when the North remained in lockdown and a vaccine remained a hope, meals out were heavily subsidised by the government in the South. Rules promote migration at a time that policy is supposed to reduce it abound, leading to entirely predictable retrenchment and crackdowns against migrants the government itself previously welcomed, like international students.

There is seldom a right of appeal against an adverse immigration decision. Overreach by the immigration authorities is commonplace. These everyday decisions are sometimes reversed but this is a matter of access to a competent and specialist lawyer, which itself means having the financial, social and cultural resources to find one.

The Home Secretary and those advising her are ignorant of everything except what makes a good headline. This ignorance is partly accidental, because statistics on immigration are deeply flawed and incomplete. It is partly by design, because ministers and senior civil servants have almost no knowledge of the lives they micromanage, as the Windrush review report conclusively established. Remarkably, Nick Timothy, one of those responsible for the hostile environment and the ensuing Windrush scandal, has the audacity and lack of self knowledge to continue opining on immigration. The ignorance is also in partly affected. Politicians and civil servants either know that the policies and laws they espouse will not work or they turn a blind eye to the research that would tell them this.

Immigration control corrupts. Some immigration laws undoubtedly favour inhabitants of predominantly white countries over predominantly black ones despite seemingly neutral framing. Other forms of discrimination feature too, including regional, class, income and sex. The risks of race discrimination are more severe away from what limited scrutiny exists, though, in obscure resource allocation decisions and day to day enforcement. Racists are able to enact their prejudices, although they of course will characterise their base instincts as ‘experience’ and ‘worldliness’. Those carrying out immigration controls are themselves corrupted. They dehumanise migrants. How else can people like Nick Timothy suggest indefinite detention of fellow human beings, who are referred to as ‘stock’ in his latest excrescence? 

Hypocrisy is far from unknown. Fierce opponents of immigration as an abstract idea are happy to lobby for certain industries or sectors. Special pleadings abound, akin to those leading to the exception of grouse shooting from the lockdown in September 2020. Even Matt Hancock’s infamous lockdown liaison finds an echo in immigration law. It is not so long ago that then immigration minister Mark Harper, responsible for the hostile environment, resigned after being found to be employing a cleaner who lacked permission to work in this country.

One neighbour reporting on another was a feature of lockdown just as it is of immigration control. Some call this ‘citizen denunciations’, once thought to be a feature of authoritarian societies, not democratic ones. When the state is invested with such draconian powers and enforcers act first and ask questions later, it is all too tempting to dob in a neighbour or colleague you don’t like.

Immigration law and immigration powers constantly accumulate. The power to fully regulate the entry and residence of immigrants was assumed by the British state on the first day of the First World War in an incredibly brief piece of legislation. It was never surrendered. This ‘emergency’ state is constantly gathering new powers to monitor and intrude into the lives of immigrants but rarely surrenders those powers. The new powers are sometimes very rarely used. They sit there, acting as a constant but dormant threat.

Where there is resistance to the assumption of yet greater still new powers — the existing law is always deficient — the government resorts to what the government’s behavioural specialists at the outset of the pandemic called ‘hard-hitting emotional messaging’. The problem was that people might not feel sufficiently threatened on a personal level to act on their duty to ‘protect others.’ This makes sense in the context of a pandemic. But we see visceral language of invasion, crime, gangs and worse all the time in immigration policy to describe a small number of predominantly vulnerable people, the vast majority of whom are refugees who will be granted refugee status in due course.

And there is little doubt that ‘we’ want this emergency state. No one asks the immigrants themselves. They have no say and no vote. No one cares. Or, at least, no one who matters. 

Adam defines an emergency state as one reorganised to meet an existential threat. For some, like Nick Timothy, immigrants are an existential threat. In this he follows in the footsteps of the likes of Enoch Powell and Roger Scruton. This belief is fundamental to understanding this line of thinking. And ultimately the fundamental difference in starting points makes it impossible to engage meaningfully or usefully with these people. It’s like attempting to reason with someone who sincerely believes that Bill Gates is about to flip the switch.