Lawmaking during the coronavirus pandemic has been anti-democratic, sidelining parliament and handing huge control over people’s private lives to a small group of ministers without adequate scrutiny, a prominent human rights barrister has said.
Adam Wagner, described in the House of Lords as “perhaps the only person in the country who can make sense of this variety of [Covid] regulations”, urged MPs to “take back control” after a period in which laws have been passed “by the swish of a minister’s pen”.
Although the end of many restrictions is in sight, he worries that a dangerous precedent has been set. “The government has been allowed through a very small group of people – this is a tiny group of people who are creating these laws within government – to sort of have full control over our private lives,” he told the Guardian.
“It should have been a much more open and democratic process. When the government is appointed, they don’t just get to create laws, the executive doesn’t have carte blanche, it doesn’t have the power to do whatever it wants – democracy doesn’t work like that. When you have an executive having power over every other institution, parliament, the courts, we don’t call that democracy.”
While the myriad of rules and regulations have left many confused – a survey found nine out of 10 police officers thought they were unclear – Wagner has been a scrupulous chronicler on social media and in op-eds about what is law, what is guidance and regulation changes, which have occurred at an average rate of approximately one a week.
His role as specialist adviser to the joint committee on human rights inquiry into the government’s response to Covid-19 and work for clients including Reclaim the Streets, the group behind the banned vigil for Sarah Everard, and people including a severely disabled child – affected by hotel quarantine, has given him a front seat view of laws he describes as “made on the hoof”.
He says of “hotel detention” as he calls it, likening it to detention of prisoners or mental health patients: “That system is extraordinary … it’s the wild west … here we have in this country a system of totally unscrutinised detention of ordinary people who have committed no crime, there’s no reason apart from the fact they happen to be in a particular country at a particular time and they have to get back. I think some of the stories that will come out about what’s happening in those places will really shock people.”
Hotel quarantine, like lockdown laws, which have led to 85,000-plus fixed penalty notices, was introduced under secondary legislation whereby ministers can create legislation without prior parliamentary approval or meaningful parliamentary debate. “In the biggest emergency situations you can understand it but I think we’ve gone well outside that emergency justification,” said Wagner.
“We’re in a position now where MPs have kind of sidelined themselves that they don’t expect to see criminal laws in advance before coming into force, they don’t want to debate these laws, to get into the detail and frankly that is their job. I think they’ve let us down.”
In some rare cases, such as with hotel quarantine, MPs have been allowed, usually 24 hours before it coming into force, a prior debate and vote on secondary legislation, but there is no opportunity to amend. The result, Wagner says, is “a sham debate, and a sham approval, because when you’ve got a big majority for the government, the prospect of MPs actually voting it down and risking being blamed for Covid variants entering the country is zero”.
When it comes to protests, Wagner said it would have been unthinkable a year ago that they would be banned as the Sarah Everard vigil was, with the effective support of ministers and courts, despite the right to protest being protected by the Human Rights Act.
Referring to the policing bill, which grants powers for Priti Patel to define what constitutes “serious disruption” by demonstrators, he said: “The home secretary should be kept as far away from the right to protest as possible.”
He says: “MPs have just got to take back control of lawmaking from ministers … The idea that important changes to our law have to come in through primary legislation where MPs get proper debates, there can be votes on amendments, back and forth between the Lords and the Commons has just gone out of the window.”
The government referred the Guardian to comments by health minister Lord Bethell to the House of Commons justice committee last month. He said the government has been responding to a virus that “has changed at short notice, without giving us very much warning of its intention”, adding: “It is undoubtedly the case that when we have had the opportunity for meaningful debate and scrutiny, the scrutiny of parliamentarians has improved regulations, it has improved the accuracy and the thoughtfulness of them and wherever possible we have sought to do that.”