How do Western democracies become authoritarian, and then totalitarian states? For an answer, we need look no further than Germany in the 1930s. The Germans are a fine people, advanced in their scientific and artistic achievements, with strings of world class composers, philosophers, writers and others to their credit. Einstein, Handel, Marx, Robert Koch and Herman Hesse were all born in Germany. Wikipedia lists well over a thousand individuals on its notable Germans page. It is difficult to conceive of a more civilised country, and yet, smarting in the ignominity of defeat in the Great War, it managed the most diabolical convulsion into at first an authoritarian police state, and then in short order one of the most foul evil regimes that has ever besmirched the face of the earth.
Long library shelves of history books have analysed the process by which Germany turned itself into, in Churchill’s words, a monstrous tyranny never surpassed in the dark and lamentable catalogue of human crime. Yet the key steps can be simply listed. First there is the backdrop, the wounded post Great War Germany. A charismatic leader emerges, who is democratically elected into power, who gives the people a sense of destiny. Then, and these are the key steps that we should take note of today, the leader denounces an enemy within, a disease ridden pestilential blood sucking enemy of the people, while at the same time systematically dismantling the democratic process, and establishing a state police. By this stage, the Rubicorn was well and truly crossed, and the rest, for today’s purposes, is history.
Are similar processes at work in Britain today? The short answer is yes. The steps taken here so far, though less draconian than those taken by the Nazis less than a hundred years ago in a civilised European country, have very clear parallels. Dr No is not going to descend into reductio ad Hitlerum — that would be to lose the argument before he has even started — but he does intend to show that we are moving in directions we should already regret, and should now firmly resist. Rather than take in a wide and sprawling vista of the myriad moves and changes, let us drill down, and have a look a one particularly telling step in the process, the crisply titled Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020.
These regulations are one of the countless Statutory Instruments (SIs) that have been made into law since the arrival of the pandemic. SIs are a form of secondary legislation that rely on a parent Act to give them power. SI 2020 No 1045, The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, get their power from section 45R of the Public Health (Control of Disease) Act 1984. This Act, which no doubt seemed sensible in more sensible times, grants under subsection (2) the extraordinary powers in times of emergency that allow the current Secretary of State for Health, now acting in perhaps rather less sensible times, to both lay (before parliament) and make (into law) Regulations without prior approval of parliament. The only stipulation is that the SoS must be of, and state, ‘the opinion that, by reason of urgency, it is necessary to make the order without a draft being so laid and approved’. The democratic process has been bypassed.
SI 2020 No 1045 was ‘made affirmative’, which is the arcane parliamentary language for an enacted (the ‘made’ bit) SI that will lapse in due course (typically 28 days) unless it is subsequently approved by parliament (the ‘affirmative’ bit). On the face of it, this would appear to be a democracy reloaded, but it is not. Let us look at what happened, and will happen, more closely.
SI 1045 was made at 5.00 p.m. on 27th September 2020 (a Sunday), and was both laid before Parliament and came into force a short seven hours later, at 0000 hours on 28th September 2020. After a few administrative steps, the next notable event for most affirmative SIs is a debate, but his doesn’t happen in the Commons, it happens in a so-called Delegated Legislation Committee (DLC), and the remit of these small (typically 16-18 non-expert) committees, operating in a time limited (90 minute) hearing, is merely to resolve that the Committee has ‘considered’ the Health Protection (Coronavirus, Restrictions) (Self-isolation) (England) Regulations 2020 (S.I. 2020, No. 1045). There is no power to alter or veto the SI: all the DLC members have to do is have a bit of a chat, and then pass a resolution that they have ‘considered’ the SI. They might just as well have ‘considered’ the menu from the Savoy Grill, but not actually ordered anything from it. This is not democratic process.
This bit of a chat (all 89 minutes of it, and that was for two SIs considered at the same committee) happened for SI 1045 two days ago, and both the video and transcript are now available. Some concerns were raised, but as the DLC has no powers, the concerns will remain forever as unheard echoes in an empty committee room. Once the SI has been ‘considered’, it then goes back to the Commons for approval. This is merely a rubber stamping exercise: no further debate is allowed, and SI 1045 will be approved: the last time an affirmative SI failed to receive Commons approval was getting on for half a century ago, in 1978. Rubber stamping a made affirmative SI is not democratic process.
The vast majority of coronavirus legislation has been made using SIs, and in many occasions, including SI 2020 No. 1045, the SI has been ‘made affirmative’ using the ‘by reason of urgency’ procedure, giving it immediate effect, meaning the law is in effect a decree, made with no effective democratic scrutiny whatsoever. If the SI had to do with the design on the new crockery for a Commons canteen, we might not be too bothered, but SO 2020 No.1045 not only creates extraordinary powers, but also establishes new and somewhat vicarious criminal offences and the harsh punishments to go with them, all made into law in the dark of the night without even a shimmer of democratic light falling upon them. We have here the first step towards authoritarianism: the demolition of democratic process.
What about those extraordinary powers, offences and punishments? The chief business of SI 1045 is to create a legal duty to self-isolate — a legal duty that is of itself worthy of substantial debate, given the potential for unintended consequences — for those who have tested positive for covid–19, or come into close contact with someone who has tested positive. That done, it then establishes the various and related offences of not self-isolating. Given that current estimates suggest only a handful — somewhere between 10 and 20%, according to the MPs who ‘considered the SI in committee — of those told to self-isolate do in fact self-isolate, and 21,000 or so positive tests yesterday, that means the SI has made criminals of 16,800 and 18,900 individuals in a short 24 hour period. A week later, there will be between 126,000 criminals skulking and skating around Britain’s backstreets, and so it will go on: an enemy within, a disease ridden pestilential blood sucking enemy of the people. Here we have the second step towards authoritarianism: a subclass of enemies of the people.
The third of the three steps is the establishment and empowerment of a state police. SI 2020 No. 1045 has that all taken care of. The Covid Stasi agent isn’t given form and definition by such a title; instead, he or she is an ‘authorised person’. So who might this ‘authorised person’ be? Surely it must be a police officer? Well, yes, it might be, but it can also be a re-badged traffic warden, or indeed quite possibly anyone sworn in by the relevant local authority. We have, in SI 1045, at subsection 10 (6) (emphasis added):
(6) For the purposes of this regulation ‘authorised person’ means—
(a) a constable,
(b) a police community support officer,
(c) a person designated by the Secretary of State for the purposes of this regulation,
(d) an officer designated by the relevant local authority for the purposes of this regulation.
That’s right, anyone so designated by the SoS or the relevant local authority becomes an ‘authorised person’, that’s Covid Marshal to the rest of us, just like that. Arbitrary selection — perhaps repurpose a few traffic wardens, or recruit some laid off nightclub bouncers, who cares — and no training for individuals already overwhelmed by exaggerated authoritarian personality traits, does not bode well for civic harmony.
What powers will these arbitrarily selected and untrained ‘authorised persons’, whose very existence comes about by ministerial decree, have? First and foremost, if the authorised person considers (no need for proof) a self-isolatee (P) is in violation of the requirement to self-isolate, they gain the powers to forcibly return P to their place of self-isolation (Part 3 subsection 10, emphasis added):
10.—(1) Where an authorised person considers that P is away from the place that they are self-isolating in contravention of regulation 2, the authorised person may—
(a) direct P to return to the place where they are self-isolating, or
(b) remove P to the place that they are self-isolating.
(2) An authorised person exercising the power in paragraph (1)(b) may use reasonable force, if necessary, in exercise of the power.
That’s right, the ‘authorised person’ can legally give you a bit of a thump (if necessary) to make you comply. He or she has the power to remove you, by reasonable force, if necessary, to your place of self-isolation, if they happen to consider you to be in breach of a self-isolation requirement. Sure beats the hell out of sticking parking notices on car windscreens.
Subsection 10 (1) (b) combined with 10 (2) all but amounts to forcible detention without trial of an disease riddled enemy of the people, on the whim and at the hands of a re-badged traffic warden, using powers invested by ministerial decree.
Nor does it end with powers to remove and thump (where necessary). The Instrument creates a raft of new offences, and then, in the section on Fixed Penalty Notices, lists the on-the-spot fines available to the re-badged traffic warden (as a benchmark, most pre-covid FPN fines were of the order of a couple of hundred pounds). Again, these sure beat the hell out of sticking measly parking notices on car windscreens. Most of the fines start at £1,000, and rise to £10,000 for repeat offences but there is one particular offence and fine that provides enormous scope for authoritarian abuse. Under Offences subsection 11 (2) we have (emphasis added):
11 (2) A person who contravenes a requirement to self-isolate under regulation 2 without reasonable excuse and in doing so—
(a) has reason to believe they will come into close contact with another person or group;
(b) does then come into close contact with another person or group;
(c) is reckless as to the consequences of that close contact for the health of that other person or group;
commits an offence.
That’s right, if the re-badged traffic warden thinks you have been ‘reckless as to the consequences’ — and reckless is not defined — of coming into contact with others, then, under Fixed Penalty Notices subsection 5 we have:
(5) For an offence under regulation 11(2), the amount of the fixed penalty notice is—
(a) if the fixed penalty notice is the first issued to the person, £4,000,
(b) if it is the second or subsequent fixed penalty notice so issued, £10,000.
An untrained individual, merely designated by the relevant local authority, using powers made by ministerial decree, can entirely legally decide on the hoof that such and such an individual has broken regulation 2, and done so recklessly, and so can forcibly return the individual to their place of self-isolation and hit them with a £4,000 fine. Like Dr No said, sure beats the hell out of sticking parking notices on car windscreens. And here we have the third of the three steps towards authoritarianism: the creation of a state police.
The latest development, of course, is the recent ‘memorandum of understanding’ between the Department of Health and Social Care and the National Police Chiefs Council (NPCC) that allows Test & Tits Up to release contact details to the police for anyone told to self-isolate on a ‘case by case’ basis. This has the potential to turn rapidly into a regular ‘informer’ system, providing ‘authorised officers’ with shopping lists of suspects to inspect, to ‘make sure’ they are ‘keeping safe’ and ‘covid-secure’. Nor should we forget that there is an appetite among many for this sort of behaviour. Some police forces were more that happy to set up snitching hotlines, and more than a few people were more than happy to grass up their neighbours.
SI 2020 No. 1045 is a truly dreadful piece of legislation, impenetrable in parts, hideously draconian in others, all based on the dubious premise that big sticks in thuggish hands work better than any carrot can ever do. But most of all it is a warning. It demonstrates very clearly, in the steps detailed above, how we have very definitely taken the first sinister steps towards becoming an authoritarian state: the removal of democratic process, the definition of a disease ridden subclass who are the enemies of the people, and set up the state appointed apparatus for dealing with these enemies, by detention, using force when necessary, and bankrupting them for good measure. It is not a state in which Dr No is proud to live.