The permanent State of Emergency is eroding the fabric of our constitution

We are living in a permanent state of emergency, however contradictory this might sound

Which of these two events happened on the 24^th of February 2022: Was that the day when the Russian army invaded Ukraine? Or was it the day that marked the end of the Covid-19 pandemic measures in the United Kingdom? Regardless of your answer, you would have been right, because both events took place on the very same day. Of course, no one pointed out this coincidence at the time. After all, everyone kept telling us we were on the brink of “Nuclear Armageddon” and the majority of people had given up on following the Health Protection (Coronavirus, Restrictions) (England) No3 2020 Regulations anyway.

At any rate, the Covid-19 emergency was seamlessly replaced by a new emergency. That the disastrous effect of measures implemented to tackle previous emergencies are now blamed on the invasion of Ukraine, is also interesting.

As well as one emergency replacing another, we are now experiencing simultaneous emergencies such as the Climate emergency – through which we have lived for many years. And let’s not even get into the never-ending list of crisis, including the obesity crisis, racism crisis and the cost of living crisis to name a few.

World Stage – Bob Moran

The fact is that we are living in a permanent state of emergency, however contradictory this might sound.

Let me explain why I believe this is a contradictory situation. When we deal with emergencies at a personal level, we suspend our regular activities and take exceptional action to get back to normal. Similarly, at the social level, when an emergency occurs, exceptional measures are taken to protect the public from potentially dire consequences. In such circumstances, the public accepts for government to take extra-ordinary action. Some even demand it. Let’s examine the word emergency, it comes from the Latin Emergere. In order to emerge, something must arise from somewhere, or from something, which previously covered or surrounded it. Similarly, an emergency results when an aspect of the regular is interrupted. By definition, an emergency can only be temporary; if it were to become permanent it would simply become the present state or status quo.

Yet we are becoming accustomed to government exploiting successive emergencies to push radical changes that the public would not tolerate in regular times.

I am not saying emergencies are all manufactured by governments as a tool to expand their powers. However, I am saying that our governments increasingly exploit real or perceived emergencies to suspend established political processes and individuals’ rights. This is having a detrimental effect on the constitutional fabric of our civil society. Parliament, whose main function is to scrutinise laws and maintain some separation of powers, is effectively being turned into a rubber stamp for emergency government decisions.

Usually, important legislative instruments become law through Affirmative Procedure which involves scrutiny and consent of both Houses of Parliament. Increasingly, however, as during the pandemic, ministers have been making extensive use of Statutory Instruments as you can see in the graph below.

Statutory instruments are legislative instruments that can be approved via Negative Procedure (this means that Members of Parliament must retroactively annul the instrument within a limited period of time to prevent it from becoming law) Due to the perceived emergency MPs did not demand to scrutinise the pandemic regulations for fear of slowing down the response to the virus.

Take for example, Statutory Instrument 350/2020 – which contained the lockdown restrictions – it was implemented on 26^th March 2020, at 1pm, an hour and a half before it was laid before Parliament. Government was able to lockdown virtually the entire British population without a single of our elected representatives being consulted.

Hansard Society

Back in 2019, the then Prime Minister, Theresa May also made use of a statutory instrument to “accept” the recommendations of the Committee on Climate Change to force the country to meet the abstract goal of “Net Zero” by 2050 without a single vote being cast.

Another important detail regarding emergencies at the social level is that they belong to the category of what political economists call collective action problems. This type of problem requires the suspension of individual rights in order to achieve a common collective goal. The pandemic, climate change, and the Ukraine emergencies are all global collective action problems.

Furthermore, collective action problems do not have straightforward solutions and require “experts” to decide how to best address them. Governments fall back on establishment-approved experts to provide them with guidance to make decisions, but having scientists and arms-length “independent” bodies also helps to give further credence to the state of emergency.

This is why we should be cautious about where the experts - such as the Medicines and Healthcare products Regulatory Agency (MHRA) get their funding from. Especially if it turns out that 86% of their budget comes from the pharmaceutical industry that they are meant to regulate, for instance.

We should also be prudent and find out who promotes the narratives behind some of the collective action problems which underpin our current emergencies. We should definitely think about the effect of the solutions they propose.

But most importantly: we should be paying attention to the erosion of Parliament’s constitutional role in favour of political expediency caused by the permanent state of emergency.