As corona has rampaged across the world, governments have scrambled to battle with it. States have been forced to act with urgency and force in order to secure the safety of their citizens and normal parliamentary procedures have in many places been halted. Central government has been awarded substantial powers to react quickly and take the necessary steps to curb the spread of the disease and to save lives. Indeed, the UK government has been given extended powers to close businesses, limit people’s travel, and punish people for breaking the regulations set in place. But are the powers now vested in national governments to respond to the crisis proportionate? We have good reasons to fear they may lead to autocratic government or that these vested powers in our governments could allow them to consolidate power and to operate without opposition. Citizens worry this could take place not only during the current pandemic crisis, but without due revision to these measures, into our future. We may ask therefore, do these powers put citizens at risk of unjustified restrictions and interference by authoritarian and uncontested governments?
Some theorists argue that we are in a 'state of exception' and that such a situation necessarily leads to authoritarian government. For example, Giorgio Agamben has argued that the governmental reaction to the corona outbreak is yet another example of the tendency of states to use the state of exception as a normal paradigm for government. This article questions that assertion by highlighting the case study of the UK and argues against the notion that emergency powers are necessarily a move towards authoritarian government that is counter to the public good. Instead, this analysis aims to show that emergency powers can be legitimately exercised to protect the citizenry and are not inimical to liberal democracy.
What is the state of exception?
The state of exception refers to situations in which an emergency threatens the state, and this necessitates the suspension of the juridical order. This grants the executive the ability to exercise law-making independently of constraints such as parliamentary procedures. Agamben finds that when the exception is declared, the norms-based legal order collapses. The norms-based legal order recognises that law is made of binding rules and principles that determine not only our duties but also our rights. Thus, once this collapses nothing exists to constrain the biopolitical power of the state.
Biopolitics as a general term varies in how it can be defined, in this case – drawing on the work of Michel Foucault – biopolitics is the government’s attempt to apply and exercise power on all aspects of human life. Biopolitics aims at regulating and steering life processes. As an indicator of the most dangerous biopolitical outcomes, he makes reference to the loss of bodily control experienced by those in concentration camps during WW2, or those incarcerated in Guantanamo Bay to illustrate the biopolitical effects that unfettered sovereigns may bring about.
Agamben believes that sovereign power in Western Europe is biopolitical and that the exception extends and intensifies this. As a result of extension through the state of exception, Agamben argues that citizens begin to experience a particular form of exclusion from the political sphere. This exclusion begins at the margins of the political sphere and starts to gradually work inwards, including more and more people until only those who are fully compatible with the political state remain.
But, is this process inevitable when emergency measures are adopted? The case study of the UK and its approach to emergency measures offers a valuable counter to Agamben. Rather than emergency powers creating an authoritarian state founded upon biopower, the UK shows that emergency powers can not only be constrained but utilised to protect citizens from a deadly disease. This does require a degree of control over our bodies i.e. social distancing measures to ensure that particularly vulnerable people can be kept safe. It also requires emergency intervention to ensure the most timely response to unpredictable and deadly events. Without a timely response that infringes on what we do with our bodies, the results would be more deaths and ultimately infringement upon our greatest right- the right to life. These policies appear to be in some sense biopolitical, but not necessarily then an indicator of a loss of democratic control.
Are we subject to justified emergency measures? The UK case
The UK has experienced a restrictive lockdown where many of our natural freedoms such as the ability to see friends, exercise or go to the pub have been not only restricted but tripped altogether. Ministers have been able to apply measures that have never – not even in wartime – been instituted by a government. The UK is a good example where the state has the safeguards built into the emergency measures. It has adopted so that the government cannot take advantage of the emergency crisis. The time limitations to the measures and consideration of Parliament’s view is one way in which this can be seen. As the Institute for government highlight:
Regulations introduced under the CCA and the coronavirus bill must be consistent with the Human Rights Act and cannot require a person to provide military service, prohibit strikes or industrial action or create a criminal offence (although breach of the regulation can itself be an offence).
Tight time limits on emergency measures have been built into previous legislation. Measures to restrict gatherings or detain individuals under the Public Health Act 1984 expire after 28 days. Regulations made by ministers under the CCA lapse after 30 days, However, the minister could create new regulations for a further 30-day period if required.
The government has stated that the emergency measures to tackle the coronavirus will be time-limited to two years and not all measures will be used immediately.
In spite of these fetters to emergency power, some still argue that such powers are unjustifiable. In one post on the coronavirus and states’ reactions to it, Agamben draws comparisons of the emergency decrees being used by democratic states with the extra-legal Fuhrer principle that defined the cult of personality of Adolf Hitler in Nazi Germany. This approach by Agamben has been criticised for his apparent overreaction. Fundamentally, Agamben’s critique highlights a problem in his overall approach by applying the notion of biopower at the heart of sovereign power in Western Europe. By adopting this framework of biopower, emergency measures that regulate the very essence of how we live our lives and look like the act of a tyrannical government. However, this is contrary to our intuitions that some restrictive measures to protect the most vulnerable among us could be proportionate.
In an authoritarian state, the danger arises when emergency measures, which were initially temporary to deal with a genuine crisis, become unchallengeable and create a new dynamic of governance founded upon sovereign decisionism. This then allows the states to exercise sovereign power and to live by an inclusion-exclusion framework. However, this approach ignores two key things. First, the ability of institutions to ‘box in’ emergency measures such as in the UK case. This creates a descriptive hole in Agamben’s case that emergency measures necessarily lead to the collapse of the legal order. Second, the exercise of emergency measures that regulate our bodies does not necessarily lead to authoritarianism that excludes people from the political order. In this case, emergency measures allow the state to act fast to ensure people are kept inside the political order by staying alive. The measures which are introduced to regulate our bodily movements are, in a pandemic, necessary to protect lives. Not only this, but as seen in the UK, there is experiential evidence that speaks contrarily to Agamben. Measures have by and large been taken up by a willing and consenting populace. To this extent, the emergency measures can be and have been seen as an expression of a legitimate public interest that is necessary to safeguard us all. They have not been experienced by all as an outright imposition.
As the UK and other countries in Western Europe begin to return emergency measures to Parliament – as indeed we are now seeing with the sitting of the virtual Parliament in the UK, this will vindicate those who believe Agamben has overestimated the danger of all emergency powers. Emergency powers must be treated with caution, and it is right that citizens should consider carefully their use. However, such powers cannot automatically be considered inimical to liberal democratic government. Provided that there are sufficient protections encompassed within the enactment of emergency measures, then they can be used to protect citizens in emergency situations, such as during this pandemic.