The UK is suspended in what the German legal theorist Carl Schmitt called a ‘state of exception’.
Emergency police powers, including the use of drones, roadblocks, and checkpoints, are now in place to enforce restrictions on civil liberties. A Conservative chancellor has announced what is, in effect, a radically socialist economic survival plan. The Coronavirus Act 2020 has given the instruments of state far-reaching powers touching birth, life, and death.
Schmitt argued that political sovereignty is best examined and understood not under normal conditions or within a constitutional framework but in times of crisis or ‘exception’, when leaders suspend legal, social, and political norms and take emergency action to protect the nation.
The situation we find ourselves in certainly fits the classic Schmittian definition of a ‘state of exception’: ‘a case of extreme peril’ that poses ‘a danger to the existence of the state’ and demands unparalleled alterations to our way of life.
Many observers, such as Joseph Owen for Verso, Adetokunbo Hussain for The Barrister, and Dr Alan Greene for Strasbourg Observers, have noted as much, but few have elaborated on the implications of the current state of exception for our thinking about political sovereignty in the UK.
For Schmitt, however, the concept of the state of exception is of such importance precisely because it encompasses ‘the whole question of sovereignty’. The UK’s response, both to the present crisis and its no doubt profound aftermath, will irrevocably define this generation of political actors for the rest of the twenty-first century.
What of our sovereign, then, Boris Johnson? The Queen may be the head of the British state but Johnson is its chief political agent. At Johnson’s feet lies the responsibility, as Schmitt says, to ‘decide in a situation of conflict what constitutes public interest or interest of the state, public safety and order’.
Johnson was quick to invoke the war metaphors and play the general in cabinet. When he addressed the nation, he adopted the pose and rhetoric of a man who seemed to have reflected on this emergency as his long-overdue Churchillian reckoning, a ‘national effort’ with him in the driving seat, a ‘conflict’ that would stress-test his sovereignty and make his political legacy.
But what kind of sovereign did Johnson prove to be when the state of exception came calling? Did he act quickly and shoulder the decision-making burden for the good of the state and its citizens? On the contrary, Johnson will be remembered as an ineffectual ditherer, his indecision and belated action potentially exacerbating the crisis and costing thousands more lives.
He began the defining period of his premiership by missing four of five Cobra meetings that sought to clarify Britain’s response to Covid-19. He declined to join an EU scheme to source PPE and did nothing to prevent mass gatherings in Cheltenham, Liverpool, and Cardiff. Even after experts roundly condemned a policy of ‘herd immunity’—surely to be inscribed ignominiously on Johnson’s political epitaph before the decade is out—that would cost hundreds of thousands of lives, still he hesitated.
Pubs, bars, gyms, and schools were not closed until March 20. When Italy, France, and Spain imposed a national lockdown, Johnson dithered. When Germany instigated the most comprehensive tracing and testing operation in Europe, Johnson stood idly by, wringing his hands. His initial advice for Britons to work from home ‘where they possibly can’ and avoid pubs, bars, restaurants, and theatres—but refusing to order any venue to close—smacked of a politician far out of his decision-making depth. A member of the Scientific Advisory Group for Emergencies (SAGE) committee which pleaded with the government to advise against hand-shaking, said: ‘The prime minister was going around shaking people’s hands to demonstrate that there wasn’t a problem.’
After a decade or more as the heir apparent to the UK’s political throne, what did Johnson do in the face of catastrophe? He prevaricated. In the defining test of his sovereignty, the man who schemed for so long to be king could only play the fool. In this, he resembles the doomed and melancholic sovereign of Walter Benjamin’s Origin of the German Trauerspiel (1928), one ‘with whom rests the decision concerning the state of exception’ yet who ‘shows that, as soon as the situation arises, a decision is nearly impossible for him’.
Boris the Ditherer will never recover from the hollow inaction, fatal indecision, and meek abdication of sovereign political responsibility that will define his response to the Covid-19 state of exception. His legacy, in part, is now assured, steeped in the disgrace of a sovereign lacking the resolve and the nous to act when the nation depended on him.
But should we be at all surprised? A letter from the master of Eton College to Johnson’s father in 1982 criticised the young Boris’s ‘gross failure of responsibility’ and his arrogant assumption that he should be treated ‘as an exception, one who should be free of the network of obligation which binds everyone else’. Our leader has not changed and retains all the decision-making imperative of a pubescent boarding-school megalomaniac.
If Johnson faces certain ignominy for his inability to take decisive action during the Covid-19 state of exception, what he does next could be just as damning. Giorgio Agamben’s State of Exception (2005) elaborated on Schmitt’s political theory, drawing on the example of the Third Reich, ‘a state of exception that lasted twelve years’, to show how emergency governmental power acquired during a crisis can roll over. If left unchecked and unrepealed, Agamben warns, emergency powers can persist long after the exception has abated, to create new forms of enduring political sovereignty steeped in totalitarianism.
The best recent example is the post-9/11 political and legal landscape. Successive US administrations used the wars in Iraq and Afghanistan as a means to enact an ongoing, if unarticulated, state of emergency at home and abroad. A prime example of Agamben’s state of exception becoming the ‘dominant paradigm of government’ rather than an isolated crisis, the US used a state of emergency to curtail civil liberties, destroy the right to privacy, and walk all over the Geneva convention.
Agamben wrote a bizarre article for Quodlibet declaring the Covid-19 state of exception ‘L’invenzione di un’epidemia’, effectively a government conspiracy, as Owen noted. We do not have to countenance Agamben’s conspiratorial thinking to see the totalitarian risks facing a post-Covid-19 UK. The Coronavirus Act 2020, ‘designed for use temporarily in an emergency’, provides for a number of new ‘powers needed to respond to the current coronavirus epidemic’. Many such powers would be seen as regressive under normal circumstances.
The police have seen their ‘limited existing powers of constables to detain people or direct them to do things’ expanded to allow them to ‘to direct or remove such a person to a suitable place for the purpose of screening and assessment or to keep that person there or at another suitable place for a time-limited period’.
The Mental Health Act 1983 is considerably amended, including the ‘extension or removal of time limits relating to detention and transfer of patients’. The Care Act 2014, which forces local authorities to ‘provide support to some of the most vulnerable people in society’ by ‘impos[ing] very explicit duties’ to assess, advocate, and ‘provide a care and support plan’ to those in need, is also curtailed, allowing authorities to make ‘decisions over the provision of care without undertaking full Care Act compliant assessments.’
For the most part, Britons are willing to temporarily accept new governmental powers that mitigate the effects of a pandemic. However, as Agamben’s analysis of post-9/11 US domestic and foreign policy shows, these emergency measures, if unrepealed or abused, could lead to a permanent state of exception, a new ‘dominant paradigm of government’ shot through with totalitarian powers.
One potential threat in this regard is the UK government’s contact tracing app. The WHO recommended contact tracing, modelled on the South Korean example, in January. With grim predictability, the UK’s contact tracing technology was not ready for testing until three months later. Yet such is the distrust of Johnson and his regime that the primary response has been one of concern over the surveillance possibilities of the contact tracing app, rather than relief that the Ditherer finally took action.
A contact tracing app is no Guantanamo Bay, of course. But without the source code, data and hosting details, security policy and reporting tools being made publicly available, and without parliamentary and independent auditors given extensive and ongoing oversight over data usage, it has the potential to become an extremely powerful instrument of surveillance. Contact tracing technology is a perfect, if relatively small, example of an unprecedented measure borne of the dire necessity of exception but one that could well roll over to form part of a new totalitarian normal, the possibility of which, says Agamben, lies at the heart of every state of exception.
On May 5 the UK surpassed Italy to become the European nation with the highest death toll from Covid-19. This is despite having the advantage of charting the progress of the virus on the continent for weeks before it reached Britain. A week later, Johnson announced a ‘conditional’ plan to lift the lockdown in England, a woolly, vague, hesitant ‘first sketch of a roadmap’ every bit as pusillanimous as the man who announced it.
To posterity, Boris the Ditherer must shoulder some of the blame for those excess deaths. An abject figure, Johnson will serve as an object-lesson in political impotence, a catastrophic failure of the decision-making imperative that is supposed to underpin sovereignty. Taking heed of Agamben, we must now be watchful to prevent any of the actions he eventually managed to take contributing to an ongoing state of exception that would threaten lives, rights and liberties in the long-term.
Josh Mcloughlin is the co-founder and editor of New Critique.
Agamben, Giorgio. State of Exception (Chicago: University of Chicago Press, 2005).
—— ‘L’invenzione di un’epidemia’, Quodlibet, 22 February 2020.
BBC, ‘Coronavirus: Emergency cash to help businesses, while operations delayed’, 17 March 2020.
Adetokunbo Hussain, ‘Covid-19 and the state of exception’, The Barrister, 3 April 2020.
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UK Parliament, Coronavirus Act 2020, 25 March 2020.