What's the point of a Covid inquiry?

The public response to the pandemic was textbook and, if it were ever to recur, we would repeat all over again exactly what we did in 2020-22, making the same mistakes. No inquiry is going to make the slightest difference.

It’s not as if we didn’t already know what the story would be, for the unfolding of the pandemic was identical to every other public emergency to have befallen our country. This time was no different from last time and next time will be no different from this time.

When there is an emergency – or a perceived emergency – the same pattern of behaviour is always followed. Parliament meets in a climate of fear and alarm. Something must be done! Something dramatic! Something capable of meeting the demands of the emergency! Yet Parliament does not know what to do, precisely, so it confers extraordinary, sweeping powers on government ministers, crosses its fingers, and hopes for the best.

Ministers grow quickly accustomed to wielding their new-found powers and learn almost immediately that they can now do more or less anything they want. Parliament will not stand in their way, and neither will the courts. Judges never like reviewing the exercise of emergency powers – emergencies are for ministers to judge, not for the courts.

In peacetime – under normal conditions – our freedom is ensured by the separation of powers. Parliament makes the law, ministers govern, and courts judge when the law has been broken. Power is separated – divided – so that no one has too much of it. But when an emergency strikes, the separation of powers is jettisoned. Parliament confers rule-making powers on ministers, who proceed to govern without anyone being able to hold them to account, the courts preferring to stay out of it until everything cools down again.

This is what happened in the First World War. It’s what happened in the Second World War. And it’s what happened in the so-called war on terror, in the aftermath of 9/11. In both world wars, Parliament conferred such huge powers on ministers that they were able to authorise and require the detention of foreign nationals without so much as a criminal charge, never mind a trial.

When detention was challenged in the courts, the judges looked the other way, refused to engage, and allowed ministers to carry on without even having to show that anyone’s ongoing incarceration was necessary for the national interest. The emergency of war was all the justification ministers needed.

After 9/11 the Blair government conceived of ever more ingenious means of subjecting suspected terrorists to the coercive force of the law. Thus we had control orders, TPIMs (Terrorism Prevention and Investigation Measures), asset-freezing orders, and closed material procedures. All of it willingly enabled by Parliament, and all of it given the thumbs-up by the judiciary despite the routine, quotidian, indiscriminate interference with basic rights such measures entailed.

The template was followed once again in March 2020, when Covid first lapped at our shores. Parliament legislated in a hurry – I was there; I voted for it – and all of a sudden ministers possessed what would previously have been unthinkable powers. For the first time in British history, a public health emergency led not only to the sick being locked up but to the healthy being locked up, too. Or, at least, it led to the lives of the healthy being firmly locked down.

For months, it was a criminal offence to leave one’s home without lawful excuse. For months, it was an offence to open your business unless it was deemed essential. If, as I did, you lived in Glasgow you could not lawfully walk in the hills; you could not go for a run on the beach. It would have posed no health risk whatever to do such things, but you could not do it anyway. Why? Because ministers said so, Parliament had given them the authority to rule, and the courts refused to get involved.

As I say, to anyone who understands how emergency powers work, none of this was remarkable. It was all absolutely textbook. It’s what we do in emergencies; it’s what we’ve always done, and it’s assuredly what we would do again if we needed to. So why, I ask again, an expensive, overblown, long-winded public inquiry? Do we really think we are going to learn anything useful from it?

Of course, in the rush and fearful heat of the moment, terrible mistakes were made. If we had known then what we know now we would never have cleared out the hospitals and removed the elderly back into care homes. But the error of public policy which led to such tragic loss of life in our care homes was caused by simply not knowing enough about the nature of the virus. It is not the sort of error that can usefully be investigated by – still less, fixed as the result of – a public inquiry conducted with the full benefit of hindsight.

Emergencies impose their own brutal logic, a logic which is as inevitable as it is inescapable. In a public emergency, Parliaments are always going to confer extraordinary and extravagant powers on ministers. Ministers are always going to overreach because the political consequences of not doing enough are always going to be far greater than those of going too far. And the courts are always going to vacate the field for as long as possible, biding their time until a return to normality. We already know all of this. We don’t need a public inquiry to reconfirm it. It’s a colossal waste of time and money, and it should be shelved.

Adam Tomkins was a Conservative MSP for the Glasgow region from 2016 to 2012

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