Abstract
Looking back, in December 2020, at the year since Boris Johnson’s Conservatives were swept back into government with a huge majority, the author identifies a raft of new laws, Home Office measures and government proposals in the fields of policing, crime, and immigration and asylum which embody long-held rightwing projects. Coming on top of already discriminatory practices, these include restrictions on the fundamental right of peaceful protest and freedom from invasive and racist policing, the subjection of migrants and asylum seekers to dangerous and inhumane conditions and the removal of legal protections for asylum seekers. Simultaneously, Bills going through parliament restrict or remove altogether the legal accountability of state actors, including soldiers on overseas operations and police informants, for crimes including torture and murder. Citizens’ recourse to the courts to challenge unlawful ministerial decisions is also under threat.
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References
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Hugh Kay Lecture, ‘Are we in a post-Nolan age?’, Institute of Business Ethics, 11 November 2020, https://www.gov.uk/government/speeches/the-hugh-kay-lecture-are-we-in-a-post-nolan-age.
3.
The Coronavirus Act, and the various Health Protection (Coronavirus, Restrictions) (England) Regulations, which criminalise movement and gatherings in England. (The United Kingdom’s four nations each have their own laws and regulations regarding public health and coronavirus.) Attending political protests organised by a charity, NGO or political body is exempt from the ban (although for a period it was not).
4.
The Health Protection (Coronavirus, Restrictions) (England) Regulations (made, not under the Coronavirus Act but under the Public Health (Control of Diseases) 1984), came into force on 26 March 2020. There have been around sixteen versions of these regulations (including those applying only to specified areas).
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8.
Under s60 Criminal Justice and Public Order Act, allowing stops in a specified area for a specified time in situations of ‘threat of imminent serious violence’, and used sixty-five times in one month, May 2020, in London. See Guardian , 25 August 2020, https://www.theguardian.com/uk-news/2020/aug/25/stop-and-search-use-in-london-rose-40-in-lockdown-figures-show.
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18.
Revealed by an independent review by a senior lawyer, see May’s statement of 6 March 2014, https://www.gov.uk/government/speeches/the-ellison-review. The huge delays in setting the inquiry up allowed the Met’s national domestic extremism and disorder intelligence unit (NDEDIU) to shred documents in May 2014 after being instructed to retain them for the inquiry (https://www.theguardian.com/uk-news/2020/mar/18/undercover-policing-inquiry-secretive-met-unit-shredded-files).
19.
Lawrence was killed by racists in 1993. The failures of the police investigation eventually led to the ground-breaking Macpherson Inquiry, a public inquiry which for the first time recognised the reality of institutional racism, in its 1999 report, https://www.gov.uk/government/publications/the-stephen-lawrence-inquiry.
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25.
Sir Desmond de Silva QC, Report of the Patrick Finucane Review (2012), para 115.
26.Briefing for 2nd reading of the Covert Intelligence (Human Sources) Criminal Conduct Bill , October 2020, paras 11, 13. The government has further fuelled concern by its unilateral decision in March to close permanently nearly 2,000 ‘legacy’ cases from the Troubles, in breach of the 2014 Stormont House agreement, and its recent refusal of a public inquiry into Pat Finucane’s murder, despite a 2019 Supreme Court ruling. (‘Addressing the legacy of Northern Ireland’s past. . .’, HC329, https://committees.parliament.uk/publications/3186/documents/29458/default/ and https://www.theguardian.com/commentisfree/2020/dec/04/british-government-father-murder-boris-johnson-pat-finucane-loyalist-northern-ireland).
27.
For two reasons: the Human Rights memorandum to the Bill disavows state responsibility for an informant’s acts in certain circumstances; and ministers have mooted repeal of the Human Rights Act and derogation from the ECHR. David Davis spoke of the ministerial authorisation for rendition and outsourced torture in the cases of Belhaj and Bouchar, against which the ECHR and the Human Rights Act provided ‘zero protection’.
29.
https://www.independent.co.uk/news/uk/home-news/child-spies-home-office-sajid-javid-high-court-police-just-kids-a8953331.html and Home Office, ‘Covert human intelligence sources: draft revised code of practice (September 2020), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/920537/CHIS_Code_-_Bill_amendments.pdf.
32.
See https://labourlist.org/2019/12/tories-want-to-tear-up-protections-for-child-refugees-says-starmer/ and Home Office, ‘Dublin III Regulation’ (August 2020), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/909412/dublin-III-regulation.pdf. In 2018, the UK accepted 1,028 ‘Dublin’ transfers on family reunion grounds, of whom 159 were children joining relatives in the UK (‘The UK’s refugee family reunion rules, a comprehensive framework?’, March 2020, https://commonslibrary.parliament.uk/research-briefings/cbp-7511/).
33.
https://www.theguardian.com/uk-news/2020/may/24/outrage-at-u-turn-on-promise-to-reunite-child-refugees-with-uk-family. Revealed in the draft for Brexit negotiations. Lord Dubs attempted unsuccessfully to reintroduce the obligation in the Immigration Bill which was passed in November.
34.
See https://www.theguardian.com/uk-news/2020/oct/04/priti-patel-bring-in-new-laws-for-broken-uk-asylum-system-channel-boats. New rules introduced in December, coming into force on 1 January 2021, allow anyone who has passed through or who has a connection with a ‘safe third country’ to have their asylum claim declared inadmissible and to be removed there or to any other ‘safe third country’ which agrees to take them. These rules would not violate the non-refoulement obligation but point towards an Australian-type offshoring of asylum.
40.
D. Casciani, ‘Home Office policy for removing migrants unlawful, court rules’, BBC News, 21 October 2020, https://www.bbc.co.uk/news/uk-54632985.
45.
A review set up in the wake of the Windrush scandal of 2018, in which it was revealed that thousands of pensioners, in the UK since the 1950s and ’60s when they arrived as UK citizens, were treated as ‘illegal immigrants’ because, unaware of having lost UK citizenship on their colonies’ independence, they had no documents proving their right to be in the country and so lost jobs, homes and were in many cases detained and/or deported, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876336/6.5577_HO_Windrush_Lessons_Learned_Review_LoResFinal.pdf.
46.
‘Asylum accommodation and support transformation’, 20 November 2020, https://publications.parliament.uk/pa/cm5801/cmselect/cmpubacc/683/68302.htm.
54.
Sexual offences are exempt, on the basis that they are never ‘necessary’, according to ministers – the implication being that torture, while absolutely prohibited in international and national law, is.
55.
As the International Committee for the Red Cross (ICRC) points out, in its written evidence on the Bill, ‘the work that goes into building a case will often take years to come to fruition, especially if a conflict continues to rage. It is also well-known that victims of war crimes often take many years before they can come forward to bear witness’, https://publications.parliament.uk/pa/cm5801/cmpublic/OverseasOperations/memo/OOB04.htm.
56.
57.
The law officers also voted for provisions of the Internal Market Bill which admittedly broke international law in overriding the Brexit agreement, and voted against an amendment requiring ministers to uphold the law.
58.
https://www.theguardian.com/commentisfree/2020/oct/20/starmer-abstention-election-party-unity-labour-leader-mps. At third reading Labour voted against the Bill.
60.
Thayne Forbes, ‘Report of the Al Sweady Inquiry’, HC819 (December 2014), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/388321/44542_00_Al_Sweady_Exec_Summ_Accessible.pdf.
61.
A term previously associated with the libel actions brought by large corporations, oligarchs and other powerful people against individual journalists to deter investigative journalism.
62.
See, e.g., on Gove: https://www.theguardian.com/education/2017/jul/04/michael-gove-extremism-trojan-horse-schools; on Mirza: https://www.huffingtonpost.co.uk/entry/munira-mirza-racial-inequality-review_uk_5ee8859bc5b6275acc89571a?guce_referrer=aHR0cHM6Ly93d3cuZWNvc2lhLm9yZy8&guce_referrer_sig=AQAAANYnxCVpSidbIw-HUn-O3GpDrmZMYqiUK0Ivai3ej6Dyf12auLsqTX_8QDjzJ5pylchLTZ1SNIJCTXC1VAk6Xvep6xvCGTcwHzSSpfVQ_22L3K8CtA-zsmvz-49tShGsJBGNdLzmylAUQvik8YPjLHRbZpChNWRH5hVq8HnI7tat&guccounter=2; on Phillips: https://www.theguardian.com/world/2020/may/06/trevor-phillips-firms-origins-software-linked-ethnic-groups-to; on Goodhart: https://www.theguardian.com/society/2020/nov/13/campaigners-criticise-senior-ehrc-appointment-david-goodhart.
64.Al-Skeini v UK above.
66.
This provided a remedy for violations of human rights which were not recognised by British common or statute law, and included rights to investigation of state killings, protection against deportation to a real risk of torture or death; family life rights, privacy and of freedom of expression.
67.
https://www.gov.uk/government/news/commission-on-a-uk-bill-of-rights-launched. The Commission was hopelessly split, with one member advocating three tiers of rights: for citizens; EU nationals; and the rest.
68.
The promise featured in the 2010 manifesto too, but could not be implemented in a coalition with the Lib Dems.
75.
‘Gerry Adams wins appeal against Maze prison convictions’, https://www.bbc.co.uk/news/uk-northern-ireland-52646688.
76.
An appeal to the Supreme Court was heard in December. Begum was a 15-year-old schoolgirl when she fled to Syria to join ISIS, https://ukhumanrightsblog.com/2020/07/17/court-of-appeal-allows-shamima-begums-appeal/.
86.
Condemnation has come from the International Bar Association (https://www.scottishlegal.com/article/international-bar-association-condemns-johnson-and-patel-for-playing-politics-with-lawyers-work); the Law Society and the Bar Council (https://www.lawyer-monthly.com/2020/10/lawyers-condemn-priti-patels-demonising-comments/); the government’s own law officers (https://www.theguardian.com/politics/2020/oct/18/top-ministers-urged-priti-patel-to-stop-attacks-on-activist-lawyers), a former justice secretary (https://www.theguardian.com/politics/2020/oct/20/former-tory-justice-secretary-condemns-government-attacks-on-lefty-lawyers); the Lord Chief Justice (https://www.independent.co.uk/news/uk/politics/government-priti-patel-lawyers-activists-attacks-rule-law-b1720428.html); former Supreme Court justices (https://www.theguardian.com/politics/2020/oct/25/lawyers-ask-johnson-and-patel-to-apologise-for-endangering-colleagues); and hundreds of government lawyers (https://www.theguardian.com/law/2020/nov/06/government-qcs-call-for-end-to-ministers-attacks-on-lefty-lawyers).
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J. Bourne, ‘From CIAC to EHRC: the long view on current controversies’, https://irr.org.uk/article/from-ciac-to-ehrc/.
88.
Policy Exchange’s David Goodhart, who has written in support of ‘hostile environment’ policies; anti-feminist Jessica Butcher (https://www.theguardian.com/society/2020/nov/22/new-equalities-commissioner-attacked-modern-feminism-and-metoo); and Kishwer Falkner, who hosts neoconservative Henry Jackson Society events (https://www.middleeasteye.net/news/new-head-uk-equality-watchdog-opposed-efforts-define-islamophobia). They have in common rejection of the concept of structural racial or gender inequality – a rejection shared by Munira Mirza (https://www.theguardian.com/world/2020/jun/15/dismay-over-adviser-chosen-set-up-uk-race-inequality-commission-munira-mirza) and Tony Sewell (https://www.theguardian.com/world/2020/aug/11/race-equality-chief-tony-sewell-faces-legal-challenge-over-appointment), appointed by Johnson to set up and head respectively a new Commission on Race and Ethnic Disparities (https://www.gov.uk/government/news/commission-on-race-and-ethnic-disparities-16-july-2020).
89.
J. Holmwood, ‘UK government’s undermining of the EHRC is a threat to democracy’, 13 November 2020, https://www.middleeasteye.net/opinion/uk-government-ehrc-threat-democracy