It is creeping authoritarianism in a very British way – the government is steadily but quietly eroding democratic accountability, including the right to challenge arbitrary executive diktats.
As Boris Johnson’s premiership draws to a close, the Conservative government has set in motion four Bills before Parliament to limit the role of the independent judiciary, increase secret courts, repeal the Human Rights Act, and restrict the freedom of the press.
The Bills contain dangerously loose and deliberately ambiguous language – what for instance, is “legal but harmful” online content? Some cabinet members would even like to extract the UK from the European Human Rights Convention, an international treaty that is enshrined in Northern Ireland’s Good Friday Agreement.
The government defends its plans with truly Orwellian arguments. Suella Braveman, the attorney general, asserted last month in a speech to the right-of-centre Policy Exchange think tank that there is a “serious risk that the fight for rights undermines democracy”.
With sinister echoes of 1984, she tried to turn Orwell on his head, blaming “fringe campaign groups…often with vastly inflated salaries and armed with a Newspeak dictionary”. Braverman says they have “created mighty citadels of grievance across the public sector and made huge inroads into the private sector”.
To fight this supposed threat, the government plans to restrict judicial reviews, which are court hearings that allow citizens to challenge the legality of decisions taken by the executive.
“Judicial review is what protects us, the individual, from the overbearing might of the state. It exists to ensure that, however venal, corrupt or malign the politicians who govern us, we are treated equally and according to the law”, said the best-selling author known only as The Secret Barrister.
They warned: “The government’s claims to be restoring trust in democracy by rolling back these checks and balances mask an audacious power grab, allowing them to govern unlawfully and without accountability”. Ministers want to cherry pick decisions by the courts they do not like, including those by the Investigatory Powers Tribunal, which covers the activities of the security and intelligence agencies.
The Judicial Review and Courts Bill reflects growing intolerance among ministers of individuals and what they call “lefty lawyers” questioning the way the government has taken decisions and the way judges have responded. One notable case was the ruling by the Supreme Court ruling that Boris Johnson’s decision in 2019 to prorogue – suspend – Parliament was unlawful.
The proposed “bedroom tax”, the “VIP lane” for suppliers of Personal Protection Equipment (PPE) during the Covid pandemic, and police operations using facial recognition technology, are among many decisions declared unlawful as result of judicial reviews.
Abolishing human rights
Home secretary Priti Patel was furious at court challenges to her proposal to deport asylum seekers to Rwanda. It catalysed long-harboured plans to replace the Human Rights Act with a British Bill of Rights.
This will make it more difficult for individuals and groups to challenge ministers’ decisions in the courts by claiming breaches of the European Convention on Human Rights.
The Human Rights Act has enabled bereaved families to demand full inquests, for example into the deaths of army recruits at Deepcut barracks, and independent inquiries into the abuse – and in one case, death – of Iraqis detained by British forces.
Martha Spurrier, director of the civil rights group, Liberty, has described the Bill of Rights as a “power grab” by the government. She says: “The Human Rights Act protects everyone from injustice and abuse of power, and allows us to stand up to the government and institutions like the police or local councils when they get it wrong”.
Spurrier adds: “From the families of Hillsborough victims to military veterans, people use the Human Rights Act every day to stand up for their rights and get justice. But under the Government’s plans, it will become much harder for people – including disabled people and survivors of violence against women and girls – to access justice.”
“The Human Rights Act protects everyone from injustice and abuse of power”
To limit human rights-based claims in the courts, the government is proposing to add a “permission stage” before they can be heard, erecting a new barrier to justice. Before a case can get off the ground, individuals would have to show they had faced a “significant disadvantage” caused by the violation of their rights.
National security and online safety
The National Security Bill – some of whose dangers Declassified has already highlighted – further increases the government’s ability to shield its activities from independent and democratic scrutiny. Sections 5 and 6 of the Bill refers to “prohibited places”, described as the country’s “most sensitive places”.
“Unauthorised entry” into such places for whatever purpose, “prejudicial” or not, could be a criminal offence as would photographing and “inspecting” them on the internet. Such measures could include photographing demonstrations outside military bases or locations deemed “sensitive”, as well as military convoys. The list of “prohibited” sites could be expanded without alerting parliament while prosecutions could be heard in secret.
Then there’s the government’s Online Safety Bill, which on the face of it should be a welcome measure to protect children from abuse and sexual predators.
However it includes hidden dangers, giving too much power to large tech companies and their commercial interests, not least in allowing them, rather than the courts, to determine what is “harmful” yet “legal” and encouraging a culture of self-censorship with a chilling effect on freedom of expression.
After initially suggesting that criminal prosecutions could be triggered if content of material would have a “real and substantive risk” of causing harm to a “likely audience”, it now says material would be considered harmful if it presents “a material risk of significant harm to an appreciable number of children/adults”.
The Bill refers to “psychological” harm and harms resulting from an individual doing or saying something to another that increases the likelihood of harm to that individual. It even sets up an “advisory committee on disinformation and misinformation”.
In a further threat to civil liberties and freedom of expression it gives a role to potentially arbitrary algorithms and artificial intelligence (AI) – what is described in the Bill as “moderation technology”.
The measure is a minefield, an invitation to large tech companies like Google and Facebook and government agencies to impose their subjective and commercially-driven priorities on personal communications.
One senior Conservative MP and former cabinet minister has said the Bill’s “well-intentioned attempts” to address very real risks “threatens being the biggest accidental curtailment of free speech in modern history.” The measure has also been sharply attacked by a former supreme court judge.
Meanwhile, Statewatch, the long-established monitor of the governments’ unaccountable agencies, has warned about a little-noticed “new EU-UK security architecture”.
Earlier this year the campaign group highlighted that the “UK government’s domestic programme seeks to crack down on dissent and to abolish or severely limit ways for the public to hold the state to account…those ambitions also play a role in the post-Brexit agreement with the EU”.
The Brexit treaty makes it possible for the UK to opt into intrusive EU surveillance schemes with no explicit need for parliamentary scrutiny or debate, and establishes a number of new joint institutions without robust transparency and accountability measures.
“Those in favour of Brexit argued that the UK needed to ‘take back control’ from Brussels,” Statewatch said. “However, when it comes to policing and security matters, the only people who have taken back control are the government and state officials. Close and critical scrutiny of the new arrangements is required to protect civil liberties and democratic standards.”
Encouraged perhaps by the ease with which it imposed authoritarian measures during the initial Covid crisis, the government is quietly introducing a series of measures undermining basic civil liberties. Maybe they hope that few will notice, as most are preoccupied by the more obvious cost-of-living threats to their material well being.