On 17 September 2019, I attended the first morning of an historic sitting of the Supreme Court. The highest tribunal in the United Kingdom was considering the Johnson government’s suspension of an unruly Parliament, whose insistence on preventing a hard or no-deal Brexit was causing considerable frustration in the executive.
It was clear that the 2016 referendum and 2017 general election had created a collision course between an extremely tight but direct ‘leave’ mandate and our representative democracy. I had no doubt that some MPs and campaigners were emboldened by two years of deadlock and desperate to prevent any Brexit whatsoever. However, I was equally certain that the actions of those residing in Number 10 constituted the most shameless, premeditated, and unlawful abuse of executive power in a system where at least theoretically, parliamentary sovereignty remained the overarching constitutional principle.
As I walked out into the lunchtime sun with just one young female colleague, I was greeted by an extremely noisy demonstration directly in front of the court. Some of the chants and salutes were insulting, overtly racist, and abusive. The police presence was negligible. Those moments were not pleasant. However, there were counter-demonstrators too. Neither group surged. I was never in fear of imminent physical violence as we walked away unhindered.
I would not have dreamed of complaining to the police or suggesting that courts (outside which I, too, have demonstrated at various times in my life), should be palaces of tranquility. Nor do I remember the slightest concern expressed by those with the far greater security protections afforded to government. If anything, the administration was revelling in a carefully constructed ‘people versus Parliament’ narrative that left the judges as duty-bound referees.
Is it a coincidence then, that street protest, in the form of noisy, impactful, and even alarming dissent, should have been acceptable when Johnson, Cummings, and co. were painting themselves as insurgents, far apart from apparently distanced institutions of the state? Is it mere accident that now, armed with a massive majority, emergency pandemic powers, and having got ‘Brexit done’, the Conservative government feels so much more thin-skinned about ‘the will of the people’ when periodically expressed in its most raw and unmediated form?
I think not. What we are seeing is a new domestic right-wing authoritarianism, inspired by Trump’s White House — ‘new’, I should add, in the sheer untempered audacity of the power it has seized through division. The seeds were sown and nurtured over many years — and not only by the Eton boys in blue.
This March, in response to the second reading of the Police, Crime, Sentencing and Courts (PCSC) Bill, Theresa May urged the government ‘to consider carefully the need to walk a fine line between being popular and populist.’ I agree with her concerns about the expressly anti–‘non-violent’ protest provisions, but I am not so convinced that the line between popularity and populism is such a fine one.
This is especially clear when you explore some of her own anti–human rights positions over the years — not least when she was Home Secretary. This was an era of ‘go home’ vans, illegal deportations of Caribbean migrants, and the emergence of the ‘hostile environment’. In truth, it wasn’t much of a leap from this to attacking lefty lawyers and far-right rhetoric about people being ‘citizens of nowhere’ during her premiership.
Here we can see how an ever-finer line between dog whistles and foghorns in British politics created fertile conditions for the new authoritarians she now criticises. Theresa May was very much a part of the process which saw Boris Johnson’s right swallow the Faragists of the Brexit Party and UKIP, who had, in turn, eaten and absorbed the BNP.
Labour, too, has danced the so-called ‘fine line’ over many decades, whether playing with the tinder box of immigration (remember the treatment of East African Asians in 1968 and the Hindu brides’ virginity testing scandal of 1979), or the various authoritarian adventures of the War on Terror (mass surveillance and internment at home, illegal intervention overseas, and complicity with kidnap and torture in the legal black holes in between).
Even liberals, who ought perhaps to self-define around liberty, were inglorious in the suffrage struggle and as the Cameron Conservatives’ coalition partners over a century later, blessed the installation of secret courts and near-obliteration of access to civil justice via legal aid. There is a sense in which the legislation of recent months — the Covert Human Intelligence Sources, Overseas Operations, and PCSC Bills — are a new departure, but they also form part of a continuity in British politics that has to be understood to be countered.
What is striking is the ease with which so-called mainstream democratic politicians — who generally place themselves along a right to left economic continuum — will throw rights, freedoms, minorities, and even the rule of law under the bus when convenient. It can be a helpful defensive distraction technique or a more deliberate and aggressive exercise in divide and rule. My answer to Theresa May’s ‘fine line’ anxiety is that the thin line looks more like a great big vibrating button to those of us who believe in fundamental rights and freedoms and the rule of law.
The term may have come to us from across the water but the sentiment is somehow familiar, always and everywhere. Why do so many people all over the planet frequently act and even vote against their economic self-interest? In no small part, this is because of the ease with which they can be turned against each other on national, regional, racial, religious, gendered, or any number of other lines for dividing the worthy from the unworthy.
This partly helps to explain why culture wars, first against ‘political correctness’ and now the spectre of ‘woke’, are such powerful agents for redirecting popular frustrations. The Right, of course, is not minded to channel these frustrations against their real enemies — the corporate elite who have profited for decades from the immiseration of working-class communities. They might mock these ‘globalists’, but precious little in the right-wing policy agenda threatens their vast accumulated wealth.
Instead, the billionaire-owned media generates daily culture wars to foment anger against everyone from desperate asylum seekers to recently empowered women or LGBTQ people. Those in any place in the criminal justice system (suspect, defendant, or prisoner) are obvious fair game in this festival of righteous indignation, unless of course the complainant is a woman. In that case, the rules of the game become a little more complicated — sympathy, for the Right, is the preserve of the powerful.
Culture wars may be exploited by politicians of all denominations, but inevitably, the more successful they are the further right they are located. Their more liberal-conservative bed-fellows (whether in the US, UK, or elsewhere), will ultimately bite their tongues for the priority interest of maintaining the economic status quo.
As a gleeful Steve Bannon explains to Nigel Farage in Alison Klayman’s 2019 documentary The Brink, Corbyn and Sanders could easily be defeated because they ‘refuse to take on the immigration.’ Culture wars are especially difficult and damaging for progressive movements, especially when these are split around so-called ‘identity issues’ as well as ambitions for the redistribution of wealth and power. But to a Trump, Bannon, Farage, or Johnson (and their wide international club of populist nationalists), these devices provide a rallying cry for the dispossessed that poses no challenge at all to their super-wealthy friends.
This also helps to explain their centrality to the ‘new’ authoritarianism. As arguments about the superiority of free-market economics have faded in the wake of austerity (and its evident impact on people’s lives), the risk was that a new political hegemony could be born on the left with a fundamentally different vision of the economy. In order to rescue the beneficiaries of existing economic order, the Right turned to old ideas of social hierarchy and the fight against disorder to first demonise enemies of the state and then justify their repression through a plethora of novel legislative instruments.
Brexit provided the basis for a culture war of unprecedented proportions in modern times, splitting the country, nations, communities, and even families. Both the Johnson and Farage wings of the Leave campaign adopted techniques that they have yet to abandon, notwithstanding the eventual departure of Dominic Cummings from Number 10. This culture war continued into the May premiership and ultimately propelled Johnson to the site of his life’s ambition. However, the Leave campaign’s ambitions to remake our politics were never going to be satisfied just by getting ‘Brexit done’.
Crucial to that Brexit campaign were Conservative attacks upon the Human Rights Act, the Council of Europe Convention it incorporates, and even the judges tasked with applying it. The fact that the Act domesticates the Convention so that British judges might take primary control of its application in our jurisdictions was inevitably and deliberately lost in the translation. Why let the truth or the law get in the way of an opportunity to paint ‘activist lawyers’ as treacherous?
Looked at from the vantage of 2021, it’s easy to see how these attacks on human rights formed the basis for new authoritarian legislation. It was not only the closest thing we had to a Bill of Rights which was under attack, but those tasked with defending these rights — from judges to lawyers. And much of it could be combined with anti-immigrant ideas; rights were things the press said belonged to refugees or terrorists, protected by activist NGOs or woke lawyers, while the great majority of the public felt they had little means of recourse against the injustices in their lives.
This is difficult terrain for the Left to fight on, and it is easy to understand why many shied away from facing the vituperation of a vicious right-wing press. But the xenophobic beast requires more and more red meat. It is far from surprising that the Johnson government is currently scrutinising both judicial review of administrative action (the legal process for holding all public authorities to account) and the Human Rights Act itself.
Once again, these are hardly new refrains. Senior voices in both major parties have long attacked lawyers and judges when convenient. Now the cumulative effect of years of this drumbeat, plus the greater enthusiasm and confidence of the current regime, make the legal and constitutional climate more perilous than any other time in living memory. We also have a Home Secretary who spoke in support of the death penalty just a decade ago and as the daughter of migrants may feel free to champion the most inhumane policies towards asylum seekers, as if immunised from suspicions of motive.
Theresa May’s ‘fine line’, meanwhile, is what some might call a dog whistle. As Home Secretary in 2011, she borrowed from Farage’s apocryphal story about the Human Rights Act allowing an immigrant to stay in the UK on account (‘and I am not making this up’) of owning a cat. If she was an amateur, Boris Johnson with his male, upper-class, and journalistic self-confidence, has long been a virtuoso.
The now infamous Telegraph article referring to Muslim women as dressing like ‘letter boxes’ and ‘bank robbers’ was superficially an argument for liberal tolerance. His comments about President Obama’s ‘part-Kenyan heritage’ and an extensive back-catalogue of deliberate offence were, for the most part, ignored by political and media establishments with either a little gentle ‘boys will be boys’ eye-rolling, or more forthright defences of journalistic free speech. Here we saw less of the dog whistle, more of a foghorn.
Recent government attacks on critical journalists, and the BBC in particular, demonstrate how selective that approach to free expression really is. Young people are repeatedly accused of ‘cancel culture’ online and in their student unions. Yet ministers and their think tank proxies attempt ever-greater surveillance and control over educational and cultural institutions — little of which seems to occur to our mainstream press as a fundamental threat to freedom.
The Two-Way Street
Of course, as Donald Trump so ably demonstrated, the greater platform of national leadership makes the art of the dog whistle and foghorn even easier. Others can prosecute your culture war on the streets and internet, with only a nod, wink, or frown from the leadership required in response.
Conservative government responses to Black Lives Matter and Extinction Rebellion protests took this playbook to new levels. These are now used as justification for a PCSC Bill that attempts not only to shut down non-violent street protest and create a wholly unnecessarily specific new offence of damaging a memorial, but directly targets the Gypsy, Roma, and Traveller community. As with the legislation against East African Asians in 1968, it avoids explicitly mentioning its targets at all — but the pitch at which this call is emitted isn’t the least bit subtle.
With authoritarians, you are either completely with them or against them. Even the Metropolitan Police Commissioner was drafted in to write a forward to the controversial draft legislation before it was debated by MPs. Traditionally, many rank and file officers have been wary of their leaders being politicised and drawn too close to fair-weathered political friends, who may prove less than staunch when events and public opinion turn, as after Sarah Everard’s murder and the Clapham Common vigil.
Earlier this year we saw the strategic calculations of the Covert Human Intelligence Sources and Overseas Operations Bills. Both measures were designed to split the opposition and pit the government, police, security agencies, and military against criminals and ‘ambulance-chasing lawyers’. However, even a cursory examination of each bill reveals not just a deliberate collision with international human rights standards (for example, the prohibition of torture, murder, and war crimes), but explicit legislative attempts to put agents of the state and state agencies further from the reach of the ordinary criminal and civil law.
In other words, a so-called ‘law and order’ provision will allow a criminal paid by the police or other state agency to commit criminal offences with total immunity granted in advance. And a law purportedly protecting armed forces personnel from malicious investigation says nothing about investigations — but introduces harder time limits on veterans suing the Ministry of Defence for negligence. When the vast media machine turns in your favour, politics is a tremendously simple game.
The ‘one law for them’ cry that went up after Dominic Cummings’ jaunt to Barnard Castle is apposite for the unequal treatment and sheer hypocrisy of each of these policies. They are designed to protect this super-rich chumocracy from both peaceful dissent and even the law itself. As with some viruses, early exposure to the new authoritarian contagion might help train resistance to an ever greater onslaught before it comes.
Trained we must be, not just in observation and opposition but in unity, solidarity, persuasive discourse, and disagreeing well. The stakes could not be higher. The line has already been crossed.