This article was written just before Matt Hancock resigned as Health Secretary. His departure is a welcome demonstration of the fragility behind the government’s facade of invulnerability, but in itself does not address the problems this article raises.
In principle, in the UK, we have equality under the law. The law applies, we are told, in exactly the same way to a postman as it does to a prime minister.
This equality is symbolised by the 12-foot tall statue of the Roman goddess Justitia, holding aloft a pair of scales while wearing a blindfold and carrying a sword, who stands above the Old Bailey. Her blindfold symbolises the idea that “justice is blind” to the wealth and power of those being tried, and will always strive to treat applicants fairly.
In practice, it does not always feel like that – particularly recently. Last week’s revelations about Matt Hancock breaking the COVID regulations and appointing his lover to an influential (and lucrative) position looked like just the last in a series of incidents in which the rich and powerful seem to be above the law.
Under these circumstances, it is only reasonable to ask: do we have equality under the law – and does it matter?
The rule of law has always been something on which the UK prides itself, but it is now seriously under threat:
- Equality under the law is fundamental to a civilised democracy; but
- The wealthy and powerful are increasingly consequence-free; while
- Ordinary citizens are increasingly denied justice.
Equality Under the Law is Fundamental to Democracy
Even the extreme right-wing used to accept this point. The Foundation for Economic Education, for example, says:
“According to the Declaration of Independence, ‘All men are created equal.’ … In fact, all men are created unequal, except in one sense: All men are created equal under the Law. All men are equally subject to the same physical laws, the law of gravity, nutrition, growth, and so on. And all men are equally subject to the same moral laws: Thou shalt not steal; Thou shalt not kill, and the like. Since civil law is, or ought to be, an extension of moral law, all men should be equally subject to civil law. Whether a man is rich or poor, strong or weak, black or white, influential or a nonentity, should make no more difference under civil law than under physical or moral law. This is what is meant by the Declaration of Independence: All men are created equal under law.”
And in the UK, the House of Lords shares this view:
“The rule of law requires that everyone—from government ministers to the person on the street—be bound by, and entitled to the benefit of, the law. It is an essential characteristic of a democratic society and a fundamental principle of the UK constitution.”
But not everyone agrees. One of the most influential market fundamentalists, the author of The Sovereign Individual, Lord Rees-Mogg put it:
“The new Sovereign Individual will operate like the gods of myth in the same physical environment as the ordinary, subject citizen, but in a separate realm politically.”
This is good news for those who see themselves as ‘sovereign individuals’ – but extremely bad news for all of us who might better be described as ‘ordinary, subject citizens.’ Unfortunately, there is increasing evidence that Lord Rees-Mogg’s prediction is beginning to come true.
The Wealthy and Powerful are Increasingly Consequence-Free
Like any group of people, the Cabinet has some members with more ability than others and some with more integrity than others. Unlike other groups, it appears that members of the Cabinet and their cronies who lack competence and integrity are immune from consequences. In the last 12 months, there are (even ignoring Matt Hancock) several examples of those who would – had they been employed by any normal organisation – have resigned, been sacked or been prosecuted. Dominic Cummings for breaching the lockdown regulations, Robert Jenrick for pushing through planning approval ahead of a new levy and thereby saving £40 million for a Tory donor, Gavin Williamson for multiple mismanagement of the GCSE and A-level results and Priti Patel for bullying.
And, of course, the Prime Minister, Boris Johnson has faced no consequences for allowing a Tory party donor to – initially – fund the refurbishment of his apartment in Number 10 or for appointing another major donor to the House of Lords against the advice of the Appointments Committee.
Perhaps even more seriously than these issues, and despite significant evidence being placed in the public domain both by journalists and lawyers and by the National Audit Office, huge amounts of public money have been spent in ways which can best be described as ‘curious.’ Well over £1 billion worth of taxpayers’ money was spent on procurement of personal protective equipment (PPE) from unqualified suppliers with close connections to the Tory party. Much of that PPE was unusable in practice. The so-called ‘NHS test and trace’ – which is in fact neither controlled by nor, largely, delivered by the NHS – is costing £37 billion of taxpayers’ money. And the National Audit Office has just released another, even more damning report about its failings. They conclude that, astonishingly, “Only a small minority of the tests it has bought have been registered as used.” As far as we are aware, nobody has faced charges for any of this possible corruption.
And in an even more extraordinary development, the executive who was controversially appointed to head NHS test and trace, and who is responsible for its performance, Baroness Dido Harding, has now formally applied for the job of running the whole of the NHS.
It is easy to focus on the personal injustice that these incidents represent, but the bigger issue is the damage done to society as a whole. It is quite wrong for politicians to accept tens of thousands from donors – but the real damage is the favours the politicians perform in return. If this is corruption, it is not a victimless crime: many tens of billions of taxpayers’ money, which could have been spent helping the most vulnerable in society, has instead been funnelled towards Tory party donors and their associates.
Ordinary Citizens are Increasingly Denied Justice
At the same time that the rich and powerful seem increasingly to be out of the reach of justice, justice itself is increasingly out of the reach of the ordinary subject citizen.
The lawyer Sir James Matthew famously (and ironically) remarked, “Justice in England is open to all – like the Ritz hotel.” And it is of course true that going to law is very expensive. The solution to this used to be legal aid. Justice was accepted as a human right, and if you could not afford the expense of going to court yourself, the state would step in to ensure justice was done.
As the chart below shows, this is no longer true. Legal aid has all but disappeared. More than 80% of those who would have been supported in the past are no longer supported – justice is no longer for them.
For ordinary citizens, even the right to peaceful protest is under threat. The government is proposing a new law – set out in the Police, Crime, Sentencing and Courts Bill – which would mean the end of a right to protest in the UK. Some protests might still be allowed – but citizens would no longer have an automatic right to peaceful protest: only the right sort of protests would be permitted:
The Bill adds to the reasons under which a protest can be banned a new ground: noise. If the Police believe that any individual or organisation nearby might be disturbed or feel threatened or annoyed by the noise of the protest, they can ban it.
The anti-Brexit marches in which over 1 million people took peacefully to the streets (but which were admittedly noisy), might have disrupted or annoyed those in Parliament, and could be banned under the new legislation.
Particularly disturbing proposals in the bill include:
- It widens the definition of protest to include even one-person protests;
- It removes the burden of proof on the state to show that demonstrators were knowingly non-compliant with restrictions that have been announced;
- It makes is possible to ban demonstrations because a person “is put at risk of suffering” any disruption – including noise or “serious annoyance” – which means that no offence need even have occurred to ban the demonstration;
- And it makes the maximum penalty for non-compliance 10 years in prison.
If the Bill passes into law, the UK will not be a modern democratic state, it will become a repressive regime more like China, India, Indonesia or Pakistan than like Austria, Czechia, Denmark or Germany.
This Bill is not yet law, and there is substantial opposition to it in both Houses of Parliament which may prevent it from becoming law. And yet the Metropolitan police have recently been acting as though it were. A dozen activists from Extinction Rebellion were arrested at a warehouse where they had been producing banners because, as the police said,
“[We have] taken proactive action to prevent and reduce criminal disruption which we believe was intended for direction at media business locations over the weekend. … During the arrests, a number of items were seized by officers, including bamboo structures, lock-on equipment and other items which could be used to cause criminal damage and obstructions. Those arrested have been taken to police custody as inquiries continue.”
If we do not act to defend our rights, we shall be handing the UK over to the market fundamentalists, and Lord Rees Mogg’s description will be accurate.
Not only would that be hugely damaging to more than 99% of the population, it is also unacceptable to almost all politicians, across parties. While the Conservative party has to some extent been captured by market fundamentalists, it still has many members who do not share their philosophy, and who are beginning to mobilise and flex their muscles. And of course there are very few in the other political parties who would like to see a market fundamentalist future.
As many of us as possible need to help our elected representatives to understand the scale of the challenges and to create an alliance to preserve justice and democracy in the UK.
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