2021: A year in review

Tomos Owen & Robert Wilcox

Just over a year ago, thousands of pro-Trump supporters stormed the US Capitol Building in a bid to overturn the result of the 2020 Presidential Election. An unprecedented chapter in US history, it was made all the more extraordinary by the President’s own role in inciting his fellow Americans to riot. The events in Washington D.C. served as an important reminder, not just for the USA but for democracies across the globe: democracy is not a given.  

Our 2020 review concluded with a warning about the dangers facing democracy in the UK. We observed that democratic norms are often worn away gradually rather than democracy being lost overnight. The US Capitol storming followed years of routine flouting of democratic norms, not just by the now former President Trump but also by the Republican Party he represented. Over the course of 2021, we have continued to see a worrying erosion of democratic ideals and safeguards by the current UK government.

The Police, Crime, Sentencing and Courts Bill is, and was, from its inception, a clear attempt to limit the right to protest; a fundamental right in any state that claims to be a liberal democracy. Whilst certain provisions contained within the Bill were recently voted down in the House of Lords, they could still be reinstated when the Bill returns to the House of Commons. Those provisions pave the way for the police to determine how much noise a would-be protester can make. They would enable people to be banned from protests because they were involved in a previous protest which could have caused – it need not actually have caused – ‘serious disruption’. And protesters who secure themselves to objects could be faced with long sentences, together with a fine. Existing laws are sufficient to address those rare instances where protest crosses over into violence; for the government, it is all about silencing dissent.

There is a wider agenda at play here. Last year, the government also published the Judicial Review and Courts Bill. Judicial review is the mechanism by which individuals can challenge, in the courts, the legality of the government’s conduct. It is not only an essential component in the checks and balances on executive power; it ensures that individuals can obtain remedy for errors by public bodies. One of the government’s own back-benchers broke ranks to condemn the Bill; David Davis MP described it as ‘a worrying assault on our legal system’ and said that it will ‘serve as a template for further attempts to curtail the working of the courts in the UK’. Indeed, originally, the government planned to increase the use of ‘ouster clauses’, which would prevent the courts from reviewing certain government actions. Given that this government is no stranger to being on the wrong side of the law, it is obvious why it would want to put itself beyond the law’s reach. Although it has put these plans on the backburner for now, the Bill would still deprive people in immigration and asylum cases from bringing judicial review in the High Court where permission to appeal has been refused.

The government has also been accused of undermining transparency by blocking freedom of information (FOI) requests. The not-for-profit global media platform, OpenDemocracy, notes that, according to the Cabinet Office’s own website, only 41 per cent of FOI requests were responded to fully in 2020. This is the lowest response rate since recording commenced in 2005. A recent OpenDemocracy investigation into the Cabinet Office’s “Clearing House” found that it actively monitors FOI requests from journalists and campaigners, and controls how government departments respond. The legality of this arrangement is in serious question. Transparency is a crucial component of democracy; without it, the task of holding the government to account becomes even more difficult.

The headlines over the course of 2021 would suggest that this government has much to hide. A fast-track “VIP lane” was uncovered, whereby the government awarded COVID-19 contracts to those with favourable connections to ministers and officials – an arrangement which was subsequently found to be unlawful. It was discovered that the Tory peer, Lord Brownlow, initially paid for the refurbishment of the Prime Minister’s official residence, which the Prime Minister claimed to know nothing about – WhatsApp messages later emerged, between Lord Brownlow and the Prime Minister, which showed that they had in fact discussed the refurbishment. As 2021 drew to a close, details of lockdown-breaking parties at Downing Street started to come to light. If the Prime Minister was to be taken at his word last year, he was ‘sickened’ at the thought these parties had taken place; we now know he attended a “bring your own booze” party in his own garden, with around 40 other people, as well as having a birthday party in the Cabinet Room itself. To cover the tracks, The Independent has reported that staff at No 10 were told to remove potentially incriminating evidence from their phones.

The damage being done to our democracy is worrying enough. But there is more to concern us. In December, the Justice Secretary, Dominic Raab, announced reforms to the Human Rights Act 1998. This is the same man who stated ‘I don’t support the Human Rights Act’. The Chief Executive of Amnesty International, Sacha Deshmukh, responded to the announcement by warning that ‘if ministers move ahead with plans to water down the Human Rights Act and override judgments with which they disagree, they risk aligning themselves with authoritarian regimes around the world’.

The government’s disdain for human rights has long been apparent. Since taking up the post of Home Secretary, Priti Patel has been exploring ways to prevent asylum seekers from reaching our shores. Several points should be noted here. Firstly, an asylum seeker is not required to seek refuge in the first country that they reach. Secondly, in order for an asylum seeker to qualify for refugee status, it must be shown that they are unable or unwilling to return to their country ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion’. Thirdly, Article 31 of the 1951 Refugee Convention (the “Refugee Convention”) states that simply entering the country illegally is not in itself sufficient grounds for penalising asylum seekers.

Apart from the UK’s legal obligations, which the country signed up to of its own volition when it became a signatory to the Refugee Convention, there is clearly a strong moral argument for providing refuge to people who find themselves in these circumstances. After all, people would not undertake the dangerous journey to the UK on a mere whim. Moreover, the policy of making it impossible for asylum seekers to arrive in the UK is not only dangerous, but it can prevent or delay the legally required determination to be made, i.e. the determination of whether or not the asylum seeker is legally entitled to refugee status and therefore our protection. The government seems to be making that determination before asylum seekers are able to present themselves. Some of those that do manage to make it here have been housed in deplorable conditions in disused military barracks; in a case brought last year, a judge held that housing asylum seekers in Napier barracks in Kent was unlawful on the basis that no rational person could have taken the view that the environment was adequate for their needs.

The government’s Nationality and Borders Bill has attracted criticism from the UN Refugee Agency (the “UNHCR”), and other organisations, for penalising asylum seekers, as well as enabling the government to strip a person of British citizenship without notice. Rossella Pagliuchi-Lor, UNHCR Representative to the UK, said that ‘[the] Bill would undermine, not promote, the … stated goal of improving protection for those at risk of persecution’. In a report commissioned by the charity Freedom from Torture, barristers took issue with the establishment of a two-tier asylum system which would disadvantage those that arrived in the UK by ‘irregular means’. They noted that ‘the basis for the attack on irregular arrival is that refugees should use safe legal routes. But there are no such safe legal routes. There is no such thing as a refugee visa’. Meanwhile, the Good Law Project has condemned the Bill as ‘racist’ based on legal advice obtained which states that non-white British citizens will be disproportionately impacted by the power to deprive an individual of citizenship.

We are seeing more and more of what the Prime Minister’s vision of “Global Britain” looks like. At the beginning of 2021, Tory MPs voted against a proposal to prevent the UK from entering into trade deals with countries that the High Court deems guilty of genocide. The government has continued to licence arms to Israel – £400 million’s worth over the last six years – despite its systematic oppression of the Palestinians. The government has failed the people of Afghanistan, who have been put at serious risk of having even their most basic human rights taken away. Despite being warned about the imminent fall of Kabul to the Taliban, both the Prime Minister and Foreign Secretary decided to take holidays.

The ordinary, working people of this country, too, are being failed by the government. The UK is currently in the midst of a cost-of-living crisis, with inflation rates at their highest for thirty years. Families are faced with the difficult choice of whether to keep the heating on or put food on the table. Yet, the government has announced tax hikes and axed the £20 uplift to Universal Credit. The UN Special Rapporteur on extreme poverty and human rights condemned the decision to axe the uplift as ‘unconscionable’ and ‘deliberately retrogressive’, as well as noting that it would likely breach the UK’s obligations under international law.

Reflecting on the actions of this government over the course of 2021 is a sobering experience, and the examples discussed in this blog piece are by no means exhaustive. The worrying trends we saw in 2020 continue. But there is still hope. Ironically, that hope came in the aftermath of the Owen Patterson scandal. Mr Patterson was a Tory MP whom was found to have broken the lobbying rules. Rather than accept the finding, the government whipped its own MPs into voting to block Mr Patterson’s suspension and to overhaul the standards watchdog that made the finding. Amidst the political furore, Mr Patterson resigned, triggering a by-election in his constituency, North Shropshire. North Shropshire, a Tory stronghold for nearly 200 years, swung massively from the Tories to the Liberal Democrats. What should we take from this? It seems that, even for those that traditionally support the government of the day, there are actions that the electorate will not stomach. It is to this hope – the hope that voters will make their voices heard – to which we must cling. And why we must do everything to stop our voices from being silenced.

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