From Opium to Oppression: A Short History of The Relationship between the UK and Hong Kong

Tomos Owen

Over the last few years the political situation in Hong Kong has deteriorated markedly. Whilst Hong Kong had gotten used to a long period of democracy and autonomy from China, the last few years have been fraught with social tension, culminating with the introduction of a new National Security Law. Following the introduction of this law, the UK has taken the bold step of offering a route to citizenship to over three million residents of Hong Kong who are eligible for British Nationals (Overseas) status. At the same time, the government has been on an offensive to characterise the channel crossing of 2500 refugees since the beginning of 2020 as a ‘crisis’. I believe in offering Hong Kong residents with BNO status citizenship and opening safe routes so we can welcome refugees and remove the need for channel crossings, but what has led the government to only offer the former? This only becomes apparent when you look at the long and spotted relationship between Britain and Hong Kong. 

To fully understand this relationship you have to go back to the 17th century when Hong Kong was still administered by an area of inland China. Hong Kong at the time was relatively barren and for the most part relied upon the trade of pearls, salt and fish. Unbeknown to them, a trading relationship was also forming between Britain and China that would change the course of history in Hong Kong even to this day. At the dawn of this new found relationship, trade between Britain and China was informal and often sporadic. Britain had no official presence around China and trade for the most part was conducted through the British East India Company. However, in the centuries that followed, trade between Britain and China began to increase exponentially. The British were able to supply precious metals and in return, the Chinese were able to supply luxury goods in the form of tea, silk and porcelain. This relationship was initially lucrative for both the British and the Chinese, but a significant issue began to arise. Whilst British supplies of precious metals were initially supplemented through their colonial expansion, domestically there was also a growing demand and soon the British were in a significant trade deficit with China. This was, of course, unsustainable and with the British unlikely to find a new source of precious metals, they were forced to find another product which could balance their trade with China. 

To the detriment of the Chinese, the product that eventually balanced the trade deficit between Britain and China was opium. The British were said to have discovered this trade by 1773 and fast became the leading suppliers of opium to China. This was greatly assisted by the growth of the British East India Company and the monopolies they were able to secure on opium production in areas of India, which ensured there was always a continuous supply. As opium became more popular, Chinese society inevitably began to suffer from the effects of addiction. This is said to have infiltrated the breadth of the class-system and by 1780 the emperor of the Qing dynasty published an edict against the drug. When this ban was in place, the British East India Company licensed private traders to carry opium from India to China rather than carry it themselves. In turn, private traders would trade the opium with Chinese smugglers for precious metals which they would then return to the British East India Company. Despite the Qing dynasty’s clear ban on opium, they continued to profit from this trade for several years as precious metals received from the importation of opium would invariably be used to buy more goods from China. However, no amount of profit could make up for the social instability caused by opium addiction and in 1796 importation and cultivation of the drug was outlawed entirely. 

Unsurprisingly, the British traders were not deterred by the ban on the importation of opium and with this trade becoming even more lucrative, the amount of opium flowing into China continued to increase. This was facilitated greatly by corrupt officials who could profit from the widespread distribution networks within mainland China. The early 19th century was marked by rising tension between Britain and China, not least because of their contrasting outlooks on how trade should be conducted. Britain began favouring open market policies with limited trading barriers, whereas China favoured heavy government intervention where they saw fit and enforced substantial taxes on luxury goods. For the second time in the tumultuous relationship, Britain and China found themselves in a situation that was entirely unsustainable. This reached boiling point in 1838 when the Chinese emperor began sentencing drug traffickers to death and seizing stockpiles of opium. Initially, Charles Elliott, the British Superintendent of Trade in China, ordered that any British ships carrying opium should flee and prepare for war. Whilst Elliott did ultimately concede on this and a large amount of opium was handed to China, the relations between the two countries were damaged beyond repair. 

Instead of aiming to reconcile with the Chinese, the British contingency only furthered their problems. In 1839 when two British sailors beat a resident of Hong Kong to death, Elliott refused to hand the culprits over, favouring his own trial. This was the final straw for China and the emperor imposed a ban on the sale of food to the British and prevented their docking at Macau, a key landing point for their ships. With a number of British ships running out of provisions, the British sent Royal Navy ships to China in a response to the rising tensions. When the Chinese continued to refuse to trade food with the British, Elliott gave them the ultimatum that if they continued any longer, the British ships would fire on the Chinese. This failed to deter China’s chosen course of action and, true to their word, the British fired and the Chinese responded in turn. Eventually the British drove the Chinese away, but this was just the first action in what became known as the First Opium War. The next few years saw continued bombardment from the British military ships and in 1841 they caught several key forts on the Pearl River. This forced the Chinese Admiralty into negotiations with the British and by the end of January 1841, it was agreed that Hong Kong would be handed to Britain. However, this did not end the war and over the next year the British continued to fight for compensation and reparations for the cost of the war and the loss in trade. It actually took until August 1842 when the Treaty of Nanking was signed which provided the British with these concessions, opened up free trade and, importantly, officially ceded Hong Kong to Britain.

The British rule of Hong Kong saw them rapidly modernise the island. During the 1800s a number of Christian missionaries founded schools and colleges, the first gas and electric companies were introduced and, in a sign of what the island would become, the first large scale bank was opened. Nevertheless, relations between Britain and China remained unstable, culminating in a Second Opium War in 1856-1860. The British were again victorious and the Chinese were forced to cede Kowloon and completely legalize the trade of opium. Despite a now firm presence in the area, the British sought even more territory and in 1898 took advantage of further Chinese military failure, this time at the hands of the Japanese, and agreed to a 99-year lease of 200 islands around Hong Kong known as the ‘New Territories’. Over the following years, the population in Hong Kong boomed and the island became a key port in the British Empire. 

The early 20th century was marked by fears of invasion during World War I, but this did not eventuate and Hong Kong prospered during the war through the introduction of an opium monopoly in 1914. In World War II, Hong Kong would not be so fortunate and when the Japanese attacked at the end of 1941 the British could do little to resist. China had agreed to counter any invasion, but by the time they planned an attack the British had already surrendered to the Japanese. The occupation by the Japanese was bold and by 1943 a new currency had been introduced, streets and parks had been renamed, and strict rules were enforced. The occupation also led to a mass exodus which saw the population decrease on the island by almost 1 million people before the end of the war. It took the dropping of the atomic bombs to end World War II and with it the Japanese withdrawal from Hong Kong. The British returned immediately and re-established themselves on the island. 

The next few decades were far more favourable for Hong Kong. The island went from being solely a trading port to a thriving manufacturing hub in its own right. Infrastructure began to spread across the island, including upwards with the introduction of more high rises. Whilst the 1960s saw some low wages and water shortages, by the 1970s the manufacturing industry had greatly boosted the economy leading to a far higher life expectancy and rate of literacy than had been seen previously. During this period the relationship between Britain and Hong Kong had also remained relatively stable, but the 1980s arguably marked the most defining decade of change since the First Opium War. In December 1984, the Sino-British Joint Declaration was signed by Margaret Thatcher, the then British Prime Minister, and Zhao Ziyang, who was China’s Premier at the time. This Declaration outlined that China would exercise their sovereignty over Hong Kong and that the British would hand back the island in July 1997. They also agreed that from 1997, a ‘one country, two systems’ approach would be implemented. This meant that while Hong Kong would officially become part of China again, the region would be allowed a fifty year period of continued capitalism and normality. 

By the time Hong Kong was handed back to China the economy on the island was booming and it had become the financial hub which it is known for today. The handover to China did see a number of changes on the island; the role of Chief Executive of Hong Kong was introduced and is chosen by a an Election Committee; the British honours systems and public holidays were replaced with local alternatives; secondary schools had to begin teaching in Cantonese; and most references to the Queen were removed and replaced with reference to the State. However, freedoms to which Hong Kong had become accustomed to remained, such as freedom of the press and the ability for Hong Kong to trade independently within international bodies like the World Trade Organisation. Regardless of the continuation of many freedoms, tensions inevitably arose between pro-Beijing and pro-democracy factions on the island. In 2012, the introduction of a new National Education curriculum sparked protests as many argued it was heavily pro-China and critical of Western nations. This included suggesting that multi-party nations did not function adequately and referring to China’s leading party as ‘progresive, selfless and united’. The Occupy Central with Love and Peace movement in 2013 also sought reform, desiring electoral changes to the way the Chief Executive of Hong Kong is elected to reflect true international standards of universal suffrage. Despite electoral reform being promised to the Hong Kong people in the Sino-British Joint Declaration, their protests were to no avail. 

In 2016, Hong Kong elected their first female Chief Executive, Carrie Lam. This was significant in its own right, but this election was even more so given the rise in pro-Beijing seats that had been won. The term of Carrie Lam has already been deeply entrenched with controversy and in 2019 she made international headlines when she attempted to introduce the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019. This Bill would have enabled Hong Kong to deport individuals accused of a crime to China to face trial. Many feared that this could be used maliciously and lead to the extradition of political prisoners. It also would have blurred the lines between the legal systems of Hong Kong and China, drawing the two closer together. To the relief of those protesting, their pressure led to the withdrawal of the Bill, although this would not end the tension that was almost at boiling point. This boiling point was arguably reached this year when Hong Kong introduced a new National Security Law. This law criminalised the acts of succession, subversion, terrorism and collusion with foreign or external forces, and since it’s introduction in June this law has been applied both frequently and broadly to fuel the agenda of pro-China interests. 

To this day, protests are still ongoing and clashes between pro-democracy activists and the police in Hong Kong occur daily. Notable pro-democracy activists, such as Nathan Law and Simon Cheng, have been forced to flee Hong Kong and seek asylum in other nations around the globe out of fear for their safety. The UK government has condemned the decisions made by Carrie Lam in introducing the National Security Law and the US government has even gone to the extent of imposing financial sanctions on the Chief Executive. The UK government should follow suit and adopt a far tougher approach, particularly as direct signatories of the Sino-British Joint Declaration which is clearly eroding. It is unclear what the next chapter for Hong Kong will hold, but it is clear that they will be far closer to China before the Declaration expires in 2047 and that Britain has lost any influence over the island. Unfortunately, the offer of a route for citizenship for those in Hong Kong that hold a BNO passport is a blunt instrument and in any case, the likelihood is that the majority of those will not take up the offer. Nevertheless, Britain should not disregard the long history they share with Hong Kong, however questionable, and should now act to ensure fundamental freedoms are respected. 

The urgent need for self-reflection: the UK’s treatment of refugees and migrants

Robert Wilcox

This is the strangers’ case
And this your mountainish inhumanity

From the play, Sir Thomas More

In 1517, on what became known as Evil May Day, an anti-immigration riot flared up in London. Resentment towards immigrants had been building for some time. Then, a fortnight prior to the riot, a broker named John Lincoln persuaded a preacher named Dr Bell (possibly Beal) to deliver a sermon in which he blamed immigrants for the abject poverty suffered by the locals, accusing the former of taking the latter’s jobs and depriving them of their livelihoods. He called upon the crowd “to cherish and defend themselves, and to hurt and grieve aliens for the common weal”. Several assaults on immigrants occurred in the weeks that followed. In the evening of 30 April, a crowd of around a thousand young men gathered who, after freeing those jailed for assaults on immigrants, proceeded to attack immigrants, their homes and their places of business.

Five hundred years on, the ever-present undercurrents of paranoia and xenophobia have, once again, risen to the surface of political discourse. It is far from unusual to see media coverage of demagogues inciting resentment of foreign nationals living in the UK. These xenophobes embrace a particularly cunning form of sophistry; the effectiveness of their rhetoric lies in its simplicity. It exploits the very real economic inequality that exists in this country to construct a misleading and, ultimately, false narrative. Immigrants become the convenient scapegoat for successive governments’ failure to address economic inequality and people’s dissatisfaction with their own lot in life. This is usually accompanied by the invocation of pejorative language (for example, Nigel Farage’s recent description of a group of six adults and children landing on a Kent beach in a dingy as a “shocking invasion”), which seeks to emphasise the ‘otherness’ of these people, even to the point of dehumanising them.

It is precisely their humanity, however, that should always be at the forefront of our minds, despite the best efforts of the xenophobes. No one would leave their own country on a mere whim, risking their own lives, as well as those of their family, to attempt the perilous journey across open waters in a craft that is barely, if at all, sea-worthy. That is obvious. Why, then, are they so desperate to reach the UK? It is important here to distinguish between refugees and migrants because there are crucial differences between the two groups – a distinction that politicians and the media alike often fail to draw when boats carrying people arrive on our shores.

The 1951 Refugee Convention defines a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”. They are fleeing situations which most of us can scarcely imagine finding ourselves in. As such, they have a right to seek asylum under international law. Failure by a state to grant asylum can, as the United Nations High Commissioner for Refugees observes, have “potentially deadly consequences”. Therefore, in turning refugees away, the UK is not only breaching its own international legal obligations but risking lives. How can we, as a country, possibly have any moral standing on the international stage if we refuse assistance to those in desperate need of our aid? All the more disturbing is the fact that, in some instances, they are fleeing conflicts in which the UK has itself played a hand. There is a rank hypocrisy to dropping bombs on countries but refusing asylum to the innocent civilians who are caught up in the aftermath.    

Migrants, on the other hand, are individuals whose lives are not directly threatened in their own countries but who seek to better their lives elsewhere. The legal obligations imposed on states in respect of refugees do not extend to migrants, but is that any reason to treat them as anything less than human beings? This is where the xenophobe sees their opportunity, claiming that migrants are a drain on public services and are responsible for nationals being out of work. It is nauseating to think that such arguments could seemingly justify turning away boats, some of which contain children, and deliberately leaving those on board to the mercy of the seas.

In any event, such arguments are either misleading or completely false. Various studies have demonstrated that immigration has a net benefit for the UK economy, with migrants contributing more to the public purse than UK citizens. They also undertake work that UK citizens simply will not do; the agricultural and construction sectors, for example, are dependent upon migrant labour. As to the idea of taking people’s jobs, it is worth remembering that migrants would have to go through the same application process as UK citizens would.

It is roughly at this point that the xenophobe will resort to the argument that migrants have irreversibly changed the character of our local communities. They do not consider the possibility that people from different backgrounds and cultures might enrich our communities. Nor do they consider the possibility that we, as UK citizens, have failed to preserve, or have turned away from, our own heritage. Some years ago, a woman in a shop was told to stop speaking “foreign muck” to her child. The shop was in Wales and the language that the woman was speaking was Welsh. This example serves to illustrate what xenophobia really is. It is an attitude that arises out of, and is perpetuated by, fear and ignorance, both of which manifest as anger. The xenophobe perceives the foreigner as something ‘other’ and anything different, in their view, is an existential threat to themselves.

It is the populist sentiments of the xenophobe which are currently influencing UK government policy towards refugees and migrants. No one is disputing the need for a fair and effective immigration policy. But there is a more urgent need to treat refugees and migrants as exactly what they are: human beings like us. Instead, we have witnessed such policies as the ‘go home or face arrest’ vans which were driven around areas with a significant immigrant population, and the ‘hostile environment’, a combination of measures designed to deter people from coming to the UK and essentially force out those who are already here by denying them access to essential services. In the last few days, it has been revealed that the Home Secretary, Priti Patel, is intending to deploy the Royal Navy to prevent boats containing refugees and migrants from crossing the English Channel. This, apparently, is the best that this country can do for other members of the human race: push them back out to sea.

The time for us all to engage in much-needed self-reflection is long overdue. In the play, Sir Thomas More, written and revised by a group of playwrights some decades after Evil May Day (one of whom is widely believed to be William Shakespeare), the eponymous More confronts the mob, condemning them for their cruelty and violence. He makes an impassioned speech, asking them to consider what they would do if they found themselves in the same situation as the immigrants and “must needs be strangers”? How would they feel if they found themselves in “a nation of such barbarous temper / [t]hat breaking out in hideous violence / would not afford [them] an abode on earth”? Why should they, simply because they are in a country different to that of their birth, be spurned “like dogs” and treated “as if that God / [o]wed not nor made not you”? This is, fundamentally, an appeal to them to reflect on their shared humanity. And that is the crux of the matter: in failing to challenge the inhumane treatment of refugees and migrants, we dehumanise ourselves too.

The UK’s ‘Magnitsky Laws’: an effective deterrent against human rights abuses or simply posturing?

Tomos Owen

Earlier this month, Foreign Secretary, Dominic Raab, announced that the UK would be sanctioning 49 individuals and groups accused of gross human rights abuses. This was the first time the UK had individually imposed sanctions for human rights abuses and in Dominic Raab’s own words, ‘“sent a clear message” in regard to the UK government’s position on these actions. Rather than introducing new legislation altogether, the powers to impose sanctions through the so-called ‘Magnitsky Laws’ actually stem from amendments to two existing pieces of legislation. The Criminal Finances Act 2017 amends the Proceeds of Crime Act 2002 to include gross human rights violations or abuses under their definition of ‘unlawful conduct’. This allows the UK government to freeze the assets of human rights abusers in the UK. An amendment was also made to the Sanctions and Anti-Money Laundering Bill (now the Sanctions and Anti-Money Laundering Act 2018), which allows the UK government to impose sanctions on individuals and groups on the basis of gross human rights violations. This latter amendment includes imposing travel bans on human rights abusers. 

These types of sanctions are not without precedent and have been in use in other countries for a number of years. The first Magnitsky sanctions originated in the United States in 2012 following the death of Sergei Magnitsky, a Russian lawyer who uncovered a massive tax-fraud scheme in his country. This involved hundreds of millions of dollars being fraudulently siphoned off from a private company, Hermitage Capital Management, and into the pockets of officials. Magnitsky reported that this had been possible because the police raided the company following an unjustified accusation of tax evasion, enabling them to confiscate material and pass it onto organised criminals. The criminals then took over three of Hermitage’s Russian companies, made them look unprofitable and fraudulently claimed back $230m in tax paid to the Russian state. Considering that this money belonged to the Russian state you would be forgiven for thinking that Magnitsky was hailed a hero. However, the result was far different and rather than those guilty being brought to justice, a criminal case was actually brought against Magnitsky himself. In 2008, he was arrested and held in poor conditions without trial and without visits from his family or any access to medical treatment. In November 2009, having been beaten and tortured, he died at the hands of officials. This led to the United States to create the Magnitsky Act which enabled them to punish human rights abusers, including freezing their assets and banning them from entering the US.

The Magnitsky laws in the UK have so far been used to sanction a range of human rights abusers. First, and foremost, the UK government used their first set of sanctions to punish those in Russia responsible for the death of Sergei Magnitsky. This was completely justified, although equally symbolic given that these types of sanctions originated as a response to his death. The others sanctioned by the UK government perhaps give a better indication of where the UK government believes the worst human rights abuses have been, or are currently being, committed around the world. Those which also make the list include 20 Saudi nationals responsible for the muder of journalist Jamal Khashoggi, and a top Myanmar military commander responsible for the genocide of the Rohingya Muslim population in the country. Interestingly, the sanctions also included two North Korean bodies, the Ministry of State Security Bureau 7 and the Ministry of People’s Security Correctional Bureau, which are responsible for running prison camps where torture and murder are common practices. 

The first steps taken by the UK government are positive and it is clear that those sanctioned were wholly deserving of punishment. Overall, the ability for the UK to impose these types of sanctions offers a new and welcome boost in the fight to uphold human rights globally. Whereas previously the UK would have been more inclined to work with the EU or rely on the UN to introduce human rights sanctions focused on geographical locations, the powers under the Magnitsky Laws allows the government to take a far more targeted approach. That is not to say that the former approach is obsolete and many of the sanctions that the UK were part of through the EU have since been made UK regulations in their own right. However, rather than having to formulate separate sets of regulations for geographical human rights sanctions moving forward, the UK can now move with speed to simply target those responsible through existing legislation. There is also growing evidence that imposing geographical sanctions is ineffective and rather than deter the administrations that are guilty of human rights abuses, they create more hardship for the poorest in those nations. The UN Secretary General has called for blanket sanctions to be lifted because they are exacerbating humanitarian disasters, especially during COVID-19. In a time where human rights sanctions are essential, the Magnitsky Laws provide a fairer alternative that only punish those responsible for abuses and, as these sanctions target the personal wealth of the abusers, they are likely to be a far greater deterrent.  

Whilst the initial steps taken by the UK government are positive, it is too early to judge whether their use of the Magnitsky Laws will be an effective tool against human rights abusers. There will be much scrutiny on who they choose to impose sanction on in the future, but also more importantly, who they choose not to impose sanctions on. To be an effective tool in the fight for human rights globally, sanctions need to be imposed on human rights abusers from countries that are both allies and adversaries. If we are only to impose sanctions on countries less favoured, the Magnitsky Laws will fast become a political tool rather than a serious response to human rights abuses. Unfortunately, the Magnitsky Laws provide clear scope for this abuse because there appears to be little oversight on the decision making process for who should be sanctioned. We are reliant on the Foreign Office’s equitable use of these powers and with the UK still attempting to make several post-Brexit trade deals, it is foreseeable that they may not want to impose human rights sanctions on some individuals for fear of harming negotiations. 

When considering the list of those already sanctioned, there are certainly some glaring omissions. Hong Kong with their new National Security Law is a clear first example. This law is just the latest act in a series of moves by Hong Kong which aims to limit free speech, freedom of the press and freedom of association. The National Security Law hands over large amounts of power to China and introduces a number of disproportionate measures, such as deeming several seemingly minor offences as terrorism, a crime which can carry a maximum sentence of life in prison. Even the simple act of publicly supporting independence in Hong Kong could now lead to arrest. One can only imagine the uproar if this was the case in the UK and those calling for Scottish independence were in the same position. This comparison with the UK highlights just how oppressive the regime of Hong Kong has become and there is a very strong case for imposing Magnitsky sanctions on those responsible. There is an equally strong case for imposing sanctions on those in China responsible for the apparent and ongoing genocide of Uighur Muslims in Xinjiang. There is a growing amount of evidence that the Uighur population is being subject to mass incarceration, forced labour, forced sterilisation, and even the forced removal of Uighur children from their families. The seriousness of the situation was demonstrated most recently through the verified video of Uighur Muslims being taken off trains while bound and blindfolded. Dominic Raab has already noted that these actions amount to “gross, egregious human rights abuses”, seemingly confirming that they reach the threshold where Magnitsky sanctions could be imposed. It is too early to say whether the UK government is now preparing to impose sanctions for these abuses or if they will be omitted altogether, but it is certain that the next announcement of sanctions is eagerly awaited. 

There are two final points of note when discussing the Magnitsky sanctions. The first was the astounding news that Defence Minister, Ben Wallace, called the Saudi regime only a few days after the announced sanctions to apologise. If true, this seriously undermines the position of the UK government as being tough on human rights abusers and clearly points towards the sanctions being politically motivated. There is clearly no room for apologies when taking strong action against those guilty of human rights abuses and this is the case whether they are nationals of our allies or not. The second, and perhaps a more clear example of how the sanctions are simply posturing, was the announcement by the International Trade Secretary, Liz Truss, that the UK would resume arms sales to Saudi Arabia. We have written on this extensively so it only suffices to say that this decision was made despite the findings that arms provided by the UK may have been used in the past to commit violations of international humanitarian law in Yemen. This is a clear cut case of the UK government wanting to have their cake and eat it too. 

Fighting human rights abuses will never be a part-time affair and the government must decide whether they are willing to risk losing revenue from arms exports in the interest of humanity. Until this is done, a question mark will always be over the UK’s Magnitsky Laws and the motivation for using them. 

Why the UK government’s attitude towards Russian interference is so concerning

Robert Wilcox

“One of the greatest advantages of the totalitarian elites of the twenties and thirties was to turn any statement of fact into a question of motive”.

Hannah Arendt, On the Origins of Totalitarianism

The government failed to take the necessary action to safeguard our democracy from Russian interference. That was the damning conclusion drawn by the Parliamentary Intelligence and Security Committee (the “ISC”) in its report, which was finally released on Tuesday following a nine-month delay. According to the report, “the Government had badly underestimated the Russian threat and the response it required”. During Prime Ministers’ Questions on Wednesday, however, Boris Johnson dismissed criticism of the Government’s failure to act, declaring that such criticism was “motivated by a desire to undermine the referendum on the European Union that took place in 2016”.

It is worth revisiting how long it has taken for us to get here. The report itself was sent to the Prime Minister on 17 October 2019. It normally takes a maximum of 10 days for such reports to be signed off for publication. Johnson did not see fit to make the report public in the run-up to the General Election last December, despite what it may have told the electorate about the sort of influence that Moscow might attempt to exert over the process. He did, however, approve the report for publication on 13 December 2019, the day after the General Election.

Nevertheless, the report was still not made public. Johnson said that it would not be released until the ISC was reconvened; yet it is for the Prime Minister to nominate its membership. The ISC finally reconvened this month – the longest period the ISC has gone without sitting since its formation in 1994. But the controversy did not end there; the government drew criticism from Tory and opposition MPs alike for its attempt to shoehorn Chris Grayling, the former Secretary of State for Transport, into the role of Chair of the ISC. His particularly infamous track record while in government has led to the nickname “Failing Grayling”. Although the government denied that it was attempting to influence the appointment, which it is not legally entitled to do under section 1(6) of the Justice and Security Act 2013, the whip was removed from Tory MP, Dr Julian Lewis, because he voted with opposition committee members to secure the appointment for himself. Lewis, the only current Tory MP who has previously sat on the ISC, received a text message shortly before the vote, asking that he confirm that he would be voting for Johnson’s preferred candidate. He did not respond as he felt it to be an “improper request”. With the Chair of the ISC in place, the report was at last published on 21 July 2020.

The findings contained in the report are deeply troubling. It notes that “Russia considers the UK one of its top Western intelligence targets”. It then goes on to describe how Russia is capable of orchestrating highly sophisticated cyber-attacks against states, its extensive use of disinformation campaigns, the Russian money circulating within the UK’s political system and beyond (including academia, charities and cultural organisations), and the business connections that exist between members of the British establishment and Russia or Russian companies (the latter, to all intents and purposes, often being arms of the Russian state). Alarming though this is, much of it has long been known or suspected. What is really concerning is the ISC’s finding that our government has actively avoided taking the necessary action to identify possible Russian interference and to respond accordingly.  

Despite “credible open source commentary suggesting that Russia undertook influence campaigns in relation to the Scottish independence referendum in 2014”, the report states that the government has not “sought evidence of successful interference in UK democratic processes or any activity that has had a material impact on an election”. This may be juxtaposed to the US response to allegations of Russian interference into the 2016 presidential election; a summary of an intelligence community assessment into those allegations was made available to the public within two months of the election. In the the case of the EU referendum, for example, no subsequent assessment of potential Russian interference was made. The report notes that “even if the conclusion of any such assessment were that there was minimal interference, this would nonetheless represent a helpful reassurance to the public that the UK’s democratic processes had remained relatively safe”.

The government’s lack of concern for Russian interference in our democracy is nothing short of scandalous. The delay in releasing the report, which itself states that Russian interference poses an “immediate and urgent threat to our national security”, has meant that actions to be taken on the back of the ISC’s recommendations have been delayed, and that the public went to the ballot box in December without the information contained in the report. Indeed, the report not only describes the means of interference that Russian has at its disposal but, more than that, it shows that our government has failed to perform what is probably the most basic function of any government: to do all it can to preserve the integrity of the state in the face of foreign interference. One does not need to invoke the nuances of political theory to recognise this; if a government does not protect us from foreign interference, we are open to manipulation, without our even being aware of it, and, ultimately, the danger is that we become nothing more than a vassal state. It is enough to simply sow the seeds of distrust in our politicians and political institutions, giving rise to a sense of indifference amongst the populace.

Perhaps, most worryingly of all, is that in responding to the backlash following the publication of this report, our government has betrayed its own authoritarianism. Johnson has rejected calls for an inquiry into potential Russian interference in the EU referendum. He has suggested that it is simply another attempt to cast doubt over the Brexit vote. It seems that this precisely the reason for the government’s inaction. It is worth looking at closely. Johnson is not only opposed to certain conclusions being drawn from information that is available; he does not want the public to have any access to information which might lead them to draw certain conclusions. Such an inquiry might find evidence of interference and, then again, it might not. But the electorate should be informed about the potential means that Moscow might use to attempt to influence us. What is really happening here is our Prime Minister, the person who has the greatest responsibility to our democracy, has taken it upon himself to decide which of our country’s democratic exercises can be the subject of scrutiny. Johnson is essentially deciding what it is that we should and should not know. When a government controls information in this way, it tends to be a sure sign that a country is leaving democracy behind.

Sheer coincidence or simply cronyism?

Robert Wilcox

There is nothing new about political favours. Party leaders will often nominate loyal supporters for peerages, and key allies tend to find their way onto government or opposition front benches whether they are qualified for their office or not. Such appointments seem to have attained the status of political convention and are borne with a certain acceptance. That acceptance, however, has it limits. And in the last couple of months alone, we have seen two particularly notable examples of cronyism which bring the integrity of the government into serious question.

It was recently reported that the Cabinet Office, which is run by Michael Gove, awarded an £840,000 contract to a company by the name of Public First. This contract is for research into the public’s attitude towards government policies, including the effectiveness of the government’s COVID-19 messaging. Pretty innocuous one might think, even sensible given the importance of effective communication at this time. But there is more. The owners of Public First, James Frayne and Rachel Wolf, are long-time collaborators of Gove and the Prime Minister’s chief political adviser, Dominic Cummings. Frayne served as Gove’s director of communications at the same time Cummings was working as Gove’s chief political adviser. His collaboration with Cummings on political campaigns dates back two decades. As for Wolf, she co-authored the Tory Party’s 2019 election manifesto.

It could merely be a coincidence. Perhaps Public First is the best qualified company to carry out the work, at the lowest cost to the taxpayer. But there was no opportunity to test that hypothesis, as the government chose not to subject the contract to a competitive tendering process. This would have allowed other companies to bid for the contract. Why did the government not do so? According to the Cabinet Office, the COVID-19 emergency meant that the work needed to be carried out urgently. This seems plausible. As always, however, the devil is in the detail. On 18 March, Public First was paid £58,000 in relation to “Gov Comms EU Exit Prog” work. A further payment of £75,000 for “Insight and Evaluation” work was made on 20 March. On 2 April, £42,000 was paid for work relating to “EU Exit Comms”. It was not until 27 May, over two months into lockdown, that Public First was paid for work relating to COVID-19, in the sum of £78,187.07. This does not convey a sense of urgency. The Cabinet Office has since claimed that the references to Brexit communications were actually references to COVID-19, and were the result of administrative errors. There is such a thing as too many coincidences.

The second example, which came to light last month, was the approval given by the Housing Secretary, Robert Jenrick, to a £1bn housing development plan by former press tycoon, Richard Desmond. Jenrick overruled the decision taken by the government’s planning inspectorate, which felt that the development did not deliver enough affordable housing for London’s poorest borough. Jenrick’s timely intervention not only ensured that Desmond got the planning permission but helped Desmond to avoid a £45m charge. That money would have been used by the local council to fund educational and health projects in the community.

Apparently, the familiar spectre of coincidence made an appearance here also. Two months prior to Jenrick’s intervention, he attended a fundraising dinner at which he was sat with Desmond and other property developers. Desmond showed Jenrick a promotional video of the development and, following that event, sent a number of text messages to Jenrick, emphasising the need for a speedy decision to be taken. A mere two weeks following Jenrick’s grant of planning permission, Desmond donated £12,000 to the Tory Party. If it is indeed a coincidence, it is a remarkable one – not because of how completely causally unrelated these events seem to be but because, to the impartial observer, they would seem so completely causally related. It was not until the details of this coincidence were made public, however, that Jenrick admitted that his decision would be viewed as bias by someone acquainted with the facts and that it should, therefore, be quashed. Another coincidence perhaps?

When government ministers use their positions to line the pockets of their friends and allies, it undermines our democracy. That is why it is imperative that they not only do the right thing but are seen to be doing the right thing. The time is long overdue for this government to realise that with power comes responsibility. Their failure to be open and frank about these arrangements speaks volumes. There is nothing new about cronyism. But normally, if a politician hasn’t been forthcoming about such arrangements and there is a hint of suspicion, they at least acknowledge their position is no longer tenable and promptly resign when the facts do come to light. The times that we live in are far from normal.

Climate change is killing us. Can human rights law provide protection?

Tomos Owen

Climate change is undoubtedly killing us. Climate change itself is not unprecedented and there are records of at least five ice ages in Earth’s history to attest to this. However, when we talk about contemporary climate change we are referring to the rapid climate change caused by the actions of mankind, which is certainly a first. The famous hockey stick graph demonstrating temperature rise in the last 1000 years shows just how rapid this change has been. The rapidity of this change has left us with little time to react and the effects of climate change are now seriously impacting our lives. Our continued overreliance on aspects of industry and travel that led to these changes in the first place only makes the future more bleak. This raises the question, does human rights law place obligations on states to protect us from the effects of climate change? If so, reframing the climate change narrative by emphasising it as a human rights issue may well be a greater catalyst for change at a national level in comparison to other approaches, such as global climate treaties like the Kyoto Protocol, which have failed in the past.

The relationship between human rights and climate change in the UK

The UK is significantly affected by climate change. Temperatures are rising; the ten hottest years on record have all been recorded since 2002. Rainfall is increasing; seven out of the ten wettest years have all been recorded since 1998. Equally, with global temperatures continuing to increase, sea-level rise will threaten many coastal regions across the country. The implications of these changes for those living in the UK are already severe. Last year alone, Public Health England estimated that summer heatwaves led to almost 900 excess deaths. Comparable heatwaves are expected every other year by 2050 and given that human rights law affords us the right to life this poses a significant threat. 

Having touched on the right to life in relation to a discussion on terrorism previously, it suffices only to reiterate that the UK not only has a duty to protect the right to life through the European Convention on Human Rights but must also take positive measures to do so. In this context, the right to life appears to create obligations on the part of the UK government to mitigate some of the effects of climate change. However, this has not yet been recognised and whether a state could ever be held in violation of human rights law for failing to tackle the impacts of climate change remains to be seen. This is in part due to the sheer amount of resources that would be required to mitigate the effects of climate change, making it likely that the European Court of Human Rights would judge the required action beyond what could be reasonably expected. There is also very little precedent for the scale of action that this would require. Any case remotely comparable relates to isolated incidents which are relatively small scale. One example is the ECtHR case of Budayeva and others v. Russia, where the Russian government was found to have violated the right to life for failing to take preventative measures to mudslides which resulted in several deaths in 2000. It remains difficult to see how this could translate into action against a state for failing to deal with the effects of climate change across an entire country.  

Whereas the effects of climate change are for the most part out of control of the UK government, invoking human rights law as protection against the causes of climate change may actually prove more fruitful. The causes of climate change pose an equal, although arguably more immediate, threat to public health and safety. Globally our reliance on greenhouse gases has led to increased temperatures, but this reliance has also had a devastating effect on air quality at a local level. Public Health England has marked air pollution as the ‘greatest environmental threat to health in the UK’ and estimates that it is now causing between 28,000 and 36,000 deaths per year in the UK. This is an astounding figure and whereas climate change globally has been caused by numerous states, local air quality is invariably caused by national emissions. In the UK, this means that the government has far more control in tackling this issue through their own emission targets and investment in sources of renewable energy. It also means the UK government is more easily established as a wrongdoer for failing to take bold action.

It is possible that we could soon see litigation invoking human rights law against the UK government in an attempt to tackle the causes of climate change. Last year, the landmark Supreme Court of the Netherlands case of Urgenda Foundation v State of the Netherlands found that, by failing to decrease emissions by at least 25% by the end of 2020, the Dutch government were acting unlawfully and in contravention of the duty of care under Article 2 and 8 of the ECHR. This marks one of the first occasions where human rights law has been used to invoke action on climate change and is likely to have far reaching ramifications. The UN High Commissioner for Human Rights said that the Urgenda ruling, “provides a clear path forward for concerned individuals in Europe – and around the world – to undertake climate litigation in order to protect human rights.” It therefore now only seems a matter of time before similar cases are brought against the government in the UK. This appears to be a much more promising route than bringing human rights cases against the government in relation to the effects of climate change already felt in the UK. Interestingly, this approach also has the ability to be a far more effective response to climate change than those we have seen previously. Whereas emissions targets set at global climate change treaties are invariably missed due to a lack of enforceability, if a government can be held to account in their domestic courts as per Urgenda we are likely to see much more positive action. 

UK to resume selling arms to Saudi Arabia despite war crimes in Yemen

Robert Wilcox

In a deeply disturbing move, the UK government announced yesterday that it would continue to sell arms to Saudi Arabia despite its own findings that UK arms may have been used to commit violations of international humanitarian law (IHL) in Yemen. 

In an earlier article (see here), I discussed the scale of the humanitarian crisis that is currently facing Yemen (the world’s largest according to the UN), and how the UK has not only aided and abetted Saudi Arabia in causing widespread destruction but has, in fact, enabled it through the sale of arms. Quite simply, without military assistance from the UK, the Saudi-led coalition’s campaign in Yemen would not be possible. 

The UK government’s decision comes on the back of a court-ordered review into the granting of military export licences to Saudi Arabia. Back in June 2019, the Court of Appeal found that the UK government had decided, or implemented a policy change to the effect, “that there would be no assessment of past violation of IHL” in determining whether export licences for the sale of arms should be granted. This rendered such grants “irrational and therefore unlawful”. The Court concluded that the grant of military export licences should be suspended, pending review. Following the ruling, and in response to an urgent question in the House of Commons, the UK government admitted that it had breached the Court’s suspension order no less than three times by granting further export licences. 

Since then, the UK government has completed its review. According to a statement from the International Trade Secretary, Liz Truss, although the review had identified “credible incidents of concern” in relation to potential breaches of IHL, it was the view of the UK government that these were “isolated incidents”. It beggars belief how five years of air strikes, which have targeted refugee camps, weddings, funerals, schools, hospitals, markets and public transport, leading to the deaths of thousands of civilians, can be described as “isolated incidents”. The statement attempts to explain away these war crimes, by stating that “the incidents which have been assessed to be possible violations of IHL occurred at different times, in different circumstances and for different reasons”. What sort of reassurance is that? Who is to say that those circumstances and reasons, whatever they were, won’t arise again? And, in any event, it misses the point entirely. IHL exists precisely to preserve some degree of humanity when all else has descended into the hellish conditions of war. Except as provided in Article 5 to the Fourth Geneva Convention, the application of which would not stretch to the treatment of civilians, no state can suspend its obligations under IHL, whatever the circumstances and for whatever reasons. 

Our government, it seems, is quite content for the UK to bloody its hands again. While 80% of Yemenis are in need of humanitarian assistance (half of whom are children), the best idea that our government can come up with is to sell more arms to belligerents. Please write to your MP now, imploring them to raise this issue in Parliament and demand a change in our foreign policy with respect to Yemen; innocent lives depend on it. 

Our elective dictatorship and the threat it poses

Robert Wilcox

Before mass leaders seize the power to fit reality to their lies, their propaganda is marked by its extreme contempt for facts as such, for in their opinion fact depends entirely on the power of man who can fabricate it”.

Hannah Arendt, On the Origins of Totalitarianism 

It seems to me that we find ourselves on a very slippery slope, and are further along that slope than we are perhaps willing to admit to ourselves. Arendt’s words have an uncomfortable resonance almost seventy years on from their publication. It is no coincidence that Oxford Dictionaries declared “post-truth” to be their international word of the year back in 2016. The adjective is defined as “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief”. It aptly describes 2016’s EU referendum and US presidential election. But what was so different about those events and the campaigns leading up to them? Why did the usage of “post-truth” increase by 2,000% when compared to 2015? The answer lies in the sheer number of patently false claims advanced by the politicians involved. Political discourse, rather than being a debate over particular values in relation to a largely agreed set of facts, was now a stand-off between fact versus fiction; ideological differences alone determined whether a person would acknowledge a statement as true or false, not the evidence underlying it.

What has become clear in the years since is that, rather than being “one-offs”, we have indeed entered a post-truth era. The implications should be extremely concerning to anyone who regards themselves as a proponent of democracy. What certain politicians took from the referendum result was that they could sidestep responsibility, spread misinformation with impunity and, when confronted with evidence which contradicts their position, simply invoke the phrase “fake news” so as to close off inconvenient lines of inquiry completely. All too frequently these days legitimate questions are dodged and criticism treated with an almost traitorous suspicion; politicians seem to react with incredulity that they should be challenged at all.  

The worrying truth is that our current government displays all of these characteristics. This is, perhaps, unsurprising given that its genesis can be traced to the outcome of the 2016 EU referendum. Although it was not until July 2019 that Boris Johnson took over the role of Prime Minister, this was simply the watershed moment of growing pressure from hard-line Brexiteers in the intervening years. Johnson, who has long had a reputation for being a serial liar (he has been sacked twice for doing so), undertook an extensive Cabinet reshuffle. 

Among those Johnson appointed to Government posts were Dominic Raab and Priti Patel, neither of whom are strangers to falsehood and dishonesty. For example, Raab lied when he claimed that he had warned of a no-deal Brexit during the EU referendum campaign. He also dismissed the claim that he supported privatisation of the NHS as “a ludicrous assertion” when interviewed on BBC Radio 4, despite having co-authored a pamphlet which specifically set out plans for selling off hospitals to the private sector. As for Patel, she was forced to quit her role as international development secretary in Theresa May’s government when it was discovered she had undisclosed meetings with top Israeli officials. Occupying the Great Offices of State are people who cannot face the facts and are uncomfortable with being open and transparent, even with their colleagues.

Faced with the problem of Parliamentary opposition to a no-deal Brexit, Johnson took the decision to prorogue Parliament, preventing it from sitting for almost five weeks. He suggested that this was normal practice due to the work required in the run-up to a Queen’s Speech. On the contrary, Parliament is usually prorogued for less than a week. It took the intervention of the Supreme Court to put a stop to this constitutional coup. In R (on the application of Miller) v The Prime Minister [2019] UKSC 41, it was held that prorogation “had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account”. Crucially, Johnson had failed to disclose any reasons at all to justify the unprecedented length of the prorogation. For the purpose of determining whether his actions were unlawful, it was unnecessary for the Court to speculate as to what reasons Johnson may have had. To the fair-minded observer, however, his reasons were obvious; he wanted to avoid Parliamentary scrutiny and get Brexit done his way. He went so far as to fracture the constitution in order to achieve this and did not even feel obliged to give a reason to justify his actions. 

Unable to legally bypass Parliament, Johnson instead called for a General Election. One could say that what followed was only too predictable given what we’d already seen from this government. 88% of Tory electoral ads on Facebook were found to be misleading. An ITV interview with Sir Keir Starmer was edited so that it appeared he had no answers to give on the question of Labour’s Brexit position. The Conservative Campaign Headquarters press office changed the name of its Twitter account from “CCHQPress” to “factcheckUK”. This forced Twitter itself to intervene, issuing a statement saying that the change was an attempt to mislead the public. When Raab was interviewed on the matter, his response was “no one gives a toss about the social media cut and thrust”. Why should we give a toss? Because of the simple fact we are being lied to by our government. 

The people leading this country are content then to not only peddle misinformation but to knowingly do so. They also regard it as entirely acceptable to without information from the public that is essential to our functioning as a democracy. In the run-up to the General Election, Johnson refused to release the Parliamentary report into alleged Russian interference in the UK. This report might tell us about the possible influence Moscow exerted on the outcome of the EU referendum. It might also tell us who benefits from political funding from Russian oligarchs. It is obviously a document which the public should have had sight of before heading to the ballot box. As yet, the report still hasn’t seen the light of day. 

Its response to the COVID-19 pandemic represents the height of this government’s refusal to accept the facts before it. The Dominic Cummings scandal was a case in point. The government attempted to dismiss the story altogether, but even this proverbial pill was too much for the public to swallow.  What was particularly interesting about the scandal was the attempt by the government and some, but not all, Tory MPs to frame Cummings’ actions in such a way that whether he broke the lockdown rules or not was a matter of opinion rather than a question of fact. It was, they said, simply an exercise of judgement, something about which people could naturally and legitimately disagree, while simultaneously pushing the emotionally-infused rhetoric that it is what any responsible father would have done having regard to his family’s interests. 

Even if one accepts Cummings’ own version of events, and the guidance that he himself quoted (which, interestingly, only appeared on the government’s website and was not included in the leaflets distributed to every UK household), it is clear that he breached the lockdown rules. Neither his return to work a few hours after being at home with his ill wife nor driving to Barnard Castle to test his eyesight could be explained by reference to his family’s welfare. In the course of giving his unprecedented public statement, Cummings also claimed that he had written about the “possible threat of coronaviruses and the urgent need for planning” in March 2019. It turned out that the blog post to which he had been referring had been edited to include mention of coronaviruses in April of this year. 

When Johnson appeared before the Liaison Committee the following day, his first time attending since becoming PM (it normally meets three times a year), Johnson dismissed the entire scandal as “fake news”. This was despite Cummings himself having corroborated much of what was reported. Johnson, however, would not be drawn into a discussion; his decision was made. This is deeply troubling for two reasons: firstly, the government’s confidence in its ability to calm the public mood by attempting to justify the unjustifiable; and secondly, when that failed, the government’s confidence that it could weather the refusal to accept the unacceptable – Cummings, an unelected official, has kept his job.

Fast forward to this week’s PMQs, where Johnson was asked about the spike in COVID-19 infections in Leicester. It was put to Johnson that there was a delay in Leicester City Council receiving all of the necessary data concerning the number of infections; for a week the available data showed that there had been only 80 positive tests when in fact 944 people had tested positively. Johnson claimed that all local authorities had been provided with all the necessary data. The Mayor of Leicester himself, however, had confirmed that this was simply not the case. The government’s unwillingness to accept the facts carries consequences. How can a government be expected to take action to correct delays in providing local authorities with the necessary data when they do not accept there is any such delay? 

It is worth saying that this is not a politically-motivated article. It does not deny that people may have had their reasons for voting for Brexit, for example; reasons which were not based on objectively false claims. Nor does it seek to suggest that ministers in previous Tory governments or, indeed, politicians in other political parties have never been guilty of making false claims themselves. But when faced with a dishonest Person A, the fact that a dishonest Person B comes along does not make that Person A any less dishonest. 

Why then take issue with Boris Johnson’s government specifically? Firstly, and quite simply, they are the ones currently in power. Secondly, this government has demonstrated an unabashed willingness to continually peddle fictitious narratives at the expense of the facts. This should concern us no matter who we voted for. If the facts are distorted or, as is so often the case now, swept aside entirely, holding people to account becomes a Sisyphean task. Seventy years ago, Arendt spoke of the public having “reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true”. One has to wonder: are we so very far away from that being the case today? 

We find ourselves in the midst of an elective dictatorship. Wherever you find yourself on the political spectrum, we deserve better. Not only is our democracy at stake but, given present circumstances, our lives are on the line too.

Why human rights must stay universal, even in the face of terrorism

Tomos Owen

Terrorism is understandably marked as one of the biggest threats to the safety of the UK. It is callously used as a way to convey the message of abhorrent organisations and to spread fear in the wider public. In the UK the level of this threat has always varied, but since the turn of the century there has been a marked change, both in terms of motives and techniques. The terrorist incident in Reading last weekend was just the latest example of this; committed by a ‘lone-wolf’ attacker in a relatively low-tech manner. This must be condemned in the strongest possible way and every support given to those affected and their families. However, attention must now be given to the revived debate surrounding the relationship between human rights and terrorism, and why, in the face of terrorism, human rights must stay universal. 

Where are our human rights derived from and why are we afforded them?

To understand the relationship between human rights and terrorism it is best to first establish where our human rights come from. In the UK, our human rights are mainly derived from the European Convention on Human Rights 1953 (ECHR) which was drafted by the Council of Europe. The rights conferred on individuals through the ECHR have to be upheld by the State and a State can be held to account at the European Court of Human Rights (ECtHR) if they have failed to do so. In 1998, human rights were further protected in the UK when the rights contained in the ECHR were incorporated into our own domestic legislation in the form of the Human Rights Act (HRA). This allowed individuals in the UK to hold the State to account in our own courts; a move which meant a long and costly trip to the ECtHR could be avoided.

We are afforded human rights as guarantees, enabling us to meet our basic needs and ensuring that we are protected from those that are more powerful. The human rights we hold because of the ECHR and HRA are numerous and include the right to life, liberty and security, and freedom of religion, expression and association. Fundamentally, all of our human rights share two characteristics: they are conferred on the individual and must be upheld by the State, and they are universal and apply regardless of an individual’s choices and circumstances. The former is essential to ensure a just society and acts as a check on power for States whose legislation may contravene human rights. In a similar light, the latter characteristic of universality prevents abuses of power by ensuring a State does not have the power to confer or withhold human rights arbitrarily. Winston Churchill knew all too well what could happen when these checks were not imposed on States, hence his support for a Charter of Rights and his involvement in drafting the ECHR. Nonetheless, some continue to question whether human rights law hinders our fight against terrorism. 

Human rights and terrorism

When it comes to counter-terrorism there is a common misconception that human rights law limits the governments ability to act effectively. As I have mentioned, human rights are universal and apply to everyone which can sometimes be interpreted as providing protection to terrorists. The reality is that human rights invariably contain derogations, essentially situations whereby a State can act without breaching human rights. These prevent catch-22 situations where a State would otherwise have to choose between whose human rights to breach and make counter-terrorism measures impossible. Far from limiting governments, human rights law actually ensures that a government is obliged to do all in their power to protect us from terrorism. The ECHR was drafted on the basis that it would protect individuals from abuses by the State, but also ensures that the State is obliged to protect their own citizens from the unlawful action of others as far as is possible. 

This point is demonstrated when considering the basis for counter-terrorism measures. In the UK, the extent of measures taken by the government are a direct result of their human rights obligation to proactively protect the lives of those in their nation. We are afforded the right to life through Article 2 of the ECHR and this includes taking necessary steps to foil any terrorist attacks. In addition, Article 2 contains a derogation which ensures the right to life is not absolute as this would prevent effective counter-terrorism measures. Article 2(2)(a) of the ECHR ensures that deprivation of life is not considered to have happened in contravention of Article 2(1) in the event of protecting individuals from unlawful violence when absolutely necessary. This was seen in 2019 when armed police legally killed a terrorist attacker on London Bridge in the interest of protecting the lives of bystanders. By both conferring the right to life and allowing derogations when absolutely necessary human rights provides protection by allowing a State to take necessary steps in preventing terrorism. 

This is a pattern that is seen throughout human rights legislation as humanity underpins all of its provisions. Article 8 of the ECHR, the right to respect for private and family life, further exemplifies this. The right to private life is broad and ecompasses a range of activities, including privacy for social, cultural and economic aspects of life. The right to privacy is essential to ensure that the government cannot interfere in our lives and provides the autonomy that makes us individual. However, like the right to life, this right is not absolute and counter-terrorism measures may lead to derogation. The ECtHR has accepted that counter-terrorism measures will invariably include techniques such as phone tapping, the use of undercover agents and numerous other surveillance tactics. This means in the interest of national security a State can conduct many of these measures whilst continuing to respect the right to private life. The statistics suggest that this balance is effective as by the end of last year 24 terrorist attacks had been foiled in the UK since April 2017. 

Whilst the derogations above outline the flexibility of human rights law, it is true that this does not extend to all rights. Article 3 of the ECHR, the freedom from torture, is absolute because there is no legitimate circumstance where it is justifiable to torture someone. It has been argued that this protects terrorists because it prevents the deportation of non-national criminals if there is a material risk that they would be tortured in their home nation. However, this is because of a key protection mechanism of human rights whereby a State is not arbiter of who deserves rights. There would be significant scope for abuse if this were the case and we would have far greater problems than terrorism. In a scenario where a State could legitimise bypassing human rights in the name of terrorism there is nothing to avoid them using this power to surveil political opponents, silence those who speak out against them and imprison dissenters, simply by invoking terrorist suspicions. It is essential that we deal with terrorism but this should be done with robust domestic anti-terror legislation. We have these laws, they apply equally to national and non-national terrorists, and we should continue to ensure we use them to punish terrorists for their crimes. If these measures are insufficient there remains scope for tougher sentences, but providing the State with carte blanche powers to decide who deserves rights would create more harm than good. 

Despite the clear role of human rights law in fighting terrorism there are still some that believe the UK should exit the ECHR. I believe this move would be counterintuitive. There is definitely a balance which needs to be struck between upholding human rights and counter-terrorism measures, but the ECHR demonstrates that this is possible. The rights we are conferred through the ECHR form the basis of the governments fight against terrorism and the freedom of derogation enables them to do this efficiently. By removing the protection of the ECHR we would only be leaving ourselves more vulnerable to abuses from terrorists and State alike. We must equally avoid the temptation to allow governments to remove the human rights of terrorists. Whilst this notion may gain support it would place too much arbitrary power in the hands of those which human rights aims to provide protection from. This would lead to a situation where anyone could be labelled a terrorist simply to remove their human rights, powers which could even be used to silence political opponents. The universality of human rights works to keep the door closed to tyranny and we should not open it in on the pretence of fighting terrorism. 

UK arms sales and the humanitarian crisis in Yemen

Robert Wilcox

The civil war in Yemen has led to the world’s “largest humanitarian crisis”, according to the United Nations. Despite this sobering statement, western media coverage of the civil war, and the resulting humanitarian crisis, has been fleeting. The figures, however, warrant being emblazoned on every newspaper’s front page. Civilian casualties are in excess of 18,000. Around four million people have been forced to leave their homes. Approximately 24 million people (80% of the population) are in need of humanitarian assistance, of whom approximately 12 million are children. Many are unaware of the UK’s role in this crisis. But the time to confront the unpalatable truth that UK arms sales have helped to make this all possible is long overdue. 

Hostilities in Yemen broke out in 2014, when the Houthi rebel movement, comprised largely of Shia Muslims, succeeded in overthrowing President Abdrabbuh Mansour Hadi’s government. Saudi Arabia, where Sunni Muslims constitute the vast majority of the population, was concerned that this would enable Iran, its regional rival and a country predominantly populated by Shia Muslims, to establish a presence in Yemen. In 2015, it formed a coalition with other Sunni-majority states, ostensibly to reinstate the government. This Saudi-led coalition has since launched over 21,000 air strikes against Yemen and imposed a blockade on the country, resulting in a huge shortage of food, water and medical supplies. 

From the very beginning, the Saudi-led coalition has received the backing of the UK. This went far beyond an endorsement of the coalition’s objectives; the UK granted export licences for the sale of arms to the coalition’s members, provided them with military personnel and supplied them with the aircraft to be used in bombing campaigns. It is difficult to ascertain the true value of arms sales under UK export licences since 2015; while official figures show that £6.4 billion worth of arms have been sold to the coalition, this does not account for arms sold under “open licences”. This type of licence does not require the cost to be logged. The actual cost of arms sales could, therefore, be much greater and, indeed, it would certainly appear to be so given that BAE Systems, the UK’s largest arms manufacturer, has sold £15 billion worth of arms to Saudi Arabia since 2015. 

The Saudi-led coalition has committed flagrant breaches of international humanitarian law (IHL), the body of law which, amongst other aims, seeks to safeguard non-combatants in an armed conflict. A 2016 UN Panel Report found that “the coalition had conducted air strikes targeting civilians and civilian objects … including camps for internally displaced persons and refugees; civilian gatherings, including weddings; civilian vehicles, including buses; civilian residential areas; medical facilities; schools; mosques; markets, factories and food storage warehouses; and other essential civilian infrastructure, such as the airport in Sana’a, the port in Hudaydah and domestic transit routes”. This could not have been made possible without UK military assistance. According to a BAE Systems employee, speaking to Channel 4’s Dispatches, “[i]f we weren’t there, in seven to 14 days there wouldn’t be a jet in the sky”. 

In the case of R (on the application of Campaign Against the Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020, the Court of Appeal declared that the UK government’s grant of export licences for arms sales to Saudi Arabia was “irrational and therefore unlawful”. This ruling was underpinned by the finding that the UK government had decided, or implemented a policy change to the effect, “that there would be no assessment of past violation of IHL” in determining whether the licences should be granted. One would think this is a particularly important piece of information to take into account. The fact that the UK government did not is, frankly, nothing short of disgraceful and demonstrates outright contempt for human suffering. Apparently, it is the considered view of the UK government that we should not concern ourselves with the deliberate targeting of civilians, or civilian infrastructure, when we are exporting weaponry to other states. 

Rather than accept the Court of Appeal’s ruling, however, the UK government sought, and was granted, permission to appeal to the Supreme Court. It also requested that judgment be stayed so that it could continue to sell arms in the meantime. This utterly shameless move beggars belief. The stay on the judgment was not granted, but the case is shortly due to be heard by the Supreme Court. It would be complacent to think that the Supreme Court will make the same ruling. Not because there is any doubt surrounding the evidence but because of the limited circumstances in which the courts can intervene in UK foreign policy. The ground for judicial review that is being advanced is rationality; i.e. no rational decision-maker would have made this decision without obtaining and considering certain information. This is not a straightforward question because, although it is one in which morality can factor, courts are constitutionally required to give substantial deference to the UK government when it comes to matters of domestic and foreign policy. Indeed, it is possible, under the law, for a minister to continue to sell arms to the Saudi-led coalition so long as they can merely show that they did consider past violations of IHL. Nothing we have seen from the UK government so far suggests that doing so would cause them to rethink its decision to grant export licences for arms sales. 

The UK has blood on its hands. Please write to your MP now, asking them to: (1) oppose the waste of taxpayer’s money on a morally abhorrent legal challenge; and (2) condemn a policy which has helped to bring about the deaths of thousands of civilians, widespread starvation and the worst cholera epidemic in modern history.