Patel needs to step away from hands on policing – it’s not her job. The government needs to step away from its planned review of the judiciary: justice should not be made a political issue. Policing should not be for political grandstanding.
Yesterday I opined on Twitter (@Rats_Nest_Org, if you’re on it yourselves) that Priti Patel was wrong to take part in a dawn raid against an alleged people-trafficking group, and be photographed looking on as the suspect (his face suitably blurred) was led away. Patel, wearing a black coat with “HOME SECRETARY” on it, also sported her trademark expression of smug and self-righteous satisfaction.
It is always a mistake, of course, to opine on Twitter, and I was taken to task by someone who first of all implied that I was racist for criticising a Brown female. No. I was criticising the Home Secretary. Just as I criticised Theresa May when she, like Patel, introduced the “hostile environment” and as I will continue to criticise both of them for their lack of humanity and the enjoyment they appear to take in their jobs. (Patel, one understands, quite enjoys dawn raids, and has previously taken part in them. The Sun documented at least one of them, and a reporter attended with her, taking photographs of the event.)
But it was a people smuggler, my interlocutor continued, “don’t you want those people caught?” and perhaps you, my reader, while thinking like me, that yes, they should be caught, may agree with him that there was no reason why she should not be there. A man who profits from the desperation of the desperate, one of those who, not that long ago, saw 39 Vietnamese people into a lorry from which none emerged alive. Should not he be punished? Should not he, and all his ilk, be challenged, hunted down, tried and the full measure of the law brought down upon them?
Yes, again, of course he should, and so should all like him. But NOT with a political appointee present. Political appointees are not “the law.” They are not “above the law.” Subject to parliamentary process, they may make the law, but it is not their job to enforce it: that is the function of the police – who monitor, find and arrest alleged criminals – and the judiciary, which in all its various forms assesses their deeds, tries, and when appropriate, sentences them.
When the executive takes part in policing then policing loses its – already debatable if you are Black or Brown or a foreigner or a traveller in this country – impartiality. It becomes a tool of the executive. When the executive has power to weaken, circumvent or evade the judiciary, then the judiciary also becomes a tool of the executive.
Consider the judiciary.
In September 2019, the Council of Europe’s commissioner for human rights, put out a statement warning about the threat to the independence of the judiciary in several European countries. Hungary was cited, of course, where its independence had been eroded and its politicisation furthered since about 2010. Poland was mentioned, Romania, Turkey, Italy and Serbia. The creeping authoritarianism of governments – furthered by inequality, poverty, unemployment and disillusionment – continues, and it is painfully, for those of us who vale a free society, evident here. If the Council of Europe were to update its assessment, we would, no doubt feature on it.
The Judicial Review Bill will start to wend its tortuous way through parliament shortly. In March this year the government published the Independent Review of Administrative Law’s 195-page report and its response in a Judicial Review Reforms document.
The panel, which was chaired by Lord Faulks QC, told the government in its report ‘to think long and hard’ before seeking to curtail the judiciary’s powers. ‘Our view is that the government and parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.’
However, the lord chancellor, Robert Buckland told the Commons that the panel’s recommendations were an excellent starting point ‘but the government would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process’ What he wants, in a nutshell, is the inclusion of “ouster clauses” into the bill: clauses or provisions included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the courts of their supervisory judicial function. These clauses could enable the executive to avoid judicial review, by taking the government’s decisions out of the realm of the judiciable. Buckland describes this as “constitutional plumbing.” If he wants to cleanse Westminster’s sewers there are other places he could start: dealing with the endemic and widespread corruption, perhaps.
Let’s look at Buckland’s statement. “To protect the judiciary from unwanted political entanglements.” That is Tory-speak for “to stop the judiciary from stopping us ruling by statutory instrument.” It is Tory-speak for “to stop the judiciary from checking us in a political course that does not have the consent of the electorate or its elected representatives” – not that, at the moment, the country’s elected representatives are anything but supine. They want this erosion of our civil liberties; they welcome it.
So the judiciary in this country is under threat. Its powers to control and check Parliament – and the executive – will be watered down by a government holding an unassailable majority.
What about the police?
Well, there’s the Police, Crime, Sentencing and Courts Bill. Currently at the Commons Committee stage, it gives unprecedented power to the Home Secretary to make regulations. The Bill is interlarded with references to the powers of the Home Secretary: a regulation is “to be exercised in accordance with guidance issued by the Secretary of State.” The references are frequent: “The Secretary of State may revise any guidance issued under sub-paragraph . . .” “The Secretary of State may from time to time direct . . .” The Secretary of State has a lot to say here. Why?
More worrying is this, : “Regulations under this section—(a) are to be made by the Secretary of State, and (b) are subject to the negative resolution procedure,” because what it implies is that the “regulations” will be made by statutory instrument, and an SI laid under the negative procedure becomes law on the day the Minister signs it and automatically remains law unless a motion – or ‘prayer’ – to reject it is agreed by either House within 40 sitting days.
The fact that this statement giving power to the Home Secretary comes in a section of the Bill relating to the pilot Serious Violence Reduction Orders scheme which is presented as an attempt to reduce knife crime, does not justify setting the precedent that the Home Secretary can overrule police and court decisions by statutory instrument without discussion with parliament. What this makes for is popularity policing: one can envisage a situation where the Home Secretary intervenes in a popular or politicised case – perhaps involving an area where there is racial tension – and makes a decision that has nothing to do with justice, and everything to do with politics. She is a politician, after all. She is neither a justice, nor a member of the police force.
Throughout this Bill there is what can only be described as a power grab, not just by Patel, who, although she may intend to remain in her position until she becomes Prime Minister, is, one assumes still vulnerable to those knives in the back with which all politicians may be stabbed by their peers, but in terms of ministerial power: these regulations – and that includes those in Section 3 which prohibit freedom of assembly and the right to be “noisy and annoying, even to the extent that a person is noisy and annoying on their own – the “one person protest” clauses, aimed directly at Steve Bray – are all framed to advance the power of the Home Secretary:
Look at her powers in Section 3.
15) “The Secretary of State may by regulations make provision about the meaning for the purposes of this section of serious disruption to the activities of an organisation which are carried on in the vicinity of a one-person protest.
Patel can define the meaning of “serious disruption.” She can make a legally punishable offence mean what she wants it to mean.
16) Regulations under subsection (15) may, in particular—(a) define any aspect of that expression for the purposes of this section; (b) give examples of cases in which a one-person protest is or is not to be treated as resulting in serious disruption to the activities of an organisation which are carried on in the vicinity of the protest.
Patel, or whoever comes after her can say when a protest is serious disruption and when it is not. She can allow, and she can disallow: state whether something is punishable by law or whether it is not. AND SHE IS A POLITICAL APPOINTEE.
(17) Regulations under subsection (15) — (a) are to be made by statutory instrument; (b) may make incidental, supplementary, consequential, transitional, transitory or saving provision.
She can make these changes to meaning by Statutory Instrument.
(18) A statutory instrument containing regulations under subsection (15) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
In terms of the latter section (18) yes, a draft of the instrument has to be approved by parliament – in this case it is not a negative resolution procedure, but an affirmative one, where the Minister may make an order in the terms of the draft (allowing for non-material drafting changes, for example as a result of a change of procedure at a Parliamentary committee’s instigation) only if, after 40 days of the order being laid before Parliament under clause 12, the draft order has been approved by a resolution of each House of Parliament. Unfortunately, with the Tories’ current Commons majority, with what the party sees as an overwhelming mandate from the electorate, with an incompetent opposition, and with an unelected and toothless Lords able to disagree, but not to give effect to their disagreement with the government’s actions, the affirmative procedure might just as well be a negative one, for all the difference it will make.
What about with regard to the Bill as a whole, not just the Section 3 that most people appear to have forgotten they should be extremely worried about?
How about this as a rider?
(1) “The Secretary of State may by regulations made by statutory instrument make transitional, transitory or saving provision in connection with the coming into force of any provision of this Act. The Secretary of State may by regulations made by statutory instrument make provision that is consequential on this Act.
Ok . . .
What are “transitional” provisions? They are statutory provisions that regulate a process that starts before an amendment or enactment of the statute comes into force, and ends after the amendment or enactment of the statute has come into force. So Patel can apply the clauses and regulations of the act BEFORE IT COMES INTO FORCE and until it comes into force.
What about “transitory” provisions? A transitory provision “lasts a short time,” the shortness of the time unspecified.
And “saving provisions? A saving provision is a provision that “purports to guarantee minimum statutory entitlements regardless of any other language in the agreement.”
What about “make provision that is consequential on this act”? Consequential power can do things in connection with repeals made by the Bill, or which are additional to the provisions covered in the clauses of the Bill including in a way that might alter their effect for particular cases.
Then there’s the related paragraph 2:
(2) Regulations under subsection (1) may, in particular, amend, repeal or revoke any enactment passed or made before, or in the same Session as, this Act.
Patel, or her successor can change any law that has gone before where it conflicts with this one. By statutory instrument.
That’s a lot of power for a power-hungry politician.
But the issue here is not just that Patel has an unhealthy tendency to identify herself with the police – an unhealthy tendency which has been remarked upon by at least one Chief Constable.
(Three days ago, the Times reported, Gareth Morgan, who is retiring as chief constable of Staffordshire next month, said that Priti Patel and the Home Office need to step back from the policing agenda and senior officers must reassert their independence.
Morgan said that “he was concerned that the Home Secretary had interfered in some operational issues and that the police should not be closely aligned to any political party. Ultimately I think that’s the risk, that policing is seen as the extension of government.”
According to the Times, while Morgan is the first chief to speak publicly, other senior leaders have taken umbrage at what they see as Patel’s encroachment into their operational decision-making. In the past 12 months she has rebuked chief constables for their handling of protests and urged crackdowns on breaches of pandemic restrictions. Apparently, while previous Home Secretaries senior officers were more likely to meet with the home secretary quarterly, Patel has had weekly meetings during the pandemic with Martin Hewitt, chairman of the National Police Chiefs Council, Dame Cressida Dick, the Metropolitan Police commissioner, and other policing leaders.
Morgan also commented that he didn’t think either her support for the police or the requirements of policing the pandemic gave the Home Office a reason to step into operational policing, and that while he understood the need for regular meetings given the pandemic it was time to “recalibrate” as restrictions ended. Citing a recent report by Her Majesty’s Inspectorate of Constabulary which examined the policing of the pandemic he warned that it was important that police were “not appearing to act as the coercive agents of ministers,” adding that “I think it is as incumbent on the service to assert itself and its independence and its role as it is for the Home Office to stand back.”
The Home Office’s reply was to state that “The police are operationally independent and that will never change.” (Really? I doubt it, given what legislation is going through parliament and the powers it will give to the executive to, for example, direct the policing of protest in a way it has not done before.) The department went on to say “but the government is determined to cut crime and deliver on its commitments to the British people. That is why we are recruiting 20,000 additional police officers to help fight crime and keep people safe. Alongside giving the police more powers and resources, the public rightly expects us to work with them to make our streets and neighbourhoods safer, and in response to an unprecedented, global pandemic.”
More resources, yes. More powers? Shouldn’t we have a say in that? Should it all be down to one person, the Home Secretary to “make regulation by Statutory Instrument” to determine how the entire electorate is policed. Power corrupts, Ms Patel. Absolute power corrupts absolutely.)
The issue here is that the independence of the judiciary and the police are being eroded by Bills which will become Acts which will give untrammelled power to the Secretary of State for Home Affairs – to give Patel, or whoever succeeds her, their full title, the power to police us without our consent, to determine, to re-determine, to alter and amend the way in which we are policed. To determine the meaning od words, to make acts that were not crimes, crimes. To do this without our consent.
Today, the judiciary, and the police are compromised: they have become a tool of the executive. There is a word for regimes in which both the police and the judiciary are tools of the executive. That word is not fascist, and it is not communist, or socialist. It is immaterial whether the regime’s politics lean to the left, to the right, or so far round either way that they meet the other, to be honest. What matters is that the regime is totalitarian: it is a regime which uses the arm of the law and the scales of justice to police dissent, to suppress opposition and to shatter a society and build it up in its own image.
And when Patel is photographed attending the arrest of a suspect – be he never so vile a suspect, be the crime never so vile – what she is doing is gathering support for the enactment of the Acts that, while purporting to enhance our freedoms, restrict them, that while pretending to protect us, restrain us, that while offering us an illusory utopia, snap shut the bars of our cage. She is presenting herself, a political appointee with a defined, partial and in her case, authoritarian agenda as justice personified, as law incarnate, as the figurehead of both.
Justice is not Tory. The Law does not belong to Labour. They are not above the law, they are not above justice, and they should not presume to direct it into the political channels that suit them. Patel needs to stay away from the police while they are carrying out their duties. And the press needs to consider its actions in supporting her by giving her political grandstanding coverage, because by giving it coverage, the Press condones it, colluding with the power grab that she and her party are perpetrating in the name of justice and the law.
“Protesters clash with police in Parliament Square” by nottheviewsofmyemployer is licensed under CC BY 2.0
“File:Official portrait of Rt Hon Priti Patel MP crop 2.jpg” by Richard Townshend is licensed under CC BY 3.0