Written by Stout Yeoman
In my previous article I commented on our mandarin class and the nexus they inhabit. What I did not say, but now confess I had been wondering, was whether our entire administrative layer of government and its surrounds, might actually be worse than the EU that I had long campaigned to escape from. I hope that leaving the EU may yet prove to have been wise a decision, but in this article I explain why it is a damn close thing.
On Thursday evening I attended a Zoom discussion with Laura Dodsworth, author of A State of Fear – a book I recommend – about how we are governed increasingly by ‘behavioural science’ which has morphed into out right manipulation. In an exchange with Claire Fox, she and Claire moved on from the immorality of behavioural and covert manipulation to how fundamentally undemocratic it all was. Quite so.
The focus on the behavioural science SPI-B (Independent Scientific Pandemic Insights Group on Behaviours) committee is topical, certainly, and behavioural science units now apparently exist in every department. But I think the manipulation that is going on (enabled by the explicit Ofcom-directed control of the media) is a secondary problem, and that democracy is ending in subtler, more insidious ways and has been for some time. This matters, not least because the control we thought we were taking back with Brexit was meant to be democratic control.
At the root of my own feelings on Brexit was the common law in which, to use the judicial phrase, certain rights and freedoms were deemed to have existed since “time immemorial”. They were not top-down dispensations. Most crucially the law stood between citizen and state, and since Magna Carta that core principle had evolved to the point where the state was no longer a source of capricious law – in effect the law itself. Instead a truly independent judiciary would mediate. Of course, in Britain we fudged it a bit. We had no Thomas Jefferson to fully articulate the separation of powers, largely because the idea was so mother’s milk we did not need one. That was the grounding instinct of the country, until the arrival of Tony Blair. Ever since some people have been getting their milk from anywhere but mother. Consider the following:
Exhibit A: The Regulation of Investigatory Powers Act 2000 (RIPA). This act was meant to bring surveillance and interception powers into the digital age. Incredibly, the public bodies authorised to look at your emails or otherwise spy on you included local authorities. Local councils used RIPA powers to check whether a family lived in a particular catchment area and other possible infractions such as dog fouling or misuse of recycling bins. One can see a case for MI5, and the police and defence intelligence agencies perhaps, to have their powers modernised but the inclusion of local authorities was quite extraordinary. But it’s not even that fact alone that concerns me. Where previously a court mandated warrant was necessary before surveillance and communication interception could lawfully take place, that provision was removed. All local authorities are now self-authorising. Councils and others – the list of public bodies that can resort to RIPA includes NHS trusts and the Food Standards Agency – got carried away. The government’s response was not to take the powers away but just to tell them to tone it down a bit (i.e. don’t get caught). Meanwhile, local authorities now use drones for covert surveillance. RIPA eroded the separation of powers. You cannot vote out civil servants and they have a power enshrined in statute.
Exhibit B: The 2015 Finance Act. Money owed to HMRC is a civil debt – or used to be. That meant that steps to reclaim money owed – by seizure of property for example – required a court order. No longer. In 2015 HMRC acquired the power to raid bank accounts without a warrant from a court. At the time, it was said that this unprecedented power was necessary to deal with 17 particularly stubborn and serious cases where millions were (allegedly) owed and would only be used for the most serious cases in the future. Even so, a public body, previously of equal status as citizens before the law was no longer so.
Last year, quite ordinary people alleged to owe even trivial sums to HMRC received letters pointing out that money could be taken from their bank account, so pay up to save everyone the bother. Just as with RIPA, power goes to heads and the separation of powers, in which a taxpayer and HMRC stand as equals in court when in dispute, has been eroded. Retrospective complaint about bank account raids is possible – if you have enough money left to pay a QC.
Exhibit C: The European Arrest Warrant. That the current government should reaffirm the EAW, as it has done, is truly shocking. A foreign power seeking to extradite a UK citizen had to make a prime facie case to a British judge. That is, a citizen was an equal even to a foreign power when before the law. But no longer. British judges are completely excluded by the EAW. Yet, habeus corpus, (first mentioned in the reign of Edward 1 and the ultimate break on state power) is nullified by the EAW. It was our gift to the world, the idea that spawned freedom from arbitrary use of power. Do we really care so little now? Americans cherish their constitution. We should cherish and jealously guard our own foundations.
I could provide further exhibits but the above are enough to illustrate my theme. It is not just voting that makes a democracy, but the context in which it takes place, a context in which the rule of law is protected by the separation of powers. America’s founding fathers understood that explicitly. We used to understand that implicitly. But something is happening.
All bureaucracies end up self-serving and the attempted accretion of power by bureaucracies is inevitable. When Cameron became leader of the Tories he declared “I am the heir to Blair”. He wasn’t kidding it seems which is why his soul mate George Osborne gave in so easily to HMRC’s request to erode the separation of powers. (HMRC and the Treasury must have looked on with envy when the EU gave Cypriots a ‘haircut’ in 2013.) What is not inevitable, or so I thought, was politicians acceding to such requests.
The use of statutory instruments (as ministerial diktat is called) increased dramatically under Tony Blair and did not abate under his heir Cameron or since. Most of our lockdown woes were at the stroke of Matt Hancock’s pen. This is not some pandemic aberration, but the natural conclusion of an anti-democratic trend of over 20 years in eroding the separation of powers. While MPs were jumped up county councillors under EU hegemony this was tolerable in the sense that our real enemy was in Brussels – or so we thought.
The executive is increasingly taking powers outside of parliamentary scrutiny – in one sense why not since most MPs are quite useless – but, and this is the point of this article, in eroding the separation of powers, so that government and citizen are no longer equal before the law, a fundamental change is taking place. By avoiding the need for warrants from a court the control by an independent judiciary is also avoided. That leaves only judicial review as a route to challenge government and, you guessed it, the government is reviewing judicial review. You can be sure it is not to make things easier for us.
Increasingly here in the UK, government is following the EU model. Call it technocratic managerialism if you will. Call it anything you like. At root, for us, it is the erosion of what being British once meant in a land in which citizens came to be equal to those governing when before the law. You needed a warrant, gained by convincing an independent judge that it was justified, before you could interfere with a citizen. No longer.
No-one seems to care about what has been happening and is continuing to happen to the relationship between citizen and state. I was once a freeborn Englishman but I am now a stranger in my own land.