Our human rights face attacks under the cover of Covid

Lawyers have begun to talk openly about how the increasingly hostile rhetoric from the Government was making them feel unsafe for the first time in their careers. Stephanie Harrison QC, who specialises in challenging the detention of vulnerable migrants, including people with mental health problems and trafficking and torture survivors said the “deliberate” decision of the Home Secretary and the Government to “turn on” lawyers was a tactic normally used by authoritarian states.

Indeed it is and the glint in Patel’s eye suggests more of the same. Whilst Johnson’s government often resembles a comedy routine of low-grade politicians assembled from the lower echelons of an already depleted gene pool, it is an environment where the more steely-eyed prosper.

Amongst the Eton Mess of Johnson’s Cabinet there’s also a more radical and rigorous element and having purged the Conservative Party of its elders in one of a series of coups there is little to restrain them.

The alarm bells of that sense of decoupling from normality have been ringing loudly since Johnson’s first prorogation of Parliament in 2019 and could be heard again when it became apparent that the Internal Market Bill would break international law, but like everything else we soon become used to the new normal.

In the midst of a genuine crisis governments are drawn to use the confusion and compliance of an emergency to instigate new elements of authority and to sweep away previous rights and freedoms.

It’s what the Italian philosopher Giorgio Agamben calls a “State of Exception”, often brought about in times of war, whereby the state alters its powers permanently under the guise of “crisis”. He cites hundreds of examples through history – a more recent one being: “President Bush’s decision to refer to himself constantly as the ‘Commander in Chief of the Army’ after September 11, 2001, must be considered in the context of this presidential claim to sovereign powers in emergency situations.

“If, as we have seen, the assumption of this title entails a direct reference to the state of exception, then Bush is attempting to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible.”

(Giorgio Agamben, State of Exception, Translated by Kevin Attell, 2005).

In a world where our data is bought and sold and where we have already become adjusted to living in a surveillance state it would be good to be alert to this happening before our eyes.

As Malcolm Bull, analysing our predicament and Agamben’s cry of alert, has put it: “For Agamben, fingerprinting is not just a matter of civil liberties: it is symptomatic of an alarming shift in political geography.

“We have moved from Athens to Auschwitz: the West’s political model is now the concentration camp rather than the city state; we are no longer citizens but detainees, distinguishable from the inmates of Guantanamo not by any difference in legal status, but only by the fact that we have not yet had the misfortune to be incarcerated – or unexpectedly executed by a missile from an unmanned aircraft ... .”

But although his recent examples come from the war on terror, the political development they represent is not, according to Agamben, peculiar to the United States under the Bush presidency. It is part of a wider range in governance in which the rule of law is routinely displaced by the state of exception, or emergency, and people are increasingly subject to extra-judicial state violence.”

As the British Government staggers under the weight of its own incompetence, two examples of this process have appeared in just the last two weeks. The mundane sounding Overseas Operations Bill is being presented to Parliament as we write.

The bill introduces a “statutory presumption against prosecution” after five years to apply to all forces personnel, including those who served in Iraq and Afghanistan. It is intended to fulfil a Conservative election pledge to tackle “vexatious legal claims” that the party argues “have recently undermined our armed forces” – and was published for first reading in May at the height of the coronavirus crisis.

When it was first broached John Healey, the Labour Party’s shadow defence secretary, wrote to his counterpart, Ben Wallace, arguing the legislation undermines “the history and rules-based international order that Britain has sought to construct and maintain”.

By including torture and war crimes as offences that would be covered by effective amnesty, Healey said the legislation was at odds with the Geneva Conventions covering humane behaviour in war and broke the UN convention against torture.

“This clearly creates the risk that serious violations could go unpunished,” Healey wrote, “if an incident does not come to light for five years or if investigations are drawn out beyond that deadline.”

Dan Dolan, the deputy director of the human rights group Reprieve, said he believed “this bill would effectively decriminalise acts of torture which took place more than five years ago”, ending a ban on the practice that dates back to 1640. “Torture has been illegal in this country for more than three centuries,” he said.

John Healey’s comments were back in August. If they sounded like what you might expect from a Labour Party – or indeed any party in a democracy – they have since changed their tune.

When the legislation came to the vote Labour sacked three junior shadow ministers who joined with Jeremy Corbyn and 14 other Socialist Campaign Group MPs in breaking the party’s whip by voting against the second reading. Nadia Whittome, Beth Winter and Olivia Blake defied the whip, which called on Labour MPs to abstain on the Overseas Operations Bill.

The bill passed at second reading by 332 to 77, with the Scottish National Party and Liberal Democrats joining the 18 Labour rebels in voting against.

Four hundred years of human rights gone in the blink of an eye.

Next up? The Covert Human Intelligence Sources Bill, now at the Committee Stage (sponsoring Organisation: Priti Patel, Home Office). If the Overseas Operations Bill gives licence to the armed forces to act without restraint overseas, the Covert Human Intelligence Sources Bill brings the same sensibility to domestic state violence.

The language is mundane: “A bill to make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.”

THE legislation explicitly authorises MI5, the police, the National Crime Agency and other agencies that use informants or undercover agents to commit a specific crime as part of an operation. Opening the debate last week Home Office Minister James Brokenshire said the bill would “help keep our country safe”.

Responding to the introduction of the Covert Human Intelligence Sources (Criminal Conduct) Bill in Parliament back in September – which could see MI5 agents and other government bodies legally authorised to commit crimes including torture and murder – Grainne Teggart, Amnesty International UK’s Northern Ireland campaigns manager said: “There is a grave danger that this bill could end up providing informers and agents with a licence to kill.

“It is deeply alarming that the proposed law does not explicitly prohibit MI5 and other agencies from authorising crimes like torture and killing. It must be amended to do so.”

“In Northern Ireland, we have seen the consequences of undercover agents in paramilitary organisations operating with apparent impunity whilst committing grave human rights abuses, including murder. Such criminal acts do not become any less serious when placed on a legal footing.”

Opposition from Labour, as with the Overseas Operations Bill, has been muted at best, with a few notable exceptions. Zarah Sultana the Labour MP for Coventry voted against it, saying: “This evening I voted against the Covert Human Intelligence Sources Bill. I can’t support legislation that could give undercover state agents the licence to murder, torture and commit sexual violence.”

It’s a low bar but congratulations to the handful of the official opposition who managed some form of protest.

Of course it’s not as if this lands into an environment where human rights are upheld and the police are a respected force. The undercover police have been acting with criminal impunity for decades. Their targets have not always been paedophile and terrorist groups as the framing and excuses for the current raft of legislation makes out, but often peaceful environmental groups, food campaigners and anti-racist activists.

To be clear these are peaceful, law-abiding protestors infiltrated, impregnated abused and deceived by the police. This is known fact, not supposition. So far, 20 undercover officers who worked for the two units are known to have had intimate sexual relationships, some of them lasting years, while using fake identities between the mid-1970s and 2010.

Police have paid compensation to at least 12 women who were deceived into these relationships. The other unit, known as the Special Demonstration Squad, operated between 1968 and 2008.

The last vestiges of democracy in Britain are under sustained assault, yet the issue receives scant attention and muted political opposition.

As fear paralyses us and pandemic has created further cover for the authoritarian elements within Johnson’s shambolic regime, we need to be alive to the unfolding abuse of human rights and the state of exception being put in place with our astonishing complicity.

We need to be conscious that this government is not like previous administrations. It is openly and flagrantly not just flouting the law but institutionalising law-breaking and criminality as normal.

We should be scared. Scared not of the disease or of terrorism – we should be scared of the extreme politicians that now occupy the highest offices in the land and the powers they are putting in the hands of the army and the police. When a Cabinet minister talks about human rights as “grand theories” and seeks to associate human traffickers with “lefty lawyers” we should be deeply disturbed at the state we’re in.