UK

Labour’s worrying stance on civil liberties

JAUARY 15, 2025

The policies of the current Labour government have in practical terms not deviated from the previous Tory path of austerity coupled with curbs on the right to protest and dissent, argues Nadine Finch.

When seeking his nomination as leader of the Labour Party, Keir Starmer traded on being a human rights barrister earlier in his career, in a chambers that primarily acted for the defence. But as Leader of the Opposition, and more significantly since he became Prime Minister, he repeatedly refers to his later role as Director of Public Prosecutions and his actions confirm his allegiance to a conservative-leaning state, as opposed to the protester.  

Internal controls on political opinions within the Labour Party, when in opposition, have now developed into significant support for executive controls on the expression of political opinions and acts of democratic protest in relation to those who do not agree with his government. It’s a tactic that may work when the apparatus of a party has been captured by members more interested in power than policies and principles. But with the current polling in support of the Prime Minister and the new government being historically low and the popular vote that propelled them into power being similarly meagre, a significant proportion of the population may grow to learn that opposition outside of the parliamentary process is the only means for the many to express economic, political and moral opinions.

They will be following in the steps of those who understood that the right to protest, in addition to the powers of both parliament and the courts are essential to hold in check an executive which overreaches itself. There are many examples of how the current executive believes that it is above both Parliament and the courts, but two current ones may be illustrative of where it is going.

The government’s current foreign policy in relation to the Middle East largely ignores international humanitarian and criminal law and also drains a failing national economy of resources needed to protect a significant range of those in need: the elderly, those with disabilities, asylum seekers, those without access to work or an income that meets their basic needs, to name but a few.

A competent and truly democratic government should recognise when its policies are not welcomed by a significant part of the population on whose behalf it claims to govern. It should also understand that democratic dissent cannot merely be frustrated by ministers within its executive.

For example, under the previous Conservative government, legislation was introduced to amend the Public Order Act 1986 in order to provide the police with more stringent powers to curtail the right to protest. Most amendments were eventually passed but the House of Lords used its powers to block an amendment in the Public Order Act 2003 Act, which redefined the meaning of the “serious disruption” required to trigger police powers to impose certain conditions on marches.

But in June 2023, the then Conservative Home Secretary introduced the Public Order Act (Serious Disruption to the Life of the Community) Regulations 2023 to amend the definition of “serious disruption” to mean “more than a minor disturbance”. The civil liberties group, Liberty, sought a judicial review of her actions and in the case of NCCL v The Secretary of State for the Home Department [2024, EWHC 1181], the High Court found that her use of secondary legislation to circumvent the decision previously made by Parliament was unlawful. The Tory Secretary of State appealed against this decision and the current Labour Secretary of State is maintaining this appeal. The Court of Appeal hearing took place on 4th and 5th December 2024 but the amended definition remains in place pending its decision.

As a consequence, the Metropolitan Police has been able to rely on this regulation to impose conditions on the march organised for Saturday 18th January 2025 by the Palestine Solidarity Campaign, Stop and War and the Campaign for Nuclear Disarmament. It was due to start at the at the BBC building in Portland Place. The stated basis of the imposition was the presence of the Central Synagogue, which is nearby but not on the proposed route of the march. The police are asserting that the march will disrupt those wishing to attend the synagogue. This is despite there being no evidence of previous marches causing such disruption and the presence on each march of thousands of supportive members of the Jewish community. What is more apparent is that there is increasing public criticism of the BBC’s coverage of the conflicts in the Middle East and the devastation of Gaza.

At the same time, the Secretary of State for Northern Ireland is fighting a rearguard action to defend key parts of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, another piece of Tory legislation that the Labour government is now seeking to retain at least in part.  

Northern Ireland had developed a range of legal bodies to investigate a significant number of killings which took place between 1st January 1966 and 10th April 1998 (deemed by the previous Tory government as the period of the Northern Ireland Troubles). These included inquests chaired by High Court judges, judicial reviews and other actions in the civil courts and inquiries carried out by the Police Ombudsman for Northern Ireland. Many of these changes had been driven by senior members of the Northern Ireland judiciary and dedicated lawyers. In recent years, these processes revealed the widespread involvement of members of the British Army, the Ulster Defence Regiment, the Royal Ulster Constabulary, MI5, MI6 and members of Loyalist paramilitary organisations in the killing of civilians and the unlawful use of shoot to kill policies against possible combatants.

Despite promises by the Labour government to reopen, or even open for the first time, inquests into killings during this period and accompanying civil actions, this has not happened. More significantly, the Secretary of State has stressed that he will maintain the cornerstone of the Legacy Act. This is the Independent Commission for Reconciliation and Information Recovery. Many of its staff, including its Commissioner for Investigations, are former members of the Police Service for Northern Ireland and some will be conflicted when dealing with some enquiries due to their previous knowledge of and involvement in the cases being scrutinised. In addition, in the past, delays to inquests and inquiries were often due to a failure by the police and other security services to disclose essential evidence of the circumstances surrounding the killings. Despite this, the Secretary of State will hold even wider powers to limit disclosure and on wider grounds than national security in relation to cases coming before the Independent Commission for Reconciliation and Information Recovery (ICRIR).

With the support of the government, the existence of the ICRIR is also being used to frustrate public inquiries. One of the last inquests that was being held in Northern Ireland before the Legacy Act came into force was that of Sean Brown, a Gaelic Athletic Association official, who was abducted and killed in 1997 by a paramilitary group, the Loyalist Volunteer Force. The coroner, Mr. Justice Keaney, found that he could not complete the inquest as state authorities were withholding essential intelligence material. Therefore, he asked the then Secretary of State for Northern Ireland to establish a public inquiry into Mr. Brown’s death.

This did not happen, but in December 2024, Mr. Justice Humphreys sitting in the High Court in Northern Ireland found that a failure to establish such an enquiry was in breach of the duty to prove the full extent of state collusion in Mr. Brown’s death. He also found that Article 2 of the European Convention on Human Rights contained clear and unambiguous obligations to establish such a public enquiry.

Despite these clear findings, the Labour Secretary of State for Northern Ireland has appealed this decision to the Court of Appeal of Northern Ireland and asserted that it can be dealt with by the ICRIR.

These are actions by the executive which pay scant regard to decisions by the judiciary or accepted parliamentary procedures.

Nadine Finch is a former barrister who specialised in human rights law and is the author of several books on family, immigration and comparative law. She writes in a personal capacity.