Enabling ActsCitizenship of Quarter of Britons at Risk as Conservatives Construct an Authoritarian Legal Infrastructure
Nafeez Ahmed analyses eight bills which, taken as a whole, reveal an unprecedented and undemocratic ethno-nationalist power grab
The focus on Prime Minister Boris Johnson’s lockdown party antics has allowed the Conservative Party to accelerate its pursuit of unprecedented legal powers across a system of eight new bills – one of which has already been passed into law. The new regime could put up to 15 million Britons – a quarter of the population – at risk.
Home Office plans under the Nationality and Borders Bill would put the citizenship of up to a quarter of the UK population at risk – including Jewish and Irish citizens – according to a British data-led diaspora research consultancy that works for the United Nations among other agencies.
The revelations come as the Conservative Party seeks to push through a series of seven key bills and associated reforms. Although many of the bills have been widely discussed in the press, they are being viewed largely as separate pieces of legislation.
Even in isolation, the assault on democracy they represent is obvious. But taking a holistic perspective – viewing them as an interlocking set of legal instruments – they represent not merely an attack on the most fundamental checks and balances of British democracy, but an overturning of the foundations of democracy itself.
In particular, they promise to provide the British state extraordinary powers to control the lives of all its citizens – especially along ethnic and racial lines – while centralising the dominion of a state-corporate executive operating unaccountably beyond the rule of law.
In total, the eight pieces of legislation will comprise a new autocratic governing regime in Britain that will be extremely difficult to dislodge or reform through democratic processes, and which will undermine the integrity of the popular vote.
- Nationality and Borders Bill: Up to 15 Million at Risk
As has been widely recognised in the British press, the Nationality and Borders Bill would provide the Home Secretary unprecedented powers to deprive British citizens of their citizenship without telling them.
The bill extends the Government’s already existing power to strip dual nationals and naturalised British citizens if the Government believes that doing so is “conducive to the public good”. As long as the Government can also claim to have “reasonable grounds to believe” that the individual in question is eligible for foreign citizenship (so that, at least ‘in theory’ the Government could claim they would not be made stateless), their status as British citizens can be unilaterally eliminated.
The problem with this law is that it removes democratic checks and balances on how this extraordinary power is exercised.
Late last year, Ben van der Merwe showed in the New Statesman that as many as two in five people in England from an ethnic minority background – some six million people – could in principle have their British citizenship removed by the state under the proposed law, without being notified.
But the New Statesman’s figures are likely an underestimate of the real risk. According to an analysis by Shabaka – a data-led UK-based diaspora research consultancy that has worked with the United Nations, Africa Union, European Union, British Red Cross, among many other agencies – the real number of people whose British citizenship could be jeopardised under Home Office plans is as high as 15 million: nearly a quarter of the British population.
In an article published in late December last year, Shabaka noted that the Shamima Begum case shows how the Government can render British citizens stateless, in breach of international law, simply on the basis that they hold a theoretical right to another nationality.
This has dangerous implications for a wide number of minorities, disproportionately diaspora and communities of colour, but also including Irish and Jewish people in Britain.
“This provision, therefore, threatens the rights of many more British citizens: in addition to dual nationals and naturalised citizens, it could also be applied to most diaspora communities in the UK; almost all Muslims, every single Jewish person in the UK (as Israel accords citizenship rights to all Jewish diaspora), and all those who have a parent or a grandparent who is a foreign citizen,” concluded Shakaba.
“The Irish government estimates that over 6m British people are eligible for Irish citizenship
alone through having an Irish parent or grandparent born on the island of Ireland, nearly 10% of the UK population.”
In total, Shabaka estimates that up to 12-15 million British citizens – which is between 18 and 24% of the UK population – could “theoretically at least, be stripped of their citizenship in secret, should the Home Secretary so decide. This effectively makes them second class citizens, whose place in the country is increasingly contingent on the favour of the Home Office”.
The Government’s defence of this extraordinary power is that it will only be exercised in exceptional circumstances as “a last resort against the most dangerous people to protect our national security and public safety”. But the language of the legislation itself doesn’t stipulate how such a danger is to be determined, leaving it entirely at the Government’s discretion as to who might undermine “the public good”.
As Colin Yeo, a top immigration barrister at leading human rights firm Garden Court Chambers has said: “Exercise of citizenship stripping powers was virtually unknown in the UK before 2010. It was something associated with the Soviet and Nazi regimes… But it has been used against hundreds on national security grounds since then and has started to be used against very serious criminals now as well.” If implemented, he added, the Nationality and Borders Bill will create “a massive pool of second class citizens who are mainly ethnic minority and whose status is contingent on good behaviour.”
The legislation would thus enshrine a racialised system of two-tier citizenship in which ethnic minorities find themselves at perpetual risk of deportation if deemed a thorn in the side of what the Government defines as ‘the public good’.
This legislation, then, is a potential threat to all ethnic minorities in Britain – and for the first time since the Second World War it would empower a Western democracy to target minority communities from Black, Asian, Jewish and many other ethnic minority backgrounds with impunity: the foundation for an ethno-nationalist state.
- Police, Crime Sentencing and Courts Bill: Criminalising Dissent
The implications of the Nationality and Borders Bill, however, cannot be fully recognised without understanding it in context with a wide range of other new legal powers the Government is seeking.
The Police, Crime Sentencing and Courts Bill, which is supposed to help the police and courts take “more effective action” against crime leading to a “fair justice system”, in practice will do the opposite. Among the bill’s most egregious innovations is the introduction of a new public nuisance offence with a maximum sentence of 10 years, which would make it a crime to “intentionally or recklessly” cause “serious annoyance, serious inconvenience or serious loss of amenity” to the public.
Under such new powers, the Government and police would have wide largess to arrest anybody for doing anything that might conceivably be defined by them as falling within this category. Apart from undermining freedom of speech, the bill would allow the Government to criminalise a wide range of unspecified public behaviour. In effect, the Home Secretary would have unprecedented authority to unilaterally shut down any protest it wants.
As Guardian columnist George Monbiot observed last year, the Government also intends to criminalise any protest – including pickets or any kind of action – that might be deemed as interfering with any existing infrastructure, or the construction of new infrastructure. The bill refers to places “such as” roads, railways, ports, airports, oil refineries and printing presses, but is so vague it could therefore be applied to corporate or government buildings or general public spaces.
While the Nationality Bill thus formally defines citizenship as a two-tier system in which most ethnic minorities in effect hold conditional citizenship, unlike the majority white population, the Police Bill provides the Government with the ability to quash public displays of dissent against Government policy at the whim of the Home Secretary.
- Judicial Review and Courts Bill: Executive Diktat
Perhaps the most insidious development comes from the Judicial Review and Courts Bill, which if passed would prevent citizens from using the rule of law to challenge how the Government implements and interprets the law in the first place. This means that the Government will be able to execute its own interpretation of the new raft of deliberately vague legal categories under these bills while dramatically reducing the scope for legal challenge.
A letter from environmental law advocacy group Fish Legal to Justice Secretary Dominic Raab sent in December highlights how the bill could be abused. Currently, when anti-pollution groups win cases against the Government or public bodies for unlawful decisions, judges usually quash those decisions resulting in them being overturned. However, the new bill will in effect take away the judge’s discretion to do this by forcing them to consider alternative legal remedies before considering a “full” quashing order.
The new powers under the bill mean that while a judge could decide that the Government’s actions were unlawful, this could be done without invalidating any prior actions – which would mean that even if a legal challenge against the Government were successful, there be no meaningful benefit.
The bill also has a specific implication connecting it with the Nationality and Borders Bill. In normal practice, claimants in immigration and asylum cases who are refused permission to appeal by first-tier and upper tribunals, still have the right to bring a judicial review case in the high court. However, the bill proposes to eliminate this right.
Many legal experts have warned that the bill would provide unprecedented power to the state executive, over and above judicial accountability and parliament. A legal analysis published by The Constitution Society and the London School of Economics’ LSE Law Review warns that under the bill, “an erroneous decision could be corrected by proposing to Parliament a piece of primary legislation which would… render a decision clearly labelled by the court as unlawful, lawful.”
The effect of the bill would in real terms move Britain into the kind of ‘authoritarian democracy’ favoured by fascists:
“This kind of exercise of executive power could damage the state of the rule of law in the UK – calling on Parliament to legislate to make something that was previously unlawful, lawful, solely because it fulfils the executive’s wishes, brings a constitutional democracy dangerously close to an ‘elective dictatorship’, to use Lord Hailsham’s well-known phrase… The scenario where Parliament passes an Act in order to render a previously unlawful decision of the executive lawful would radically change the optics of the balance of power. It would unambiguously transfer legislative sovereignty to the executive and would, contrary to the constitutional principle of parliamentary supremacy, effectively place Parliament in a subservient position to the executive.”
The LSE analysis points out that the bill doesn’t mean that the state will “necessarily exercise” its newfound powers “in a dictatorial fashion”. But the biggest problem is that the bill implies there will no longer be any legal guarantee against the dictatorial abuse of executive power.
The bill, then, will have further dangerous implications for the already precarious legal rights of British individuals deprived of their citizenship, and criminalised for acts of public dissent, to appeal against the Government’s decisions – dramatically eroding the scope for legal and democratic checks and balances.
“The proposed bill purports to be an innocent technical modification of the judicial review system,” concludes the Constitution Society analysis. “However, the prospect of its enactment is alarming… Not only will the legislation affect individual challenges, it will limit the system of checks and balances, and through this alter the British constitutional regime.”
- The Elections Bill: Eroding the Vote
The Elections Bill provides further insight into the Government’s direction of travel. Among its most significant reforms is the introduction of compulsory photo ID for voters at polling booths.
Of course, according to the Government’s own figures, approximately 2.1 million people in Britain – mostly from black and ethnic minority backgrounds as well as working-class and older people – do not have a recognisable photo ID and therefore could end up being unable to cast their ballot.
Last summer, the Electoral Reform Society described the bill as “an unprecedented risk to democratic access and equality” that “could leave millions of voters unable to cast their ballot.”
But the prospect of racialised voter suppression is just one element of the bill.
Another is its implications for the Electoral Commission, the independent public body that regulates party and election finance and sets standards for how elections should be run. Under the new bill, the Government can define the Electoral Commission’s priorities through a strategy and policy statement that would be approved by MPs. The bill thus fundamentally imperils the independence of the Electoral Commission.
The bill also contains clauses which for the first time, according to Rae Burdon of the Reform Political Advertising Coalition, in effect “permits political lies” by allowing inaccuracies in electoral advertising.
The bill introduces a new “digital imprints regime” that requires the identification of a candidate, the candidate’s “promoter”, but not the candidate’s party: “The absence of this condition allows candidates, whose political affiliation is often unknown to the voter, to run misleading claims about opposition policies under a different guise.”
This has already happened – for instance, with Shaun Bailey’s mayoral campaign distributing leaflets purporting to be from ‘City Hall’, but not mentioning his Conservative Party affiliation.
- Higher Education Bill: ‘Free Speech’ Thought Police
The Government is also seeking the power to control research and teaching at universities in the name of ‘free speech’.
The Higher Education (Free Speech) Bill seeks to appoint a “free speech and academic freedom champion” to investigate alleged infringements of free speech at universities.
Universities found to be in breach can face fines, and individuals will be able to make claims on alleged losses suffered due to a breach.
Despite the bill’s apparent concerns with protecting free speech, the appointment of a state bureaucrat at the Government’s Office for Students whose job it is to determine the parameters of legitimate public debate in higher education institutions contradicts the very idea of free speech in the first place. It creates a new avenue for direct state interference in higher education bodies, one which could easily be abused along either left or right wing ideological lines depending on who is in power.
This is especially obvious given the Government’s professed priorities – in 2020, then education secretary Gavin Williamson had rejected calls for more teaching about Britain’s colonial history including the slave trade. He was explicitly disinterested in a diversity of views and robust debate, but instead urged the following one-sided approach: “… we should be incredibly proud of our history because time and time and time again, this country has made a difference and changed things for the better, right around the world. We should, as a nation, be proud of that history and teach our children about it.”
That year, the Government also sought to defund historical research exploring links to empire and slavery at National Trust properties. The action prompted the heads of some of Britain’s most prestigious heritage institutions including the Royal Historical Society, the Historical Association and the Economic History Society to condemn what they described as Government interference stifling “historical research and freedom of speech.”
Previous Byline Times investigations have revealed that pressure to create the bill came partly from a network of academics operating under the influence of American billionaire and Trump donor Peter Thiel. Several alt-right figures including white nationalist extremist Charles Murray and race science sympathiser Jordan Peterson have been hosted at Cambridge University by members of this network. This is despite the fact that the bulk of Murray’s discredited claims about race and IQ come from research funded by a Nazi eugenics foundation with direct ties to individuals involved in genocidal actions against German Jews.
Although the main academic – James Orr – involved in hosting Murray and Peterson is a Government advisor, the Government declined to comment when asked about how the free speech mandate was being exploited to promote racist pseudoscience.
- Online Safety Bill: State-backed Censorship
The Government is also attempting to push through new legislation to regulate online content and social media.
The Online Safety Bill will introduce “state-backed censorship and monitoring on a scale never seen before in a liberal democracy” according to Big Brother Watch’s legal and policy officer Mark Johnson.
The bill empowers the Ofcom regulator and tech platforms with a “duty of care” to censor any material online that the regulator deems “harmful”, rather than simply illegal – broadly defined as any content which risks having “a significant adverse physical or psychological impact” on someone with “ordinary sensibilities”. Platforms are also expected to protect posts “of democratic importance”.
As the definition of these terms is inherently ambiguous, the final arbiter will be the state regulator. And as platforms could face large fines for failure to comply, they will be incentivised to remove potentially “harmful” content before cases reach the regulator.
The legislation also calls on platforms to apply this “duty of care” to content sent via private messages, without offering clear guidance on how this can be done without compromising end-to-end encryption. However, the prospect endangers individual privacy and in particular secure channels of communication for journalism.
This could have a chilling effect on free speech largely at the expense of minorities. As LGBTQ+ campaigners have pointed out, perceptions of “harm” against “ordinary sensibilities” could be exploited by hate groups to pressurise platforms to remove LGBTQ+ content – a practice that could be extended to silence a wide range of minority perspectives.
Although ostensibly aimed at protecting children and young people, and stopping racial hatred online, the draft Online Safety Bill does not even mention the words ‘race’, ‘racism’ or ‘hate crime’ at all.
According to the Carnegie UK Trust, the bill fails to provide any meaningful elaboration on how it will practically address “huge volumes of racism, misogyny, antisemitism, etc”, which largely fall under the category of unlawful content. As racism, homophobia, transphobia and incitements to violence are already illegal, the real challenge is not inventing novel categories of “harm” but simply more robust enforcement against unlawful content in online spaces.
“There are legitimate fears that the Online Harms Bill could end up protecting racists, sexists, homophobes and transphobes while removing the voice of the groups targeted by such abuse,” according to Solent University sociologist Dr Garfield Benjamin. “If the government bans anyone from criticising it, or from discussing important issues and systemic injustices like racism and colonial history, then existing problems will only get worse.”
- Health and Social Care Bill: Genetic Data Grab
While the Online Safety Bill is consolidating state control over digital content, the Government’s Health and Social Care Bill threatens to place the national health service (NHS) increasingly in the hands of private interests while steadily dismantling it. But perhaps the biggest implication of the bill is its implications for Government control over the genetic records of the British population.
Like the Government’s other legislative offenses, the bill grants extraordinary powers to the executive – in particular allowing the health secretary to do everything from reorganising a local A&E department to vetoing senior NHS appointees.
Replacing Care Commissioning Groups with integrated care boards (ICBs) that will commission most health services and decide how to distribute a limited budget, the bill allows giant private multinational companies and health insurance firms to sit on the ICBs. It also allows them to delegate ICB functions to these companies and to award and extend contracts without advertising. This opens the door for health services to be privatised at every level, while also allowing private firms to have a say in which medical conditions are funded.
It also reduces the NHS’ duty of care to local populations, for instance by removing the requirement for emergency services to be provided for everyone in a given commissioning area, and eliminating the statutory duty to arrange provision of secondary services, such as hospital services.
The Health and Social Care Bill is not just a power grab, but a private data grab under the guise of ‘data sharing’ – allowing the Government to have access to “anonymised” data from all registered adult social care providers, including private hospitals. This includes personal information, which can also be shared by the Department for Health and Social Care (DHSC) across Government with other departments.
“The Bill as drafted would in effect hand NHS England full powers to determine what data it takes, who that data can be sold to and what rules apply, without any external oversight,” concluded an analysis by non-profit health privacy campaign group, medConfidential.
But there is a deeper and more sinister dimension to this data grab: its role in the Government’s vision of embedding “genomic medicine” into “routine care” across the NHS by 2025, as previously revealed by Byline Times. The Government is aiming to harness data across the national health system, including “genomic data generated by gene sequencing.”
This year, DHSC’s Genomics England has just declared its new goal of sequencing half a million whole human genomes over the next five years to create a “lasting legacy for patients by introducing genomic sequencing into the wider healthcare system”.
Although there is scant evidence that the UK Government’s ambitions are remotely viable (more than 95% of diseases or disease risks – including Alzheimer’s, autism, asthma, juvenile diabetes, psoriasis, and so on – cannot be predicted accurately from the DNA sequence), the Government’s unwavering belief in the genomics preventive medicine agenda appears to be rooted in longstanding sympathies with eugenics.
Nafeez Ahmed explores the troubling implications and assumptions of the Government’s AI-driven gene programme
In February 2019, as Byline Times reported, Boris Johnson’s former chief advisor Dominic Cummings blogged about his hopes that a new NHS genomics prediction programme would ultimately allow the UK to not just prevent diseases, but to do so before birth apparently by selective breeding. Cummings also confirmed that he had arranged for eugenicist Steven Hsu to address UK policymakers in London. Hsu had previously given presentations promoting eugenic breeding schemes using embryo selection to improve the overall IQ of the population.
Among the ideas Hsu presented to Cummings’ colleagues in Government was that “the UK could become the world leader in genomic research by combining population-level genotyping with NHS health records”. This approach holds the promise of “revolutionising healthcare in ways that give Britain some natural advantages over Europe and America”, Cummings enthused at the time.
Although Cummings is no longer in Government, his support for eugenics appears to have been highly influential on several key figures in Government, particularly Michael Gove, Dominic Raab and Boris Johnson himself.
With these seven bills, then, the Government is on track to fundamentally reconfigure British politics along deeply authoritarian lines – centralising state power over media, education, health, the judiciary, citizenship itself and even our genetic records in an unprecedented fashion. The icing on the cake comes in the form of an eighth bill which passed into law last year with little fanfare.
- Covert Human Intelligence Sources Act: Empowering Political Violence against Opposition
The Covert Human Intelligence Sources Act came into effect in March 2021. The extraordinary law would read well in any dictatorship’s playbook, and perhaps more than any other legal innovation discussed here exposes the underlying anti-democratic import of this Government’s agenda
In short, the Act allows Government departments, police forces, intelligence agencies and the armed forces to authorise anyone (including children and other vulnerable people) to commit crimes “in the course of, or otherwise in connection with” any covert operations. That includes the ability to commit murder, rape, torture, theft, and any other crime.
Anyone targeted in such covert operations is excluded from standard criminal injuries compensation.
While domestic surveillance is targeted at many nefarious groups such as neo-Nazis and Islamist terrorists, there is a long history of peaceful civil society groups also being targeted – including trade unions, civil rights organisations, anti-war groups, environment activists, and student organisations such as the National Union of Students.
But the new law now adds a sinister dimension to the scope of Government powers in such covert operations.
In theory, this Act grants the Government the ability to secretly commit crimes against its own citizens – essentially to do anything it wants to anyone – with total impunity, all in the name of ‘national security’.
Summary: The Architecture of Crypto-Fascism
Whether or not senior Government officials involved in the development of these bills identify as fascist or oppose fascism is irrelevant. Their cumulative effect is the unprecedented centralisation of state executive and corporate power over and above the rule of law on the basis of an ideology grounded in nationalist populism, which is rapidly radicalising in the direction of a racialised two-tier system of citizenship in which ethnic minorities are at risk.
In effect, they function together to create a new legislative architecture that could be exploited to enable a ‘crypto-fascist’ regime. (Crypto-fascism is the concealed support or admiration for fascism, which is often an early warning of more widespread fascism.)
Rather than seeking some specific end-goal of overturning democracy entirely, this new legislative architecture would culminate in a form of elective dictatorship or authoritarian democracy that would not only allow a racialised state-corporate executive to operate without accountability to voters or the rule of law, but make theoretically possible the execution of political violence against minorities and dissidents on an unprecedented scale.
Not only will minority citizenship be conditional on behaviour deemed by the state to be ‘good’; the state and the private interests with which it is entwined will have newfound powers to limit and control politics, education, media, culture, and health – while being capable of deploying covert political violence to silence dissent.
If these bills come to pass – and one of them already has – they will fundamentally undermine the most crucial foundations of a free society, even if their full implications may not become visible immediately, or even under this Government.
However, the point of democracy is that checks and balances work to protect the rights of all. The Conservative Party is trying to create an ethno-nationalist system of governance in which the rights of minorities, opposition and dissidents are systematically diminished. This is the real danger of Boris Johnson’s rule – but it is a dark legacy that will outlast him, and that the current political crisis serves, conveniently, to distract from.
This article was amended on 25 January 2022 to correct the number of genomes Genomics England aims to sequence.
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