The myth of the libertarianism of Boris Johnson, the prime minister of the United Kingdom, endures.
ANALYSIS: Libertarian Johnson follows instinct in a big bang unlock. He had promised a ‘cautious but irreversible’ route out of lockdown, but with Delta variant now spreading uncontrollably, he’s taking a big gamblehttps://t.co/vo37ZcvoAi
By ‘myth’ I mean that it is a thing that has narrative force, and which some people believe to be true, but it is a thing that is ultimately false.
Johnson is, of course, a political libertine, in that he believes rules – and indeed laws – are for other people.
His government attacks the independent judiciary, the impartial civil service and diplomatic corps and the public service broadcaster, as well as disregarding the speaker of the house of commons, the electoral commission, the ministerial adviser on the civil service code, the panel on appointments to the house of lords, and so on.
And so on.
If his government can get away with weakening or eliminating a check or balance, it shall do so.
It will not be told by anyone what to do.
The politics of Kevin the Teenager.
And this defiance is no doubt the basis of the decision of the government to relax the lockdown, despite various warnings.
Members of the government, and their political supporters, are fed up with being told what to do – especially as the impositions are for the benefit of others.
But.
Is this restless defiance ‘libertarianism’?
Is there a coherent vision of limiting the power of the state vis-a-vis the individual?
This is a government which is seeking to disenfranchise people:
Today the Government is presenting the Electoral Integrity Bill to the House. This Bill will contain provisions for Voter ID. Voter ID will potentially disenfranchise thousands of people. It is an illogical and illiberal solution to a non-existent problem
There is also, of course, the similar myth of the prime minister’s liberalism – that he, like Donald Trump, is really at heart just a metropolitan liberal.
Yet many in his cabinet – Priti Patel, Oliver Dowden, Robert Jenrick, Elizabeth Truss – merrily play with the fires of culture wars and the politics of social division and confrontation, rather than promoting the politics of inclusion and solidarity.
The prime minister does not mind or care.
By any serious definition of libertarianism and liberalism this government is neither libertarian nor liberal.
There is no general approach to limiting those with state power to the benefit of those who are affected by state power.
Instead we have a government with occasional twitches and jolts against state power while over time accumulating as much power as possible for the executive and dismantling or dismissing any entity capable of saying ‘no’.
The general approach of this government is authoritarian – though this authoritarianism can be set aside when the power of the state would be for the benefit of others.
There are many words for the general approach of the prime minister and his government, but ‘libertarian’ is not one of them.
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In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.
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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.
My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.
If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.
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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.
The judgment is some 68-pages but is readable and is worth reading.
Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.
His summaries are not the ones that I would write – but they are unexceptional even if not balanced.
And then.
The article takes a turn.
We get to the final three paragraphs, and something happens.
Let’s take these paragraphs in order – and sentence-by-sentence.
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‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’
The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.
Such a decision could easily have taken place under a codified constitution.
It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.
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‘But Unionists hold a different view of the constitution.
‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’
This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.
The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.
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‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.
Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?
Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?
It is not easy to tell.
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‘The Unionists are Queen’s rebels.’
I am not sure what Bogdanor means by this.
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‘Where then stands the Protocol?
‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.
‘But that merely kicks the can down the road.
‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’
Here we perhaps go from the salami to the ridiculous.
The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.
There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.
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‘The court in Belfast is, however, right to this extent.
‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’
Here the contentions of the opinion piece appear to become confused.
A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.
Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.
Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.
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‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’
Is this proposition correct?
The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.
If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?
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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’
No, I am not sure what this means either.
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‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’
This is the last sentence of the article, and its import is unclear.
The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.
For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.
This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.
Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.
And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?
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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.
The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.
The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.
4. Andrew Bonar Law, the pugnacious Conservative leader, told a demonstration: "there are things stronger than parliamentary majorities". He almost certainly helped supply weapons to the Ulster Volunteers: a paramilitary army dedicated to armed resistance aginst an Act of Parlt. pic.twitter.com/TfEwmvjGdz
A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.
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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.
But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.
Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.
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One of the more complacent views of the last few decades is that there is a necessary link between democracy and liberalism.
The notion that if you believe in one then you believe in the other.
And, in turn, there is the converse view – that illiberals will tend to be undemocratic, if not actively anti-democratic.
This is assumption is evident in a spate of books over the last few years about the death of democracy where, if you read carefully, they describe the (possible) death of liberal democracy.
For – and this is still a shock for many – there is nothing necessarily liberal about a democracy.
It is possible – and indeed not uncommon – for a conservative bloc to mobilise sufficient support to prevail in elections.
There can sometimes even be sufficient conservative support for illiberalism to be majoritarianism.
Liberal democracy is only one form of democracy (and, also, of liberalism).
The notion that illiberals are also undemocratic, if not anti-democratic, is a comforting notion for the superficial liberal.
The truth is that in any democratic system there will be a great deal of opposition to liberal views.
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Here it is instructive to read this 2014 speech (in translation) by the Hungarian prime minister Viktor Orbán – who visited the United Kingdom this week.
It is a speech that should be read in full by any liberal and anyone else who wants to understand the illiberal turn in modern politics.
It is perhaps, in its way, one of the most politically significant speeches of recent years – though what it signifies is not pleasant.
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One of the things that stands out is in the speech that it is openly – explicitly – ‘illiberal’.
An exposition of liberalism is set out (and not altogether inaccurately) and then critiqued.
This dismissal of liberalism is unapologetic.
It is blatant, with no sugar-coating.
Orbán is an illiberal and he knows it, and he claps his hands.
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Another thing that stands out is that – unlike many Western (supposed) defences of (and apologies for) liberalism, it is not flimsy.
It is an articulation of an illiberal position.
The position being articulated is vile and wrong, but it is not superficial.
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A third thing that stands out, of course, is that it does not really explain, still less justify, the specific assaults on civil society in Hungary of his government – it is a speech which largely stays in the realm of the abstract.
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And the fourth thing which is striking about the speech is that – on the face of it – it is not an undemocratic speech – it is the speech of a politician who seems confident that there will be sufficient political support for illiberalism within a democratic system.
It is even a speech of a politician who does not see membership of the European Union as being incompatible with his illiberalism.
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This blog is written from a liberal, constitutionalist perspective.
But as a practical blog, it is not enough to disdain illiberalism, let alone deride it.
As the old saying goes: know your enemy.
Scoffing at Orbán – just like sneering at Donald Trump or Boris Johnson – is not a complete political answer to the challenges presented by modern illiberalism.
As long as these individuals and their parties can mobilise their bases, they will use political means to defeat or hinder liberalism, and they will claim to be democratic in doing so.
The ‘will of the people’ is rarely invoked by those who respect the wills of individual people.
And what happens when liberal democracy is, well, trumped by democracy itself?
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Today came the news that the publication of the report on the Daniel Morgan independent panel should be on 15 June 2021.
This is the report into the 1987 death of Daniel Morgan, the collapse of the many subsequent investigations and prosecutions, and the existence of (and the relevance of) any corrupt relationships between the police, the private investigation industry and the press.
It ends the stand-off between the panel and the home office – and, on balance, the home office has given way more than the panel.
The late intervention of the home office – to demand a last-minute ‘review’ of the report – is now unlikely to frustrate the publication of the report.
Delay and blocking
This statement means that, unless something happens to prevent it, there is now a fixed, imminent date for publication.
This should prevent the report being delayed indefinitely by the home office sitting on it during this (supposed) review.
If the objective of the home office was to provide room for delay (or even prevent) the publication of the report, then that objective looks like it has been defeated.
There is a little wriggle-room for potential further delay – but not as much as if there was no date set at all.
Redactions
The statement also deals with the issue of any home office redactions.
Any redactions that the home office insist upon will be identifiable – and so, it would seem, contestable in court.
Each redaction would be an action by the home secretary that could – at law – be looked at by the high court for its reasonableness and relevance.
Any redaction would thereby not necessarily be the end of the matter – but just the prelude for litigation.
The redactions cannot just be silently made, with no one to know.
Again this is a set-back if the objective of the home office was to have room to make such silent redactions.
Forewarnings and leaks
If, however, the home office had as its objective that it would be forewarned of the content of the report, this objective has been achieved.
This means that if – and it is only an ‘if’ – there is anything politically significant in the report then the home office will not have a shock and so will not be bounced.
It also means there is the possibility of leaks from the home office – perhaps to the media – in the days before 15 June 2021.
This is notwithstanding the controlled conditions for the review of the report – which will remind those with longer memories of Robin Cook and the Scott report.
Making sense of the Home Office intervention
As this blog has already averred, there appears to be no good reason for the late home office intervention.
The purported reasons do not add up – and they appear to be improvised and cynical.
As I set out in detail here, the choice of ‘national security’ and ‘the human rights act’ as grounds appear to have been for providing the maximum litigation cover for any home office delay, and not because of any genuine concerns.
I am not a conspiracy theorist by inclination – conspiracies do, of course exist, but usually to hide cock-ups, as only then will a number of people have the motivation and focus to act in concert.
As such I do not think there is any conspiracy between the home secretary and others to try and block or delay or gut the report.
The home secretary may well be (as a lawyer would say) on a frolic of her own in all this, without contact with anyone else with an interest.
It may well be that the home secretary simply did not like the idea of something being published by an independent panel beyond her control or involvement.
But whatever the true motive for the home office’s late bullying intervention, the statement today means that it is more likely than not that we will see the report published in two weeks, and possibly with few if any redactions.
The panel and its lawyers should be commended for facing off this illiberal and misconceived intervention.
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Conspiracies do, of course, exist – often to cover up cock-ups, for that is usually the only time when any given group of people have the focus and motivation to act in concert.
But a conspiracy is rarely the first notion that comes to my mind to explain any odd state of affairs.
And so, in respect of the 1987 murder of Daniel Morgan, I do not know why he was killed and who killed him.
This is just not safe legal-libel speak: I genuinely have no idea, and I offer no theory.
But what is odd about this murder was the aftermath: a remarkable succession of failed investigations and prosecutions.
Here, again, there may be explanations short of a conspiracy.
Court cases and so on fail all the time, and for various reasons.
And even if those reasons point to systemic failures, often those system failures are not conspiracies but just, well, system failures.
But.
The succession of failed investigations and prosecutions in the case of Daniel Morgan also indicate that there may be concerted wrongful conduct.
And nobody who knows anything about the metropolitan police and their relationship with the tabloid media at the relevant time would be surprised if there had been undue pressure and corruption.
Still: we do not know for certain.
And this is why an independent panel inquiry was set up in 2013 to, as far as possible, get to the bottom of what happened and what, if anything, went wrong.
(My 2012 piece calling for a formal inquiry is here.)
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The panel spent eight years putting together a detailed report.
The eight year period indicates the complexity and perhaps the seriousness of the matters being investigated.
And this long-awaited report was about to be published…
…when in an extraordinary intervention Priti Patel, the home secretary, has delayed its publication.
None of the supposed reasons add up, and it appears to me that the home secretary’s stated reasons are mere pretexts.
This is an extraordinary intervention by a politician in an independent inquiry.
And it also may be counter-productive – as it is drawing attention to a report that – even if it were critical – may have had little press or public attention.
After all – as I aver above – few would be surprised that bad things were happening at the time with the police and the media.
So, even if there is something in there which Patel, for political reasons, did not want in the public domain, her delay may be bringing attention to a thing others may have preferred were left not emphasised.
Some commenters believe that the report will be an exposure of the corrupt relationships between the media and the police of the time.
I have no idea.
But many will be even more interested in the report now after Patel’s extraordinary and perhaps clumsy intervention.
And we should hope that the report when published finally brings some justice for the family of Daniel Morgan who have campaigned tirelessly since his death for the truth to be revealed.
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A legislative programme geared to make a certain sort of person grin and clap and cheer about ‘owning the libs’.
But it is not just about mere superficialities – it is in substance a multi-pronged attack our liberties.
The prime minister is not only taking back control of when there will be general elections, the government is making it harder for people to vote.
The government is also making it harder for government decisions to be challenged in court, and it is making it harder for anyone to protest about any of this.
Five years ago, senior members of the governing party affected to want to give effect to the ‘will of the people’.
But, as is often the case with authoritarian populists, the supposed mandate of the people was only ever a convenient rhetorical device for ever-greater central control.
And the sorry state of our politics means that the government will probably get away with this.
There may be opposition in the house of lords – and some measures may be open to legal challenge.
Yet, even with the few remaining checks and balances in out constitutional arrangements – this is what the government does as the next step after ‘taking back control’.
The impression is that Brexit was not about liberation, but about creating a political culture where the opposite of liberation – imposed authority – became more entrenched.
Our post-Brexit polity is now looking very dismal and depressing indeed.
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Another evening of disturbances in Northern Ireland.
And so another round of ‘appeals for calm’.
Of course: such a call is the responsible thing to do – and nothing in this post should be taken to gainsay this.
But do such appeals actually work?
Does this – almost ritualistic – reflexive speech act ever have the intended effect?
And if so, how?
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A cynic may contest that one function of ‘appealing for calm’ is to just give something ‘community leaders’ something to say and do – a gesture as empty and meaningless as ‘thoughts and prayers’.
As such there could almost be a circular definition – a ‘community leader’ is the person who ‘appeals for calm’, and ‘appealing for calm’, is what a ‘community leader’ does – thereby a ‘community leader appealing for calm’ is almost a tautology.
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But such cynicism may be misplaced, for there appear to be many examples of appeals for calm that have had efficacy:
When Nelson Mandela appealed for calm after Chris Hani was killed. He could easily have used it to help overthrow the government violently and bring himself to power, instead he was statesman-like and not only gained power but a legendary status.
Bobby Kennedy’s speech after the assassination of Martin Luther King has been credited with keeping Indianapolis relatively calm. https://t.co/gd0yjWUHpb
So there are historical instances where the ‘appeal for calm’ seems to have had the intended political and social effect – though of course there may be other features present.
But the ‘appeal for calm’ has another important function.
And this is that it will be significant when the expected speech act is not made by a particular individual.
Here we have an example from just three months ago:
Isn't the counterfactual important? Look at what happened when Trump refused to condemn Capitol riots etc
As so often with language and politics, it can be more important when certain words and phrases are not used than when they are.
This is true not only for formal texts such as laws, but also for rhetorical acts in certain situations.
An ‘appeal for calm’ thereby might or might not work – but a failure or obvious refusal to ‘appeal for calm’ can have unwelcome consequences.
Appealing for calm is therefore an important piece of political behaviour – both for what it can achieve and also for what may happen if the appeal is not made.
Words matter, but so does silence.
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Over at the American site National Review there is a call – in all seriousness – for the franchise to be restricted.
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(‘Don’t give oxygen to such things,’ demand those unaware that ‘not giving oxygen’ to Trumpism and Brexit did nothing to stop the rise of such notions – but this is a law and policy blog and it exists to offer comment on such developments.)
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The contention at the National Review moves from the fact that as there are certain restrictions on voters – for example, felons – to urging that there should be other restrictions.
The entire piece is a practical exercise in political sophistry.
Yet it was commissioned for and published on a well-known website.
It is an attempt to re-open debates that one would have thought were long settled.
It is nothing less than an effort to re-impose Jim Crow type voting restrictions.
It is a dangerous development.
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This law and policy blog is written from a liberal rather than a democratic perspective.
That is say that there are certain things – such as fundamental human rights – that should not be subject to votes.
Even if a majority of people supported the torture of one human being, that torture would still be absolutely wrong.
Such a liberal perspective is alert to and wary of the consequences of populism and demagogues and majoritarianism.
Democracy can be illiberal – and just because a thing has a democratic mandate, it would not make a thing that is fundamentally illiberal right and proper.
But.
When things are subject to democratic oversight and control, then the votes should be equal and the franchise as universal as possible, and there should not be ‘super-voters’ with more democratic power than others.
In the United Kingdom, it actually used to be the case that such privileged voters did exist – those with more of a ‘stake’ in the community would/should have a better chance of a vote – and these were bog-standard arguments in the lead up to the 1832 reform act.
In the United States, such arguments were used to in effect disenfranchise slaves and those descended from slaves.
The anti-democratic arguments now being put forward have not really been put forward so earnestly and with such force since the 1800s.
It is almost as if the ‘march of democracy’ has not only halted but is now retreating – a corrective to the simple notion of linear political progress.
Authoritarianism and anti-democracy, like illiberalism, has never really gone away – it just was not so prominent for a while, at least in the United Kingdom – making liberals and progressives complacent.
Perhaps such anti-democratic views are just a blip – and we will carry on heading towards the right side of history.
Or perhaps there is no natural line of political progression – and every generation has to win the arguments for liberalism and democracy afresh.
The post-2016 anti-democratic, illiberal turn is not over yet.
Brace, brace.
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Ten years ago this month the singer David Emmanuel – known as Smiley Culture – died under arrest during a police raid.
The cause of death was a knife wound – which the police said was self-inflcited.
Ten years ago I blogged about this extraordinary death – and so this post is a follow-on so as to see what happened (and did not happen) next.
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Smiley Culture was part of the soundtrack of those of us brought up in the 1980s.
Have a click and listen and watch.
The sneering, aggressive vocal characterisation of the officer – ‘Shut your bloody mouth. We ask. You answer’ – felt spot on for those in communities which dealt with the police.
Police Officer especially caught a certain mood about the police’s attitude.
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Here is the singer posing outside a south London police station on the cover of the single:
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The news of the circumstances of the death of Smiley Culture seemed – literally – incredible.
That someone could stab themselves fatally in the chest in the presence of police officers seemed surreal – like something akin to those lines in the Blackadder episode Dish and Dishonesty.
But this – horrifically – was real, not a fiction.
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The name of Smiley Culture is now recalled as one of a long list of name of black people who have died in police custody or in similar situations.
So what happened with his case?
Putting events together now, the main consequence of the death was a coroner’s inquest in June-July 2013.
After a two-week hearing, the jury returned a majority verdict that the cause of death was indeed suicide.
(A majority verdict, of course, means that the jury could not come to an unanimous verdict, which in turn means that at least one juror had doubt that it was a suicide.)
According to a BBC report, the inquest heard medical evidence that the fatal wound could have been self-inflicted, if the right spot was chosen:
‘Dr Nathaniel Cary, who carried out a second post-mortem examination on Mr Emmanuel’s body, said told the inquest it was possible the fatal stab wound was, as described, a self-inflicted injury.
‘But he said that on pathological grounds alone there was nothing to determine that this was the case, although it was fair to say the site chosen may be used in self-infliction.’
The majority of the jurors accepted this as the explanation.
As counter-intuitive as this verdict may seem, it must be remembered that those jurors sat through two weeks of evidence – which was cross-examined on behalf of the deceased’s family.
But another person who sat through that hearing – the daughter of Smiley Culture – was not satisfied.
‘After listening to over two weeks of evidence and having had the opportunity to test the accounts of the officers, I feel no closer to the truth than I did before.
‘I have approached this inquest with an open mind hoping to hear for myself what happened on the day of my dad’s death.
‘Despite the jury’s verdict, the inconsistencies in the evidence have only served to raise serious concerns on my part about what really happened on the morning of March 15 2011.’
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That a person in a room drinking tea with a police officer should suddenly get up, produce a large kitchen knife and plunge it in his own chest so as to kill themselves is, even accepting the jury’s verdict, an extreme fact situation.
Even if it were suicide, there are questions to be asked about how it happened, and answers to be given in the public interest.
‘Despite the suicide verdict, the jury did find that the way in which Mr Emmanuel was supervised following his arrest materially contributed to his death. In particular, the fact that a single officer was left to supervise Mr Emmanuel while also completing paperwork was felt to be inappropriate.
‘The inquest has also highlighted serious failings in the Independent Police Complaints Commission’s investigation, including a failure to attend the scene until some four hours after the event, a failure to secure all relevant evidence, and a failure to critically analyse opinions expressed by the expert witnesses.
‘Following the verdict, the Coroner, Mr Richard Travers, said that he would write to the Metropolitan Police Service, highlighting failures that contributed towards the death, making recommendations for changes aimed at preventing similar tragedies in future.’
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The (then) Independent Police Complaints Commission issued the following press release after the inquest verdict (emphasis added):
‘Following today’s conclusion of the inquest into the death of David Emmanuel, also known as Smiley Culture, IPCC Commissioner Mike Franklin said:
‘David Emmanuel’s death caused huge shock, anger and disbelief in the community and I am aware that many people, most importantly Mr Emmanuel’s family, have waited over two years for the evidence to be heard at an inquest.
‘The ongoing dynamic assessments made by officers on the 15 March 2011 were left wanting. Four experienced officers felt it appropriate to detain a suspect in the kitchen, potentially the most dangerous room in the house and afforded him a level of freedom not normally associated with an operation of this kind.
‘The IPCC has made a series of recommendations to the Metropolitan Police following this investigation presenting them with areas that should be reviewed and changed in light of the findings. These include recommendations on dynamic risk assessments, the sharing of information and use of officer personal safety equipment.
‘The IPCC made two national recommendations following this investigation. The first is that officers should always detain people in the safest part of the house. Therefore kitchens must generally be avoided at all times. The second national recommendation focused on officer safety equipment and that all officers and staff attending search operations should carry with them the appropriate personal safety equipment.
‘While the IPCC highlighted these areas of learning for the MPS, the officers’ actions did not meet the threshold for misconduct under the Police (conduct) Regulations 2008 and no disciplinary action has been recommended.
‘I hope that this inquest has provided Mr Emmanuel’s family with some of the answers they and the community have so patiently waited for. This has been a long process for all the parties involved and I would like to thank them for their patience.
‘Notes to editors
‘Mr Emmanuel died on 15 March 2011 of a single stab wound through the heart at his home on Hillbury Road in Warlingham, Surrey. Four officers from the Metropolitan Police Service (MPS) were at the house at the time, carrying out a search of the property.
‘After careful consideration and in consultation with lawyers from both the IPCC and the Crown Prosecution Service (CPS), Commissioner Mike Franklin, took the decision not to formally refer the case to the CPS as the investigation found no evidence that a criminal offence may have been committed.
‘Consideration was also given as to whether the actions of individual officers met the threshold for misconduct under the Police (conduct) Regulations 2008. The investigation found there were no individual failings which, for the purposes of the Regulations, amounted to misconduct.’
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So the conduct of the police was ‘found wanting’, somebody died under arrest, but this was an opportunity for ‘learning’ rather than any formal proceedings.
The coroner, in turn, also made recommendations.
Thanks to a tweeter, we have what appears to have a formal record of the recommendations:
Presumably this is report 208 on p39 at https://t.co/2zixUC50Q4 ? If the inquest had been 4 weeks later we could read the letter and responses.
No doubt in each of those situations there are special facts – but it is marked that the police rarely face any proceedings, let alone criminal charges for any of these deaths.
And it may well be that the close scrutiny of each case could dispel any suspicion that something wrong happened every time.
But the accumulation of deaths as set against the absence of successful prosecutions seems to be a mismatch.
Given the facts of the death of Smiley Culture, as determined by a majority of a jury, it may contested that his death is not as glaring example of this apparent trend of injustices as many others.
But like one or two of the others that have died while in the custody (or ‘care’) of the police, he happened to be more famous than the rest, and so his is one of the names that will be cited.
And even the IPCC found the conduct of the police at the time of his death to be ‘wanting’ – with both the IPCC and the coroner separately making recommendations about how such searches are conducted in future.
So even if one accepts the coroner’s inquest – and again the jury heard the relevant evidence cross-examined and a majority of those jurors were convinced it was suicide – the death followed carelessness by the police.
I am still seeking to find out if those recommendations were formally accepted by the police and the home office – though I have been told by police sources that the training for such searches now includes the need for risk assessments that would cover what happened in the death of Smiley Culture.
I will post here again on this subject when I have further information about what happened with the recommendations of the coroner and the IPCC.
It is important to follow these things through, even ten years later – especially as black people continue to die in police custody, and there are never any formal proceedings.
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And that, in turn, is the account of the Gloucestershire Police Federation as it is directly linked to at their website (top right).
So, yes, it is a real tweet.
A real tweet by a real chair of a real police federation.
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Having established the tweet’s authenticity, let us now look at its content.
The tweet states that the police are not public servants.
More exactly that ‘technically’ the police are not public servants.
As there is no ‘technical’ definition of the term ‘public servant’ this is a nonsense.
That a police constable is a servant of the crown – as are many civil servants – does not mean that they are also not public servants.
Crown servants – and others employed by the state in whatever legal form – are public servants.
Now look at the context of the tweet – it is intended as a correction in reply to a fair comment that the police should serve the public, not the government.
The reply denies that this is the case.
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But not only does this tweet deny that the police are public servants – it also frames the concept of ‘policing by consent’ as a ‘general principle’ but not a ‘duty’.
‘To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect.’
Indeed, each of the principles is set out as an express ‘instruction’ to constables: ‘to recognise’, ‘to maintain’, ‘to use’ and so on.
As such each of the principles is also a duty – and this is because – ahem, technically – a duty can also be a principle, and vice versa.
Especially when they are expressly framed as such, as they are in that formal definition of ‘policing by consent’.
But for our tweeter, these express instructions can be defined out of from having any actual application because they are only ‘principles’.
This, like the tweeter’s other distinction, is itself worrying and telling.
Policing by consent is not an optional nice-to-have in modern society – it is foundational.
That it can be expressly stated to not be a duty – notwithstanding the actual words of the instructions – is a disturbing insight.
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Perhaps the tweet was a just a slip, not to be taken seriously.
(Though, remember the police themselves are often not so forgiving of the slips of others.)
Perhaps there will be a clarification, or something.
Or perhaps the tweets provided an indication – an insight – into a mindset of certain police officers.
That not being public servants and that not policing by consent are both a quick distinction away from having practical application in the discharge of their important role in our society.
***
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