Inequality Before the Law

The powerful enjoy immunity, while the law treats the powerless ever more harshly

By George Monbiot. Published in the Guardian 19th November 1998.

If General Pinochet is released by the Law Lords, he won’t be the only person in Britain deemed too important to prosecute. A fortnight ago, an assistant chief constable of Hampshire Police stopped the prosecution of Lady Justice Elizabeth Butler-Sloss, after she blinded her son’s nanny in a car accident. In what was doubtless an effort to assure us of their impartiality, the police explained that cases which involved ‘anyone high profile’ were routinely handled by senior, rather than junior officers, thus neatly confirming that there is one law for the powerful and another for the powerless. Last week, we learnt that Judge Richard Gee is to retire early, having been excused trial for an alleged £1 million mortgage fraud when the Attorney-General ruled that he was “too stressed” to appear in court. Judge Gee’s psyche now appears to have been restored with the miraculous speed with which Ernest Saunders recovered from Alzheimer’s. Perhaps impunity should be available on prescription.

Something is happening in Britain, of which these are just the crudest and most trivial manifestations. The principle of equality before the law is being dumped.

Ten days ago a leaked letter from the Lord Chancellor’s office revealed plans to protect multinational companies from lawsuits by workers in the Third World. A few days later, the police announced that they were setting up a new national intelligence unit to monitor environmentalists, while a leaked memo showed that they are now spying on farmers who might protest against the superstores. And all this has taken place in the month in which Royal Assent for the Human Rights Act was supposed to protect our civil liberties. As the MP Alan Simpson has pointed out, the powerful are now policed by consent, those challenging their power, by coercion.

Over the past fifteen years, civil protest, Britain’s oldest democratic tradition, has been progressively criminalised. Mrs Thatcher’s authoritarian union laws were followed, in 1986, by the Public Order Act, which restricted the right to demonstrate. The 1992 Trade Union Act criminalised such terrorist activities as carrying insulting banners. The 1994 Criminal Justice Act allowed the police to break up almost any public protest. The 1996 Security Service Act and 1997 Police Act included in their definition of serious crime “conduct by a large number of persons in pursuit of a common purpose”: peaceful protesters were thus exposed to state-endorsed bugging, burglary and arbitrary searches.

Conversely, Lord Irvine’s plan to abolish most civil legal aid means impoverished people maliciously prosecuted by the police or contracting leukaemia because they live beside a nuclear power station won’t be able to sue. A legal loophole which the government has shown no inclination to close ensures that the directors of pension companies involved in the misselling scandal are effectively immune from prosecution. People trying to change society for the better have been turned, by degrees, into criminals. The corrupt and exploitative are being offered legal protection. The scales of justice have been recalibrated.

Why has this happened? All parties claim to subscribe to the ideal of social justice. Hardly anyone now argues that a return to authoritarianism will save the nation from a blundering democracy. Yet only a handful of parliamentarians has dared to speak out against the smashing of the cornerstone of the democratic project.

I believe that Britain is embarking on a massive new adventure in enclosure, by which I mean the transformation of things that once belonged to all of us into exclusive private property. In the early years of the 18th Century, as landrights were removed from the common people and concentrated in the hands of the wealthy, scores of new laws, like the 1715 Riot Act and the Black Acts of the 1720s, were drafted to prevent ordinary people from contesting the seizure of their property. Today, a few powerful institutions are, in some sectors, virtually eliminating small business and securing all the trade for themselves. They are turning public streets into guarded shopping malls and river frontage into exclusive estates. Human genes are being registered as private property, and international negotiators are insisting that even future anticipated profits should be regarded worldwide as inalienable possessions. Property is nine-tenths of the law, so, as property expands, the law must give way to accommodate it.

Nothing could more successfully erode the concept of inclusive democracy than the perception that the law is the friend of the few and the enemy of the many. As public order gives way to a private order, a criminal record will become the mark of good citizenship.