Britain’s unwritten constitution is still permeated by the medieval concept of Crown immunity. It deems ministers can’t break the law and act not as persons but agents of the Crown, says Mark Curtis.
The UK government’s failure to provide protective equipment to all health staff treating coronavirus victims prompts questions over whether ministers are legally culpable for failing to prevent deaths. But ministers routinely act with impunity and every prime minister since 1945 has been complicit in deaths abroad.
At a time when more than 160 workers in Britain’s National Health Service (NHS) have died from Covid-19, alongside as many as 47,000 in the general population, there is rising anger at the government’s failure to protect even the country’s frontline health workers.
But UK ministers escaping accountability for policy decisions that lead to a loss of life is as British as afternoon tea.
The most obvious immediate comparison with deaths from coronavirus is the government’s economic austerity programme, begun in 2010, which involved deep cuts in social welfare spending. A number of studies link austerity to widespread deaths.
A study published in the journal BMJ Open in 2017 concluded that spending cuts since 2010 were linked to nearly 120,000 excess deaths in England. Some other estimates are even higher. Last year, the Institute for Public Policy Research reported that 130,000 deaths could have been prevented between 2012 and 2017 if spending cuts under austerity had not stalled the provision of public health services.
These studies have gained public attention but have been contested by the government and resulted in no formal processes to hold ministers to account. This will come as no surprise to analysts of the country’s foreign policy, where longstanding ministerial impunity for complicity in crimes abroad is even clearer.
Incredibly, no UK minister has ever been held to account for contributing to deaths in Britain’s foreign wars.
The current war in Yemen, in which more than 100,000 people have died, has been facilitated by decisions made by British ministers for five years. The UK’s Royal Air Force and the arms corporation BAE Systems, which works closely with the Ministry of Defence in Saudi Arabia, has been maintaining the Saudi warplanes bombing Yemen and storing and issuing their bombs.
A recent UN report details a host of possible war crimes committed by Saudi and other forces in the war, including through airstrikes and indiscriminate shelling. It also expresses “strong concern that the parties to the conflict may have used starvation as a method of warfare”.
Three prime ministers – David Cameron, Theresa May and Boris Johnson – have been able to act with no formal censure in their decision-making on Yemen. They have been no more held to account than Tony Blair, seen by many as a war criminal, whose illegal invasion of Iraq in 2003 led to hundreds of thousands of deaths.
Blair, like Johnson, has barely even been censured morally let alone legally in the British mainstream — rather than being held to account for war crimes, he continues to be seen as a legitimate commentator on current affairs across the media.
Impunity for Every Prime Minister Since 1945
In fact, the history of British leaders getting away with their crimes is as long as the history of British leaders. My and other researchers’ analysis of the declassified British government files in the years since 1945 reveals a litany of unethical and illegal policies that have had grim human consequences, many of which are little known or ignored in mainstream commentary.
Every British prime minister has been complicit.
The war in Malaya after 1948 — begun under the first post-war prime minister, Clement Attlee, and continued by Winston Churchill — involved widespread aerial bombing to defeat an insurgency movement, the use of a forerunner to modern cluster bombs and the illegal infliction of “collective punishments” on villages where people were deemed to be aiding the fighters.
While that war was raging, Churchill, Anthony Eden and Harold Macmillan presided over a war in Kenya, from 1952 to 1960, involving the brutal incarceration of tens of thousands of people in concentration camps in which untold thousands died from disease and starvation.
Eden and his ministers were never prosecuted for their illegal invasion of Egypt in 1956. Nor was Macmillan for the illegal British bombing of water and food supplies in the war in Oman the following year, or for his covert war in Indonesia in 1957-9 in which thousands were killed.
Macmillan then authorised, and his successor Alec Douglas-Home continued, a covert war in Yemen in the 1960s in which tens of thousands of people died. Under Macmillan, Britain’s intelligence agency, MI6, was involved in the plot in 1960-61 to assassinate Congolese leader Patrice Lumumba.
Harold Wilson’s Labour Party government that won power in 1964 armed Iraq’s regime in the mid-1960s as it massacred Kurds and set the process in motion to illegally evict the Chagos Islanders in the Indian Ocean. An even less-known policy was the Wilson government’s support for, and side-role in facilitating, the Indonesian government’s massacre of up to a million people in 1965.
During 1967-70, Britain under Wilson also secretly armed and supported the Nigerian military regime as it brutally defeated an attempt by the Biafra region to secede from the country. Up to three million people died there.
Conservative and Labour governments throughout the 1960s and early 1970s backedthe US at virtually every stage of military escalation in its brutal war in Vietnam. They provided arms and training to South Vietnamese forces and also played an important covert role in a war in which two to three million people died.
The government of Edward Heath which succeeded Wilson in 1970 supported the coup that brought the Idi Amin regime into power in Uganda in 1971, which went on to kill up to 500,000 people. Two years later, it welcomed the overthrow of Chile’s elected government and the assumption of power by General Augusto Pinochet.
When the Indonesian regime under General Suharto brutally invaded the territory of East Timor in 1975, declassified files show that the Wilson government, in office again after the Heath interlude, welcomed the action and supported Indonesia at the UN. James Callaghan’s government that succeeded Wilson in 1976 sold combat aircraft to Indonesia and they were used in a brutal campaign to defeat a popular movement for Timorese independence. Around 200,000 were killed.
Into the 1980s
The role of Margaret Thatcher’s government in human rights abuses can only be regarded as extraordinary, and on a par with the Wilson government of the late 1960s. Under her leadership, Britain in the 1980s sold arms to Chile’s Pinochet, whose regime killed and tortured thousands of people, and Saddam Hussein’s Iraq, as it slaughtered Kurds in the north of the country in the late 1980s.
Thatcher’s government also armed the Argentine military dictatorship that “disappeared” tens of thousands of people and invaded the Falkland islands in 1982.
Officials in Thatcher’s government allowed British mercenary pilots to work in Sri Lanka, where they massacred Tamil civilians, and promoted with the CIA a covert warin Afghanistan against the Soviet occupation that led to the creation of Al Qaeda.
In the 1980s, the SAS also covertly trained guerilla forces allied to the murderous Khmer Rouge in Cambodia and may even have directly trained the force. Thatcher’s government also allowed British troops to help the ruthless Guatemalan military dictatorship under General Rios Montt eliminate its internal opponents in the early 1980s, at the peak of the slaughter.
At the same time, her government turned a wilful blind eye to atrocities it knew were being carried out in Zimbabwe’s Matabele province by the Robert Mugabe regime.
Entering the 1990s under the government of John Major, Britain played a covert roleduring the wars in Yugoslavia in 1992-5 supplying arms to Bosnian Muslim and Croat forces and turned a blind eye to US arms supplies and military training.
During the 1994 Rwanda genocide the Major government used its position at the UN to severely reduce and delay the despatch of UN forces that could have prevented the killings and helped ensure that the UN did not use the word “genocide” so it would not act.
Tony Blair, who came to power in 1997, provided military aid to Colombia’s repressive regime when it was the worst human rights offender in Latin America and armed and otherwise supported Israel as it increased human rights abuses in the occupied Palestinian territories.
Before and during the Kosovo war of 1999, Britain under Blair secretly trained the rebel Kosovo Liberation Army, which fought in the conflict alongside Al Qaeda militants and essentially acted as Nato’s ground forces.
Under the Gordon Brown government, which succeeded Blair’s in 2007, Britain secretly trained a Bangladeshi paramilitary force condemned by human rights organisations as a “death squad” responsible for more than 1,000 extra-judicial killings. In 2009, Brown sent British police officers as “critical friends” of the Sri Lankan security forces, who were indiscriminately killing Tamil civilians and had just bombed a hospital.
David Cameron, who took power in 2010, began a military intervention with Nato in Libya in 2011 to overthrow Colonel Muammar Gaddafi which virtually destroyed the country and fuelled terrorism in the UK, Europe and Africa. Cameron also authorised covert operations in Syria targeting the regime of Bashar al-Assad as part of a broader Western/Arab coalition that helped prolong the war and immense human suffering.
Four years later, he initiated British support for the Saudi war machine in Yemen, which was continued, and if anything deepened, by his successors May and Johnson.
Throughout the period since 1945, Britain’s use of torture has been routine, from early post-war Germany to Cyprus and Kenya in the 1950s to Aden in the late 1960s, Bahrain in the 1980s and 1990s, to Nepal in the early 2000s and to its role alongside the CIA in the “war on terror”.
In Northern Ireland, evidence suggests that collusion between British security forces and loyalist paramilitary groups was systematic from the early 1970s and resulted in the deaths of hundreds of people. British military, police and security agencies were long engaged in a “dirty war” where human rights and the law were jettisoned in covert counter-insurgency strategies.
This snapshot is not even to mention Whitehall’s consistent support for governments and regimes abusing human rights, from apartheid South Africa throughout the 1950s-1980s to present-day Israel, Egypt, Oman, Bahrain or Saudi Arabia.
A Legal Duty
If this scale of involvement in deaths over the decades has not been enough to prompt the British governance system to do something about ministerial impunity, will the coronavirus crisis be any different, now that Britons are the victims?
Ministers stand accused of several key areas of negligence in their response to the outbreak. They issued false messages from January up to mid-March assuring the public for weeks that the risk from coronavirus was “low” or “very low”. They also informed the public, on at least 16 occasions, that the NHS was “well-prepared” to deal with any pandemic. Neither of these statements was true.
But the absence of sufficient protective equipment for NHS staff is the most conspicuous government policy failure since the outbreak began and has surely contributed to deaths among medical staff.
Governments have a legal duty to provide personal protective equipment (PPE) to those on the frontline of the fight against Covid-19. Two human rights lawyers have recently written that NHS workers who have died are not “natural” casualties of coronavirus and that this may be the result of a failure in the government’s duty to care for NHS staff.
They note that Article 2 of the European Convention on Human Rights requires states to protect human life and ensure there are appropriate regulatory frameworks in place to protect individuals from risk to their lives.
NHS Trusts also have a legal obligation to provide PPE to all their employees. If a nurse or doctor is infected with coronavirus because of a failure to provide such PPE, the Health and Safety at Work Act allows them to seek damages for that personal injury.
Government departments – although not individual ministers – might also be open to being prosecuted for the offence of corporate manslaughter. According to the government, this offence was “created to ensure that companies and other organisations can be held properly accountable for very serious failings resulting in death”.
The offence, which can apply to government departments, stands if an organisation manages its activities in a way that “amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”.
Yet Britain’s unwritten constitution is still permeated by the concept of Crown immunity. This doctrine, which surely should not have escaped the Middle Ages, deems that ministers cannot commit a legal wrong and do not act as persons but as agents steeped with Crown authority, and are therefore untouchable under the law.
If a minister breaches the criminal law outside of his public duties, she is subject to criminal law like anyone else. But if she makes decisions as a minister, however reprehensible or incompetent, these are considered as acts of government and not for the criminal courts.
Whether it’s war crimes by a prime minister, a minister’s complicity in torture and rendition or catastrophic health and social policy decisions, accountability, we are told, is meant to come through democracy and parliament. But it doesn’t.
Public inquiries tend to take years and can embarrass ministers but invariably fail to formally censure them, let alone hold them legally accountable. The common law offence of misconduct in public office sets an impossible threshold, even if it could be applied to ministers. The process of judicial review can sometimes act as a check on ministers, but the limitations are also stark.
For example, the Court of Appeal ruling in 2019 that UK arms sales to Saudi Arabia were unlawful, while important, required only that the government’s arms export decisions be reviewed. It was a million miles away from holding ministers individually culpable for the deaths of thousands of civilians in Yemen.
The failure to hold ministers accountable for contributing to deaths at home or abroad is one of the biggest gaping holes in the contention that British governance is democratic in a meaningful sense. If the rule of law is not made to apply to decision-makers with enormous power over life and death, but just to everyone else, what kind of a democracy is that?