A Brief History of Two-Tier Justice

This week, Britain’s controversial Attorney General became the latest in a long line of state functionaries to deny that the UK justice system is “two-tier”. Such claims are “frankly disgusting”, Lord Hermer told the BBC, and “offensive” to police, prosecutors, and the courts. But as public faith in British justice falls, Hermer can fulminate all he likes for the good it will do. In truth, unequal treatment of white British people has been baked into our society for decades.

While the phrase “two-tier justice” has gained public and political currency only recently, Britain started down the road to a two-tier justice system 60 years ago with the Race Relations Act 1965. Alongside protection against discrimination in employment, the RRA created the novel offence of stirring up racial hatred. This introduced two new concepts to British law. Hitherto, speech could be criminal under the common law only insofar as it was likely and intended to cause an imminent breach of the peace – that is, directly leading to violence. Now, for the first time, an individual was made responsible with his speech for his fellow countryman’s putative emotional state: for his “hatred”. In order to play manager of a multiracial society, the British state annexed to itself responsibility for that society’s emotions. Later down the authoritarian-therapeutic road, this would expand to include speech that might cause “distress”, “alarm”, or most recently, “non-trivial psychological harm”.

Second, and more obviously, the concept of race was introduced to the statute book for the first time. Suddenly, it mattered for the criminal law who the crime was directed at, or specifically, what “section of the public in Great Britain distinguished by color, race, or ethnic or national origins”.

It was true that by its letter, this law encompassed native British people as well as non-whites. (In 1967, Trinidad and Tobago-born black revolutionary Michael X became the first non-white person to be charged and imprisoned under the Act, receiving 12 months.) Yet restricting the speech of immigrants and their descendants was never really the intention behind the law – and ultimately, never its effect.

To see why, we might consider some of the speeches given in favor at the Second Reading of the 1965 Bill. “It is necessary to put the law on the side of racial equality and non-discrimination”, said Labour MP for Dover, David Ennals, setting the stage of UK equalities legislation as a battle between good and evil. This was because Britain “fought a war against an abominable racist theory, and while, in the main, that theory was defeated with the people who advocated it, there are still some in our community who advocate similar theories. It is against those that the Bill is directed.” Sir Barnett Janner likewise drew a parallel with Nazism, arguing, dubiously, that more aggressive laws against hate speech could have prevented the rise of Hitler in Weimar Germany, and that they ought to be brought in here to prevent such an “abuse of freedom”. Reginald Freeson believed that an incorrigible 10% of the public were “highly prejudiced”, and that these were “people whom one must try to separate off from the general community” and “isolate”. Combining the two themes, the solicitor-general, Sir Dingle Foot, said that “there is a section of the community… which is guilty of incitement to racial prejudice and racial violence” and that the Bill seeks to prevent something similar to 1930s anti-Semitism arising in Britain “in relation to the coloured immigrants”.

Here we can see a disturbing trend emerging in the British political class, following influential, though methodologically dubious, works like Theodor Adorno’s The Authoritarian Personality alongside a vogue for psychological behaviorism. The British public – who 20 years previously had triumphed over Hitler – were being cast as latent Nazis. That meant equalities legislation was needed to correct and cajole them into being sufficiently welcoming and tolerant to the un-asked for arrival of hundreds of thousands of foreigners on their shores. In the previous decade, there had been race riots in 1958 in Nottingham and Notting Hill after tensions between natives and immigrants boiled over. Never mind that this violence had gone in both directions and was the predictable result of the government’s unpopular migration policies; with the Race Relations Act and the rhetoric surrounding it, these overflowing tensions were beginning to be cast as something like Kristallnacht. This came at a time when the place of the Holocaust was still up-for-debate in left-wing political rhetoric. Before long, it would crystallize into the definitive summum malum of postwar morality and thus the most unanswerable charge of moral blackmail. And as far as the public or parts of it displayed such “racism” (read: opposition to demographic change), they would need to be punished, silenced, and socially engineered by the state – to have the criminal law “directed” against them, as Ennals put it.

Viewing subsequent “anti-racism” initiatives and equalities law in this light, it is very easy to see why the justice system now appears to operate according to two tiers. It is designed to punish the public for not having lived up to the lofty expectations of those enlightened social reformers who have so kindly ushered in a multiracial society for our own moral betterment.

Fast-forward 33 years and two race relations acts. Tony Blair’s newly arrived New Labour brings in the Crime and Disorder Act 1998, and with it statutory “hate crimes”, aggravated versions of a range of offences, if the crime was deemed to be motivated by “hostility, prejudice, or malice” along racial or religious lines. “These crimes are particularly odious”, said the Labour Home Office minister who introduced the bill, “damaging, as they do, not just the victim but the very fabric of the multi-racial society in which we live”. In the wake of the murder of Stephen Lawrence, the idea was for the state to send a message denouncing such behavior, and the racism assumed to give rise to it.

Hate crimes, like the “stirring up” offence, technically apply when committed against any group. But the intent of the law was likewise directed against the indigenous majority, and in practice, because of social mores and the way the equalities state is constituted, that is always how it ends up being enforced. To take the most glaring example: never in the history of the rape gangs scandal have any of the offences been prosecuted as racially or religiously aggravated, despite ample evidence that both have played a significant role in these horrific crimes.

But what the state will do is throw the book at people for speech it deems racist. The easiest way to understand why certain kinds of speech is taken so seriously by the state – often more so than violent, acquisitive, and sexual crimes, including gang grooming offences – is to realize that our speech offences function like secular blasphemy laws. When British people have the book thrown at them over “racist” speech, it is rarely because they have contributed to disorder or even caused “distress” in any material sense. Rather, it is because in some way they have shown contempt or antipathy for the sacred values of multiculturalism in general or the sacred totem of a minority group in particular. This is why it was so consequential when Keir Starmer denounced the Southport rioters last summer as “far-Right”. In the eyes of the anti-racist state, such a political-moral condemnation is as serious as it gets.

The antiracist moral architecture of the British state is also why judges in cases of “racist” speech routinely feel moved to call defendants “bigot”, to lecture them about diversity, or to issue a particularly harsh sentence in order that a “a message must go out”. Indeed, lesser known about the Lucy Connolly’s infamous case is that one of the reasons her sentencing judge, Melbourne Inman, treated her so harshly was other tweets she had made that he disapproved of, which he called “racist remarks”. In the first of these, Connolly had reacted with a vomiting emoji to a video of a black migrant who had allegedly been masturbating in a park, and speculated whether he was Somalian. In the second, she mocked the hypocrisy of “Refugees Welcome” open borders leftists, for not personally accepting the unvetted migrants they cheer for into their own homes. Last month, the Court of Appeal (which referred to them approvingly as “anti-racism protest[ers]”), backed Inman’s decision to hold those tweets against Connolly, agreeing that they suggested she was not “against violence and hatred”. Translation: Lucy gets angry online about immigration and therefore British justice thinks she’s a nasty person and more deserving of punishment.

All of which to say that British justice is not two-tier by accident: it is two-tier by design, as the state’s favored way of managing a fractious multicultural society. This week, we have seen only the latest example of how this ratchets up. Decades of failed immigration policies have left Britain a tinderbox, and now, the architects of that failed experiment will force dreary, authoritarian social-cohesion measures on an unwilling public for having failed to live up to their multicultural ideals.

The British public is increasingly fed up with a country and a justice system they can see is nakedly two-tier. They are right. We’ve been making it that way for the past 60 years.