For Boris Johnson’s pantomime authoritarians, overt cruelty is a winning hand

It has become received wisdom among Westminster pundits that the new winning formula in politics is to “move left on economics and right on culture”. Boris Johnson’s cabinet reshuffle looks like an attempt to put this lesson into practice: forcing Sajid Javid, an advocate of strict spending limits, out of the Treasury suggests that the prime minister wants to strategically splash money around – however superficial this moving “left” might prove to be. At the same time, Johnson’s government has sent a series of clear signals to the right – on immigration, on perceived liberal bias at the BBC, on the “free-speech crisis” in universities – the latest of which is the appointment of Suella Braverman as attorney general.

This suggests that the government intends to pursue the pantomime authoritarianism displayed by the home secretary, Priti Patel, at last year’s party conference: an ostentatious cruelty, directed at people who supposedly threaten public safety, and waved like a taunt to the liberal elite that stands in the government’s way. Braverman comes from the hard-right milieu that has increasingly set the tone in the Conservative party since the EU referendum. Last year, she drew criticism from the Board of Deputies of British Jews and others for saying the right was engaged in “a battle against cultural Marxism”, echoing a conspiracy theory with antisemitic connotations that has made its way from the extremist fringe into the mainstream via websites such as Breitbart.

But the problem is not so much careless language as the vision of our legal system held by Braverman, a former immigration lawyer who has represented the Home Office against claims of unlawful detention. Writing last month for Conservative Home, she argued that the concept of human rights had been “stretched beyond recognition” and that “elected decision-makers” needed to “take back control” from “a small number of unelected, unaccountable judges” once the UK had left the EU. (Her predecessor, Geoffrey Cox, had already suggested that judges considered for the supreme court be interviewed by MPs before they are appointed.)

The main target of Braverman’s ire was judicial review, which allows individuals to challenge public bodies when they feel they have exercised their power unlawfully. In theory it exists to protect people with relatively little power – most of us, in other words – from being hurt by the actions of large and frequently unaccountable institutions. If the state denies you housing or puts you in immigration detention when it shouldn’t, or charges you exorbitant sums of money to take your employer to court, then judicial review is one of the ways you can try to stop it. Politicians such as Braverman dislike judicial review because they think it has been expanded far beyond its original purpose – and become a political tool for activists who want to change government policy by undemocratic means.

It’s not hard to see why the right feels this way: the courts have become a primary arena for challenges to their power. Judicial review was one of the legal tools used by campaigners who wanted to stop or slow down Brexit. It played an important role in the court battle that provoked the Daily Mail’s notorious “Enemies of the people” front page in November 2016 – a case that centred on the question of whether the government had followed its own laws in its plans to trigger article 50.

But liberals may wish to consider the outcome of that fight. Brexit has indeed gone ahead, thanks in part to a widespread public feeling, cultivated by the right, that critics of the process were attempting to frustrate democracy. The success of this message, which swept aside any remain victories in parliament and the courts, and helped deliver a giant Conservative majority, indicates the difficulties for those seeking to rein in the right.

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This isn’t just a problem in the UK. The failed impeachment of Donald Trump and the impending criminal trial of Italy’s Matteo Salvini for holding rescued migrants at sea both show the risk of backlash inherent in legal challenges to rightwing populism, however justified. Rightwing populists like to invoke a majoritarian conception of “the people”, usually along exclusionary nationalist lines. They pose as its direct and exclusive voice, often in opposition to the checks and balances that exist to uphold the rule of law, or protect the rights of minorities and the vulnerable. Challenge them on this and they will inevitably portray their opponents as anti-democratic.

That doesn’t mean they should go unchallenged. “Move right on culture” might sound like a relatively innocuous phrase, but the resulting policies have a real and devastating effect on other people’s lives. The row this month over a deportation charter flight to Jamaica is an example. Britain stopped banishing its citizens in 1868, when it abolished the transportation of convicts to penal colonies in Australia. Over the past 15 years it has reintroduced a de facto form of banishment for people who are almost citizens but not quite: foreign nationals who have lived significant parts of their lives in the UK, who frequently hail from former British colonies, and who very often feel British even if their documents say otherwise. It is a cruel policy, particularly when it involves those who arrived in the UK as children, and one that disproportionately affects people from black and ethnic minority backgrounds.

On the face of it, the policy has strong public support, since the people deported are easily portrayed as having broken the rules: they have been convicted of crimes or fallen foul of immigration restrictions. But that support may be more fragile than it appears, since when people start to find out the details of who is being deported and why, the situation starts to look a lot more complex.

The distinction between “citizen” and “foreigner” has become less clear in recent decades, with large numbers of people living long-term in Britain on various temporary and precarious forms of leave to remain. When challenged on its deportation charter flights – there are several a year, to Jamaica, west Africa, Pakistan and elsewhere – the Home Office always claims that they are for serious criminals, such as rapists and drug dealers. Other, more sympathy-inducing cases can provoke an uproar, so the Home Office tries to maintain a veil of secrecy over the flights and to rush people on to planes, often breaking its own rules in the process.

There was a rare public outcry over the scheduled deportation flight to Jamaica – in part because it took place before the long-awaited publication of a report into the lessons of the Windrush scandal, in which many long-term residents of the UK were wrongly deported to the Caribbean. Opposition came from prominent Labour MPs, human rights defenders and leftwing activists, and included an attempt to halt the flight via judicial review. It was partially successful: some of the passengers were removed because they had been denied mobile phone access in the preceding days and had been unable to contact their lawyers.

Immediately, Downing Street briefed that Johnson was “furious”, with his adviser Dominic Cummings reportedly calling the court’s decision “a perfect symbol of the British state’s dysfunction” and promising “urgent action on the farce that judicial review has become”.

Braverman is likely to agree. Even before the Tories fully embraced the culture war, many lawyers working on sensitive areas such as immigration preferred to build their cases without public fanfare – because of the risk that a media backlash could lead to further abridgement of legal rights.

The law may be a vital form of protection, but it is not an escape from politics. Campaigners are right to use the courts to challenge this government’s hostility to those who do not fit its vision of Britishness. But legal action cannot halt the rise of the right. That will require a longer political struggle – one that challenges the framing of the culture war, builds popular support and wins at the ballot box.

• Daniel Trilling is the author of Lights in the Distance: Exile and Refuge at the Borders of Europe