Union Jack, flickr, creative comms licence Dave KingWith UKIP’s strong showing at the two UK elections of the past week, they have received a great deal of media coverage – oversaturation perhaps given that they are still predicted to fail at Westminster.

Coming first in the European elections was an impressive feat, while the in-roads made at the local council elections shows the party has gained a foothold in domestic politics and can win in the first past-the-post system. As such, we should start seriously considering what it is that UKIP represent beyond the headlines of gaffes and bigotry.

Though they will not hold power at the next general election, there is an outside chance they could win several seats and support a minority Conservative government. More likely, the earthquake Nigel Farage loves to talk about will shake the main parties into reassessing their positions as they formulate manifestos over the next few months.

A lurch to the right is conceivable for both David Cameron and the Labour party as they try to plug the holes that led their disaffected faithful to jump ship. This UKIP-factor means we need to understand the party’s aims, beyond the flagship referendum and immigration controls. We should look at domestic issues, such as the legal system.

To capture such policy is difficult. Farage infamously admitted that even he hadn’t read their entire manifesto for the 2010 election (but labeled much of it ‘drivel’ all the same), while he refused to be drawn on home affairs in his latest campaign deeming them irrelevant for a European election.

While the party is still formulating its plans for the next General Election, it is possible to deduce some strong themes in the legal realm. It has been said that UKIP doesn’t have a policy on the rule of law, though that seems a little unfair. Sadly, the party declined a recent invitation to talk about criminal justice, which seems a particular shame, as the biggest issue for the party is the need to leave the EU to allow the UK full control over our own laws.

Law and order
All the same, and putting aside their leader’s concerns with Romanian criminality, we can piece together the likely direction of their policy in this area from various documents and statements so, while precise details may change, it is possible to draw out the general gist.

Here, notably UKIP have designated their policy as one of ‘law and order’ rather than ‘crime’ or ‘justice’ as favoured by other parties such as the Conservatives, Labour, Liberal Democrats or Greens. The difference in labels may seem pedantic but actually signifies something about their approach.

A justice policy implies pursuing fairness – humane treatment in the interests of all, while a policy on crime suggests that there is a clearly discernable, unpleasant phenomena that can be managed.

In contrast, law and order sees problem sections of society that must be clamped down upon – the emphasis is not on upholding legal principles or improving the lot of the community but rather identifying bothersome populations and being seen to deal with them.

Law and order is about macho and showy gestures, moves to make the party dealing in this politics appear stronger in the face of this threat from troublemakers and outcasts.

It has its origins in the US of the 1960s and President Richard Nixon’s opposition to the civil rights movement, later taken up to deal with emerging inner city gang culture in the 1970s/80s as in New Jersey and famously practiced in New York under Mayor Rudy Giuliani in the 1990s.

In UK terms, law and order was traditionally the domain of the Conservative party and used to powerful effect by Margaret Thatcher in her 1979 campaign, while leading party figures such as, former Home Secretary, Michael Howard insisted ‘prison works’ in justifying his hard-line approach to offenders.

Labour was always seen as relatively soft on criminals, the party represented the vulnerable and the dispossessed, though this all changed under Tony Blair’s stewardship as the Third Way approach adopted by New Labour meant they promised to be ‘tough’.

We presently see a competition between both parties to be firmer on law and order than the other, but the public seems unconvinced – Ed Milliband is often seen as an essentially weak character that harks back to the pre-Blair era of old Labour, Cameron seems unable to shake off his attempts to humanise the face of the nasty party and his early call to ‘hug a hoody’.

It is in this context that UKIP is seeking to steal a march with policies that would hark back to mythical traditional values and the rose-tinted spectacles of a past when people were supposedly scared to break the law for fear of the wrath of the state (ignoring the fact the crime rate is falling all the time).

This law and order approach generally forwards a stricter application of the criminal law, one that seeks to punish rather than reform or rehabilitate – advocates believe lack of moral compass rather than external factors such as poverty are to blame for criminality.

This appeals to those who insist the criminal justice system has become somehow too soft, with criminals getting off too easily now that, even the Conservatives are making more use of community sentencing and vigorously promoting a restorative justice based on forgiveness. UKIP represent the acceptable face of old fashioned law and order (of course, more extreme parties like the BNP have been banging this drum for years but their extremism placed them perpetually on the fringes of debate).

The UKIP approach
First and foremost, UKIP want to withdraw Britain from the Human Rights Act – that safeguard of decency that for some reason represents the bane of Daily Mail reading right-wingers up and down the land.

UKIP would scrap the Act. This means a move away from a document that includes prohibition of torture and slavery, provides freedom of assembly and free speech, promotes the right to a fair trial and to liberty, and protects property and the right to education, family and marriage. It also enshrines the right to life. It would be unfair to suppose UKIP did not believe in most if not all of these principles, though it is concerning that they are so irked by such a hopeful document. They believe the Act offers too many rights, and will initially seek to curb those that apply to foreign criminals and those who preach radical Islam. After that, who knows?

They would also withdraw the UK from the European Arrest Warrant, on the grounds of defending the primacy of the legal system of England and Wales. UKIP dislike the manner in which it allows British citizens to be extradited for offences against other country’s criminal law (ignoring the apparent contradiction between this stance and their keenness to send criminals of other nationalities away).

This seems a rather ill-informed, backward looking move that ignores the reality of global criminality. We live in the age of mobility, whereby criminal gangs act like transnational corporations and criminal flows move across borders like legal trade. An inward-looking criminal justice system will never properly account for such wrong-doing.

Ironically, this would mean that the apparently rigorous law and order approach they preach will be undermined by systemically allowing some offenders to escape sanction through this stubborn refusal to engage on the international level.

UKIP will take a ‘zero tolerance’ stance on crime, despite much doubt over the effectiveness of such approaches. They want more offenders going to prison, for longer sentences. They will double the number of prison places through “better” use of existing prisons (likely to mean more overcrowding in an already bursting at the seems system – the largest prison population in Western Europe), with an end to the early release approach (thus no more rewards for prisoners showing progress in changing their negative behaviour patterns and little incentive to reform themselves).

UKIP is intent on a penal policy that looks good on paper and will sell well in sound bites but misses the reality that prison is very expensive for the results it produces, using imprisonment to deal with minor offences that require shorter sentences does more harm than good and leads to high recidivism, and that other factors such as education, employment, addictions and therapy have more impact in reducing reoffending and would unlikely to be properly tackled in a (more) draconian prison system (rather, than, say, a more humane example such as in Norway).

The populist rhetoric of law and order policy is pronounced in UKIP’s desire to abolish the CPS for being ‘politically correct’ (read, not harsh enough). Instead, the party wants to return to local police prosecutions. The CPS was formed in the 1980s, as it was deemed not in the interests of justice to have the police responsible for arrest, investigation and prosecution.

Such a situation represented a clear conflict of interest, which put unfair pressure on the police as, understandably, they could feel induced to withhold vital evidence to win the cases they were pursuing. On top of this, there was a distinct lack of consistency, with no uniformity over how cases were proceeded with; different areas had different standards, while one might choose to caution another may prosecute. UKIP want to return to the old, faulty system, whereby the job of the police is made harder as they are put under intense scrutiny that could hamper their decision making, defendants will be left feeling increasingly unsure as to whether the criminal process really does presume them innocent until proven guilty and the public shall be ever more confused as to whether an offender has received a just sentence when they vary so much.

So, a UKIP government would essentially dismantle our due process safeguards and institute a crime control state, whereby the desire to arrest, prosecute and lock up offenders trumps concerns of fairness or human rights. Thankfully, the party will not win power in 2015 but there is a possibility that whatever government is in Westminster will have moved further towards this approach as a result of UKIP’s success. That makes this an important moment to have someone stand up for justice in the face of such a threat.

Profile photo of Daniel Newman About Daniel Newman
Dr Newman is a cecturer in law at Cardiff School of Law and Politics and author of Legal Aid Lawyers and the Quest for Justice (Hart, 2013)

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