Moral Failure and the Law

• Author: John Eekelaar
• DOI: http://doi.org/10.1111/raju.12298
• Published date: 01 December 2020
• Date: 01 December 2020

© (2020) John Wiley & Sons Ltd.

Ratio Juris, Vol. 33 No. 4 December 2020 (368–379)

Moral Failure and the Law

JOHN EEKELAAR

Abstract. The recent “Windrush” scandal in the United Kingdom involved the application of

law by Home Office officials in a manner that demonstrated gross lack of concern and human-

ity for its impact on many individuals. In an endeavour to reach some understanding of how

ordinary individuals could have inflicted such hardships on others, this article considers the

possible effect that acting within a legal environment might have on the actors’ response to

moral norms. The inquiry leads to reconsideration of established theories on the relationship

between law and morality, concluding that the main theories ignore important aspects of that

relationship.

1. Introduction: The “Windrush” Cases

During 2018, Amelia Gentleman, a journalist at The Guardian newspaper, published

a number of stories of individuals who had come to Britain as children from the

Caribbean, mostly in the 1950s and 1960s, whose parents were Commonwealth citi-

zens, and who had lived in Britain continuously since then, and had suddenly been

informed that they were illegal immigrants, detained and either deported or threat-

ened with deportation. The full story was told in her book, The Windrush Scandal:

Exposing the Hostile Environment, published the following year (Gentleman 2019).

Many individuals with the same history, who have been called the “Windrush”

generation after the name of the ship on which many of them travelled to Britain, had

subsequently applied for and were granted UK citizenship. But many thousands did

not, and suffered under the “hostile environment” introduced by Theresa May when

she was Home Secretary that sought to deny or restrict such matters as access to

health and financial services, social benefits, driving licences, and accommodation to

persons because they were unable to provide documentation testifying to the legality

of their residence, a policy later held to constitute unlawful discrimination in the

context of access to rented property.1

Gentleman reported the case of Paulette Wilson, a sixty-one-year-old grand-

mother who had arrived in the UK from Jamaica at the age of ten in 1968. Wrongly

classified as an illegal immigrant, she had been detained at an immigration detention

centre ahead of removal to Jamaica—a country where she had no surviving relatives

and which she had not visited for almost half a century. She had attended primary

and secondary school in Britain, worked and paid taxes for around thirty-four years,

and had brought up her daughter and granddaughter here, both of whom are British.

1 R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019]

EWHC 452 (Admin).