The UK should not abandon the Charter of Fundamental Rights

This week, as Parliament once again debates the EU (Withdrawal) Bill – more commonly known as the Repeal Bill – one of the fiercest battle lines will be the future of the Charter of Fundamental Rights.

The Government is determined to leave the Charter behind in Brussels. But a growing number of Conservative backbenchers – backed by Labour, the Liberal Democrats and the SNP – have urged the Government not to turn the Repeal Bill into a referendum on human rights.

Even Charter sceptics have reason to question the decision to drag it into the debate over the Repeal Bill.

The Bill’s authors characterise it as a copy-and-paste exercise designed to provide legal continuity after Brexit. David Davis described it as ensuring that “the same rules and laws will apply the day after exit as before”. The Charter, of course, is one of those laws – yet the Government has marked it out as the only one it will not bring home.

The Repeal Bill was not drafted as the vehicle for deciding which EU laws we should keep and which we should dump. It “does not aim to make major changes to policy,” Davis writes.

The broad legislative power devolved to ministers under the Bill is meant only to preserve the snapshot of EU law on exit day, with minor adjustments to correct various technical deficiencies arising from withdrawal, he insists.

Primary legislation to make policy changes, alongside the usual parliamentary scrutiny, will follow the Bill in due course, we are promised.

But removing the Charter is a significant change in policy.

Davis suggests that the Charter was only ever meant to apply to EU member states, saying leaving it behind “is the natural consequence of the decision to leave the EU”. But, whether they voted leave or remain, the public did not vote to give up their rights.

Some believe that scrapping the Charter will not matter, claiming it does not protect any rights not already covered by some other law. This is demonstrably false. Courts have noted that the Charter “clearly goes further, is more specific, and has no counterpart” when it comes to protecting  privacy.

Davis himself used the Charter to challenge the UK’s  surveillance laws.

A few weeks ago, the Charter provided people employed at London-based embassies critical protection against workplace discrimination and abuse.

The Charter has been used to fight discriminatory insurance rules, to require public explanations for decisions that sacrifice individual rights in the name of national security, and to establish the 'right to be forgotten' among other things.

Keeping the Charter means keeping our ability to enforce it in exactly the way it can be enforced now, only with the UK Supreme Court taking over from the European Court of Justice as its interpreter.

Even Mr Justice Mostyn, who is no fan of the Charter, conceded its value, saying: “[t]he Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights... The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more.”

The Charter has the unique ability to strike down unlawful primary legislation that violates human rights – forcing the Government to act in a way that other laws cannot. 

The point is this: even if the notion of the Charter’s continuing viability after Brexit leaves you uneasy, taking it away from everyone in the UK is an important policy decision that should not be shoe-horned into the Repeal Bill.

For lots of people, some of the EU regulations Ministers will cut-and-paste under the Repeal Bill were major reasons they voted to leave. And the future of many of those regulations will be debated in subsequent legislation before Parliament. 

As with those regulations, the UK needs a proper debate about the Charter and its relationship to the UK human rights framework. The Repeal Bill is not the place for that debate. Let the Charter stay, alongside all the other EU laws in the Repeal Bill, so the Government can get on with the task of sorting out Brexit.

There is a world of possibilities for post-Brexit Britain. Abandoning the Charter at this stage would start us down a path before we have even settled on our destination.

Martha Spurrier is the Director of Liberty

Britain has a duty to stand up for Hong Kong

Twenty years ago, Hong Kong was handed over to China, on the understanding that its way of life, rule of law and basic freedoms would be protected. ‘One country, two systems’ was the concept designed to describe the unique combination of China’s sovereignty and Hong Kong’s autonomy. The Sino-British Joint Declaration gave Britain a responsibility to monitor the situation in Hong Kong for the first fifty years after the handover. And the prime minister at the time, Sir John Major, told Hong Kongers a year before the handover that “if there were any suggestion of a breach of the Joint Declaration, we would have a duty to pursue every legal and other avenue available to us.” Hong Kong, he promised, “will never have to walk alone”. 

Twenty years on, it is time to make good that promise. In the past few years, ‘one country, two systems’ has been increasingly eroded, Hong Kong’s freedoms threatened and the rule of law undermined. China says the Joint Declaration is an historical document of no relevance. So far, Britain’s response has been tepid. The Foreign Office’s six-monthly reports, which it is required to present to Parliament, have until recently been extraordinarily weak – described by the Governor of Hong Kong Lord Patten as “fairly neutral and … rather anodyne”. The most recent report was somewhat more robust, but that was starting from a rather low bar. The UK, argues Chris Patten, “risks selling its honour” over Hong Kong.

From the imprisonment of peaceful pro-democracy student leaders to the abduction by Chinese security agents of booksellers publishing critiques of China’s leaders, from threats to journalists to attacks on academic freedom, from the disqualification of elected pro-democracy legislators simply for failing to take their oaths properly to censorship of education curricula to remove references to politically sensitive episodes in Chinese history such as the 1989 Tiananmen massacre, all the signs are that Hong Kong’s freedoms are being strangled. A new report by the Henry Jackson Society details the rollback of civil, human and legal rights.

Just under a month ago, I experienced this first-hand when I was denied entry to Hong Kong, on the direct orders of the Chinese government, simply because I had been outspoken on human rights. To my astonishment, I was described as a serious threat to the “sovereignty, safety and interests of the nation”. The next day, Hong Kong’s Chief Executive Carrie Lam refused to rule out the possibility that Chris Patten could be banned. On this occasion, the Foreign Secretary’s response was strong and the issue received attention in Parliament, drawing a much-needed spotlight on the threats to Hong Kong’s freedoms.

Two months after the handover, I moved to Hong Kong. I worked for the first five years of Chinese sovereignty as a journalist in the territory, and although I could see some subtle warnings of threats to come – particularly in terms of self-censorship by the media – by and large when I left in 2002 I was confident that 'one country, two systems' was intact. As a journalist, I didn’t expect Hong Kong to fall from 18th in the world in 2002 to 73rd in 2015 in Reporters Without Borders’ world press freedom index. And I certainly never anticipated that fifteen years after I left Hong Kong I would be denied entry to the place I had once called home.

In 2016, the Conservative Party Human Rights Commission held an inquiry into human rights in China, and published a report called The Darkest Moment: The Crackdown on Human Rights in China 2013-2016, in which we included a section on Hong Kong. We received submissions from various activists, academics and politicians in Hong Kong. They all had the same message. “Precious rights and freedoms guaranteed under ‘one country, two systems’, such as freedom of the press, of publication and of academic thought, are being chipped away,” Hong Kong’s former Chief Secretary Anson Chan and the founder of Hong Kong’s Democratic Party Martin Lee argued in their joint submission. Professor Victoria Tin-bor Hui, Associate Professor in Political Science at the University of Notre Dame, agreed, concluding that “most pillars of freedom have been made increasingly hollowed.”

Increasing concerns about the rule of law and the independence of the judiciary have been highlighted. Last month twelve international lawyers, including the former Lord Chancellor Lord Falconer, Lord Carlile QC and the chair of the human rights committee of the Bar Council of England and Wales, Kirsty Brimelow QC, issued a public letter expressing their concerns about the imprisonment of pro-democracy student leaders Joshua Wong, Nathan Law and Alex Chow. They noted that the law under which they were charged, the Public Order Ordinance, has been criticized by the United Nations for “facilitat[ing] excessive restrictions” to basic rights, and argued that it “is incompatible with the International Covenant on Civil and Political Rights (ICCPR), which applies to Hong Kong”. They noted that Hong Kong’s retired Court of Final Appeal judge Kemal Bokhary warned of “storm clouds” over the judiciary five years ago and that in 2014, China issued a White Paper declaring that Beijing has “comprehensive jurisdiction over Hong Kong” – instead of “the high degree of autonomy” provided for in the Sino-British Joint Declaration and the Basic Law, Hong Kong’s constitution. China also announced that Hong Kong’s judges are merely “administrators” who must love the country and be "subject to oversight by the central government”. In the conclusion of twelve eminent international lawyers, “the independence of the judiciary, a pillar of Hong Kong, risks becoming a charade, at the beck and call of the Chinese Communist Party. Hong Kong’s rule of law and basic freedoms, at the heart of the principle of ‘one country, two systems’, now face grave threats.”

Creeping erosion of Hong Kong’s freedoms began slowly some years ago, but it is in the past three years that the situation has deteriorated dramatically. In 2014 China reneged on its promise to allow genuine multi-party democracy and universal suffrage in elections for Chief Executive of Hong Kong in 2017, a decision that sparked the ‘Umbrella Movement’ bringing thousands of protesters on the streets for 79 days. The police responded with teargas, beatings and arrests. Martin Lee described in The New York Times his own experience: “At 76 years old, I never expected to be tear-gassed in Hong Kong, my once peaceful home. Like many of the other tens of thousands of calm and non-violent protestors in the Hong Kong streets …, I was shocked when the pro-democracy crowd was met by throngs of police officers in full riot gear, carrying weapons and wantonly firing canisters of tear gas. After urging the crowd to remain calm under provocation, I got hit by a cloud of the burning fumes. The protesters persevered. They ran away when gassed, washed their faces and returned with raised hands. But the police continued to escalate the crisis. Their aggressive actions hardened the resolve of Hong Kongers, many of them too young to vote, to defend our freedoms. These include the long-promised right to elect our leader.”

The imprisonment of Joshua Wong, Nathan Law and Alex Chow brought the threats to Hong Kong’s freedoms to the world’s attention. Prior to the twelve international lawyers, a group of 25 eminent international politicians, diplomats, activists and religious figures issued an open letter in protest, calling the sentence “a death knell for the rule of law and human rights” in Hong Kong. The three activists’ release on bail earlier this month is a welcome move, and perhaps a sign that international advocacy works and that Hong Kong’s judicial independence is not completely lost. Nevertheless, when they were jailed their colleague Derek Lam said starkly: “In the past, when we chant ‘release political prisoners,’ we’re referring to [those in China] … but now it’s Hong Kong.” As Anson Chan and Martin Lee argue, the Joint Declaration and 'one country, two systems' was meant to guarantee that “no Hong Kong resident would have to fear a midnight knock on the door”. With the abductions and arrests that have happened, they now conclude that “none of us is safe”.

For all these reasons, a new organisation is being launched in London next month to be a voice for Hong Kong and to conduct research, provide briefings and carry out advocacy. With a cross-party group of Patrons including the former Conservative Foreign Secretary Sir Malcolm Rifkind, the former Liberal Democrat leader Lord Ashdown, the former Labour Shadow Foreign Minister Catherine West MP, the cross-bencher Lord Alton and the former chief prosecutor of Slobodan Milosevic Sir Geoffrey Nice QC, the new organisation – to be called Hong Kong Watch – will work to better inform Parliamentarians, the media and the general public about the challenges Hong Kong faces. We believe it is time that Britain lived up to Sir John Major’s promise and to our responsibilities under the Joint Declaration. It is time for Britain to stand up for Hong Kong.

Benedict Rogers is a human rights activist and writer. He is co-founder and Deputy Chair of the Conservative Party Human Rights Commission, co-founder and Chair of Hong Kong Watch, and served as a member of Bright Blue’s Human Rights Commission.

Mental health in UK prisons – the human rights perspective

As concern about the state of mental health in UK prisons grows, particularly regarding the dramatic increase in prisoner suicide and self-harm, so too does the relevance of human rights.

This concern is not a small one. Ministry of Justice Deaths in Prison Custody figures reveal a steady increase in self-inflicted deaths from 58 in 2010 to 119 in 2016, the highest since records began in 1978. Likewise, statistics provided by HM Chief Inspector of Prisons for England and Wales reveal that there were 32,000 incidences of self-harm in 2015, signifying a 25% increase from the previous year. 

A human rights framework for prisons

It is because of these disturbing trends that the Joint Committee on Human Rights (JCHR) conducted an inquiry into mental health and deaths in prisons. Published in May earlier this year, the report prefaces its review on a framework of human rights legislation with which to view prisoners and mental health issues. The report uses the framework of Professor Philip Leach, a human rights law professor at Middlesex University and director of the European Human Rights Advocacy Centre, who divides the pertinent human rights legislation into three areas: the international human rights framework (including both legally binding treaties and non-binding but “legally relevant” standards); European regional standards; and national human rights legislation.

First, under the international human rights framework, Professor Leach highlights the International Covenant on Civil and Political Rights (ICCPR), which insists that prisoners be treated with humanity and respect for their inherent dignity, and the UN Convention on the Rights of Persons with Disabilities (CRPD), which states that disabled persons must be respected their “physical and mental integrity on an equal basis with others” and that they are entitled to guarantees and treatment in compliance with the Convention “including by provision of reasonable accommodation”.

Compounding these legally binding international treaties are non-binding standards. Most notable among them are the UN standard minimum rules for the treatment of prisoners, or the ‘Nelson Mandela Rules’, which expect prisons to facilitate: remedial, social and health-based assistance; provision of healthcare services to protect the physical and mental health of prisoners; at least one hour of suitable exercise in open air daily; and only a limited use of solitary confinement measures, restricted to exceptional circumstances. Furthermore, as Penal Reform International points out, the unanimously adopted revision of the rules in 2015 clarified that prisoner health is a state responsibility and that prison health services should be of equal standard to those in the community.

Second, with regards to European regional standards, there are the expectations outlined in the European Prison Rules, many of which affirm the UN standards, such as the rule that “every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air”. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT Standards) likewise stresses that prisoners should spend “a reasonable part of the day” outside of their cells and should be “offered the possibility to take outdoor exercise daily”. The CPT also references suicide prevention, insisting that there should be “adequate awareness” and “appropriate procedures” in place to prevent self-inflicted deaths.

Finally, on the matter of national legally-binding legislation, there is the European Convention on Human Rights (ECHR), which the Human Rights Act enshrines in UK law. Article 2 stipulates a right to life, placing a positive obligation on the state to protect those in its care, including prisoners, for whom a safe environment must be provided through risk assessments, health services provisions, and permitting regular family contact.

The 2015 Harris Review, an independent report into young offender suicide in custody, clarifies that this article constitutes a positive obligation on the state, arguing that the article is in breach “if the authorities knew, or ought to have known, that there was a real and immediate risk of self-inflicted death” and failed to do “all that could reasonably have been [done]”, citing Keenan v. UK as an example of this. This ECHR case awarded Susan Keenan, mother of Mark Keenan who suffered from psychiatric disorders and committed suicide in custody, compensation for damages because the prison had failed to fulfil their positive duty of care by failing to note the immediate risk of suicide.

UK prisons’ performance on human rights

Considering these standards, is clear that current practices in UK prisons merit improvement from a human rights perspective. Indeed, the CPT themselves issued a report about UK prisons last year, and determined that urgent measures were needed to reverse the recent trends of escalating violence, self-harm and self-inflicted deaths.

A 2016 report on prison suicides by the Howard League for Penal Reform and the Centre for Mental Health illustrates how the state is not taking sufficient, positive steps to protect prisoners in its care. It identifies the underperformance of the Assessment, Care in Custody and Teamwork (ACCT) programme in flagging those at risk of self-harm: less than half of prisoners who committed suicide in 2015 were on the ACCT at the time of their death. The report also criticises certain disciplinary measures constituting a so-called ‘basic regime’ which “contravenes international human rights standards”. Eight percent of investigated prisoners who committed suicide between 2007 and 2012 were on this regime, despite the regime prisoners accounting for just 2% of the prison population.

A 2015 Prison Reform Trust study on segregation units similarly criticises the prison services’ shortcomings on human rights issues. These units facilitate just 20 to 30 minutes of daily outdoor exercise for prisoners, well short of the 60 minutes stipulated in the Nelson Mandela Rules and the European Prison Rules. This is in part attributable to a 2011 Public Service Instruction (PSI), which reduced the minimum requirement to just 30 minutes for prisoners on restricted regimes. The Trust adds that they “are unaware of any other European jurisdiction where the official requirement is for a period of less than an hour.” Likewise, restrictions on contacting helplines such as the Samaritans or Listeners are raised as highly problematic for mental health and human rights reasons.

While it may be easy to neglect what, quite literally, goes on behind closed doors (and firmly locked and bolted ones at that), it is important to remember that human rights extend to everyone, including those whose liberties we have rightly curtailed. It seems that with regards to its prisons, the UK needs to remember better and act more forcefully to make adequate provisions for human rights.

Joel Collick is a research assistant at Bright Blue

Not fighting for Allah: how Iran exploits Afghan migrant poverty to fuel the Syrian civil war

Beyond the furore of President Trump’s combative stance towards the Iran nuclear deal and the consequentially combative stance of European leaders towards President Trump in return, the Islamic Republic of Iran has been at the centre of a less public controversy: its exploitation of impoverished Afghan migrants, including children, by sending them to Syria to fight for President Bashar al-Assad.

Of course, such recruitment methods and belligerent military activities are the tip of the iceberg of a long-running destabilisation programme orchestrated by Tehran. For it is not only Iran’s domestic policies that have merited international criticism from a human rights perspective, but also their political and financial support for other human rights abusers in the region; from Hezbollah in Lebanon and Shiite militants in Iraq to Islamic Jihad and Hamas in the Gaza strip.

Recruiting Afghan fighters

This latest scandal, however, as reported by Human Rights Watch (HRW) is perhaps particularly disturbing due to both the manifold layers of human rights violations being committed and the fact that young children are being cynically recruited to partake in one of the greatest contemporary humanitarian catastrophes.

Children, some as young as 14, are amongst the recruits of Afghan migrants sponsored by Iran’s Islamic Revolutionary Guards Corps (IRGC) to support the Assad regime in Syria. They are also amongst the fatalities: HRW has identified eight Afghan children who fought and died in Syria and notes that the Iranian media has reported at least six more such fatalities.

According to Afghan interviewees, Iranian officials ask potential recruits for their age at sign-ups at Afghan migrant registration centres – but they do not ask for corroborating documentation. The Rome Statute of the International Criminal Court stipulates that the military use of children under the age of 15 is a war crime. Further, the Operational Protocol to the Convention on the Rights of the Child, which Iran has signed, though not yet ratified in parliament, argues for an age limit of 18.

The recruits constitute an Iranian-backed Afghan armed group known as the Fatemiyoun division. Its 15,000 fighters’ motives appear not to be religious, but economic: the recruits seek financial support or residency status for them or their families. There are three million Afghan migrants residing in Iran, approximately half of whom are undocumented, and while Iran refers to its Afghan fighters as “volunteers”, these communities’ circumstances call in to question just how voluntary such sign-ups are.

One first-hand account of Iranian exploitation comes from Shams, a 25-year-old who fought in Syria twice in 2016 and now lives in Kabul: “For me, it was just about money. Whoever I saw was going for money and to have free entry to Iran. I never saw anyone fighting for religious reasons.” According to Shams, Afghan Shiites are given one and a half million rials if they register for the Fatemiyoun at a recruitment centre and receive an additional three million rials a month.

Consequently, Afghanistan’s Foreign Ministry has called on Iran to stop sending recruits to Syria, and a parliamentarian in Kabul has reprimanded Iran for treating these migrants “like slaves”.  Rebuke also comes from Sarah Leah Winston, Executive Director of HRW's Middle East and North Africa Division: “Rather than preying on vulnerable immigrant and refugee children, the Iranian authorities should protect all children and hold those responsible for recruiting Afghan children to account.”

 Afghan migrants living in Iran

The highly unethical nature of such recruitment methods is evident when the migrant communities’ circumstances are assessed. One recent review conducted by Nasim Sadat Hosseini Divkolaye from the Iranian Blood Transfusion Organisation and American physician and human rights expert Frederick M. ‘Skip’ Burkle Junior highlights the plight of Afghan migrants due to poor healthcare provision. Citing the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Covenant on Economic, Social and Cultural Rights which enshrine the right of everyone to the highest attainable standard of health, the authors argue that the problem of limited healthcare access, which is compounded by the migrants’ propensity to work in hazardous labour without work-related insurance, constitutes inadequate human rights provisions.

More stinging criticism, however, can be found in HRW’s extensive report from 2013, ‘Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant Rights’, which draws attention to the desperate situation of many Afghans. Crucially, the report documents the fact that Iran increasingly deploys deportation and detention procedures without due process and has simultaneously limited legal avenues for Afghans to claim refugee or other immigration status in Iran, violating its obligations under the 1951 Refugee Convention. Thus, the migrant communities have found it increasingly difficult to claim residency in Iran and their ability to remain in the country without fear of deportation has also become more perilous in recent years. It is no wonder many young Afghans are tempted to risk their lives in a brutal war they do not believe in.

The growing numbers of disheartened Afghan refugees leaving Iran confirms the thrust of the aforementioned reports. One such 26 year-old Afghan refugee who was born in Iran and has his eyes set on living in Germany is quoted saying that “the Iranian government didn't treat us like humans – we couldn't go to the hospital with insurance”. His “first dream”, he says, “is to have human rights.”

These accounts of mistreatment of Afghan migrants jar with the praise bestowed on Iran by the UN in March for its “exemplary” behaviour in hosting refugees. They also provide sobering contextualisation to the undoubtedly positive developments from the UNHCR’s Solutions Strategy for Afghan Refugees (SSAR) whereby Iran has provided medical assistance to refugees on the Afghan border, granted health coverage to many documented migrants, and enabled many Afghan children to partake in the Iranian education system.

None of these actions detract from or justify the more expansive areas of Iran’s human rights violations in its use of child soldiers, neglect and exploitation of its vulnerable Afghan migrant communities, and its furtherance of Syria’s humanitarian tragedy by bolstering the Assad regime.

Joel Collick is a research assistant at Bright Blue

Secure schools are the key to effective rehabilitation

Last month, Labour MP David Lammy published his government-commissioned review into into the treatment of, and outcomes for, black and minority ethnic (BME) individuals in the criminal justice system. It identified a number of problems with Britain’s justice system. But, its finding that the proportion of BME children held in custody has significantly increased over the past ten years was particularly concerning.

Over the past decade, the total number of all children held in custody has fallen by 66%. However, the share of Asian children as a proportion of the total youth custody population has risen by 75% and the share of Black children has risen by 67%. This means that, at any time, BME children now make up over 400 of the average 960 children in custody.

Institutions which hold such children have proven to be woefully inadequate at rehabilitation: over two thirds of children reoffend within 12 months of their release, substantially higher than the reoffending rate for adult offenders. In fact, Ministry of Justice figures show that Black young people have the highest reoffending rate.

it is therefore unsurprising that young offending is linked with not being in education, employment or training (NEET). Figures show that young men who are NEET are five times more likely to have a criminal record than their peers. The large population of BME children in youth custody is therefore likely to be increasing their risk of not finding employment or furthering their education.

High reoffending is increasingly posing a danger to the British economy. The expected fall in economic migrants arriving in the UK after Brexit will lead to a shortage in workers available to UK companies, particularly in companies who pay lower wages. There is a way to mitigate the risk posed by this looming labour shortage: raising the labour market participation rates of social groups with stubbornly low employment rates, such as the disabled and ex-offenders.

Evidence suggests that the employment rate for ex-offenders is significantly lower than for the general population. Last year, the Government revealed that their data suggested that just 25% of ex-offenders were in employment. In contrast, a record 75% of the wider population are in employment. .

One of the major reasons for this is the poor education and skills of ex-offenders. The government-commissioned Taylor Review of the Youth Justice System, published last year, found that “many of the children in the youth justice system have had little or no engagement in education”.

To redress this, Bright Blue recently recommended establishing many more ‘secure schools’. ‘Secure schools’ are custodial establishments - where young offenders are held day and night - of around 60-70 young offenders. They are set up within schools legislation, commissioned in England in a similar way to alternative provision free schools, and governed and inspected as schools. This makes them significantly different to institutions which are currently used to detain children. Children in such institutions receive an average of only 17 hours of education per week.  

In December last year, the Government announced that it would establish a pilot of two secure schools in England and Wales. However, to really make an impact, the Government must substantially increase the number of secure schools as soon as possible.

Another major cause of high NEET levels among young ex-offenders is negative employer attitudes. A recent survey found that that 50% of employers would not consider employing an offender or ex-offender. David Lammy is therefore right to advocate that ex-offenders can apply to have their crimes ‘sealed’ - so an employer can no longer see the offences in criminal records check - if they can prove they have reformed. Such a policy has been implemented for many public-sector roles in the US and a recent report found that this had “dramatically improved the public-sector employment prospects of individuals with a criminal record”.

Effective rehabilitation is not just in the interests of young people themselves, but it would also provide a huge benefit to the British economy in this period of near full employment.

James Dobson is a senior researcher at Bright Blue  


 

                                       


 

Equality for LGBT people in Britain today: lots done, lots to do

Over the past 25 years, we’ve taken huge strides on the journey towards lesbian, gay, bi and trans (LGBT) equality in Britain. Changes in our laws mean that more schools, employers and public services are tackling anti-LGBT abuse and discrimination. Equal marriage is now a reality for many, and Section 28 has been consigned to history.

But for many LGBT people in Britain today, these legal changes have not translated into true equality, and for trans people in particular, much progress remains before they are fully protected and equal under the law.

Stonewall is Britain’s largest organisation campaigning for LGBT equality. We exist to let every LGBT person, everywhere, know that they are not alone. We work with government, schools and workplaces across Britain to drive forward LGBT equality, and we conduct in-depth research to measure the pace of change and identify where work remains to be done.

This year marks the publication of our state of the nation research series, LGBT in Britain, which surveys nearly 5,000 LGBT people to find out what life is really like for LGBT people in Britain today.

Last month we published the first report in the series, Hate Crime and Discrimination, which uncovers LGBT people’s experiences of hate crime and discrimination. The findings demonstrate the scale of the task that remains. One in five LGBT people have experienced a hate crime or incident related to their sexual orientation and/or gender identity in the last 12 months. For trans people in particular, this rises to two in five, and black, Asian and minority ethnic LGBT people and disabled LGBT people are also at particular risk.

Alarmingly, the percentage of lesbian, gay and bi people who have experienced a hate crime in the past 12 months related to their sexual orientation has nearly doubled since 2013.

I was assaulted by a man whilst I was holding hands with my lesbian partner. He grabbed me from behind and thrust himself into me, then verbally attacked me – Freya, 21 (Wales)

Worryingly, four in five LGBT victims of hate crime did not report this to the police, many because they feared they would not be taken seriously.

I have been the victim of transphobia numerous times over the past two years, and yet the police haven’t really taken it seriously – James, 47 (South East)

The report also finds that many LGBT people still endure poor treatment while using public services and going about their lives, whether in their local shop, gym, school or place of worship. A third of LGBT people avoid particular streets because they don’t feel safe there as an LGBT person, and one in six have been discrimination against when visiting a café, bar or nightclub. Meanwhile, anti-LGBT abuse online is endemic: in the last month alone, one in ten LGBT people – including one in four trans people – have been the direct target of anti-LGBT abuse online.

My partner and I are never openly affectionate in public for fear of being victimised. This includes holding hands, linking arms, or even a peck on the cheek. We are very aware of our surroundings - Aria, 47 (East Midlands)

To address these issues, it is vital that hate crimes based on sexual orientation and gender identity are made aggravated offences, in line with those based on faith or ethnicity. We are also calling upon police forces across Britain to ensure that all police officers receive training on tackling anti-LGBT hate crime.

It’s clear from these findings that the fight for LGBT equality in Britain is far from over, and it is crucial that laws protecting LGBT people are maintained and strengthened moving forwards. We warmly welcome the Government’s decision to review the Gender Recognition Act, which is in urgent need of reform, and the upcoming consultation on updating the guidance for teaching relationships and sex education (RSE) is a vital opportunity to ensure that this teaching is fully LGBT-inclusive in all schools.

Looking ahead to Brexit, the Government has stated that there will be no backsliding on equality for LGBT people – or for any other group – during and after the Brexit process. But the Withdrawal Bill as it stands does not guarantee this and broad Ministerial powers to change legislation could put these hard-won rights at risk. We are supporting Liberty and Amnesty International’s call for a People’s Clause in the Repeal Bill, to ensure that this important commitment to protecting human rights legislation is clearly enshrined in law.

If Britain is to retain its position as a beacon for LGBT equality worldwide, it is clear that we cannot be complacent. That is why we have launched our new campaign, Come Out For LGBT, which calls on supporters, politicians, advocates and allies across Britain to take action and speak up for LGBT equality.

Josh Bradlow is a Policy Officer at Stonewall.

Why Britain Should Back the Safe Schools Declaration

This morning I helped my 12-year-old daughter and ten-year-old son get ready for school – preparing lunch boxes, packing PE kits, and getting homework into the right rucksacks.  Across the country, thousands of families like mine were repeating this same familiar routine.  

But what is common for us here in Britain is far from normal for those less fortunate in other countries around the world. The UN Day of the Girl – which we marked on Wednesday – is a good moment to note these profound differences of circumstance and opportunity, as well as the grave risks that deter many parents from sending their children to school. 

While there are many factors that keep children out of school around the world, Human Rights Watch has identified attacks on students and schools as a particularly serious deterrent.

Our research shows that in at least 29 conflict-affected countries around the world, insurgent groups and even government forces have bombed, shelled, and burned schools and universities. Many schools have also been turned into bases or barracks for warring parties. The presence of fighters not only puts students in the line of fire, but makes boys vulnerable to recruitment as child soldiers and puts girls at risk of sexual violence. This is a major factor in explaining why large numbers of children, especially girls, do not attend school in countries like Pakistan, Nigeria, DR Congo, Afghanistan and Somalia.

For this reason, Human Rights Watch and others are promoting the Safe Schools Declaration, in which governments pledge to not use schools for military purposes and to protect them during military operations.  Sixty nine countries, including most NATO and European Union member states, have now endorsed the declaration. France and Canada are recent signatories. But Britain is not yet among them. Foreign Secretary Boris Johnson has indicated sympathy for the declaration and announced a Whitehall review, and ministers are currently assessing whether the British government should support it. Human Rights Watch is urging the government to sign up, and we hope that Bright Blue readers will lend their support to this important campaign.

The case for Britain to join is overwhelming. The Ministry of Defence worries the declaration creates extra legal obligations for British soldiers beyond what is found in the laws of war. It does not. In fact, to its credit, the British military already has some of the world’s strongest regulations on protecting schools in wartime.

So why join? Because Britain would reinforce the growing global consensus that schools must be safe places, even during war. It would strengthen Britain’s hand in discussions with countries like Pakistan, Somalia, Nigeria, and Afghanistan, where attacks on schools and students are still all too common. And it would fit squarely with Boris Johnson’s declared foreign policy priority to get more children, especially girls, into school.

And there is another powerful and timely reason to take action. Five years ago, Malala Yousafzai – one of the world’s great champions of the rights of women and girls - was shot on her way home from school, viciously attacked by the Pakistani Taliban in their shameful bid to deny girls an education. Yet this very week, Malala began her studies at Oxford University, where she will read politics, philosophy, and economics. The example she sets is profoundly inspiring, and should encourage people in Britain and around the world to do more. It should also prompt British politicians to help make schools safe for children everywhere. Backing the Safe Schools Declaration is the first step on that road.

David Mepham OBE is the UK Director at Human Rights Watch

This week, Yemenis look to the UK to help stop our suffering being ignored

Since the conflict began more than two years ago, my home country of Yemen has borne witness to the grave human suffering of millions of people – most of them women and children. It's often described as a 'forgotten' conflict, but Yemenis don't feel forgotten - we feel wilfully ignored by the international community, left to the mercy of a war which has seen all sides commit grave violations against innocent civilians. This war has left 80% of the population in need of humanitarian assistance, 7 million not knowing where their next meal will come from, and almost three quarters of a million in the grip of the worst cholera epidemic in modern times.

These are the facts I tell every day as the Chairperson of Mwatana, an independent Yemeni organization working to defend and protect human rights. I haven't been able to return to my home country for many months now. My work to document and give voice to the victims of human rights abuses that happen daily by all parties to the conflict means I face threats from all sides, who would prefer their crimes to go unrecorded and unpunished.

The story of Yemen is presented as the world's largest humanitarian tragedy. But this crisis is man-made, fuelled by political choices. Political action could end it. So while I cannot return to my country, I am walking the corridors of power – from London to Paris, Brussels, Netherlands, Germany, Geneva and the US – to tell the stories gathered by Mwatana. Stories like that of Abdulhafeez, who cried as he gathered the bodies of his children and grandchildren from the rubble after his house was hit by a Houthi/Saleh shell. Or Fahmi, who heard the explosion of the coalition airstrike that killed his wife and three of his children, aged nine, three and just one and a half years old, in their home. Cluster bombs, Kalashnikovs, landmines, mortars, ballistic missiles, and F-16s: all have been used to attack civilians. My heart breaks for each Yemeni child, man or woman caught up in the conflict.

I continue to raise the voices of victims because I remain optimistic that the story of Yemen can ultimately be one of peace. To get there requires political will. Many Yemenis believe that UK can play a positive role in Yemen. When I met the Foreign Office Minister Alistair Burt, I was glad to hear from him that addressing the crisis in Yemen is his personal priority. I hope that this week, he will seize the opportunity to show that our suffering will be ignored no longer.

To turn the page on this unimaginable suffering a peace process is desperately needed. Convincing parties back to the peace table starts with sending a clear message to parties to the conflict that they will be held to account for their abuses and violations against civilians.

At the UN Human Rights Council this week, the UK can send this signal by backing a resolution to establish an independent, international investigation into violations and abuses of international human rights law and international humanitarian law. Mwatana has been joined by over 100 leading international and Yemeni humanitarian and human rights organisations, as well as leading Parliamentarians, members of Congress, and key figures from across the UN, all united in calling for an independent inquiry. The Office of the UN High Commissioner of Human Rights has stated that the existing Yemeni National Commission’s methodology falls short of international standards and that it has ‘yet to clarify how its work could facilitate viable mechanisms of accountability’ in order to provide independent and substantive reports on the human rights situation in Yemen.

UK support is critical to ensure that a new, truly independent mechanism is established to end the culture of impunity in Yemen and bring justice to victims and their families on all sides of this horrific conflict. Civilians continue to pay the price of the parties’ recklessness in Yemen. I believe that the international community can help turn the Yemeni tragedy into a success story. However, the window of opportunity for this is closing fast. Extremist militias are taking hold across the country. If allowed to gain the upper hand, the dream of a peace process can be all but forgotten. The Prime Minister spoke this week of the UK's commitment to the fundamental values of fairness, justice and human rights. This week the UK has a chance to help advance these values in Yemen. If the world fails us again this week, our nightmare will continue.

Radhya Almutawakel is the Chairperson of Mwatana Organisation for Human Rights

You can follow Mwatana on Twitter: @mwatanaen

Or visit their website: http://www.mwatana.org/en

Why the British Government should consider re-opening the Dubs amendment to protect unaccompanied children in Europe

In the face of unprecedented numbers of people in forced displacement world-wide, European states have been forced to consider their own policy responses with the arrival of significant numbers of people seeking sanctuary in Europe. In the UK, the so-called ‘Jungle’ camp in Calais, France, was a highly salient issue on the UK political agenda, not least because it appeared that most of the individuals in this makeshift camp were hoping to continue their journey onto the UK. However, since the camp’s demolition in 2016 many have now returned, and there are again approximately 700 displaced people living in the area, among them, hundreds of unaccompanied children. As is so often the case in large-scale humanitarian crises, the situation in Calais being no exception, children are amongst the most vulnerable individuals. They face an increased risk of exploitation and abuse, often at the hands of traffickers, where high levels of insecurity and precarity directly affect their rights to health, education and development at a crucial time in their lives.

As a signatory to the Universal Declaration of Human Rights and the UN Convention on the Rights of the Child, the British Government is committed to upholding the rights of the child regardless of nationality, race, colour, sex, language or religion. The unaccompanied children who currently reside in Calais are of direct relevance to the UK and its policy makers – many hope to reach the UK and are likely to have family and support networks there. Due to the lack of legal routes to seek asylum or apply for family reunification in the UK, these vulnerable children continue to risk their lives at the back of lorries each night, and their day-to-day existence is characterised by violence and ill-health. Despite its international commitments, in February 2017 the UK Government withdrew its support for a piece of legislation known as the Dubs amendment. First introduced in 2016, the legislation was intended to provide a safe, legal route for unaccompanied children to reach the UK from France, Greece and Italy.

Our findings clearly indicate that schemes like the Dubs amendment are still very much needed to protect the human rights of vulnerable children. After the aforementioned demolition of the ‘Jungle’ camp, 98.8% of the children we interviewed in April 2017 were unaccompanied. The living conditions for these vulnerable children are far below any internationally expected standards, with the majority finding themselves in destitution and without access to clean water or shelter. An alarming 85.9% of children said they don’t feel safe in and around the Calais area, and 96.5% of children had experienced police violence in the area, including tear gas, physical violence and verbal abuse. Alongside violence and detrimental living conditions, our research found that only 16.9% of children had access to information about their rights and how to break out of their current situation. Instead, they continue to endure inhumane conditions and abuse in the hope that they will eventually be able to cross the border and, for many of them, submit their asylum case or family reunification application to the British Home Office.

In order for the British Government to move towards effective policy action to resolve the situation in Calais, the rights of the child as enshrined in the Universal Declaration of Human Rights and the UN Convention on the Rights of the Child need to be at the centre of policy making.  A key decision that would help the Government honour its tradition of human rights and child protection would be to re-open the Dubs scheme, allowing unaccompanied children safe, legal passage to reach the UK. Once re-opened, its criteria ought to be expanded to ensure that the most vulnerable children do not risk being excluded, and a revised cut-off date should be implemented to address additional concerns. Importantly, a multi-agency effort is required to ensure that those children who qualify under the Dublin lll regulation with relatives in the UK are identified and quickly transferred. Safe legal routes such as the Dubs scheme and Dublin lll are integral in combatting the growing power of traffickers who are known to exploit vulnerable children.  As well as this, the UK must continue to work with French counterparts to advocate for the safeguarding and rights of the child on French soil. The current approach of intense policing and heavy-handedness revealed by RRDP research needs to stop, as it does nothing to resolve the situation. Instead, resources should be dedicated to setting up a standard safeguarding framework, comprising monitoring mechanisms to minimise the risk of unaccompanied children going missing and falling into the hands of traffickers, along with an adequate team of social workers, medics and interpreters. The provision of water and shelter is also urgently required in the interim.

While much of the discussion in Britain on unaccompanied children in displacement has revolved around proof of age, nationality and the strength of family ties, the human rights situation faced by displaced children in Europe continues to deteriorate. Due to the serious nature of the child protection failure unfolding in Calais and beyond, it appears to be of utmost importance that the debate in the UK moves beyond such divisive matters and that the focus is shifted towards finding constructive solutions to the situation. Regardless of the motivation for the journey, unaccompanied children must be treated as children first and foremost and afforded adequate levels of protection under national and international law.

Alice Lucas is the Senior Programme Officer at Refugee Rights Data Project (RRDP)

RRDP envisions a world in which the Universal Declaration of Human Rights applies to all individuals, including refugees and people in displacement. To work towards their vision, they conduct first-hand field research, develop partners’ awareness of the situation on the ground, and actively engage in dialogue with all stakeholders to inform policies and practices that affect refugees and displaced people seeking sanctuary in Europe.

You can follow RRDP on Twitter: @RefugeeData

The ECHR and the 'living instrument' doctrine

In Bright Blue’s new report ‘Fighting for freedom?’, former High Court Judge and QC Sir Michael Tugendhat assesses the historic and future relationship between conservatism and human rights. In opposition to previous Conservative Party commitments to repeal the Human Rights Act (HRA) and the Prime Minister's’ scepticism of the European Convention on Human Rights (ECHR), Sir Michael defends the UK’s current human rights framework, arguing that the Conservatives should not pursue either of these changes.

The report also addresses the seven main Conservative critiques of the UK’s current human rights framework that Sir Michael identifies. These include:

  • International courts instructing the UK

  • A higher body of law than UK law (the ECHR)

  • Mission creep and judicial activism of European judges

  • The undermining of UK courts

  • The undermining of the UK Parliament

  • Giving prisoners the right to vote

  • The undermining of British security

Sir Michael responds to each of these criticisms methodically, demonstrating the mistakes and bad faith that often motivate them, while also conceding the need for reform in various specific areas.

Perhaps the most contentious of these criticisms is the idea that the ECHR has been guilty of ‘mission creep’ over the past 70 years at the hands of activist European and British judges.

This claim was made most prominently in ‘Protecting human rights in the UK’, a report by the Conservative party proposing changes to Britain’s human rights laws. The report argues that the European Court of Human Rights (ECtHR) has developed ‘mission creep’ by adopting “a principle of interpretation that regards the Convention as a ‘living instrument’.” This principle allows the court “to expand Convention rights into new areas, and certainly beyond what the framers of the Convention had in mind when they signed up to it.”

This criticism of the ECHR as a ‘living instrument’ is misplaced and shows little understanding of how laws are made and interpreted. Treating the ECHR as a ‘living instrument’ means conferring to the words of the convention the meaning they bear at the time the ECtHR is making a decision, rather than the meaning the words might have borne at the time the ECHR was entered into by the framers in the early 1950s, or the original intent of the framers (where that is discoverable).

The judicial activism that the ‘living instrument’ doctrine requires should not be regarded a fault, as it is essential if laws are to remain relevant. UK common law is itself a body of law that has developed through judicial activism, and necessarily so. First, because there is no foundational document setting out the common law which was framed at a particular date. Second, because much of common law was formed during the middle ages, when standards were very different from today. If judges had not been as activist as they were in the sixteenth to eighteenth centuries, we would not have the common law protection of human rights which was the source for the ECHR.

Bearing the above in mind, the criticism that the ECHR has expanded “beyond what the framers of the Convention had in mind when they signed up to it” starts to look distinctly unconvincing. The framers of the ECHR would have understood that it would need to be applied in circumstances that were unforeseeable at the time, and that it would therefore have to be treated as a ‘living instrument’. Since the UK signed the ECHR in 1950 there have been significant changes in attitude to matters such as capital punishment and discrimination on grounds of gender or sexual orientation. The ECHR must also now be applied in relation to things which did not exist in 1950, such as CCTV, IVF, the internet, various medical advances, and much more besides. Treating the ECHR as a ‘living instrument’ is essential if the law is to adapt to these changes.

It is difficult to find fault with the ‘living instrument’ doctrine in principle, and upon closer examination, most of the objections towards the ECHR by Conservatives involves criticism of individual cases, rather than the ‘living instrument’ doctrine itself. Conservatives seem to object not so much to judicial activism, but to instances of judicial activism on issues where they disagree with the judgement of the ECtHR. For instance, the ECtHR has been activist in its interpretation of article 10 with little objection by Conservatives, as it has resulted in increased press freedom in relation to matters of public interest.

However, there has been widespread criticism of the ECtHR’s decision that the UK’s blanket ban on voting for prisoners is in violation of Protocol 1 of the ECHR. This decision has been used as an example of a case in which the ECHR has been interpreted too broadly, and resulted in undue judicial meddling in politics. In Hirst v UK (No 2), the ECtHR accepted that depriving prisoners of the right to vote can be justified in serious cases. But it held that the prohibition in the UK violated the rights of some prisoners because the disqualification was “irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances”.

Whilst a reasonable person could object to this decision by the ECtHR, the principle that the ECHR should be regarded as a ‘living instrument’ is not the problem here, rather it is the application of this principle to a particular case. Therefore, the claim by the Conservative Party that the ‘living instrument’ doctrine is a powerful objection to the ECHR is unfounded. Furthermore, whilst the ECtHR may have applied the doctrine too liberally in some cases, in the vast majority of instances the ECtHR is simply updating the law to maintain its relevance in the face of changing attitudes and circumstances.

Freddie Lloyd is a research assistant at Bright Blue