Blog

Sam Lampier: ‘Undocumented’ children in the UK

There are an estimated 120,000 ‘undocumented’ children in the United Kingdom. These children tend to have lived most of their lives in the UK, however they lack a regular immigration status which gives them permission to enter or remain in the UK. This can happen for a number of reasons, including being born in the UK to parents who are also ‘undocumented’, who have overstayed on their visa or, more rarely, entered the UK unlawfully and never acquired any form of regular immigration status. Of these children, over half are estimated to have been in born in the UK and half are thought to be eligible for British citizenship.

These ‘undocumented’ children will face serious obstacles in adult life. Without a regular immigration status they cannot access parts of the benefits system or the student loan system that can help them to afford to go to university. They will not even be able to register with a GP. Before they turn 18, children tend to be relatively protected from the enforcement of the immigration system. For example, local education authorities have a legal duty to provide a school place to every child between four and 16 residing in their geographic area. There is no obligation for a local education authority to ask about immigration status, or even reveal that status to immigration authorities if it is disclosed to them. Similarly, ‘undocumented’ children can relatively easily access emergency healthcare. This is often why those affected aren’t aware they’re ‘undocumented’.

Although under the Borders, Citizenship and Immigration Act 2009 there is a duty on the Home Office to “promote the welfare” of children in any immigration decisions, life as an undocumented child is nevertheless fraught with uncertainty, particularly over the threat of deportation both of themselves and their guardian. Indeed, there have been reports of children being separated from their parent or carer. The commitment to protecting children comes into conflict with an immigration system that is determined to root out ‘illegal immigration’.

One of the most significant barriers to acquiring the correct immigration status are the costs associated with it. To those who are eligible, the registration fee to become a British citizen for a child is £1,012 and for an adult is £1,206, a large amount for people who are often on lower incomes. Parents must also fill out a document over 70 pages long with detailed proof of residence of the child for the last 10 years. If ineligible for citizenship, children can also be granted ‘discretionary leave to remain’ after seven years living in the UK. This lasts for two and a half years and costs £649, along with a £500 NHS healthcare surcharge per application. Even requesting proof of status from the Home Office is expensive, carrying a fee of £250. That children have to prove they are of “good character” as part of these applications has itself also been a source of controversy.

The very nature of being ‘undocumented’ means identifying those who need help is inherently difficult. Some have suggested a reduction in fees, or indeed their abolition, as a policy solution. They argue it would remove the financial barrier experienced by the parents of children who have a right to British citizenship and for young adults in the same situation. Other more fundamental changes to the system, such as reinstating birthright citizenship (abolished in 1983), have also been proposed, which would remove altogether the issue of proving citizenship for those born here. However, this alone would not retroactively help those who are already without status in the UK or those not born in the UK but who are eligible for citizenship.

‘Undocumented’ children serve as a stark reminder of the failures that can happen in the UK’s immigration and citizenship system. As Britain leaves the EU, and will most likely be operating under a new immigration system next decade, the Government should seize this opportunity to address the issue and underlying causes of undocumented children.

Sam Lampier is a Researcher at Bright Blue.

Tom Chapman: 20 Years On: In Defence of the Human Rights Act 1998

In 1998, the Human Rights Act (HRA) was passed to incorporate the European Convention on Human Rights (ECHR) into domestic law. Since then, it has been demonised by centre-right voices, despite the ECHR being fundamentally British in origin, spirit, and drafting.

After the Second World War, Winston Churchill called for “a Charter of Human Rights… sustained by law”. The UK then ratified the ECHR after a British Conservative proved instrumental to its creation. Access to justice, however, was stunted, since applicants could not secure ECHR rights before British courts. When cases therefore reached Strasbourg, European Court of Human Rights judges could not benefit from our judges’ interpretation of the ECHR. With ‘Rights Brought Home’, the HRA obviated the need for applicants to spend such time and money pleading before Strasbourg, as they could invoke ECHR rights before domestic courts instead. It too allowed British judges to transform ECtHR case-law, with the UK only losing 1.4-2% of cases and a former ECtHR President commenting that Strasbourg frequently follows UK courts.

Since then, the two principal charges levied at the HRA have been that it disproportionately benefits criminals and tramples over parliamentary sovereignty. The Court often allows the removal of dangerous individuals, though occasionally objects on torture grounds. Even without the ECtHR, UK law is subject to long-standing international obligations and takes a historically dim view of evidence obtained by torture. Many cases are simply misrepresented. Despite media allusions, the ECtHR has not demanded that all prisoners have the right to vote, with minimal proposed change since satisfying the Council.

Many underreported ECtHR cases have improved lives. It was thanks to the ECtHR that the public learnt the truth of the Thalidomide scandal, that Mid Staffordshire victims won a proper investigation, and that Hillsborough families secured an inquest into the circumstances of their relatives’ deaths. The ECtHR has also protected soldiers supplied with inadequate equipment, advanced LGBT rights Europe-wide, and condemned corporal punishment. This perhaps explains why HRA consultations show public support. Moreover, the HRA obliges Ministers to declare if a Bill is ECHR-compliant. This, along with the obligation on public authorities to respect ECHR rights, serves as an immediate cautionary check against the ECHR. Thereafter, the Court’s jurisdiction serves as an ‘insurance policy’ guaranteeing fundamental rights.

Section 2 of the HRA instructs our courts to take account of Strasbourg judgments, following practice whereby courts already consider international cases. British judges are able and willing to depart from ECtHR decisions. Section 3 obliges courts to read legislation in line with ECHR rights. If this cannot be done, judges can declare that domestic law is incompatible with the ECHR, but do so rarely. Parliament can decline the opportunity to reconsider legislation deemed incompatible, but risks adverse ECtHR findings. This is, however, not the same as suggesting the HRA is capable of annulling legislation. Parliament is only constrained insofar as it chooses to honour international legal obligations. Whilst ECtHR applicants must first exhaust domestic remedies and most applications are inadmissible, Britain has comparativelyfew applications per year, indicating that the obligation on public authorities to respect ECHR rights avoids litigation by elevating human rights considerations within decision-making processes.

Some, however, accuse Strasbourg of overreaching when interpreting the ECHR. The Court views the ECHR as a ‘living instrument’ considered in light of the times. Liberty point out that the ECHR was drafted with “homosexuality…still illegal [and] discrimination against illegitimate children… still legal” in many nations, with “the internet, IVF [and] DNA profiling” also unforeseen. If treaty interpretation did not evolve, despite statutory and common law interpretation doing so, international law would be rendered obsolete. We must, however, acknowledge gaps between common law and the HRA, with legislation prevailing over the former. As the Equality and Human Rights Commission note, the HRA obliges respect of ECHR rights but also positively mandates the State to secure them. In contrast to common law, the Act imposed a duty on the Police to take steps to protect life when an individual is at risk. In our unwritten constitution, the ECHR is an important safeguard when common law or statute is found wanting.

Abolishing the HRA but remaining in the ECHR would take Britain back in time when applicants could only plead before Strasbourg, depriving individuals of access to justice and British judges of influence. There is no consensus concerning the content of a British Bill of Rights, particularly on socio-economic questions, whilst divergence with the ECHR could prompt Strasbourg’s intervention. If a Bill clarified judicial interpretation, it would be cosmetic since the ECHR considers the public interest when balancing qualified rights and Parliament has passed such interpretative guidanceOthers have questioned whether it would allow courts to strike down offending legislation, a more radical treatment of parliamentary sovereignty than the HRA permits. If the rights were not invocable before the courts, a hollow skeleton of principles would pale into insignificance compared to the ECHR. Procedurally and substantively, replacing the HRA with a Bill of Rights would likely weaken human rights protection.

The ECHR is also woven into UK devolution settlements and, crucially, the Good Friday Agreement for meaningful guarantees of equality and non-discrimination amongst communities. Mark Elliot points out that ECHR withdrawal would alter devolved competences; triggering the convention that devolved assemblies must accept such changes. It is, however, inconceivable that Holyrood would consent. While Westminster could plough on, it is unthinkable given that it would embolden Scottish nationalists. The repeal of the HRA therefore raises uncomfortable constitutional questions to which the answers have proved unsatisfactory.

The call for a British Bill of Rights carries a certain irony since the ECHR is precisely that already. The HRA and the ECHR protect individual liberty, enhance British influence, and provide common values binding the UK. Presented with potential ECHR withdrawal, Lord Bingham asked which rights should be discarded and whether we would prefer to live in a country where such rights were unprotected. Until we have detailed answers to both questions, we should continue to be thankful to live in a country where judges are occasional irritants to politicians, rather than faithful puppets.

Tom Chapman is a Bright Blue Member, a former Conservative Councillor who now works in the European Parliament. The views expressed in this article are those of the author, not those of any other person or institution and not necessarily those of Bright Blue.

In whose best interests?

Best interest cases, where life-sustaining treatment “can lawfully be withheld or withdrawn from a patient who lacks capacity in circumstances where commencing or continuing such treatment is deemed not to be in their best interests”, tend to garner widespread attention. Most recently, the plight of the parents of Alfie Evans, who died following a tumultuous legal battle with the doctors of Alder Hey Children’s Hospital in Liverpool, has attracted global interest.

The legal grounding

Medical cases concerning terminally-ill children are usually resolved by parents and doctors behind closed doors. However, a spike in the number of high-profile legal battles in recent years has raised questions about the need for clearer legislation.

Currently, the legal foundation for the withdrawal of parental rights relies on the 1989 Children’s Act, which permits state intervention if a child is “at risk of harm”. The Act, whilst broadly providing parents with the right to choose what happens to their child, can be challenged if doctors believe their decision could lead the child to suffer from significant harm (defined as ill-treatment or the impairment of development). Parental rights may only be overturned by a ruling from the Royal Courts of Justice, which depends heavily on complex medical opinion to determine what lies in the child’s best interests.

Legal disputes of this nature have become increasingly prevalent as advances in paediatric medicine provide new opportunities for successful treatment. The case of Charlie Gard, who died from a rare genetic condition in 2017 following a five-month legal battle, draws many parallels to that of Alfie Evans. Charlie’s parents believed that their son could receive life-saving treatment in the US, but his transfer was prevented when a decision by the Royal Courts of Justice found that they had been misled on the treatment’s success rates by a doctor from Great Ormond Street Hospital. The decision, which generated public outrage, has raised questions about the ethical implications of judicial involvement in such cases. 

Alfie’s case

Alfie Evans was seven-months old when he began to suffer seizures and was admitted to Alder Hey Children’s Hospital in Liverpool in December 2016. A year later, in December 2017, disputes over Alfie’s treatment between staff at Alder Hey and Alfie’s father Tom Evans resulted in the involvement of the Family Division of the High Court, overseen by the Hon. Mr Justice Hayden. Legal representatives for the doctors at Alder Hey believed that Alfie’s condition was untreatable, and any further medical intervention would be futile. Alfie’s parents argued that they should be allowed to fly Alfie to Rome’s Bambino Gesu Paediatric Hospital to pursue further treatments.

Following an extensive review of evidence from medical professionals at Alder Hey, doctors from Bambino Gesu and paediatric specialists from around the globe, Mr Justice Hayden ruled against the wishes of Alfie’s parents, stating that the child should not be removed from Alder Hey. Further appeals by Alfie’s parents were rejected by Supreme Court justices and judges from the European Court of Human Rights, and Alfie died on the 28th April, five days after the removal of life-support.

State vs. individual rights

At the centre of the dispute over Alfie’s case lies a deeply philosophical and politicised conflict regarding the role of the state versus the rights of the individual. The state, represented by the court and the doctors of Alder Hey, determined that transporting Alfie to Italy would not be in the child’s best interests. This was due to extensive medical evidence which indicated that Alfie could not be cured due to significant, irreversible brain damage. Indeed this was even accepted by the doctors at Bambino Gesu who were only able to offer Alfie an alternative form of palliative care. Furthermore, medical professionals believe that moving Alfie was likely to induce further seizures, and there was a very real chance of Alfie dying while being transported to Italy.

Nonetheless, some observers believed that parents should always have the final decision on the welfare of their children. The Spectator’s Fraser Nelson believes that “bad law” like this should not be allowed to stand in the way of a parent’s choice – especially when other sources of care are proffered from around the globe. When it comes to human rights, he argues, the removal of fundamental parental choice is markedly regressive. Simultaneously, a campaign led by MEP Stephen Woolf is calling for the introduction of ‘Alfie’s Law’, to allow parents to make the final decision regarding their children’s care. Similar to the legal initiative started by Charlie Gard’s parents, the campaign seeks to prevent prolonged legal disputes between hospitals and families and return full rights to the parents of sick children. 

However, there remains significant concern about this ‘parents know best’ approach. A good proportion of best interest cases, so far, have involved parents who are Jehovah's Witnesses. Jehovah's Witnesses believe that their religion requires them to refuse certain medical treatments, such as blood transfusions. Allowing parents to always have the final say on their child’s medical treatment could therefore lead to the unnecessary deaths of many children of Jehovah's Witnesses – even when they require relatively simple medical procedures.

Conclusion

High-profile quarrelling - especially that which inspires vitriol and abuse – should not overshadow the suffering of a vulnerable, grieving family, and the medical professionals who face a barrage of conflicting opinions as they make life-changing decisions on the welfare of very vulnerable children. In almost all cases, both doctors and parents obviously hold the child’s wellbeing in the highest regard. It is important that, when reviewing or challenging the legislation surrounding these cases, those with significant public profiles are more respectful of those most closely involved. 

Amabel Scott is a research assistant at Bright Blue

Tackling the gender pay gap

April heralded the deadline for large organisations to publish their gender pay statistics. Appropriately, it closely follows the centenary of the first British women’s vote.  Hailed as an opportunity for Britain - which has one of the widest gender pay gaps in Europe - to comprehensively tackle issues surrounding gender equality in the workplace, participating companies have reported disparities in pay across the board. Hopes that this drive towards transparency will boost awareness and improve pay equality are justified, although some have concerns regarding the effectiveness of the measures used and the potential for statistical misinterpretation. There is a call to focus on encouraging women into higher-paid roles, as well as providing facilities to allow them to move from part-time to full-time work if they desire.

The data

The gender pay gap is defined as the difference in average earnings between men and women. Under the Government’s 2017 legislation, large companies with over 250 employees are annually required to report their salaries. Information provided by over 10,000 companies in the opening year indicates that men are paid more than women across all main occupation groups.  The median pay gap of 9.7% grows in synchrony with age, reaching its peak for those between 50 and 59. According to the Office for National Statistics, the difference in median pay can be accounted for by a number of factors. A greater percentage of men work in higher-paid occupation groups (e.g. chief executives and senior officials), and men are more likely to work full-time, therefore earning more on average.

Equal measures?

A huge volume of statistical data has been produced, and it can be easy to jump to false conclusions and misleading speculation. Previous data releases by government have suggested that the gender pay gap is not driven by discrimination as many suppose. Kate Andrews, from the Institute of Economic Affairs, has accused these latest figures of “failing to provide any meaningful insight into equal or fair pay for men and women in the workplace.” This is because the figures do not control for differentiating measures, such as job type, background and the number of years of experience.

There have, however, been calls for a recognition of the deeper issues exposed by the gender pay reveal. Lloyd Blankfein, Chief Executive of Goldman Sachs, argues that the statistics highlight the fundamental issue of the “under-representation of women” at the higher echelons of the wealthiest sectors. The fashion retailer Phase Eight has attracted attention on this score. In April of last year, it was revealed that thirty-nine of the company’s forty-four male employees worked in the corporate head office. Chief Executive Benjamin Barnett agrees that the retailer is in a difficult position – the vast majority of applicants for their lower-income jobs on the shop floor are female, and as such they face a struggle to redress the salary balance between male and female employees.

Why?

What causes women to put up with, consciously or unconsciously, lower-paid careers at the bottom rungs of the company ladder? Although direct discrimination may be an influence in in a small number of cases, equality pay legislation has been largely successful in preventing this.

Previous data releases have suggested that the gender pay gap is relatively stable until women have their first child. Women then are much more likely than men to leave the workforce to care for their child. When their child enters full-time education, women then frequently choose to return to part-time work to allow them to combine motherhood with work.

Research by the Institute of Fiscal Studies shows that the gender pay gap jumps from 8% to 30% after women have children, and the percentage of women in part-time work is 44% compared to 13% of men. The unequal caring responsibilities between women and men, according to the Fawcett Society, subtly compel women away from pursuing better careers and higher salaries.

Conclusion

The British Government has been praised globally for its decision to legislate on mandatory pay gap reports. With gender equality at the forefront of discussion, it is a direct confrontation of one of the ‘burning injustices’ faced by modern society. However, the provision of data does not necessarily signify change, and only time will tell whether adequate steps have been taken to truly bridge the gap.

Amabel Scott is a research assistant at Bright Blue

 

Intergrating Britain

Today marks one year until Brexit. This time last year the Government triggered Article 50 following a vote to leave the European Union that was overwhelmingly driven by scepticism among voters towards Britain’s current immigration system. While immigration is mostly beneficial to the UK economy, there is some concern that the social impact of immigration may be less beneficial, and this social impact may be causing the scepticism among voters. This concern led to the Government, two weeks ago, publishing its social integration green paper.

The problem

Britain has long been a multicultural country. However, since World War Two the number of immigrants choosing to settle in the UK has increased substantially. The passing of the 1948 British Nationality Act (since  repealed) gave individuals from across the Commonwealth the right to live and work in Britain. While the EU’s freedom of movement allowed all EU citizens the same rights. 

However, the increasing number of immigrants has led to concern that integration and cohesion in British communities is being eroded. Two weeks ago, on March 14, Sajid Javid, the Secretary of State for Housing, Communities and Local Government announced the Government’s new Integrated Communities Strategy green paper.

The green paper drew upon Dame Louise Casey’s independent review into opportunity and integration. Casey’s review exposed the lack of integration, social and economic exclusion, and inequality in British society. Two key factors which contributed to these results were religion, and English proficiency.

Casey’s report found that 760,000 people aged 16+ in England (1.8% of the population) could not speak English well or at all. In addition, Pakistani and Bangladeshi groups are underrepresented as compared to other ethnic minorities within the professional workforce, and Muslims had the lowest median hourly income among religious groups.

The cause?

Casey connected the low levels of English speaking to lower levels of employment as well as inequality and harm within British society, the statistic is even worse for women than for men. The Equality Statement for Integrated Communities Strategy Green Paper stated that, “English language proficiency is identified to be a diver of integration in the relevant literature - it is a fundamental to social mixing, trust, education and employment potential”.

It is the English factor which has captured the public’s attention. Although the green paper details numerous methods for integration, English has become centre-stage. Perhaps, this is because, as the paper states, “87% of people with English as their main language felt they belonged strongly Great Britain compared to 79% of people without”; therefore, knowledge of the English language both helps foster integration into British society and enables employment.

Criticism

The Sun newspaper was very critical of the Government following the release of the Green Paper, believing that Casey’s recommendations were ‘watered down’, and became largely ineffective. The Sun claimed that according to Casey, the problem of integration stems from the Government “failing to handle the downside of mass immigration. Instead, segregation along religious and race lines has spiralled and worsened the pull of extremism.” Therefore, the Sun and others from the Right would like to see the original policies proposed to mitigate these problems, such as swearing-in of British values for public office holders, English speaking targets, and a homeschooling council. Perhaps most importantly, the green paper slashed Casey’s recommended £200 million budget to a mere £50 m.

The slashing of the Budget has been denounced on all sides.  Opposition MPs were outraged by the proposal, claiming the Government to be perpetuating their old negative stereotype: “the party of the hostile environment and go home vans”. Specifically, the Opposition became outraged at the emphasis on English as an integration tool given the Coalition Government’s history of cutting funding for English programs by 60% since 2009-10. Claiming, if English is such an important part of British culture, why was the funding cut?

Other criticisms, echoed in a letter written to The Guardian, argued the Government could not ask people to learn English without offering free classes. Unfortunately, with cuts to local government, “funding for free English classes went up in flames.”

Praise

Martin Parsons praises the Green Paper’s divergence from Casey’s review on the issue of extremism. Particularly, respecting freedom of religion whilst denouncing extreme terrorist actions-- a line which Casey’s review blurs. This is important as both publications emphasise religious schools and religious practices, such as shari’a law, as obstacles in integration.

On this note of differentiating religion and religious extremism, Chuka Umunna MP, and chair of the Integration All Party Parliamentary Group, praised Sajid Javid for the understanding that “integration is a two way street, and he doesn’t fall into the trap of conflating integration with counter-terror”.

Conclusion

British society has a perceived integration problem, which the Government has identified and attempts to resolve. So far many of the policies suggested by the Government relate to English language courses. However, the Government faces criticism here since the Conservative Party previously presided over cuts to English course funding for migrants during the Coalition Government. The Government has stated that its integration program needs to have the ability to evolve. However, it still remains unclear how the Government will seek to integrate our communities outside of English lessons.

The Government launched an open consultation for the Integrated Communities Strategy green paper, responses to the Green Paper can be submitted here.

Sharon Sethna is a research assistant at Bright Blue

 

Global Britain?

Since the British public voted to leave the European Union in June 2016, government ministers and departments have repeatedly stated that this decision does not mean that the UK is withdrawing from world affairs or becoming more isolationist. Instead, the Government has signalled its intention to ensure that the UK remains an active player on the global stage after Brexit.

This intention has morphed into a 'Global Britain' policy. This policy has repeatedly been articulated by the Prime Minister in a number of important speeches and interventions. Yet, to date there has been little explanation of what the policy means in practical terms.

This lack of detail was highlighted last week by the Foreign Affairs Select Committee in their latest report. The report criticised the Government for using a “slogan instead of a policy” and called on the Prime Minister to establish “a clear strategy to shape our actions”. Without such a strategy, the Committee warned that Britain risks damaging its reputation overseas and eroding support for a global outlook at home.

Through our own research and reports, Bright Blue has explored a number of ways the UK Government can ensure Britain remains an outward-looking nation after Brexit.

Britain is one of the leading pioneers of human rights protections. Indeed, the European Convention on Human Rights (ECHR) - one of the foremost pieces of international human rights legislation - was based, in part, on British common law, and British lawyers were integral to its drafting.

Britain has also long been an important trading nation. In the nineteenth century, British ships were crucial to growing trade across the world. Britain has continued this tradition and remains, today, one of the world’s ten largest exporters despite its relatively small population.

We believe these two principles, of free trade and human rights, should be at the centre of the UK Government’s ‘global Britain’ strategy. There are a number of different policies we believe that the UK could adopt in these areas which would amount to the “clear strategy” that the Foreign Affairs Select Committee has called for.

Trade

The EU and UK have recently agreed a transition deal which will allow the UK to sign trade deals after March 2019. These deals offer an important opportunity for the UK to increase prosperity both in the UK and abroad. But they also offer the UK Government an opportunity to improve human rights around the world.

The World Trade Organisation estimates that 75% of trade deals now include some kind of human rights provisions. The Department for International Trade should ensure our trade deals, where possible, include obligations to improve human rights in the partner countries.

While the UK may not always be able to demand such obligations in trade deals, it should, wherever possible, use its size and influence to continue Britain’s proud history as a one of the foremost exporters of human rights.

Aid

The Prime Minister has recently suggested that Britain will continue to participate in certain EU agencies where there is mutual benefit. One such agency, the European Development Fund, should continue to receive UK funding on a conditional basis. The UK Government’s own research suggests that the fund is very effective in delivering aid to African, Caribbean and Pacific countries. Britain should recognise this and continue to work with its European partners to improve the lives of some of the world’s poorest.

The UK should also recognise how its international development budget can increase human rights across the world. The Magna Carta Fund is the Foreign Office’s dedicated strategic fund supporting its global human rights and democracy work. The Fund aims to further British interests overseas by tackling the root causes of human rights violations, strengthening institutions and governance, promoting and protecting human rights, and supporting democracy and the rule of law.

Yet, the fund has a relatively small budget at around £10 million per year. To increase Britain’s human rights work, after Brexit, the Department for International Development should match the funding provided by the Foreign Office to the fund each year

International justice

Finally, Britain should continue to participate fully in the international justice system. The UK must remain a signatory to the ECHR. The convention is, of course, based, in part, on British law. But our presences as a signatory also signals to countries around the world that we take human rights abuses seriously. Withdrawal would provide more authoritarian countries, such as Vladimir Putin’s Russia, with the political space to similarly withdraw their own countries.

The Government should also increase our financial contributions to the International Criminal Court (ICC). The ICC is responsible for prosecuting people accused of genocide, crimes against humanity, and war crime. But, it has repeatedly reported that it is underfunded. Britain should take the lead, and increase our contributions unilaterally.

Conclusion

The UK Government is right to state that Britain should remain an active player on the global stage after Brexit. But, so far, it has offered little details on what this entails. Through future trade deals, our aid budget, and through international justice, the Government could ensure Britain continues to punch above its weight as a global influencer.  

James Dobson is a senior researcher at Bright Blue

The universality of human rights

The United States of America’s Declaration of Independence famously contains the quote that “we hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights”. The concept of universal rights (or unalienable rights) can be, perhaps, dated to Britain’s Magna Carta, and the concept is still upheld by many today. It is not, however, completely accepted that human rights are universal. Debate still rages on whether all citizens should enjoy the same legal rights. Should convicted criminals be afforded the same protections as their law-abiding counterparts? Or do citizens lose their human rights when they commit certain actions? Meanwhile, others argue that human rights are not universal because they cannot be applied across the world. Societies vary and rights in one country are not necessarily rights in others. Culture and context matter.

Human rights for all?

In the UK, human rights have often attracted criticism when they have been applied to certain people and categories of people. One of the most notable examples of this was Abu Hamza. Hamza was a convicted hate preacher who was suspected of committing terrorist offences by the USA. The USA requested that Britain extradite him to face trial. The UK government agreed to this request, but his extradition was delayed by the European Court of Human Rights who required proof that he would not be treated inhumanely in the USA.

Hamza was eventually deported after two years of legal wrangling. However, this case and others like it have provoked public outrage in the UK. Many argue that terrorists such as Hamza should not enjoy the protections of human rights laws. This argument has been particularly popular among Conservative opinion formers and among the popular tabloid press.

Bright Blue recently conducted polling to establish the opinions of Conservative voters on the universality of human rights. We found that Conservative voters were significantly more sceptical of this universality than voters of more left-wing parties. When asked which of the following two beliefs is closest to their opinion “human rights should not be given to everyone all the time” (zero) and “all people have human rights simply because they are human” (ten), Conservatives select, on average, 4.9. In contrast, Labour and Liberal Democrat voters select 7.2 and 7.0 respectively.

Conservative voters were also sceptical of applying certain specified rights to certain groups. For example, our polling found that a minority of Conservatives thought the right to freedom of expression and the right to a family life should apply to convicted criminals (29% and 30% respectively), terrorists (8% and 10% respectively) and hate preachers (8% and 12% respectively). Most Conservative voters did, however, believe that the right to a fair trial should be protected for suspected criminals, foreign suspected criminals and suspected terrorists. This suggests that many Conservative voters believe some human rights should be treated as universal while others should be restricted to certain individuals.  

To an extent, most modern human rights legislation has taken account of these concerns. For example, both the Human Rights Act and the European Convention on Human Rights (ECHR) contain both qualified and unqualified rights.  Indeed, the Human Rights Act only contains four rights that are considered absolute and can never be limited in any circumstance (the prohibition on torture and inhuman and degrading treatment; the prohibition on slavery; the right to a fair trial; and the right not to be charged or convicted of a retrospective criminal offence (i.e. charged for conduct which was not criminal at the time it occurred). All other rights can be limited in certain circumstances.

Cultural relativism

A second, more academic debate about the universalism of human rights surrounds cultural relativism. Many human rights that are recognised by international organisations, such as the United Nations, were theorised in the West, and, in particular, in Europe and the United Kingdom. Indeed, the ECHR itself is, in part at least, based on British common law. Some academics have argued that the Western nature of human rights provokes a tension between ‘universalism’ and ‘cultural relativism.’

Cultural relativism is the idea that a person's beliefs, values, and practices should be understood based on the context of the individual's own culture. In the field of human rights, this means that certain rights may be specific to a country rather than universal across all jurisdictions.   

Proponents of universalism have argued that cultural relativism carries a contradiction by setting universal human nature against relative human rights, despite the fact that these rights are based on this nature. This cannot hold in any fundamental way. Relativist theorists have responded that human nature is, in fact, not universal, but culturally relative and that society has an impact on the variety of human natures. Radical cultural relativists take this further and argue that if all rights were determined by social rules, there would be no human rights, in that simply being a human being does not endow one with any inherent rights.

Nonetheless, relativists have consistently failed to regularly identify any of the central human rights protected in the West that should not apply universally across the world. The right to liberty and the right not to be subjected to arbitrary violence make up a good proportion of western human rights legislation. But they are also fundamental needs of all humans no matter their culture. Instead, relativists are forced to highlight smaller fragments of western human rights legislation which they do not believe should be applied universally.

Relativists also argue that even if values are universal, the need for human rights is not necessarily also universal. Traditional rulers had their power and authority restricted by both “customary limits entirely independent of human rights” , administrative weakness, and technological limitations. In such an environment, some human rights could be irrelevant in that they were either protected through other mechanisms or were never under threat of violation. The modern state, however, is no longer constrained by these factors, and so universal human rights are necessary.

Conclusion  

Most human rights are not universal or unlimited. Modern human rights legislation in the UK contains very few absolute rights and instead allows rights to be restricted in certain circumstances. Nonetheless, the human rights developed in the UK, Europe, and the West should be considered to be applicable to all countries, and they contain certain protections that should be afforded to all. 

Amin Kenji is a Research Assistant at Bright Blue.

The promise of a new dawn: the prospect of Turkey embracing liberal values without embracing the Western liberal order

Over the course of the past several years, and to the surprise of most international observers, Turkey has turned its back on the West, eschewing the path it had been pursuing towards liberal, democratic values for the previous half a century. It has curtailed its relationship with the EU in favour of an alignment with Russia and Iran. With a demagogic and powerful populist in charge who has overseen purges of the nation’s military, bureaucracy, academia and media, the human rights prospects for Turkey appear bleak. However, in recent months a new political party has been launched which promises to change this by making Turkey a truly liberal and democratic country.

 A new party

Launched just over two months ago, the so-called Good Party has adopted a centre-right platform and – befitting its name – a slogan declaring “Turkey will be good”. It boasts pluralism, democracy, the rule of law, freedom of speech and nationalist values as its core principles.

Its leader is Meral Aksener, a former Minister of the Interior who has become a particularly vocal critic of President Erdogan since his successful and widely criticised bid to secure greater executive powers via a national referendum. As a national politician with two decades of experience and right-wing credentials, Ms Aksener is seen as a likely contender for the presidency in 2019.

In her first address to her followers, Ms Aksener advocated liberal principles and cited the Venice Commission, a Council of Europe advisory body pertaining to constitutional law. She argued against media censorship and in favour of democratic institutions.

Interestingly, the Good Party has also stated that it will uphold human rights, not as a favour to Western powers, but as a good in themselves. Such an attitude stands in contrast to conventional wisdom which has reasonably interpreted Turkey’s liberal orientation as being part and parcel of its relationship with the Western international order, particularly the EU but also the United States.

It is worth considering whether Turkey can indeed embrace liberal values without embracing the nations and international organisations which constitute the liberal world order.

The relationship with the EU

Until recently, Turkey’s relationship with the EU seemed likely to blossom into a successful bid for membership.

Among the first to become a member of the Council of Europe in 1950, Turkey applied to join the EU’s predecessor, the European Economic Community (EEC), in 1987, before becoming an associate member of the Western European Union five years’ later. It was in 2005 that Turkey applied to join the EU in what has proven to be a long, tortuous process with no success yet in sight, despite optimistic projections that the process would end within a decade.

Indeed, while the Leave campaign during the UK’s EU referendum vote warned of Turkey’s impending accession to full EU status, experts have pointed out that this was and remains unlikely in the near future. Many have argued that the EU’s door has only ever been “half open” to Turkey. For instance, as recently as 2016, only 15 of the 35 negotiating 'chapters' (the different policy fields containing current EU rules which must be adopted by national candidates) had been 'opened' and are therefore being discussed, and just one had been provisionally 'closed', or agreed upon. Other countries – such as Montenegro, Croatia and Iceland – have made significantly more progress despite initating formal bids at similar or later times than Turkey.

Despite a greater willingness on the EU’s part to work with Turkey over the past couple of years to stem the migrant flow into Europe, the chances of Turkey’s bid succeeding appear remote. A key factor of this stagnation is, of course, Turkey’s worsening human rights record. Indeed, the EU has recently proposed cuts to Turkey's EU membership aid on the grounds that “Turkey is not respecting freedom of speech, freedom of expression, human rights and is drifting further away from European democratic standards”.

Looking at the broader picture of Turkey’s relationship with the West, Kemal Kirişci a senior fellow at TÜSİAD and director of the Brookings Institute’s Turkey Project, argues in a new book that Turkey’s Western alignment has been at the root of the country’s historical diplomatic and military prowess. Presenting his argument in the Brookings Institute’s podcast, he argues, in line with conventional thinking, that Turkey’s relationship with the West is strained by the former’s desire to pursue an alternative alignment.  

The alternative alignment

Dr Kirişci contends that to some extent the Christian democratic vision of Europe championed by key European players such as Germany’s Angela Merkel and France’s Nicholas Sarkozy made Turkey more uneasy about joining the EU. This served to embolden Turkey’s pre-existing desire to look more Eastward and regional both in terms of her geopolitical alignment as well as her espoused values.

For example, a term now often deployed to refer to the perceived Turkish alignment is the ‘Iran-Turkey-Russia axis’, while such a configuration is often linked to Turkey’s growing religious conservatism manifesting itself, not least, in promoting an education system which omits Darwin’s theory of evolution and forcefully promotes tenets of Islam.

Certainly, Turkey is often characterised as a country torn between pursuing a secular, modern Western style state – an endeavour which defined much of the twentieth century, from Atatürk's Reforms to post-World War Two geopolitical manoeuvring – and asserting itself as a regional power more inclined to the East and capable of establishing a neo-Ottoman Empire or commanding the Islamic world.

It is perhaps no surprise, then, that Turkey has fluctuated in its geopolitical alignments. It has also fused East and West together. Writing for the New York Times, Behlul Ozkan from Marmara University, labels the then-Turkish Prime Minister Ahmet Davutoğlu’s pursuit of a pan-Islamist empire an “Imperial Fantasy” and argues that, paradoxically, this pursuit has been grounded in Western political theories which predominated before 1945, such as the German notion Lebensraum, ‘living space’.

The internal tension between East and West, then, does not simply manifest in Turkey in dichotomous alignments and value systems, but also manifest in fusions. In this respect, Mr Halacoglu’s assertion that Turkey can pursue its own path, upholding Western values on its own terms is a significant – but often overlooked by those who see Turkey’s human rights record as defined by the prospect of EU membership – feature of the Turkish national and cultural character.

Conclusion

The growth of illiberalism and attacks on democracy in Turkey took much of the world by surprise. Should the Good Party gain some traction, Turkey could surprise the world again. Yet the extent to which a reformed Turkey would internationally align itself with Western nations is up for debate.

Geopolitical realities in which the US remains a superpower and Russia and her proxies are increasingly assertive might render a sort of third way difficult to achieve. Yet, the country which bridges East and West stubbornly seeks to remain in a category of its own.

Joel Collick is a Research Assistant at Bright Blue

Small changes, big difference: how fixing recall practices can improve our criminal justice system

That UK prisons are overcrowded is well-known. That current recall practice is the second biggest drive behind the dramatic growth of the prison population is not. Nor is the concept of recall itself familiar to many.  

Despite its apparent innocuity, however, there are compelling arguments for a rethink of the practice’s use.

What is recall?

Recall refers to the practice of bringing offenders who are out on licence or parole back into prison. A person may be recalled if they commit, or behave as though they might commit, another crime.

The length of time in which the prisoner must return to prison depends on the type of recall. Fixed-term recalls (FTRs) incarcerate the offender for 14 days (if serving a sentence of less than 12 months) or 28 days (if serving a longer sentence). Standard recalls bring the offender back to serve the remainder of their sentence unless the parole board releases them earlier. This more stringent category applies to those who are serving a sentence for a violent or sexual offence, are on extended sentences, or are deemed to pose risks to society.

The use of recall has grown substantially. Over the past 20 years the number of people in prison due to recall has increased by 4,300%. This means that while in June 1995 there were 150 people in prison on any given day due to recall, by June 2016 there were 6,600. In the year 2015-16, more than 22,000 prisoners were recalled.

The increase in recall usage can be explained by a legislative agenda which has lengthened recall sentences and expanded the remit for recall eligibility. The Crime & Disorder Act (1998) made offenders serving between 12 months and four years eligible for executive recall, rather than via a courts process as was previously the case. The Criminal Justice Act (2003) instigated numerous changes: increasing the length of the ‘on licence’ status which imposes restrictions and obligations on the offender who is deemed to be serving his sentence but outside of prison; making the standard recalled offender liable to serve 100% of their original sentence, rather than the previous 75%; and stipulating that the parole board review all recall cases, thus reducing re-release rates.

While the introduction of FTR in 2008 initially stabilised the recall population, the Offender Rehabilitation Act (2014), which made those serving less than 12 months eligible for the practice for the first time, has caused numbers to increase again.

It is important to note at this point the types of offenders who are recalled and the stated for recalling. The Centre for Social Justice (CSJ) points out that nearly 8,000 recalled offenders were serving sentences of less than 12 months, and therefore were unlikely to be serious offenders. It is only a minority of recall cases (45%) that involve people being charged with a criminal offence. The remaining majority of recalls are solely due to ‘non-compliance’ with the offenders’ licence. Indeed, the Howard League for Penal Reform calculates that in the year 2015-16, nearly 8,000 recalls were issued for “failing to keep in touch”, and over 5,000 for “failing to reside” at a particular address.

Problems with recall

From a human rights standpoint, some legal experts argue that recall procedures essentially constitute new sentences and are not simply law enforcement mechanisms. This would mean that recalls undermine fundamental principles of justice as exercises of arbitrary power which deny due process.

Beyond thorny legal issues, recalls also have a significant impact on the prison population, exacerbating the perennial prison issues of overcrowding, understaffing and public costs. As the HM Chief Inspectorate of Prisons (HMCIP) report of Portland Prison said last month: “At a time when prisons are already filled to bursting, it made no sense to ratchet up rules on recall and send thousands of prisoners back behind bars after release.”

The context of this statement presents another problem with recall practice. The HMCIP assessment noted that prisoners were deliberately breaching their licence so as to be recalled and smuggle drugs or other illicit items into prison. Such a ‘courier’ practice is recognised to have a direct negative impact of prison safety levels, another area of great concern for government and policy makers.

In addition to the impact on wider prison problems, recall usage can be highly detrimental to the offenders who are punished by this practice. First, it is worth noting that the various circumstantial problems which offenders face upon release such as mental health issues, finding suitable and permanent accommodation, or getting back into work or onto the payroll, can be significant impediments to fulfilling certain licence demands. Recalling prisoners for breaches which may have been hard if not impossible to avoid is thus a questionable practice.

Further, there is a growing presumption against short sentences due to high reoffending rates for such categories of offenders: nearly 60% of prisoners serving less than 12 months reoffend, not least because of the lack of support for offenders released after short sentences. It is on this basis that the House of Commons Public Accounts Committee in its rehabilitation report stated that “a rapid cycle of short sentence, release and recall is a poor outcome for offenders, the prison service and society.” Thus, short recall sentences such as FTRs prove highly damaging to offender rehabilitation, which contributes to higher reoffending rates and less safe communities.

Reforming current practices

One way in which recall could be reformed would be ending FTR. While, of course, the introduction of FTR was meant as a positive step to reduce the severity of recall for non-dangerous offenders, recall could be ceased altogether for such low-risk criminals. The practice of sending low-risk offenders back into prison for a mere fortnight or month does virtually nothing to improve public protection or serve any retributive or deterrent purpose. It is costly and can inhibit rehabilitation, not least because, as the HMCIP report on Portland Prison details, prisoners are in fact incentivised to breach their licence and return to prison.

Another option constitutes reversing the practice instigated three years ago of recalling offenders on short sentences. According to the most recent Offender Management statistics, over 1,000 such prisoners are in custody, or nearly a fifth of the total recall population. As the Howard League point out, reversing this trend would reduce prisoner numbers by 7,500 per year.

A third area of reform would be to cease using recall as punishment for licence breaches and issue community penalties instead. These alternatives would be cheaper, produce higher rehabilitation rates, and better reflect the relative mildness of the offence. It would also immediately free up over 3,000 prison spaces. On the other hand, the reasoning behind recalling offenders for such breaches is not entirely without merit, as breaking the terms and conditions of release might indeed signal that the criminal is likely to reoffend. At the very least, however, greater attention should be paid to offenders’ motives or personal situations to reduce instances of unreasonable recalls.

A lot of the above could be accomplished without any legislative changes or significant risk to public safety and the benefits to the criminal justice system would be immediate and manifold. As with any criminal justice reform, however, it is obviously important to tread carefully: while prisons may be overcrowding and rehabilitation success limited, the solutions must not be rash and serve to threaten public order or undermine principles of retributive justice. 

Conclusion

Reforming recall could help criminals rehabilitate, reduce reoffending rates, quell prison violence, and help control an out-of-control prison population. It could also take the edge off some of the more punitive and less justifiable aspects of our penal system. It is thus both pragmatic and ethical. It is also relatively easy to do.

HMCIP is expected to release a report on recall practice soon. Upon its publication, Ministers should pay careful attention and consider taking action.

Joel Collick is a research assistant at Bright Blue

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