Liberty written evidence
1. Liberty welcomes the opportunity to respond to Bright Blue’s consultation on human rights. There is a long and proud conservative history of supporting human rights and, as a non-party cross-party organisation, Liberty warmly encourages efforts to continue this tradition.90 All the issues identified in the consultation paper merit further attention, however this short response focuses in particular on challenges posed by the current political environment and the threat to the human rights framework.
2. Liberty is extremely concerned with what appears a rising tide of discrimination and hate speech, centring on chauvinism of race and nationality. Whilst there has been a reported 57% increase in racist and xenophobic attacks since the referendum on the European Union,91the Government has long sought to create a ‘hostile environment’ for migrants and refugees with successive acts of Parliament and policy.92
3. In particular, Liberty has concerns about the increasing conflation of immigration and criminal justice matters. We opposed the introduction of the offence of ‘driving whilst illegal’ and the power to stop and search any person suspected of possessing a driving licence without immigration status. As the National Black Police Association has stated, this is “an unwelcome return to the bad old days of the SUS laws.”93 Liberty is extremely concerned to see that the new Policing and Crime Bill takes further steps in this direction, requiring individuals to declare and then prove their nationality on arrest or face up to 12 months in prison. These provisions risk undoing the fragile relationship between police and BME communities. What should be consensual, community policing risks becoming another enforcement arm of the immigration authorities.
4. Liberty also opposes the attempt to create a ‘hostile environment’ for immigrants, which amounts to a deliberate drive to facilitate discrimination, increase exploitation and destitution, and makes rights protections practically inaccessible to many. Further provisions of the Immigration Act 2016 strip migrants of the right to rent property and their rights to appeal decisions of the immigration authorities. The Government has also sought to remove migrants from the scope of legal aid under its discriminatory “Residence Test”, which would effectively deny legal aid to individuals on the arbitrary basis of their nationality rather than the nature, gravity, or likelihood of success of their legal problem.94
5. Liberty believes there are concrete steps which the Government can take both to reduce Islamophobic prejudice and discrimination. One such step would be the scrapping of widely discredit Prevent programme, which has created a climate in which members of the Muslim community feel targeted as potential terrorists in all aspects of their lives. Along with the recent Counter-Extremism agenda, the new statutory Prevent duty on educational institutions risks not only deepening the prejudice felt by members of the Muslim community, but stifling free expression, stultifying children’s education and reducing the opportunity for controversial ideas to be debated peacefully.
6. The Human Rights Act, along with the ECHR, provides the fundamental framework for striking the balance between the rights to freedom of expression, freedom of religion, and non-discrimination. The HRA and the ECHR have provided repeated victories for those seeking to rely on their rights to freedom of religion, such as Nadia Eweida, who sought to wear a crucifix necklace over her uniform at work. With Liberty intervening to support her case at the European Court of Human Rights, it was found that a refusal to permit her to manifest her religion was a breach of Article 9 of the ECHR.95 Indeed, Article 9 – the right to freedom of religion – provides individuals with the primary means of defending claims that their religious convictions have given rise to unlawful discrimination. It allows for a fact-sensitive balancing of the competing rights and interests. However, both the Equality Act and the ECHR rightly prohibit unlawful discrimination, making clear that the right to manifest one’s religion must be respected but not past the point at which harm is caused to others.
The Human Rights Act
7. Over the past fifteen years the impact of the Human Rights Act (HRA) has been felt across society, making life better and fairer not only for individuals who successfully bring cases to court but also for the millions of other people who benefit from its changes to legislation, policy, and practice. This has emerged from living in a country where human rights are directly enforceable and public bodies have a positive obligation to protect and uphold them.96
8. Victims of crime, people with physical disabilities, people experiencing mental health problems, and minority groups including BME communities and LBGT groups have all received help from the HRA. Journalists, members of the armed forces and those who have lost loved ones as a result of State failings have used the HRA to hold the authorities to account and ensure that mistakes and abuses aren’t repeated. Liberty’s polling suggests that when the public are given even a small amount of information
9. Indeed, Human Rights Act has provided the chief means of redress for individuals facing the type of marginalisation, discrimination, and other abuses identified in the consultation paper. For example, in 2012, the Court of Appeal found that the Metropolitan Police had breached its duties under Article 3 of the Human Rights Act through its failure to act properly and appropriately to stop the appalling crimes of the ‘Black Cab Rapist’, John Worboys, between 2002 and 2008.
10. The Human Rights Act has further brought the discriminatory effect of the UK’s welfare system to light, and provided redress. In early 2016, the Court of Appeal found that the ‘Bedroom tax’ – the lower of state support for those deemed to be ‘under-occupying’ their homes – operated to unlawfully discriminate against children with disabilities who require overnight carers.99And the same is true as to the operation of other key public services, such as our justice system. In one case, a person with a history of serious psychotic illness was severely assaulted by the individual he identified as the attacker. However, the Crown Prosecution Service dismissed the victim’s ability to give reliable evidence, simply in light of his history of mental illness, and dropped the case. This left the victim feeling extremely vulnerable, isolated, and without the protection of the law. The High Court found this to constitute treatment contrary to Article 3 of the HRA.100
11. Moreover, whilst the HRA is responsible for these – and more – human rights victories, it provides a constitutional framework that is essentially conservative and British in approach. Rather than allow courts to strike down laws they deem contrary to human rights, judges must interpret statute compatibly with them, where possible, and provide remedy in individual cases. Where they cannot do so, they may issue a Declaration of Incompatibility, but the legislation remains in place and it is for Parliament to determine the response.
12. And far from having to slavishly follow the decisions of Strasbourg in interpreting the ECHR, the HRA only requires that courts take its decisions into account.101 UK courts are empowered to decide the issues for themselves and Strasbourg itself uses UK court decisions as aides to its own interpretation of the ECHR, increasing UK influence on the development of human rights.
13. It also remains an essential pillar in the devolution settlements framing the union of the UK. Even more is it a foundation stone of the Good Friday Agreement, implementing its commitments to place human rights at the centre of the peace in Northern Ireland and in disputed policy areas such as policing.
14. The report of the Chilcot inquiry has also demonstrated beyond question the failures of the Government to properly provision our military prior to and during the conflict in Iraq. The importance of the Human Rights Act in providing modest but crucial human rights protection for both UK soldiers and the civilians they serve cannot now seriously be doubted.
The European Convention on Human Rights
15. The record of the European Convention on Human Rights (ECHR) as a tool for protecting the rights of people across Europe is overwhelmingly positive. Compared to other regional human rights treaties, it has the best record of compliance with court judgments, especially when its far greater scope and responsibilities are taken into account. It provides a means of legal redress and reform for millions of those whose governments have signed up to it. Its record demonstrates the crucial role it has played in supporting democracy, the rule of law, and respect for human rights in Europe and around the world. It is therefore imperative that the UK not only remains a signatory to the Convention, but abides by the judgments of its Court.102
16. Domestic actors in countries such as Russia and Turkey rely on the judgments of the European Court in powering their own efforts at political and legal change. Were the UK to routinely shrug off the Court’s jurisdiction, the credibility of the ECHR system would be devastated as both a tool for international protection and domestic reform. As the mother of one of the victims of the Beslan massacre in Russia, Ella Kasayeva, has stated, “It is hard to overestimate the significance of the European Court of Human Rights for the Russian people. It is the only deterrence from this lawlessness. It is our only hope.” 103
17. The UK’s compliance with the ECHR is a cornerstone of its international platform for the respect of the rule of law and human rights. It is badly undermined by both noncompliance and abrogation, providing countries whose record it seeks to improve a counter-platform from which to make the charge of hypocrisy. And it would surely jeopardise the UK’s efforts at cross-border initiatives in fields such as asylum and security, losing the stamp of human rights which the ECHR system provides.
18. The ECHR has provided an important means of redress in relation to the issues identified in the consultation. For example, in 1996, the European Court of Human Rights found the UK to have breached Articles 8 and 12 – the right to private and family life and the right to marry, respectively – by failing to recognise the sex of postoperative transsexuals for the purposes of marriage, pension rights, and other issues.104
19. And the ECHR has spurred Europe-wide reform in favour of LGBT rights. As a Parliamentary Committee observed in 2013, the cases of Smith and Grady v United Kingdom and Lustig-Prean and Beckett v United Kingdom105 – upholding the rights of LGBT persons to serve in the military – were opposed, but ultimately accepted, by the UK Government, which now advocates for LGBT rights worldwide.106 But the change was even more widespread. As academics have noted, “Between 1991 and 1998, not a single country abandoned its discriminatory policy or practices [to exclude those who are homosexual from their militaries]. During the decade following the Lustig-Prean & Beckett judgment, sixteen countries did so.”107
20. The primary means by which the Government can reduce torture worldwide is to absolutely avoid complicity in it, and to condemn all who engage in it. Compelling evidence exists as to the Government’s involvement in the CIA’s programme of extraordinary rendition and torture, but the public remains in the dark as to precisely what went on. Even worse, Libyan dissident Abdul Hakim Belhaj alleges that he and his family were directly rendered by the British Government to Libya, suffering horrific torture by the Ghaddafi regime as a result. The UK Government must emphatically abjure breaches of Article 3 of the ECHR, the right against torture and inhuman or degrading treatment. But it must also vigorously investigate all such allegations, and prosecute those responsible. Now that the Crown Prosecution Service has decided not to bring charges in respect of those allegedly responsible, the Government must now fulfil its 2010 commitment to open a public, judicial inquiry into all allegations of complicity in torture over the last decade or more.