West Midlands Police equipped with "long shield" riot gear of the type used at Orgreave. Handsworth, Birmingham, 1985.Flickr/West Midland police. Some rights reserved.With the general election on 8 June fast approaching, and the contest looking closer than anticipated, this article looks at the issue of human rights and civil liberties. It offers a snapshot of some key debates and areas of disagreement, with its main focus on the positions of the two major parties as set out in their manifestos and other recent announcements.
The European Convention of Human and the Human Rights Act 1998
The Human Rights Act 1998 (HRA) was introduced early in the first New Labour government and had the effect of bringing the European Convention of Human Rights (ECHR) into domestic law, so that individuals no longer had to take their cases to the European Court of Human Rights to enforce their convention rights.
It placed a duty on public authorities in the UK to act in compliance with those rights, and allowed individuals to bring claims and public law challenges based on those rights in the domestic courts. As a result, rights have become easier to enforce – for example, some survivors of rape and sexual assault failed by authorities such as the police have been able to use the Human Rights Act to gain redress. (Although the most prominent ruling is now being appealed by the Metropolitan Police, with Theresa May’s backing.)
The 2015 Conservative Party manifesto contained a pledge to repeal the HRA and replace it with a British Bill of Rights. It was never entirely clear which of the rights contained in the ECHR – such as the right to free speech, to privacy, not to be subject to torture – they wished to curtail, but much of their disdain for the HRA seems to have related to anti-deportation arguments being based on the right to private and family life: Theresa May famously made the untrue statement that an illegal immigrant ‘could not be deported because he had a pet’. The government has also persistently refused to act on a judgment of the European Court of Human Rights stating that the ban on convicted prisoners voting is unlawful.
May has been on the wing of the Conservatives that is most extreme in this regard. While still Home Secretary, she expressed her wish to withdraw entirely from the ECHR. This pledge was removed during the 2016 leadership race, but in December 2016 she announced that she would be running in the next general election on a platform of withdrawal. The extremity of this position cannot be over-stated: the only other country that has left the ECHR during peacetime is Greece under a military dictatorship in 1969.
Much to the (temporary) relief of human rights organisations, the Conservatives have now announced that such a withdrawal is not part of their 2017 manifesto. In my view, this probably has relatively little to do with realising the value of human rights and more to do with the fact that the Brexit project is likely to be so all-encompassing that an additional project such as the Bill of Rights will be unachievable.
In addition to retaining the HRA, the Labour manifesto pledges to build human rights and social justice into trade policy (important in the context of post-Brexit negotiations) and end the sale of weapons to repressive regimes. The Liberal Democrat manifesto likewise pledges to oppose any attempts to repeal the HRA and to strengthen the UK’s commitment to international human rights.
The Conservative manifesto states that under their government, British troops would no longer be subject to the European Court of Human Rights and only to the Law of Armed conflict, including humanitarian law.
This ignores the complexity of the relationship between human rights and humanitarian law, and wrongly implies that the government can pick and choose which public bodies the Convention applies to. In relation to Northern Ireland, the Conservative manifesto pledges to create ‘new bodies for addressing the legacy of the past in fair, balanced and proportionate ways which do not unfairly focus on former members of the Armed Forces and the Royal Ulster Constabulary’ – without explaining what is seen to be unbalanced about the current focus.
During this parliament, the Conservative party has disappointed campaigners by refusing a public inquiry into the 1984 ‘Battle of Orgreave’ during the miners’ strike. Announcing the decision in October 2016, Home Secretary Amber Rudd argued that few lessons could be learned from an incident over 30 years ago – a decision described by the secretary of the Orgreave Truth & Justice campaign as a ‘complete shock and a great disappointment.’ There are apparent parallels between Orgreave and the Hillsborough disaster, both of which involved the same senior officers and lawyer, yet Theresa May has been praised for her work in supporting the Hillsborough families. It is therefore arguable that the difference in approach is related to the political context of Orgreave, which directly involved miners on strike against a Conservative government.
Conversely, Labour’s manifesto pledges a public inquiry into Orgreave. Similarly, it pledges an inquiry (also previously called for by the Green Party) into the scandal of blacklisting construction workers for their trade union activities, allegedly with the collusion of the secret services and police.
Racism, immigration and the treatment of migrants and refugees
More promisingly, the Conservative manifesto includes proposals to reduce disproportionate use of force against Black, Asian and ethnic minority individuals in detention and to make stop and search more targeted, with changes to be mandated if the ratio of stops to arrests does not improve.
These are important proposals, although more comprehensive changes are also needed – the Runnymede Society has called for ‘a root and branch overhaul of the criminal justice system to tackle racial disproportionality,’ which would look at issues such as sentencing as well as stop and search.
In addition, under Conservative proposals, large employers will be asked to publish data about pay differentials by race. However, as journalist Ash Sarkar has noted, there is already sufficient evidence to show income inequality and decisive action is needed.
It is also difficult to square these commitments with the increased racism that results from the creation of a ‘hostile environment’ for migrants, a phrase coined in 2013 during Theresa May’s term as Home Secretary. At the time, legislation was introduced forcing private landlords to check their tenants’ immigration status and introducing a policy to deport those with outstanding immigration appeals first, forcing them to make their appeals from outside the UK. Vans carrying the slogan ‘Go home and face arrest’ were deployed to target undocumented immigrants.
Of various aspects of the poor treatment received by many migrants and refugees / asylum seekers in the UK, perhaps the cruellest aspect is the increasing use of immigration detention: the last year has seen a ten percent increase in the number of people detained under immigration powers for longer than six months, a total of 317 people compared with 287 in the preceding year.
The Green party have pledged to completely end immigration detention, starting with the release of the most vulnerable detainees namely women who have survived rape, sexual abuse and torture. Meanwhile, the Labour and Liberal Democrat manifestos both call for a time limit on detention, which already exists in every other EU country and is therefore a modest though crucial demand. On the other hand, the Conservative manifesto says nothing on detention but makes the dystopian pledge of using satellite tracking to follow foreign nationals subject to deportation orders or proceedings – i.e. even those whom courts have not yet decided to deport.
Surveillance and the internet
This Parliament has seen the introduction of the Investigatory Powers Act, which give sweeping access to a range of authorities to individuals’ private information including internet browsing history and has been described by Liberty as ‘the most intrusive surveillance law of any democracy in history.’
In a decision that was incredibly disappointing to members like me who are concerned about Civil Liberties, the Labour Party voted in favour of the Act and did not table major amendments to it. Although the manifesto refers to re-introducing judicial control over the use of investigatory powers, it is not clear whether this refers specifically to the Act.
In the run up to the election, and particularly since the horrendous terrorist attack in Manchester on 22 May, the Conservatives have been giving contradictory messages during interviews about whether they wish to ban the end-to-end encryption used in services such as WhatsApp. Such a ban would be problematic in generally making the internet insecure – encryption is used, for example, in banking services. A strong case has not been made to say it would significantly affect terrorists. For example, the Manchester bomber, Mr Abedi, was known to the authorities, who, despite reports from members of the public on five occasions, made a decision that he was not high risk enough to be subject to surveillance. Rather than constantly expand mass surveillance, it would be preferable to focus resources on individuals identified as a threat.
A linked issue is that of Prevent. Unlike Mr Abedi, who had expressed views in support of terrorism, many of those referred under the Prevent scheme are considered suspect simply because they hold views which are seen to be at odds with mainstream foreign policy. Most worrying to me are reports of referrals for expressing views about Palestine, with the Prevent training pack advising universities to ‘manage’ Palestine activism. Bearing in mind that the government, for example, recognises the illegality of settlement building under international law, there is a double standard here – ideas that would be rightly seen to reflect concerns about human rights and social justice in some contexts come to be seen as subversive in others, particularly when expressed by Muslims.
In this regard, the commitment in the Labour manifesto to ‘review the Prevent programme with a view to assessing both its effectiveness and its potential to alienate minority communities’ is welcome, even if it has unfortunately been contradicted in a recent interview by Diane Abbott suggesting an expansion of the scheme.
The Conservative Party, on the other hand, appear to be strongly defending Prevent by simply focusing on its success stories and those they consider to have benefited from it, while refusing to engage with the issue of inappropriate referrals. Theresa May has also recently indicated the possibility of introducing new criminal offences in a bid to tackle extremism, again without actually defining what extremism means.
The Conservative party’s proposals for the internet would also oblige technology companies to support the Prevent strategy. This article by academic Paul Bernal explores its implications in detail, but noting that the proposed ‘regulatory framework’ backed up by a ‘sanctions regime to ensure compliance’ appears to amount to the creation of a censorship scheme to clamp down on social media platforms.
One of the apparent surprises of this election campaign has been proposals by the Conservatives to support workers’ rights, including the introduction of protections for those working in the ‘gig’ economy. However, the substance of the proposals is quite limited and also needs to be seen in context: the same party introduced draconian anti-union legislation in the form of the Trade Union Act, and have also been responsible for introducing fees in the Employment Tribunal, making it significantly more difficult for workers to actually enforce the rights they have. Outrageously, when questioned about this discrepancy, Theresa May responded that those with genuine cases ‘would bring them’ regardless of the fees. This assumes that the significant decline in cases since the introduction of fees arises only from non-genuine cases, and ignores the fact that not all workers will have the funds to pay the fees and / or be able to take the risk of losing them.
Access to justice
The introduction of ET fees is part of a broader attack on access to justice that started under New Labour and continued with the Legal Aid, Sentencing & Punishment of Offenders Act introduced by the Coalition government in 2012. This removed whole swathes of areas of law from the scope of legal aid funding (including family disputes except where domestic violence can be proven, benefits, some aspects of housing, debt and benefits, and non-asylum immigration cases) and tightened the already very tight means test for civil legal aid. It has been followed by yet further cuts, including to the funding of judicial reviews, which are important for holding public bodies to account regarding unlawful or irrational decisions.
Labour have pledged a number of reversals in their manifesto, including reviewing the means test and re-introducing funding for early advice in family cases and reintroducing funding for the preparation of judicial review cases. As regards the re-instatement of other areas, they pledge to reconsider these after the completion of an ongoing review by Lord Bach. The Liberal Democrats also promise a review of LASPO in their manifesto.
Probably like many legal aid lawyers, I see Labour’s proposals as a step in the right direction but as not necessarily going far enough to remedy an area that has been decimated by cuts. Similarly, their proposals on capping court fees, another bar to access to justice which have exponentially increased in the past few years, are welcome but not that concrete, and retain the idea that the court service can use these fees as a way to generate income.
The only direct mention of legal aid in the Conservative manifesto is to say that it will not apply to claims against troops. This is a thinly veiled reference to the recent controversy over claims against the armed forces in Iraq, which led to the solicitor Phil Shiner being struck off (barred from further practice) and to ongoing misconduct proceedings against solicitors from Leigh Day. In my view, the idea that wrongdoing in the bringing of certain claims should prevent claims of a similar nature being brought at all in the future is no more logical than saying that because some criminal prosecutions are brought improperly or on unreliable evidence, the state should receive no further funding to prosecute people. In addition, the Conservative proposal to introduce an ‘independent public advocate’ at inquests has been read by some as a possible way of avoiding legal aid for family members at inquests.
Brexit and the Great Repeal Bill
The question of Brexit is obviously a huge one, but one aspect of the Conservative’s plans that causes particular concern for Civil Liberties is the Great Repeal Bill, which would hand unprecedented powers to the executive through ‘Henry VIII’ powers which allow rights to be removed without a parliamentary vote. Unlike the Liberal Democrats and Greens who promise a second referendum, Labour has pledged to implement Brexit but their procedure for doing so does not appear to include such a serious attack on parliamentary sovereignty. In place of the Great Repeal Bill they would implement an EU Rights and Protections Bill, which researcher Sam Fowles described as a move in the right direction, but needing a more wholehearted defence of rights.
As regards EU migrants, I believe it is deeply disappointing that Labour have pledged to end EU free movement, again in contrast to some of the smaller parties. That said, Labour’s pledge to unilaterally guarantee the status of EU migrants in the UK, although complex to administer, is preferable to the Conservative approach which, in effect, treats them as bargaining chips.
Police and prisons
Labour’s manifesto pledges the recruitment of 3,000 prison officers – a move which seems indispensable to deal with the catastrophic situation inside prisons, but which also opens up the question of why Britain is imprisoning so many people that it now has the highest imprisonment rate in western Europe. In this regard it is refreshing that Labour’s manifesto refers to prison as a ‘last resort’ and notes that ‘our prisons are too often dumping grounds for people who need treatment more than they need punishment.’ This is promising, and contrasts starkly with the Conservative pledge to create 10,000 more prison places. To make it into action more concrete measures would be needed, in terms of changes to sentencing guidelines and / or decriminalisation of certain offences – as proposed by the Liberal Democrats in relation to cannabis possession and the Green Party on sex work.
Likewise, Labour’s plans for an increase in officer numbers to 30,000 have made headlines, particularly in the past week, but analysis from the Centre for Crime and Justice Studies suggests that the evidence that increased recruitment leads to decreased crime is weak, and cites statistics that 84% of calls to the police relate not to alleged criminal offences but to matters such as concerns about an individual’s wellbeing. In other words, proper resourcing of other public services such as mental health and social work would allow the freeing up of police resources to deal with crime.
Finally, the Conservatives have pledged to limit voter registration to those who can present identification, although the nature of identification is not specified. In my practice, I have come across a number of clients that simply do not have identification such as a driving licence or passport, and it is unrealistic to expect that all will pay and go through a procedure to obtain it. This is in some ways the most worrying proposal of all, since it would be predicted to disenfranchise 7.5 per cent of the electorate, around 3.5 million people, thus impacting on future election outcomes.
Human rights are, of course, not the only concerns in this election – the economy, the NHS, social care, housing and education among others are of huge importance. But human rights are important for everyone, because, for example, without the right to protest against particular policies it is much more difficult to influence and hold to account whichever government is elected on 8 June, and without access to justice it is difficult to challenge their worst impacts.
While there are proposals in the Labour manifesto which I would like to see changed significantly, I believe that a further conservative government is almost certain to be much more damaging for human rights with the ongoing creation of a hostile environment for migrants, a burgeoning prison population, a lack of access to justice, sweeping executive powers and a curtailment of voting rights.