Brexit and Human Rights Briefing No.3: Free Movement and Human Rights

The Labour Campaign for Human Rights is pleased to publish our third Brexit and Human Rights Briefing: Free Movement and Human Rights.

The briefing offers an honest analysis of the system’s impact on human rights in order to aid our understanding of its alignment with progressive values and how it could fit into Labour’s approach to Brexit. This briefing situates free movement alongside Britain’s considerably less human rights compliant immigration system for those outside the EU, and argues that a priority for Labour must be to ‘level up’ rights for non-EU migrants. We also consider how Labour can listen to and recognise the concerns of voters regarding free movement, whilst also combating attempts to scapegoat migrants by redirecting the legitimate anger felt at economic insecurity towards their true sources.

Why we should be concerned by the government’s secretive approach to Brexit

The defining message of the Vote Leave campaign was that “leaving the EU … will save our sovereignty.” Before and after the referendum, leading Brexiteers within the government have embedded their arguments of global trade and reduced immigration within the noble principle that parliament, and by extension the British people it represents, remain sovereignty.

Yet this week saw yet another clear demonstration of the government curtailing parliamentary oversight of its’ disastrous Brexit strategy. After weeks of delaying tactics in which the government refused to comply with cross-party calls that it release a series of confidential studies on the economic impact of Brexit, Brexit Secretary David Davis risks becoming the first politician in centuries to be held in contempt of parliament after finally distributing incomplete and heavily edited reports.

The government withheld any information they considered ‘sensitive’, despite a binding, unanimous vote by MPs for complete access of the documents as well as reassurances by the Brexit select committee that any sensitive information would be treated appropriately. David Davis’ extreme self-editing meant that MPs received around twenty reports fewer than expected, with Keir Starmer expressing his shock at the paucity of information that the government deemed fit to share.

The fact that MPs had to utilise every parliamentary trick available just to secure the release of the modified information, including a ‘humble address’ that directly called upon The Queen to force Mr Davis to release the impact assessments, demonstrates the government’s desire to keep parliament at arms-length whilst key decisions are made by Theresa May’s core team. To then release such a watered-down version of what parliament requested was too much even for fierce Brexiteer Jacob Rees-Mogg, who said the government was “in serious constitutional waters if it doesn’t provide the full information … if you try to trample the rights of Commons in government … you have no means of curtailing abuses of power.”

Yet this remarkably disrespectful approach should not be surprising, as secrecy and concentration of executive power has defined this government’s approach to Brexit. The government’s ‘Great Repeal Bill’ has been widely criticised for granting extraordinarily sweeping and unchecked powers to ministers as they incorporate EU directives into British law. Meanwhile, Andrea Leadsom has also passed a motion to swing influential public bill committees in the government’s favour.

The dispute over the Brexit documents is simply the latest demonstration that, despite its empty rhetorical commitment to the sanctity of parliamentary sovereignty, this government would rather circumvent our parliamentary checks and balances. Labour must continue to oppose the government’s efforts to deliver the hard, centrally-managed Brexit that the electorate resoundingly rejected in June.

Joe Duffy is LCHR’s Campaign Intern 

Briefing: The Dangers of the Prevent Strategy

LCHR is is pleased to publish our briefing on The Dangers of the Prevent Strategy.

The briefing argues that by introducing a statutory duty for many public sector workers to identify and report individuals at risk of being drawn into terrorism, the Prevent strategy has incited suspicion, threatened human rights, and resulted in misguided referrals. We found that the strategy’s flawed assumptions, as well as the inadequate training it provides, has created an atmosphere of distrust and fear which is counterproductive to its goals.

By examining a number of case studies, this briefing argues that the Prevent strategy risks encroaching a number of core liberties, including freedom of expression, freedom of thought, conscience and religion, and freedom from discrimination. Prevent also disproportionately targets and impacts members of the Muslim community, with detrimental consequences for the success of Britain’s counter-terrorism initiatives.

In conclusion, LCHR recommends abolishing Prevent’s statutory duties and working with communities to find more effective, human rights-compliant alternatives.

You can read the briefing here.

Concerns about Voter ID pilot

A guest blog by LCHR member, Dermot Mckibbin

The Government has announced that a pilot scheme will be set up to require voters to produce identification in the polling booth prior to voting. Local councils will decide on what is suitable identification, and if voters do not have the required identification they will not be able to vote. Postal votes will be unaffected.

Four pilot exercises will be conducted in Bromley (Conservative) Watford (Lib Dem), Woking, and Gosport (both Conservative).  After the pilots have been evaluated, a decision by the Government’s Cabinet Office will be taken whether to roll out the practice nationally or not.

It is not clear whether voters have to produce both photographic and non-photographic identification at the same time. No decision has been made about what type of identification is acceptable. The details have still to be worked out. It appears that the Cabinet Office will be involved in the decision-making process as a statutory instrument will be required.

The voter ID requirement was introduced in Northern Ireland in 2003. Turnout for the Northern Ireland Assembly Elections was 68.8% in 1998, 63.1% in 2003, 62.3% in 2007, 55.7% in 2011, 54.9% in 2016 and 64.8% in 2017. An Electoral Commission report on the Northern Ireland Assembly Elections fails to even consider whether the fall in voter turnout was due to the ID requirement issue.

The Electoral Reform Society is opposed to voter ID. 51.4 million votes were cast in 2015. There were 130 allegations of voting fraud and only 26 were for voter impersonation. This represents 0.00005% of the votes cast. The Government is using a sledgehammer to crack a nut.

In the 2011 census, 9.5 million people stated that they had no passport, 9 million did not have a driving licence, and – in 2013/4 – 1.7 million did not have a bank account. Many of these people are likely to have low incomes.

There are some legal problems with the Government’s approach. The courts can scrutinise decisions made by Government via the process of judicial review. It may be that the courts would strike down this scheme as the decision is disproportionate to the problem it seeks to remedy. Challenges to government decisions in the courts via judicial review are an expensive business, though group funding can be successful.

By virtue of Article 3 of the First protocol in the European Convention of Human Rights, The United Kingdom undertakes to hold free elections. Strasbourg case-law has established that any interference with the implied right to vote must be proportionate. The European Council on Human Rights has a code of practice on electoral matters. Any deprivation of the right to vote must be subject to the principle of proportionality.

If Labour cannot change this policy in Parliament, progressive citizens should band together to fund raise to challenge this restriction on the right to vote in the courts.

Dermot Mckibbin
Beckenham CLP

The worrying increase in EU citizens forced to leave the UK.

Theresa May’s repeated refusal to guarantee the rights and security of the three million EU nationals living in the UK was interpreted as a negotiating technique, albeit a cruel and anxiety-inducing one, aimed more at leveraging preferential deals elsewhere in the negotiations than intentionally stripping away citizens’ rights. Yet a catalogue of recent examples demonstrating the government’s direct hostility towards EU nationals suggest that the government’s true intention may have been even callous than it first appeared.

Government data shows that deportations of EU citizens are at their highest since records began, with over 5,000 removals during the last twelve months – a 20 per cent rise from the previous year. These alarming figures have prompted the European Commission to investigate reports that the UK is violating its membership conditions prior to leaving the EU, with a commission representative confirming they were seeking information to explain the “increase in the number of EU nationals who are being detained and facing removal from the UK for immigration reasons.”

The extent of the government’s disdain towards the security and futures of EU citizens was demonstrated by a recent Home Office letter, written on behalf of Home Secretary Amber Rudd, in response to the request for emergency accommodation made by a Romanian national being held in a UK detention centre. The letter urged the sender to leave the UK, arguing they could “avoid becoming destitute by returning to Romania or another EU member state where you could enjoy access to all your ECHR rights without interference.”

A particularly unsettling reason behind the spike in deportation figures is a Home Office policy, introduced in May 2016 by the then Home Secretary Theresa May, that interprets EU citizens sleeping rough as a misuse of their treaty rights. This harsh and questionable interpretation of EU treaty rights, which form the foundation of EU citizens’ ability to reside in this country, is the first time that EU citizens can be forcibly removed from the UK even if they have not committed a criminal offence.

Recent investigations have shown the lengths the government have taken to target homeless EU nationals, with the Home Office secretly gaining access to a digital map created by Greater London Authority to categorise rough sleepers by nationality. This tool, designed to assist those helping the homeless, was instead used by the Home Office to target rough sleepers from the EU or central eastern Europe. The use of the map led to a 41% increase in the number of EU nationals detained. Liberty, a prominent human rights group, is making an official complaint to the European Commission, with Director Martha Spurrier criticising how “vulnerable foreigners have been systematically targeted by a government obsessed with deportation, whatever the human cost.”

The government’s apparent eagerness to drive EU citizens out of the UK has even resulted in some receiving mistaken orders to leave the country. Around 100 EU nationals received letters from the Home Office notifying them that “a decision has now been taken to remove you from the United Kingdom”, which included a threat of deportation if they did not leave the country within a month. Dr Eva Johanna Holmberg, a Finish academic at a London University, described how receiving the letter felt “like you are being treated like a common criminal” and how “this absurd nonsense has aged me at least five years … it shows the Home Office currently cannot function.”

What is it that is making the government willing to risk breaking both its legal international obligations and the trust of EU nationals living in the UK?

Since 2010, Conservative governments have shared a divisive, if politically convenient, rhetorical commitment to decrease annual immigration to the “tens of thousands”. The number of EU citizens being removed from the UK is five times higher than it was when the conservatives gained power in 2010. As Home Secretary, Theresa May intentionally created a “hostile environment” for illegal immigrants which incentivises private sector landlords, teachers, medical staff and other public-sector workers to act as unpaid immigration officers by forcing them to provide information to the authorities. With no regard for the cohesion of our communities, Prime Minister May has been using her promotion to extend this damaging policy to EU citizens in service of her government’s farcical commitment. As Shadow Home Secretary Dianne Abbott put it; “this Tory Government’s obsession with immigration targets and creating a ‘hostile environment’ mires everything that they do.”

Despite her persistent refusal to assuage the anxieties of EU nationals, Theresa May told Parliament in June that “EU citizens are an integral part of the economic, cultural and social fabric of our country and I have always been clear that I want to protect their rights.” Foreign Secretary Boris Johnson recently attempted to reassure a meeting of Polish dignitaries that their post-Brexit rights would be “protected whatever happens”. Their words now seem incredibly hollow when stacked against their government’s covert assault upon the right of EU nationals to continue living in the UK.

Joe Duffy is the Campaign Intern for the Labour Campaign for Human Rights.

This article was first published as part of our dedicated Brexit and Human Rights Campaign 

 

The Human Rights implications of a ‘No Deal’ Brexit

After months of Brexit negotiations defined by incremental progress and deteriorating relationships, the high levels of panic can be judged by the fact that Theresa May’s repeated insistence that ‘no deal is better than a bad deal’ is increasingly being discussed as a viable option. The government is characteristically split on this issue, with chief Brexit negotiator David Davis seeing it as a key negotiating lever. Yet Home Secretary Amber Rudd labelled such a scenario “unthinkable”, whilst Chancellor Phillip Hammond has earnt the ire of the Daily Mail for his apparent lack of confidence in post-Brexit Britain.

The danger is that this disarray will turn into a self-fulfilling prophecy, as the government’s inability to move negotiations forward is eating into the precious and limited time available to reach the best possible agreement. Jens Geier, the German Vice Chair of the European Parliament’s budget committee, recently described how the government’s disarray is preventing any ‘sustainable progress’, and argued that a no deal scenario is in fact preferable to a bad deal – for the EU. As the Brexit cliff edge is now emerging as an unwelcome speck on the horizon, it is important to consider what it would mean for our human rights if we plunged down it.

The prospect of no deal has added another unwelcome notch of strain to the worries of those whose citizens’ rights remain unclear. Following her government’s year-long refusal to guarantee the exact continuation of the existing rights of the 3 million EU citizens living in the UK, the Prime Minister confirmed that some of their rights “would fall away if there was no deal.” These include the right to move around the EU to work and the right to settle with family members who are based abroad. Amber Rudd sought to clarify the government’s stance by stating that the Home Office’s ‘default position’ will be to accept residency applications. But this is not the same as a guarantee of rights, and as Shadow Home Secretary Dianne Abbott rightly asked in a recent intervention on behalf of EU citizens, “who in the cabinet can be trusted to uphold these rights in the absence of a deal?”

This eventuality would also destroy any hope for a beneficial reciprocal deal for the 1.2 million UK citizens living in EU countries, who would be left stranded under the varying jurisdictions of their respective host countries. As the existing EU directive for third party nationals confers comparatively few rights, especially for those without five years residence, a no deal scenario would likely scythe through the current freedoms of Britons living across Europe.

Whilst much of our ability to preserve our European-derived employment and equality protections will hinge on the passage of ‘The Great Repeal Bill’ a no deal scenario would strengthen the hand of those seeking to undo crucial rights. In the event of an acrimonious and incomplete settlement, it is extremely likely that anti-European sentiment would increase in political currency. A recent study by The UK in a Changing Europe warned of “a bitter and divisive period” in the event of a no deal, which could provide fertile ground for those hoping that Brexit ignites a race to the bottom amid the ‘legal chaos’ as all pre-existing legal arrangements simultaneously evaporate.

It is also likely that a no-deal political climate would lead to the extension of the most regressive aspects of our non-EU immigration system, particularly the spousal income requirement, which prevents thousands from exercising their right to a family life. A no deal scenario would also reduce the onus upon UK courts to keep up to date with European rulings, which would raise the undesirable prospect of the UK lagging behind human rights progress made on the continent.

Much of the focus on a Brexit ‘cliff edge’ has rightly concentrated on the economic ramifications, with a recent Resolution Foundation study finding that low and mid income families would be hit the hardest. Yet a situation in which Britain crashes out of the EU and embraces the guidelines of the World Trade Organisation would raise significant human rights concerns. An increased reliance on partners such as Saudi Arabia will run the risk of undermining human rights and labour standards, and will make it considerably harder to implement a rights-based foreign policy.

Labour has been unequivocal in its condemnation of this Tory delusion, with Dianne Abbott’s welcome intervention one of many. Labour’s victory in delaying the vote on the Great Repeal Bill shows how strong a voice it can be in favour of a sensible Brexit. Labour will need to shout as often and as loudly as possible if we are to avoid the near-dystopian vision of a no deal Brexit.

Joe Duffy is the Campaign Volunteer with the Labour Campaign for Human Rights

This article was first published as part of our Brexit and Human Rights Campaign. 

Launching Fair & Free – LCHR & Fabian Society pamphlet

We’re delighted to announce the launch of our new pamphlet on Labour, liberty and human rights published by the Fabian Society and supported by the Joseph Rowntree Reform Trust. Fair and Free includes essays by MPs, academics and human rights experts setting out a fresh vision of human rights and liberty.

With an introduction by shadow attorney general Shami Chakrabarti, the collection initiates a new debate on how to safeguard our freedoms in this era of uncertainty and polarisation.

In her contribution, Lisa Nandy MP argues that in future the role of governments must be to facilitate shared decision-making, not simply make those decisions themselves. “Without this, more complete democracy, the concept of democracy will continue to be contested and freedom will remain, as Janis Joplin once said, another word for nothing left to lose,” she writes. “Now that we have seen the disastrous political consequences that despair breeds, it would be criminal not to take heed.”

Shadow policing minister Louise Haigh MP argues against ‘mission creep’ on internet liberties, encryption and moves around facial recognition software. “Just as we hold the police accountable in their use of force, so must we do so in their use of data and any violation of our privacy,” she writes. “To do otherwise questions their legitimacy, which must absolutely be sustained as without it, we fail the fundamental test of the British model of policing – the ability to police by consent.”

The chapters are:

  • Dr Jason Brock, teaching fellow in intellectual history and history of political thought at Royal Holloway, University of London, writes on how Labour talks about liberty
  • Dr Andrew Fagan director of academic studies at the University of Essex’s Human Rights Centre writes on economic and social rights as human rights;
  • Frank Field Labour MP for Birkenhead and Andrew Forsey head of Frank Field’s parliamentary office revisit the ‘rights and responsibilities’ debate;
  • Louise Haigh, Labour MP for Sheffield Heeley and shadow policing minister writes on Labour and law and order;
  • Dr Laura Janes, legal director at the Howard League for Penal Reform, a charity that has no political affiliations writes on rights for all;
  • Virginia Mantouvalou, professor of human rights and labour law at University College London writes on human rights, work and exploitation;
  • Lisa Nandy, Labour MP for Wigan outlines a new vision of liberty
  • Andrew Noakes, director of the Labour Campaign for Human Rights, asks what a post-Brexit immigration should look like;
  • Robert Sharp, head of campaigns at English Pen, an organisation which works to defend and promote freedom of expression writes on privacy, freedom of expression and human rights.

Robert Sharp, head of campaigns at English Pen, argues for stronger support for free speech and human rights at home and abroad. “Post-Brexit, the UK will be making dozens of new trade deals and will take on full responsibility for declaring what can be exported where,” he writes. “A Labour government can ensure that those trade deals are tied to support for free speech and human rights. Such a foreign policy will benefit everyone. But to make it work we need to get our own house in order first.”

Andrew Fagan, director of academic studies at the University of Essex’s Human Rights Centre, calls for economic and social rights to be put at the centre of the human rights debate. “Economic and social entitlements are not discretionary human rights. Thinking of oneself as a bearer of fundamental human rights is inherently empowering and fundamentally alters the terms of the social contract between the powerful and the powerless. From the perspective of human rights, the poor and the marginalised are not the ‘losers’ they are sometimes portrayed as, but human beings whose fundamental rights are being violated.”

We hope you enjoy the pamphlet!