On Liberty (15 page)

Prior to this, if you locked someone up, it was ‘false imprisonment’. If you beat or threatened them, there were various offences against the person. But often the bruises heal long before the victim emerges from the shock and finds the courage to make a criminal complaint. And what if you had other means of controlling the vulnerable on account of their immigration status or fears for loved ones far away or other forms of psychological vulnerability? Working with grass roots
anti-slavery groups such as Kalayaan and Anti-Slavery International, my legal colleague Corinna Ferguson found a culture of complacency and neglect on the part of the police and prosecution authorities failing to take up the cases of the modern-day slaves held against their will in British homes.

They included her client Patience Asuquo. She came to London from Nigeria aged twenty-two in 2004 and worked as a domestic servant for a solicitor practising in the capital. Given what followed, her employer’s profession is worth bearing in mind.

In the three years running up to the bicentenary of the Slave Trade Act, Patience’s passport was held by her employer. She was subjected to regular verbal and physical abuse and paid no more than about £2,000 during the entire period of her employment, which worked out at less than £14 a week. She lived in fear until, in August 2007, she finally escaped and was able to make a complaint to the Metropolitan Police, only to be told, just over a year later, that the investigation was closed. But Article 4 of the Convention and Human Rights Act places the state under a positive duty to protect people from slavery. In response to legal proceedings – a judicial review – brought by my colleagues in 2009, the Metropolitan Police were forced to accept that they were in breach of the Human Rights Act and agreed to reopen the investigation.

This story proved vital to our campaign for the creation of a new criminal offence of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour. This campaign was ably championed in the House of Lords by the fearless cross-bencher Baroness Lola Young. While the pre-election Brown government was eventually persuaded, we initially met significant resistance from officials in that administration. When you watch news reports of shocking Crown Court trials and convictions of people who held the vulnerable, often the learning disabled, as modern-day slaves; when you hear many of the current politicians who cast themselves
as latter-day Wilberforces by banging on about the evils of slavery while simultaneously slating the Human Rights Act; remember what the media and politicians rarely tell you. Remember my colleague Corinna, her brave client Patience and that it was the Human Rights Act ‘what won it’.

Torture and slavery have yet to be consigned to history, even in twenty-first-century Britain. Tragically, even lawyers have been complicit in grave abuses and have made too many of the excuses for them. Nonetheless, the absolute protections against them in the Human Rights Act have proved vital, both at home and abroad. And this often to the severe irritation and embarrassment of the powerful. Yet, I have not fully responded to the ticking nuclear bomb scenario – that question that follows me around like a shadow – have I?

So let’s play the game and paint the picture of a gripping Benedict Cumberbatch blockbuster of the large or small screen. In fairytale number one I am the prime minister (I know, I know, you’re really going to have to work with me on this one), who receives the telephone call from a foreign friendly power with a murky record on and approach to human rights. A horrific plot to kill millions somewhere in Britain has been uncovered and a suspect identified, quite possibly by the torture of her associates in another land. Do I pass the intelligence on to the commissioner of the metropolis so as to facilitate an urgent investigation and the suspect’s possible arrest? Yes, I do. I know that material gleaned from torture will not stand up in a UK court, but the test for arrest is only reasonable suspicion and I must hope that our policing professionals will find intelligence and evidence to either incriminate or exculpate the suspect, or at least foil the anticipated plot.

That’s the easy one! I hear you shout. What about the final act? Now I am the cop or the spook alone in the room with the gloating suspect straight from central casting, who taunts me with the ticking nuclear bomb but will not reveal its location in time to save a city. We can even give her a sadistic and cynical
laugh if you like, or a hook for a hand and a patch over one eye. Do I find some clever way to persuade or trick the villain into revelation? Do I bribe or blackmail? What else do I do? Do I, fast running out of time, resort to violence against the suspect? How can I possibly know? What I do know is that the law against abusive interrogation and torture must be left unchanged, and that I should make whatever calm or desperate personal ethical decision in the knowledge of its full weight and consequences for everyone – including myself.

If I choose the path of cruelty over ingenuity and thereby save millions, I will no doubt throw myself on the mercy of a jury and seek a ‘perverse acquittal’ in the face of the law and evidence against me. Some may hail me as an unlikely and reluctant hero and no doubt say they told me so about torture. But for fantasy scenarios where dark practices are acceptable and routine not to become reality, I must be required to weigh the grave potential consequences for me alongside those for the suspect. Neither a prime minister nor a judge should be able to dial up or sanction torture and I should never be able to argue that I was just following orders. That excuse for a chain of command ends humanity and responsibility for all concerned. It didn’t work as a defence at Nuremberg in the last century and it should never be allowed in London, Washington or anywhere else in this supposedly more enlightened age.

Oh, I love this city! I love it. Wherever I go in the world, to land back in London is the best feeling. I get to see so many amazing places when I'm working, like Miami, and I think, I could live here. But then I go, Yeah, but I wouldn’t be in London
.

– Amy Winehouse (interviewed by
Paul Du Noyer for
The Word
magazine)

My mother died on 23 July 2011, the same morning 27-year-old Amy Winehouse was found dead in her London home. Although she lived to the age of sixty-nine, my mum’s life was a story of opportunity unfulfilled, in large part because of the discrimination that a woman of her generation had to endure. She was born and brought up in India and then lived all her adult life in the United Kingdom. She displayed a gift for singing and acting at an early age but her father refused to let her take up early exciting possibilities of pursuing her talents. She came to London and married my father in the early 1960s but, despite a natural charm, eloquence and university education, was held back in any career ambitions beyond retail, mostly because of the lack of affordable quality childcare. Then, in the final decade of her life, poor vision and a stroke left her increasingly withdrawn. It was incredibly painful to see my gregarious mother disappear into herself, despite my dad’s most loving
efforts, retreating from the books, arts and socializing that had been her special joys.

My mum was never one of life’s grumblers. She took different people, countries and cultures as she found them. Born into a Hindu family, she was evacuated to a Himalayan hill station from Calcutta during the Second World War, where she was educated by mostly Scottish and Irish Catholic nuns. This upbringing helped instil in my mum a healthy respect for people of all faiths and of none. It also equipped her to thrive in the bedsit land of 1960s London. Her friends were of every race and religion and – unusually perhaps for a woman of her background and generation – even over twenty-five years ago, my gay college friends received the warmest of welcomes in her home. If it takes a certain underlying optimism and faith in humanity to believe in human rights, this I inherited from her.

This type of faith, and a great deal of moral courage besides, will also be permanently associated with that 2011 weekend. In Norway, a man launched two horrific attacks in quick succession. First, he detonated a home-made fertilizer car bomb in front of the prime minister’s office in Oslo, killing eight people and injuring over 200 others. A couple of hours later came the stuff of nightmare: the same man, heavily armed and dressed as a police officer and carrying false ID, gained access to the island of Utoya, where the Youth Wing of the Norwegian Labour Party was gathered. He claimed that he had come to provide extra security following the Oslo bombing. He then embarked on a shooting spree that killed sixty-nine people and injured well over 100. Predictably perhaps, some initially assumed that these atrocities were the work of Islamist terrorists. In fact the killer was a 32-year-old white man, Anders Breivik, a right-wing extremist driven by a hatred of Islam and Muslim migration to Western Europe.

Prime Minister Jens Stoltenberg’s speech the following morning was worthy of a great statesman reassuring a country facing enormous grief. Vowing that the attacks would not
harm Norwegian democracy, he told his people and the world that the answer to the violence was ‘more democracy, more openness, but not naivety’.

This idea of openness without naivety is one with which the drafters of the European Convention on Human Rights would have been very comfortable after the horrors of the Second World War. For this framework of fundamental rights was never merely a clever lawyer’s toolkit but a set of values to help us define the limits of both freedom and security, and, crucially, of tolerance and integration. It isn’t, of course, a formula that can produce the perfect right answer to every societal tension or problem, but it can, in my experience, assist in the navigation of many a minefield. It can really help us rub along together.

As the daughter of Commonwealth migrants to Britain I have had obvious personal as well as professional cause to think about this concept of ‘identity’ that is so often and bitterly fought over. In fact it is sometimes used as a euphemism for fears about liberal values and immigration in particular. It seems to me that we tend to see so-called identity in one of two ways.

The first is that of the military checkpoint or border control where we are required to present our passport, identity card or other papers that define us in the fixed ideological terms that the state or military have imposed. In these cases, we’re identity checked by people in uniform who are often armed with weapons. We may be questioned. If our answers don’t satisfy or we seem out of place, we might be taken aside for further interrogation. We may be searched, even intimately.

Facing all this, we may become nervous and that anxiety might appear to be suspicious. We may very well feel more than a little degraded and even angry. The whole experience is difficult, confrontational and possibly humiliating, but it determines whether or not we are allowed to pass and therefore on which side of the border we will be after this encounter. There is a single outcome: win or lose. Which side are you on?

The alternative – and here, not for the first time, I’m holding myself up to potential ridicule as a ‘bourgeois liberal’ – is the supermarket checkout. Think of one of those inner-city shops that’s a cross between a supermarket and a convenience store where we go to pick up a few things after work. We fill our basket and if it’s busy and there’s a bit of a wait, people’s eyes might wander on to what we’re planning to buy. They may even make certain assumptions about who we are based on the contents of our last-minute shop. However, subject to our financial means that are of course a big consideration to take into account, the contents of our basket, at least, reflect decisions that we ourselves have taken.

One day I spot a young man in a sharp suit with a bottle of champagne. Do I recognize him instantly as a manual worker making a special effort for his mother’s birthday or do I make assumptions about his life of privilege? My own basket might be just as likely to reflect my love of blue cheese as that of my mum’s cooking. I sometimes buy microwavable curries because I miss her and don’t have much time for cooking myself. The goods I buy vary according to circumstance and context.

Just like all of us, I am many things. I am a woman. I am a single parent, a friend, lawyer and campaigner. I am British, Asian and a Londoner. Which of these is most important to me at any particular moment may depend on whose company I am in or who I’m trying to connect with. My recent personal, political or social experiences will have an effect, as will a whole range of internal or external factors. In my view, this is the reality of human identity as opposed to the reductionist identity politics that force people to live under often arbitrary labels. The tough tactics of dead-end identity politics don’t just split the countries and communities we might imagine they are designed to unite; they can leave an individual torn apart, with all the associated pain and resentment that will flow as a consequence. Victimhood is a terrible place and people do terrible things to one another in the name of ‘identity’. It isn’t just
Norman – now Lord – Tebbit’s infamous cricket test of 1990 (in which, he proposed, the loyalty of British Asians to the United Kingdom would be impugned if they supported the subcontinent’s national teams of their ancestry) or Mr Blair’s ill-fated grandiose identity card folly that can have this effect. Nationalism and militarism divide loyalties. We may regard the colour of our passport, like that of our skin, as an important part of our identity, but that’s our own individual choice. But why should a young man in Bradford identify with the suffering of fellow Muslims in Iraq or Palestine any less than I might with a mother struggling in sub-Saharan Africa? It’s a foolish leader or policymaker who attempts to make citizenship or skin colour the whole or even predominant story in this ever more interconnected world of twenty-first-century human reality.

Religion and its obvious fault lines with other loyalties – our sense of our gender and sexuality in particular – are caught up in this divisive logic of identity politics. It seems that there are three ways of approaching the belief systems that are religions in our modern world.

The first option is to pick a religion, any religion. Make it your favourite, to the extent of embedding it into the fabric of your society, and legal and political systems. Everything else is secondary, even subordinate – in fact, ruthlessly so. The extreme modern example might be Afghanistan under the Taliban, but another illustration might be Britain, and not so very long ago.

Option number two is the opposite of the first, in which you treat all religious belief as dangerous and divisive mumbo-jumbo. In this view, religions are ultimately unenlightened and no good can ever spring from them. So we either ban religious belief altogether or, alternatively, chase it from the public into the private space. We allow it only in the church, mosque, temple or synagogue, or even just in the home – under the bed with the pornography. The extreme example here might be Stalin’s Russia, a more moderate one today’s French Republic.

You can guess, I am sure, from the way that I have
categorized, even caricatured, these two approaches, that I favour neither. And you’d be right. I think that a modern human rights attitude to religion in society looks – or should look – a little different. For me, the reality of human experience is that, however we choose to categorize ourselves, we are all creatures of both faith and reason, emotion and logic, albeit in variable proportions. Test it out. Even if we’re deeply committed to our religion, we might still make calculations about all sorts of important matters affecting our family, finances, health and so on without any real reference to our holy script or spiritual guide. And even if we have no religious conviction and believe ourselves to be the most rational person in the world, we still make important decisions about who and what we like, even love, on the basis of instincts and emotions that have not been subject to calculation – even if we are clever enough to come up with a brilliant rational justification after the event, a process I have heard described as ‘tock-tick logic’.

Throughout human history religious faith has helped to inspire prejudice and war and barely believable atrocities; inquisitions and crusades of various kinds. But religions have also inspired great works of art, from Mozart’s
Requiem
to the Sistine Chapel, and much altruism and charitable giving. Equally, while logic, science and engineering produced the atom bombs and gas chambers of the last century, we have also used them to make unprecedented progress in the treatment of disease and to make people’s lives longer and easier.

I believe that a human rights approach to religion confers on it neither privileged nor pariah status. It recognizes that freedom of thought, conscience and religion is a fundamental human right. As with privacy and even speech this freedom needs to be balanced with and qualified by the rights and freedoms of others, but it is no less important for that. In the United Kingdom religious tolerance has a long tradition as the right to the faith of your choice, the right to hold no faith and, perhaps most importantly, the right to be a heretic in any faith
community. The right to religious freedom and expression should have protected Gurpreet Kaur Bhatti and her play
Behzti
(in Punjabi,
Dishonour
). The work caused offence to some Sikhs by depicting scenes of rape and violence in a Sikh temple. After violent protests outside the Birmingham Repertory Theatre on the opening night in December 2004, the play was cancelled. Religious freedom should protect the gay Christian and the Muslim seeking liberal and tolerant interpretations and applications of religious texts and customs. Today’s heresy can become tomorrow’s orthodoxy and I am reliably informed that the New Testament records Jesus’ crime as that of blasphemy.

How does this all work to practical effect in our lives, families and communities? By reminding us that all of our fundamental rights and freedoms are interconnected. And also that we should be careful what we wish for. The cleric who seeks to ban satirical plays or cartoons should reflect on the counter-view: those who propose that what should really be banned are his own clothing or sermons. The aggressive secularist who seeks to outlaw the speech or garb of those he finds alien and unenlightened should reflect on what this says about his own beliefs.

My feminist heart does not exactly leap with joy when I see a woman covered from head to foot in an abaya and niqab. But neither am I ecstatic at pictures of young topless girls served up in the same tabloids that would have paedophiles hanged, drawn and quartered. I once shared this sentiment with a well-known tabloid newspaper that asked me to comment on its view that my position against burka bans made me a hypocritical or ‘so-called’ feminist. Perhaps unsurprisingly, the newspaper in question never printed my quote.

In both cases, I worry about how voluntary and consensual these women’s choices really are. I have talked with confident and articulate young women who tell me that their religious observance or glamour modelling has been about following their own positive spiritual or economic path. In any event, it’s
essential to question the efficacy of banning these codes of religious dress that I fail either to fully understand or agree with. If there are bruises under a woman’s burka, how does criminalizing her dress do anything other than trap her at home? And if it really is an exploitative boyfriend who urges her to bare all in the newspaper, isn’t it better to have the argument and empower the woman rather than to drive the economic and sexual exploitation further and more dangerously underground?

I can live with what I find difficult and detest, even if only to have the opportunity to challenge it openly in lively debate. As Matt Santos, the fictional successor to President Bartlet in Aaron Sorkin’s
The West Wing
, said when talking about the US Constitution and religion: ‘This wasn’t designed to make us comfortable. It was designed to keep us free.’ Or, if you prefer, the words attributed to Jesus in Matthew’s Gospel: ‘Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.’