On Liberty (16 page)

I defend your right to foam at the mouth from the pulpit or soapbox and to irritate, offend and insult me, even to the point of preaching that I am a lesser creature than you. You should be able to bar me from your home, church or clergy, if that is your taste, view or faith. That is your freedom of speech, conscience, association and your private life. That is your loss not mine.

Obviously there have to be limits to this freedom and tolerance. Absolute liberty for the lion is tyranny for the lamb. There should be necessary and proportionate limitations to our freedoms, but only when those freedoms begin to impact on others. At this point, the limits should be tightly drawn.

By this measure, we get to choose who you can admit to our church, political party and home. But when our church offers adoption services to the wider public, or when we convert our home into a B&B, we do not get to discriminate against people of different faith, race, gender or sexuality. It can’t be as simple
as some kind of public–private divide. We do not get to be cruel to our children, even in the privacy of our own home; but by the same principle, neither should we be forced to take off our cross or turban just because we’re walking down a public street. This is about whether we are really hurting, as opposed to offending, other people. It concerns the balance between our autonomy and freedom on the one hand, and another person’s on the other.

I appreciate that these are difficult balances to strike. The correct approach to them, in my view, is that the person interfering with another’s freedom is the one who has to justify their behaviour, according to the principles I’ve just outlined. This is an important rule. Generally speaking our clothing in public, or even at work, will not cause harm to others. However, there may well be exceptions related to security or our ability to do our job. I believe we should be able to wear a burka in the street and while sorting post at work, but we may need to be identified against our passport in an appropriate and discreet manner at the airport. Wearing a burka may not be ideal for vocations that depend on trust or non-verbal communication – teaching small children, say, or practising medicine. Equally the religious symbol on a chain around your neck should generally not be a problem, even at work. But if you are a surgeon, working in a sterile environment, it makes obvious sense that you should be required to take it off before you scrub down.

I defend the right of anyone to believe in and campaign for different social and legal orders which prohibit same-sex or interracial marriage(what’s the difference?). However, someone who has chosen to be a civil registrar should not be able to pick and choose which ceremonies to conduct any more than the non-conscript soldier can choose which wars to fight. Overt discrimination in the offering of goods and services to the public, meanwhile, does real harm. Two queues, or front and back entrances on the basis of an unchangeable personal quality is degrading and dangerous. They did harm in the once-segregated
South of the United States. They did harm in apartheid South Africa and in the United Kingdom of the 1950s and 60s, when shopkeepers put signs saying ‘No blacks, dogs or Irish’ in their windows. They did harm when gay couples were turned away from hotels and B&Bs. The men who took those innkeepers to court, with the help of my colleagues at Liberty, were as important as Rosa Parks refusing to move to the back of the bus.

There will always be a degree of difficulty and controversy about where the proportionate limitations on our liberties should be drawn. The Human Rights Act is a compass not a computer – but it works for everyone. We rub along better by tolerating and, better still, respecting difference of all kinds. And in so doing we discover our similarities as much as our differences and the common humanity that binds us together.

The dehumanization of debate is rarely as evident as in rows about immigration and asylum. At times it is hard to believe that immigrants from the former British Empire, like my parents, were once actively invited to Britain, recruited to boost the economy and provide vital public services. Equally, refugees were often seen as noble or even heroic figures. They were defecting spies, athletes and ballet dancers from behind the Iron Curtain, whose risky journeys to freedom in the West made us feel better about our society and ourselves.

It’s not my place, task or ambition to advise on the precise levels of immigration that Britain or any other economy should implement. But it’s important to emphasize – because they’re often treated as being somehow less than fully human – that migrant workers are human beings too. They are not disposable tools to be bought, sold and segregated from the rest of the population. This is what happens to the euphemistically termed ‘guest workers’, who have been treated as a lower form of life throughout history and all over the world. But, as we all do, migrant workers inevitably form personal and cultural relationships in the places to which they travel and where they live and work. They find, lose and re-find work (most often work
that the citizens of the host country are unwilling to do themselves). They settle and raise families, as my parents did. Children like me have never known a home other than the one established by their parents in the country to which they travelled, sometimes at great personal cost.

There are certain levers of immigration control which are damaging, divisive, counterproductive and even unacceptable from a human rights perspective that must afford all humans a modicum of respect. It is wrong to leave people in a state of legal flux or limbo for long periods of time, thus stimulating underground economies that make the most vulnerable hostage to exploitation and slavery. It is wrong to split up families by expelling the parents of children born or long settled in their host country – or at least to do so without compelling reasons of public interest. It is wrong to deny people a fair hearing, including adequate legal advice, representation, translation and appeals, before parcelling them off across the world and changing their lives for ever. It is wrong – as public and even tabloid media opinion agreed in the context of the luminous Joanna Lumley’s triumphant legal and political campaign for the Gurkhas in 2008–9 – to expect people to serve your country, at great personal risk and cost over many years, and then seek to exclude them when they seem less useful. If this is true of soldiers who fought under the British flag, it is as true of the unarmed interpreters who aided them or indeed of the many hard-working skilled professionals who have long staffed the NHS.

To move immigration control from the national border to the homes, schools, doctors’ surgeries, restaurants and streets of Britain’s cities, towns and villages seems to me a race relations time bomb. This kind of everyday monitoring was always my biggest concern about the proposed identity card system. And now, the very coalition government that did away with that dangerous and divisive measure is sanctioning a stepping up of in-country raids on buses and curry houses in our inner
cities. In an ominous echo of the worst far-right propaganda of my childhood in the 1970s, it hired mobile billboards to drive around neighbourhoods with particularly rich ethnic mixes, warning ‘over-stayers’ to ‘Go home or face arrest’. And it passed the Immigration Act 2014 that will force landlords and even vicars to check nationality or status before providing those who seek their services with housing or joining them in marriage.

Suppose, in a few years’ time, my British son and the child of one of my white Liberty colleagues go looking to rent the same room, perhaps as students. How many landlords aren’t going to err on the side of caution and give my colleague’s kid the room? And, ironically, with the new immigration law, the government is proposing to do what it cautiously and rightly avoided, even when instituting same-sex marriage: it is interfering in the Church of England’s prerogative to conduct marriage services. It is as if the 1970s and 80s never happened, as if we never fought for the Race Relations and Equality Acts. As with stop-and-search and other sources of discrimination, the Immigration Act will do enormous harm to the equality and solidarity that binds people, communities and countries together.

If the denigration of the ‘ordinary immigrant’ has been bad enough, that of asylum seekers and refugees has been far worse. If the entire modern universal human rights settlement owes its creation and content principally to the worst horrors of the twentieth century, this is surely especially true of the 1951 Refugee Convention. My great friend the respected human rights’ academic and thinker Francesca Klug once described the Refugee Convention to me as ‘the world’s apology for the Holocaust’. This highly appropriate and necessary apology lasted for a while. In 1985 President Reagan, on visiting Bergen-Belsen concentration camp, made the following remark:

Freedom-loving people around the world must say … I am a refugee in a crowded boat foundering off the coast of Vietnam. I am a Laotian, a Cambodian, a Cuban, and a Miskito Indian in Nicaragua.

Since then, haven’t we moved a long way from this statement of empathy and identification with the refugee – let alone the international instrument crafted for her protection? Certainly, my adult life in Britain has been one of real progress, often fuelled by human rights litigation, on issues of race and gay equality in particular. On the global stage we have witnessed the historic end of apartheid in South Africa and the pulling down of the Iron Curtain across Europe. Yet simultaneously, respect for and protection of the world’s refugees – including those created by modern militarism – have become more fragile than ever. In this, Britain appears to be an especially bad case in point.

This decline seems to have begun, at least according to Home Office folklore, in 1986, just a year after Reagan’s celebrated speech at Belsen-Bergen, when fifty-four Sri Lankans got off a plane and claimed asylum at Heathrow airport. Was it that we didn’t mind the principle of protecting refugees in the first safe country to which they escaped, as long as that country was across a land border somewhere far away in the so-called developing world? Was it that when air travel shrank the world for our convenience, we found it less than convenient that distances also shrank for asylum seekers and refugees? It can surely make as much or more sense for a persecuted individual to escape on a plane to a European country with colonial, cultural and linguistic ties to her own, or where there is already a happy and thriving community of people from her homeland, than to crawl over a land border to a country barely safer than her own. In terms of global justice, is it really so wrong that one of the richest countries in the world should take more than a fraction of the world’s refugees, especially given that their past
histories and present lives are directly or indirectly connected to its own imperial, or more recent, military adventures?

Instead, in recent decades, our politicians and sections of our press have undermined the ‘worldwise’ apology for the Holocaust, by quite literally dehumanizing refugees in thought, word and deed. In November 2001 the
Daily Express
wrote: ‘Refugees are flooding into the United Kingdom like ants.’ This was reminiscent of some of the worst propaganda leading up to the Rwandan genocide just seven years earlier, where Tutsis were described as cockroaches by the country’s media outlet Radio Télévision Libre des Mille Collines.

Three years later in April 2004, Tony Blair addressed the Confederation of British Industry on migration and said that he thought the Convention had ‘started to show its age’ – as though it were a clapped-out car. He told them it was designed for a time when ‘the cold war and lack of cheap air travel made long-range migration far more difficult than it has become today’. On Prime Minister Blair’s watch it became, for the first time, a stated aim of government policy to reduce asylum applications, however compelling or worthy. The reason, he explained, was because the asylum process was being ‘widely abused’ and that was undermining our system and making it more difficult for those genuinely seeking asylum. The government put in place greater pre-embarkation controls at ports around the world, including in countries from where a number of obviously genuine refugees were coming. Much of this pre-border policing was farmed out and forced upon the airline companies. This preceded the more overt contracting-out of immigration control and removal to private companies that in years to come would insulate ministers from public outrage even when people died at the hands of brutal and ill-trained security guards.

In my early post 9/11 days as in-house counsel at Liberty, another dear friend and lifelong race equality champion, Lord
Lester of Herne Hill QC, phoned to gift me with my first case against my former employer, the Home Secretary. Anthony Lester had worked tirelessly for equality and other fundamental rights since the 1960s when, as Labour Home Secretary Roy Jenkins’s special adviser, he had fought considerable institutional opposition to pave the way for the first Race Relations Act. He continues to campaign in the courts and in the House of Lords to this day. But the case we built together in 2001 with Dinah Rose, now a celebrated QC in her own right, was to be vital in its content and timing for the protection of his legacy.

By the summer of 2001 the Czech Republic had left its Communist past behind and was knocking on the door of the European Union, which it was to join three years later. But institutions such as the EU and the World Bank, when deciding on a country’s stage of ‘development’, rarely look at its human rights record as closely as its economy.

Roma people were treated appallingly in the Czech Republic. They suffered the lowest levels of education, employment and housing in the country and were subject to routine discrimination. They were attacked by racist skinheads – as my parents once were with me in the pram in 1970 – and left unprotected by the state. Unsurprisingly, therefore, the newly developed Czech Republic was still producing large numbers of asylum seekers to the United Kingdom and elsewhere. A handful of these had managed to persuade even our sceptical and obstructive authorities that their treatment had been sufficiently bad to create a ‘well-founded fear of persecution’ if they were returned home.