On Liberty (17 page)

On the other hand, the Czech Republic was ‘open for business’, and the British government was quite keen to welcome the newly affluent – and mostly white – Czech corporate and commercial class to come and do business in Britain. This type of situation inevitably creates tensions between the iron fist of our Home Department, with its instinct for locking down
borders, and whatever the latest incarnation of the Department of Trade (currently the Department for Business, Innovation and Skills) might be.

Traditionally, departments will fight it out between themselves before government decides whether nationals of the country in question should have to apply for a visa. If border control interests win, visas will be required; if business triumphs, people will be able to come for a short visit without applying for a visa in advance. Once you are in the country, even if you originally said you were only visiting as a tourist, you can then claim refugee protection on the grounds of likely persecution back home. And if you do so, you – rightly – cannot be removed until your claim for asylum is properly considered.

But on this occasion in 2001, an ever-ingenious bureaucracy – at least, ever-ingenious when it comes to attempting to circumvent human rights legislation – tried to have its cake and eat it too. Visa requirements would not be placed on this soon-to-be EU-allied country – thus placating the business lobby. But pre-embarkation checks would be installed at Prague airport to weed out potential asylum seekers – so pleasing the Dark Tower. This was a deliberate and cynical attempt to get round one of the greatest protections of the post-Holocaust settlement; namely, that you let people escape – even in disguise, or on forged papers, or otherwise illegally – and decide the strength of a claim for protection in the country of safety. Under a deal with the Czech government, the UK border and its immigration officers were relocated to Prague to conduct racial profiling at the city’s international airport for the purpose of keeping asylum seekers out of Britain.

Coming from a British Asian family, I was well aware that this was far from being the first time that the British authorities had degraded and dehumanized people in the name of immigration control. In the 1970s, before asylum seekers were considered a problem, the concern was to keep the arriving
spouses of Commonwealth nationals out of the country. Hindu brides were therefore subjected to virginity testing at Heathrow airport. What informed these unbelievably intrusive checks was a cold, ruthless and racially discriminatory logic that ran as follows: the cultural norm in conservative Hindu communities was generally to abstain from sex before marriage. Therefore a woman who had already lost her virginity was less likely to be a ‘genuine’ bride. In fact, her ‘primary purpose’ in getting married was probably to gain entry to the UK. The scandal of these tests was revealed in a front-page exposé in the
Guardian
: its author was the then 28-year-old cub reporter Melanie Phillips.

Yes, that really happened. Young women were degraded in that way at Heathrow airport by British officials as recently as the 1970s. That’s what results without a Human Rights Act to protect all humans, including foreign nationals, from inhumanity and degradation.

So when Anthony Lester brought the 2001 Prague airport ‘experiment’ to my attention I was – in the words of the
West Wing
’s President Bartlet himself this time – ‘shocked but not surprised’. In fact, this sentiment is such a fitting response for so many outrages of recent years that Liberty’s policy director, Isabella Sankey, and her young and inspiring colleagues have taken to signing off ‘SBNS’ at the bottom of emails about the latest government contempt for rights and freedoms.

Fortunately, though over three years later, a House of Lords Appellate Committee, again chaired by the late great Lord Bingham, came to our aid with the clear finding that the scheme breached the Race Relations (Amendment) Act 2000. It was just as well that they ruled that way in December 2004, for the London bombings of the following July brought vociferous calls for the institution of racial profiling. The chief of the Transport Police presumably thought he was being reassuring when he said that he didn’t need to stop ‘little white old ladies’. Various commentators called for overt racial profiling at
airports, presumably unaware of the many white converts to the Jihadi cause, or the way that people of all physical descriptions can be turned into ‘mules’, ‘human shields’ and no doubt bombs when under sufficient duress.

Here, it’s worth reflecting on the all-important 2000 Act, passed in the aftermath of Stephen Lawrence’s murder and the policing scandal and McPherson Inquiry which followed. The Act took the principle of non-discrimination in the provision of ‘goods and services’ (in the private sector sense) into the heart of the state that is policing, prisons, border controls and related regulatory bodies. In the words of Baroness Hale of Richmond: ‘The inevitable conclusion is that the operation was inherently and systematically discriminatory and unlawful.’

Lady Hale is another acute legal mind of the late twentieth and early twenty-first centuries. Like Tom Bingham, she possesses considerable human understanding; an essential, though seemingly less than universal quality for a judge in our country’s highest court. Appointed the UK’s first woman Law Lord in 2004, Lady Hale remains our first and only woman Justice of the Supreme Court since its institution in 2009. It could surely only help the practical and demographic legitimacy of the great guardian of the rule of law that is our senior judiciary, if the female population (over half the total population) could identify with it a little more easily? There should be more women. The current position is almost as embarrassing as the various excuses that are made for it. Justice must be seen to be done.

On a happier note, I will never detract from New Labour’s achievements in developing the Northern Ireland peace process, from its important beginnings under the now Sir John Major. I also credit Mr Blair with great progress on gay equality legislation – though much of it merely caught up with attitudinal change already hard fought for and won. The most intimate and social of revolutions began in our homes and on
the streets in response to the Thatcherite homophobia encapsulated in section 28 of the Local Government Act 1988. This described same-sex partnerships as ‘pretended family relationships’, effectively censoring teachers and banning certain books from our schools. The campaign that followed – so skilfully driven by Angela Mason and her Stonewall team – also built on a long tradition of successful cases brought under the much-maligned right to respect for private life in the Court of Human Rights.

It is no doubt some considerable achievement that Blair’s prime-ministerial-heir-but-one, the Conservative David Cameron, should feel confident enough in the culture shift of modern Britain not just to leave civil partnerships alone, but to institute same-sex marriage.

And even if Mr Blair never really loved, nurtured, promoted or protected this particular child, he did see the Human Rights Act passed in his first energetic term of office. Prime ministers give and they take away. His attitude to the most desperate of travellers that is the refugee does him absolutely no credit at all and is perhaps even a little ironic in the light of his own subsequent life, travelling with ease through first-class airport lounges and on private jets. Why should internationalism be the preserve of the super-rich? Why just for multinational companies, the avoidance of tax and the movement of assets? Why just for markets and money, but not for ordinary human beings, including the most vulnerable who need their common values and legal protections?

The world’s refugees were sent a clear signal that they were unwelcome in Britain. Now, new arrivals were subject to new policies of forced destitution severely restricting financial and other support. These measures were instituted in a snowy British winter. New too, was administrative detention, including of rape and torture victims and their children. Centres originally designed for humane reception, where newly arrived asylum
seekers could receive food, shelter, education, advice and have their claims quickly and fairly considered, were instead turned into vast detention centres. Refugees were imprisoned on arrival, purely for coming from a country on a Home Office ‘white list’. This was the enacting of a policy of blanket detention of people whose claims had not even been initially decided. The government justified it on the basis that some of these people would eventually be found to be lying. In other words, all asylum seekers were to be assumed guilty until proved innocent. Isn’t this rather like detaining the business community en masse pending the consideration of their corporate accounts and tax returns, on the basis that some of them will eventually be found to be cheats?

The Refugee Convention of 1951 always recognized that persecuted people may need to carry false papers and identities in order to flee persecution. However, from 2005 onwards there was greater general criminalization of asylum seekers and more prosecutions. Fingerprinting. Electronic tagging. And imprisonment. Their access to healthcare was severely cut back, as was access to legal advice and appeals. This, even though so many of them had revealed the very poor standard of initial decision-making in cases where people’s lives were quite literally at risk if wrongly returned. To cap it all, such treatment was meted out to refugees escaping conflicts in which Britain was still participating, namely Afghanistan and Iraq.

Helena Kennedy (Baroness Kennedy of The Shaws) QC has been one of my role models for pretty much as long as I can remember. A criminal barrister with humble roots in Glasgow, she is one of the few great lawyers with a gift for plain English that has been as brilliantly deployed in decades of broadcasting as in jury trials. With her skills and lifelong support of the Labour Party, it was no surprise that she should be ennobled in 1997, an obvious candidate for a working peerage. But her equally strong human rights and rule of law values brought her into direct collision with New Labour’s anti-civil liberties
agenda. When conscience prevailed over tribal loyalty a few times too many, the ‘Red Baroness’ found herself painfully ostracized from old and dear Labour friends, including many in the House of Lords. But she stuck to her guns and does so still. Not long ago, she reminded me that as recently as 2001, the then Home Secretary Jack Straw was refusing asylum to opponents of Saddam Hussein.

In her book
Just Law
, Kennedy cites a 2002
New Statesman
report of a Home Office refusal letter to an asylum seeker, which still makes for chilling reading:

The Secretary of State has at his disposal a wide range of information on Iraq which he has used to consider your claims. He is aware that Iraq, and in particular Iraqi security forces, would only convict and sentence a person in the courts with the provision of proper jurisdiction. He is satisfied, however, that if there are charges outstanding against you and if they were to be proceeded with on your return, you could expect to receive a fair trial under an independent and properly constituted judiciary.

Helena’s comment is pithy: ‘Tell that to the families of those exhumed from mass graves.’

As I write, the coalition government is prevaricating over accepting anything but a small number of refugees from the bloody civil war in Syria, a conflict in which Mr Cameron was eager to intervene on humanitarian grounds. Why should human rights violations so often be used as justification for war ‘over there’, but not for protection over here – in our home?

I believe this over-there/over-here emotional disjunction is out of sync with the instinctive response of people everywhere, not least in Britain. Look at the way that public charitable responses to natural disasters around the world put our governments to shame. Look at the way that small local and community anti-deportation campaigns run counter to populist political rhetoric and depressing opinion polls. When strangers move into our street and their kids play with our
own, they are soon strangers no more. But if they remain segregated and stigmatized – barred from living and even working with us despite the skills and expertise that most bring from their pre-conflict lives – they can become dehumanized aliens vulnerable to the politics of fear.

Ronald Reagan only called himself a refugee to make a point. But Olympic gold-medal runner and national hero Mo Farah really was a refugee. So is my friend Camila Batmanghelidjh. A child of enormous wealth and privilege in pre-revolutionary Iran, she became a refugee while at boarding school in England and went on to found and run Kids Company – an awe-inspiring charity which looks after some of the most deliberately forgotten children in our country. All these years, she has retained her refugee status rather than become a citizen, in solidarity with those less fortunate. The Milibands’ father, the left-wing intellectual Ralph Miliband, fled the Nazis. This list goes on and on. The tales of the extraordinary contributions to society made by refugees and their children continues throughout history and the world. These are real people, not scary statistics. Many braved grave dangers and endured enormous hardship to leave their homeland and start a new life in often bewilderingly different circumstances.

Back in 1996, when I was a young Home Office immigration lawyer, Pardeep Saini, a 22-year-old from India, survived a ten-hour flight clinging to the undercarriage of a plane; his younger brother Vijay died of hypothermia. Should we not reflect on the kind of experiences that prompt such desperation, in the same way that, on 9/11, those trapped in the nightmare of the Twin Towers preferred to jump from them rather than wait for the alternative? I remember my father – who had by then been naturalized from Indian to British citizenship for many years – phoning me up about these two young men. He no doubt recalled that he himself had been in his early twenties when he came, quite lawfully, to London at the invitation of the Macmillan government. ‘I shall be ashamed if they don’t let that
young man stay,’ he told me. ‘He deserves my British passport, more than I do.’ Having the privilege of being born in Britain, I did even less to acquire my passport than my dad did. I know what he meant. Do you?