Written evidence from Humanists UK (HRA0024)

ABOUT HUMANISTS UK

1. At Humanists UK, we want a tolerant world where rational thinking and kindness prevail. We work to support lasting change for a better society, championing ideas for the one life we have. Our work helps people be happier and more fulfilled, and by bringing non-religious people together we help them develop their own views and an understanding of the world around them. Founded in 1896, we are trusted to promote humanism by over 70,000 members and supporters and over 100 members of the All Party Parliamentary Humanist Group. Through our ceremonies, pastoral support, education services, and campaigning work, we advance free thinking and freedom of choice so everyone can live in a fair and equal society.

2. Humanists UK is a strong proponent of human rights. We are a member of the Equality and Diversity Forum and the British Institute of Human Rights’ Human Rights Alliance. We are accredited at the United Nations Human Rights Council, the only national humanist group to hold accreditation, and we make interventions at every session.
    

3. Executive Summary

●        The Human Rights Act 1998 (henceforth referred to as the Act) has greatly increased access to justice for UK citizens and we would not want to see its protections weakend

●        On the contrary, the definition of a public body in section 6 of the Act should be extended to include all private and third sector organisations, including religious organisations, when carrying out state services under contract

●        The Government should bring forward a Bill of Rights for Northern Ireland

●        The Northern Ireland Human Rights Commission should have legal standing to bring judicial reviews in the absence of a victim

●        The judiciary has developed a worrying culture of being unwilling to rule on the compatibility of legislation with the Act when the legislation concerns a high profile ethical issue that is under consideration or has not recently been considered in a legislature

●        We would like to see better guidance for asylum decision makers surrounding the application of Article 9 of the European Convention on Human Rights (henceforth the ECHR) in cases involving non-religious claimants

RESPONSE TO INQUIRY QUESTIONS

Has the Act succeeded in its aims as they were set out in 1997/8?
 

4. Yes. Overall, we are very supportive of the Act, which has vastly improved the access to justice for UK citizens since it was given royal assent twenty years ago. For us, human rights law is of the utmost importance as it establishes beyond doubt that the state cannot discriminate against citizens in a range of circumstances, including on the basis of religion or belief. As an organisation, the Act has allowed us to successfully challenge the legality of unfair and discriminatory practices that have impacted upon non-religious people in the fields of education, employment, marriage law, and sexual and reproductive rights. Therefore, we are opposed to any dilution of the current rights held under the Act.
    
5. However, we believe that section 6 of the Act has not been successful in protecting public service users from discrimination because its definition of what constitutes a public body is too narrow and does not cover many organisations that are providing public services under contract. A feature of the contemporary UK is the increasing contracting out of public services, from housing to transport, from social care services to welfare and employment services, to private and third sector providers. This means that increasing numbers of service users are left in a lottery as to whether they are covered by the Act or not. The Act has not adapted to the changing situation in UK service provision and increased involvement of non-state bodies.
    
6. Increasingly such services are being delivered by religious organisations, who are not defined as public bodies. If a service user, who has no choice over which organisation is providing the service, feels that their rights have been violated by that organisation, they will not be able to use the Act as a mechanism of redress.
    
7. The belief systems of various religious organisations and the tenets of the Act can be in conflict and this can affect the level of service experienced by users. Professional standards can easily be compromised if religious motivations are allowed to colour the service provided. Whereas secular services focus on addressing the causes of problems and on actualising human capacity, regardless of who the individual is, or of their beliefs, there is evidence that religiously motivated individuals and organisations can be as interested in the promotion of their religion as addressing the practical needs of service users.
    
8. For example, in a memorandum to the Joint Committee on Human Rights in 2006 the Salvation Army, an evangelical Christian organisation, stated, ‘whilst it is appropriate for the state to be religiously neutral, this is impossible for an organisation such as The Salvation Army, which delivers its services as a direct outworking of the Christian faith.’[1] The Salvation Army, which holds contracts to provide services to vulnerable trafficked women, openly propagates discriminatory views about homosexuality and openly admits that its mission is to proselytise.
    
9. In its current form the Act does not provide adequate safeguards against religious or other non-state bodies from acting not in accordance with the Act when carrying out public functions. We therefore recommend that the definition of a public body under section 6 is extended to include all organisations carrying out a state function under contract.
    
10. One area of human rights that has not succeeded in coming to fruition is the proposal for a ‘Bill of Rights for Northern Ireland’. Under the terms of the Good Friday Agreement 1998, the Northern Ireland Human Rights Commission was asked to consult and bring forward a proposal for legislation that recognised the particular human rights challenges faced in Northern Ireland. This was duly conducted and presented to the Secretary of State for Northern Ireland in 2008. Since then little progress has been made towards legislating. We urge the Government after 20 years of delay to prioritise bringing forward this Bill. In the words of Professor Michael O’Flaherty, Chief Commissioner of the Northern Ireland Human Rights Commission, ‘To avoid that responsibility is to renege on one of the most important provisions of the Belfast (Good Friday) Agreement.​’[2]
     
11. The recent judicial review into abortion law in Northern Ireland brought by the Northern Ireland Human Rights Commission, in which Humanists UK was the first intervening party, has highlighted another significant failing in the right to effective remedy for human rights breaches for citizens normally resident in Northern Ireland. The Supreme Court determined by a majority decision that the current restrictions on abortion in the cases where the pregnancy had arisen from rape, incest, or where there is a diagnosis of fatal foetal abnormality is a breach of human rights legislation.[3] However, the Supreme Court was unable to make a declaration of incompatibility because it concluded that the Northern Ireland Human Rights Commission did not have standing to bring the case, and that such a case would have to be brought by a victim.
     
12. The Northern Ireland Human Rights Commision was not aware until the Supreme Court’s judgment that it did not have standing to bring such cases. The Equality and Human Rights Commission, its counterpart in Britain, has this power and can bring a case in the absence of a victim in a number of circumstances.

13. Given the nature of the case and the difficulties involved for victims to bring a case within the legal timeframe, it seems entirely appropriate that the Northern Ireland Human Rights Commission should be able to initiate a judicial review. The fact that this is not possible means that residents of Northern Ireland who are particularly vulnerable and unable to bring a judicial review themselves have a reduced access to justice if their rights have been violated. Therefore, in respect to residents of Northern Ireland, ECHR Article 13 is not adequately protected in UK law. We recommend that the power to take a judicial review in the absence of a victim is granted to the Northern Ireland Human Rights Commission.

Have any of the concerns raised about the Act been realised or have there been any unforeseen consequences?
 

14. We believe that fears concerning a shift in power from parliament to the judiciary that were stated before the passing of the Act have proven unfounded. In fact the opposite has been shown to be the case, with the judiciary deferring judgment on cases that may have an effect upon social policy regardless of whether there is a breach of Act or not. The judiciary has developed a problematic culture in which on some ethical issues it has been unwilling to fully implement the Act, and felt unable to make statements of incompatibility, if parliament has not made a clear decision on the issue previously.
     
15. This was the outcome of the 2014 Supreme Court ruling R (on the application of Nicklinson and another) v Ministry of Justice. This case concerned the compatibility of the Suicide Act 1961 with the ECHR in cases of people living with an incurable condition who wish to have an assisted death.[4] Humanists UK (then known as the British Humanist Association) was an intervener in the case in support of the claimants Tony Nicklinson and Paul Lamb.[5] Although the majority opinion was that a declaration of incompatibility should be made, the court stated that it would prefer not to be moved to make a decision on this matter. As Lady Hale commented in the judgment:
     

‘Hence both [Lord Neuberger] and Lord Wilson accept that, in the right case and at the right time, it would be open to this court to make a declaration that section 2 of the Suicide Act 1961 is incompatible with the right to respect for private life protected by article 8 Page 113 of the European Convention on Human Rights. Understandably, however, they would prefer that Parliament have an opportunity of investigating, debating and deciding upon the issue before a court decides whether or not to make such a declaration. Lord Mance is also prepared to contemplate that possibility, although he too thinks Parliament the preferable forum in which any decision should be made (paras 190-191)). Together with Lord Kerr and I, who would make a declaration now, this constitutes a majority who consider that the court both can and should do this in an appropriate case. Lord Clarke (para 293) and Lord Sumption (para 233) might intervene but only if Parliament chooses not to debate the issue; otherwise, they, and Lord Reed and Lord Hughes, consider that this is a matter for Parliament alone.’
 

16. Given that the judiciary does not have the power to strike down Acts passed by Parliament that it finds incompatible with human rights this retience is not only odd, but is preventing citizens from having their rights adequately protected. It should not be the case, as it was for Tony Nicklinson and Paul Lamb, that the Supreme Court might agree that their Article 8 right had been breached but that it does not feel able to say so. The Northern Ireland Court of Appeal subsequently made a similar decision in the aforementioned Northern Ireland abortion case, although this was subsequently overturned by the Supreme Court. We would like to see steps taken to stop the courts from refusing to make a decision in circumstances such as this.
     
17. We do not believe that the Act has unduly limited policy makers. The number of declarations of incompatibility made by the judiciary since the Act came into force has been small, at 37 through last summer, nine of which were later overturned. During the 2010-2015 Parliament only three such declarations were made. We believe that this is indicative of the the strong positive impact that the Act has had upon policy makers who are regarding human rights throughout the policy-making and legislative process. We do not believe that the power of the Executive has changed in the last 20 years as a result of the Act.
     

Could the Act be improved?

18. As described above, we believe that the Act has failed to keep pace with the increasing contracting out of public services. Therefore, we recommend that the definition of of a public authority in section 6 of the Act is extended to include all private, religious, and third sector organisations when fulfilling a public function under contract. This could be achieved through primary legislation. We have also described above how the powers of the Northern Ireland Human Rights Commission should be protected and enhanced.
     
19. We also believe that guidance around the Act and how it can be practically applied to guide policy within organisations could be improved. We are concerned that the right to freedom of expression, protected under Article 10 of the Act, is increasingly being curtailed in the UK particularly in universities. We were pleased that the Joint Committee on Human Rights took up our recommendation to publish new guidance for universities and student unions outlining their duty to uphold freedom of speech and the limited circumstances in which it can be legitimately curtailed in its recent inquiry into this issue.
     
20. Ten years ago, the crime of blasphemy and blasphemous libel were removed from the statue books in England, in large part due to campaigning by Humanists UK. Blasphemy laws completely run counter to the central tenets of Article 10 of the Act. However, such restrictions still remain in force in Northern Ireland and Scotland. Some thought is needed about how to tackle historic laws that pre-date the Act but are incompatible with the Act - and for one reason or another have not been challenged through the judiciary - with a view to repealing and replacing them.
     
21. We provide support to apostates and non-religious victims of persecution who claim asylum in the UK. We are working with the Home Office to draft a new training course for asylum decision makers on religion or belief claims. As part of this work we have seen several examples of the Home Office incorrectly applying Article 9 of the ECHR in asylum cases. This includes cases where apostates have been denied their right to change their religion or belief or the Home Office has compelled them to partake of worship when returned to their country of origin, under the argument that a claimant’s asylum can be denied if they hide their apostasy by living ‘discreetly’. We would like to see better guidance and training for asylum decision makers on how to apply Article 9 of the Act particularly in cases involving non-religious claimants.

22. An area in which there needs to be drastic improvement is not in the content of the legislation itself, but in effectively countering negative, and often false, perceptions of the Act. A key finding in a report to the UN by the British Institute of Human Rights found that ‘recent governments, and/or key figures with those governments, have focused on a small number of “controversial” legal cases’ to denigrate the protections and achievements of the Act and to underpin arguments to ‘scrap’ it.[6] We believe that there needs to be better public education and awareness of the Act, what rights it confers and of the importance of cultivating a culture of respect for human rights.
     

The future of the Act

21. We believe that society has changed dramatically in the 20 years since the Act was passed and this has created new challenges for the human rights settlement. One development that we are particularly concerned about is the protection and continued advancement of freedom of religion or belief in the context of rising intolerance and persecution of the non-religious and religious minorities.
     
22. Across many parts of the world, including in Europe, we have seen the rise of populist and far-right leaders whose rhetoric is undermining the right to freedom of religion and belief. Such leaders are expounding the notion of religious nationalism, the strengthening of blasphemy, apostasy, and anti-conversion laws, and the misuse of ‘religious freedom’ to justify discrimination against those of other beliefs, sexual orientations and gender identities. The Government must ensure that the Act remains robust enough to resist this rising tide of populist and intolerant rhetoric.

14 September 2018