Written evidence from Humanists UK1 (CDR 29)

Public Administration and Constitutional Affairs Committee The Government’s Constitution, Democracy and Rights Commission

EXECUTIVE SUMMARY

● We believe that while every system could be improved and protecting rights and freedoms for all is a balancing act, our Human Rights Act (HRA) is a proportionate and well-drafted protection of the fundamental liberties and responsibilities of everyone in this country. ● Judicial review is an indispensable mechanism for individuals to assert those rights and freedoms against the power of the state. ● The work of the Commission should be based on the following principles: complete independence from government; adopting an evidence-based approach; upholding the rule of law; ensuring the accountability of government; protecting legal aid and access to justice for all, and non-regression on rights. ● The main purpose of the Commission should be to examine ways in which our constitution, democracy, and rights can not only be strengthened but enhanced and further embedded throughout society. ● We believe that the Commission, in addition to the areas already outlined by the Government, should examine extending the definition of ‘public authority’ in the HRA to include all organisations contracted to provide public services on behalf of the state, removal of the from the , and the place of prayer in parliament and its negative impact on democracy. ● We believe the Commission should examine the effectiveness of constitution and human rights education about the constitution and human rights in our schools’ system.

RESPONSE TO CONSULTATION QUESTIONS

1. What form should the Commission take?

1. 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 by over 85,000 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. We are a strong proponent of human rights and equality. We are a member of Equally Ours 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. We are an active member of the All-Party Parliamentary Group for International Freedom of Religion or Belief and the UK FoRB Forum and have campaigned for a and against religious persecution both in the UK and internationally. 3. We are concerned at the UK Government’s intentions to potentially weaken the human rights and judicial review frameworks, which was described in the 2019 Conservative Party manifesto as a commitment to ‘update the Human Rights Act and administrative law’.1 We have built a coalition of over 100 charities, trades unions, and human rights organisations in calling for the protection of these vital constitutional safeguards.1 We are seriously concerned that the Commission could be used as a pretext to further an agenda to weaken our human rights and constitutional safeguards. As part of their manifesto at the 2019 general election, the Conservative Party committed to ‘update the Human Rights Act and administrative law’ and launch a Constitution, Democracy, and Rights Commission to conduct this.2 It had previously committed to repealing the HRA entirely and replacing it with a ‘British Bill of Rights’ after the Brexit process was completed. The UK Government has yet to publish its proposals as to what these changes will look like. However, this concern has arisen because, in addition to its long-term commitment to fundamentally alter our human rights legal framework, the Government has continued to propagate negative rhetoric about both the HRA and access to those rights through the judicial review mechanism. This rhetoric is most notable in its response to the judgments of the Supreme Court on activating Article 50 to withdraw from the EU and the prorogation of Parliament. This has included branding human rights defenders as ‘activist lawyers’ and accusing those advocating for the strengthening of our constitutional framework, or upon occasion just using the framework, of ‘conducting politics by other means.’

2. Whatever form is eventually agreed upon for this Commission, it should embed the following principles in its approach:

● Complete independence from Government – When such weighty matters are being discussed, it is vital that any proposed reforms gain the support of a wide range of stakeholders. It is also essential that citizens have constitutional protections against a potentially overbearing future state. Therefore, this Commission must be seen to be taking a neutral approach to the issue of whether our democracy and constitution are effectively functioning. It must not make a presumption about the efficacy of these institutions as implied by the Government in some of its rhetoric surrounding the forming of this Commission. For example, it claims that our security services are currently prevented from adequately defending us against terrorism and organised crime, that the HRA is interfering with vital national security and effective government, and that judicial review is being abused to conduct politics by another means or to create needless delays. ● Evidence-based approach – The foundation of all successful policy-making is a rational approach to evidence. When considering fundamental changes to constitutional matters and safeguards against a potential future overbearing state, adopting this approach becomes even more vital. This is reflected in humanist approaches to human rights and democracy, which are influenced by the belief that ethical decisions should be based on reason, empathy, and a concern for human beings. We believe that any recommendations for change to our democratic processes or human rights framework should only be made after a thorough and rational examination of the empirical evidence. ● Upholding the rule of law – Since at least the era of Magna Carta, a defining principle of the ’s constitution has been the rule of law: the notion that no-one, not even the Crown, is above the law, and that the law extends its protection to all. Indeed, the Government has adopted the rule of law as one of the key ‘British values’ to be promoted in schools3 and upheld through the

2 The Conservative and Unionist Party, Manifesto 2019, p48. (https://www.conservatives.com/our-plan, 2019) 3 ‘Schools should promote the fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs’ – , Promoting fundamental British values as part of SMSC in schools, (https://assets.publishing. Prevent policy.4 Any proposals the Commission may make must therefore be squarely based on defending the rule of law. ● Accountability of Government – Following on from this, democratic institutions are a necessary check on those in power, holding governments accountable and making them take notice of the interests of the governed. Accountability is the basis of the social contract in the UK. We urge the Commission to focus on expanding and protecting the various mechanisms by which all public bodies can be held accountable to the people they serve. This might include looking at ways to expand the franchise, the role of direct democracy, fixed-term parliaments, tackling voter apathy and barriers to voting, and regional and devolved democratic deficits. Conversely, the Commission should approach with great caution any proposal to weaken or exempt the Government or any part of the state from accountability structures to which they are already bound. For example, exempting certain areas or decisions of government from judicial review, exempting members of the armed forces from HRA obligations, excluding those without certain forms of ID from polling stations. ● Protecting legal aid and access to justice for all – Judicial review is an essential safeguard of individual liberty and prerequisite for any democratic society. Any proposals to weaken or undermine this foundational mechanism of justice could represent a devastating loss to the rule of law, trust in our state institutions, and for citizens’ ability to hold the Government to account. Therefore we strongly urge the Commission to view any attempt at restricting judicial review with the utmost caution. Instead, we hope this review will pave the way for expanding access to justice and strengthening our human rights. ● No regression – The principle of non-regression – that is that rights, once granted, cannot be taken away - is at the core of international human rights law. No-one should be expected to accept fewer rights and protections than were enjoyed before. To expect this would be to violate not only international legal norms but also an intrinsic sense of fairness. This principle should remain fundamental to how this Commission approaches its inquiry.

3. How should it be composed? To create trust in this Commission it must be composed of a balanced set of Commissioners with expertise in constitutional law, advocacy, victim support, and public policy from varied backgrounds including the legal profession, academia, third sector human rights organisations, and trades unions. It should not be chaired by a Commissioner who has a long-standing opposition to the HRA or judicial review. Changes made as a result of the Commission’s recommendations could affect every citizen for many years to come. It, therefore, needs to have input from as broad a range of stakeholders as possible. It must therefore be as independent as possible, and its composition should reflect the broad range of political views found in the UK .

service.gov.uk/government/uploads/system/uploads/attachment_data/file/380595/SMSC_Guidance_Mai ntained_Schools.pdf, 2014) 4 ‘By extremism here we mean the active opposition to fundamental British values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs’ – HM Government, Prevent Strategy, (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9797 6/prevent-strategy-review.pdf, 2011) 4. Should the Commission engage the public, and if so how? The Commission should hold a public consultation inviting views from not only legal practitioners and academic constitutional experts, but also from the wider third sector and especially from ordinary members of the public who feel disenfranchised from our democratic processes (including individuals who have used the judicial review mechanism, whether successfully or not). It could consider consultative mechanisms such as Citizens’ Assemblies, which have been used successfully in other European countries to determine constitutional matters. As stated above, the recommendations of the Commission will have implications for all citizens, therefore its needs to have buy-in and engage with the public and civil society as much as possible.

5. How should the Commission proceed in its work? Over what timescale? Firstly, it should publish a comprehensive Terms of Reference for its inquiry laying out the areas of our constitution and rights framework that it will be gathering evidence on and areas of overlap with other inquiries such as on judicial review with Review of Administrative Law (IRAL) Panel.

6. It should hold an extensive stakeholder engagement phase, where it will arrange to meet and gather evidence from key stakeholder organisations and members of the public and hold a series of events on each of the areas covered by the Commission – allowing stakeholder organisations to meet and question Commissioners.

7. This should be followed by an open public consultation inviting views from a variety of stakeholders as outlined above. The above is vital to ensure that there is widespread public buy-in for reform that will affect their fundamental rights. The Commission’s work needs to be a well-thought-through and thorough inquiry that should not be rushed. Therefore we recommend that this process be scheduled for at least one year to 18 months to complete.

8. What should be the main purpose and output of the Commission? The main purpose of this Commission should be to examine ways in which our constitution, democracy, and rights can not only be strengthened but enhanced and further embedded throughout society. From the Magna Carta onwards, the UK has seen its constitution progress and evolve to further human rights, to include more citizens in the democratic process, and to protect the principle of non-regression. We believe that this Commission should continue in this tradition and approach.

9. This includes within our education system. It should look at how misconceptions and misinformation spread about these institutions and how human rights education among the general public could be improved.

10. How should the Commission report its findings? The Commission should publish a summary of its consultation process and preliminary findings at the end of its stakeholder engagement and consultation phase. It should then seek to publish separate reports on each of the areas of interest with recommendations to the Government. Any legislative changes should be further scrutinized by the Law Commission.

11. Given the remit of the Commission to look at ‘the broader aspects of our constitution’ and ‘come up with proposals to restore trust in our institutions and in how our democracy operates’ are there issues not on the Government’s list that need to be examined?

12. The meaning of ‘public authority’ under the HRA Although the HRA is essentially a contract between the individual and the state, protecting the individual from abuses by the state and enshrining certain rights, there are areas in which it can be strengthened as a constitutional protection. In the context of public services, the HRA is of great importance for the protection of the rights of service users. However, only a narrow range of service providers are deemed by British courts to be public authorities, and it is only those with public authority status who are bound by the HRA.

13. In practice, this means that ‘pure’ public authorities, such as government departments, the police, NHS trusts, and local authorities are covered by the HRA – and so service users have recourse to legal action should their human rights be breached by their service provider. However, we are increasingly seeing public services being contracted out by the state to private and third sector providers. This means that service users are left with a lottery as to whether their services are covered by the HRA or not. A particular feature of the Government’s policy of contracting out public services is the inclusion of religious – sometimes highly evangelical – organisations as service providers. These organisations have exemptions from the , allowing them to discriminate on the basis of religion or belief (and sometimes other protected characteristics, like sex and sexual orientation) against service users and employees – even when the service they are providing is being done so under contract from the state. Many religious service providers, in particular, wish to infringe on the rights of service users and their staff.

14. Amendments to the law are needed to ensure that all organisations contracted to provide public services on behalf of the state are considered to be ‘public authorities’ in the context of the HRA, with respect to those services they provide. This should be considered within the scope of the Commission’s review.

15. Disestablishment and the role of the in our constitution We call for the Commission to examine and recommend reform to the establishment of Anglicanism as the state religion in England. We want the UK to become a state which truly guarantees equal treatment for everyone, regardless of religion or belief. This means creating a level playing field for everyone, which cannot be achieved without the Church of England being disestablished, and the inequalities associated with having an established religion removed. The Church in Wales was disestablished at the beginning of the twentieth century setting a precedent for what could be achieved in England.

16. The establishment of the Church of England is difficult to justify as the UK becomes increasingly more diverse and secular. The proportion of the population who are Christian and/or are members of the Church is consistently falling. Most surveys and statistics suggest that the majority of the population is non-religious.5 For example, the British Social Attitudes Survey has shown Britain in 2018 (the last year for which

5 Humanists UK, ‘Religion and belief: some surveys and statistics’, (https://humanism.org.uk/campaigns/religion-and-belief-some-surveys-and-statistics/, 2020) data is available) continued its long-term trend towards being less and less religious, with the number of people saying they belong to no religion growing from two in five (43%) to more than half (52%) over the last decade.6 The survey finds that 12% of Britons are Anglicans, 7% are Catholics, 19% are some other type of Christian, and 9% belong to a non-Christian religion.7 Church of England weekly attendance is at a record low of just over 1% of the population (and falling) according to its official attendance figures.8 Fewer people now attend Church of England churches each week than children take part in Anglican collective worship every day in state-funded Church of England schools.9

17. The maintenance of an established church also has the effect of promoting institutional religious discrimination. For example, it is used to justify religious selection criteria for state school admissions and requiring all children – regardless of religion or belief – to take part in daily Christian worship. In the UK Parliament, Church of England bishops automatically gain 26 seats in the House of Lords, and Anglican acts of worship are aired disproportionately in public broadcasting. A requirement exists for Anglican chaplains to be hired before all other religion and belief groups in prisons regardless of the belief demographics of the population, and some NHS trusts (almost certainly unlawfully) maintain almost exclusive Anglican chaplaincy teams and therefore restrict job opportunities for those of other denominations, religions, or beliefs.

18. All of this is simply not compatible with our constitutional commitment to equality and fairness for all, in today’s modern and diverse society. Disestablishment would include the separation of church and state so that the head of state is not also head of the Church of England, and an end to other constitutional entanglements between church and state.

19. Removal of the Lords Spiritual from the House of Lords Although the Government has indicated that this Commission will review the role of the House of Lords, we wish to specifically advocate that the constitutional role of the 26 Church of England bishops who sit by right in the Upper Chamber is included in this review.

20. The automatic presence of the bishops in the House of Lords is not just a harmless legacy of a medieval constitution but a present example of discrimination, religious privilege, and undemocratic politics. The only two sovereign states in the world to award clerics of the established religion votes in their legislatures are the UK and the Islamic Republic of Iran (a totalitarian theocracy).

21. The presence of the Church of England in the House of Lords entrenches a privileged position for one particular branch of one religion. This cannot be justified in today’s

6 Humanists UK, ‘Latest British Social Attitudes survey shows continuing rise of the non-religious’, https://humanism.org.uk/2019/07/11/latest-british-social-attitudes-survey-shows-continuing-rise-of-the-n(on- religious/, 11 July 2019) 7 Ibid. 8 Church of England, Research and Statistics, Statistics for Mission 2017, (https://www.churchofengland.org/sites/default/files/2019-11/2017StatisticsForMission.pdf, 2017) 9 Humanists UK, ‘More attend collective worship in Anglican schools each morning than attend the Church of England each week’, (https://humanism.org.uk/2016/01/14/44689/, 14 January, 2016 ) society, which is not only multi-faith but increasingly non-religious as described above. Furthermore, the public overwhelmingly agrees that bishops should not automatically be granted a right to sit in the House of Lords. A survey conducted by YouGov for the Times found that 62% of British adults believe that no religious leaders should have ‘an automatic right to seats’ in Parliament, with only 8% wanting the status quo to continue.10 Bishops have the following privileges over any other group of peers, which are incompatible with the aim of making the Upper House more democratic and accountable:

● Speaking privileges: when a bishop wishes to speak, the custom is that those of other parties will automatically give way. Bishops also do not have to follow any party quota system on how often they can speak. ● Seating privileges: bishops get more privileged access to the chamber than those of other religions as they have their own bench. ● Privileged say in new legislation: bishops are consulted as a party bloc on new legislation before it is tabled, giving the Church of England additional say over those of other beliefs on anything the government of the day wishes to propose.

22. Religion and democracy inside the Houses of Parliament The Commission should review the discriminatory and outdated ‘prayer card’ and parliamentary prayers procedures in the Houses of Parliament, which give preference to Christian MPs and peers for seats and speaking opportunities in Parliament. In the House of Commons, there are only 427 seats for 650 MPs, but MPs who attend daily morning prayers can put down a ‘prayer card’ that reserves their seat for the whole day. This means that non-Christian MPs who do not wish to attend Christian prayers often find it difficult to take part or to speak in that day’s business in the House – especially in popular first debates of the day, like Prime Minister’s Questions. In the House of Lords, there are only 400 seats for over 800 peers, and there are similar advantages for Christian peers as those who attend prayers can stay in their seats ahead of the start of the busy parliamentary day.

23. This means non-Christian MPs who do not attend prayers are less likely to be chosen and heard in debates putting their constituents at a distinct disadvantage. Members of the All-Party Parliamentary Humanist Group complain to us about this issue more than any other. This fundamentally affects the ability of all views to have equal opportunities to be heard. It also affects the constituents who are represented by such MPs.

24. We ask the Commission to look at our proposal for compulsory prayers in the UK Parliament to be replaced by ‘time for reflection’, borrowing from the successful approach taken by the Scottish Parliament, as a way of ensuring all constituents regardless of their MP’s religion or belief are given equal opportunity to have their voices heard in Parliament. In Scotland, time for reflection rotates amongst different religious groups and humanists, contributing to the ethical or spiritual development of elected officials without privileging one particular religion, its values, its rules, or its adherents. How this could be achieved in detail is laid out in the recent report Time

10 Kaya Burgess, ‘Public want religion kept out of politics’ The Times, (https://www.thetimes.co.uk/edition/news/public-want-religion-kept-out-of-politics-t3rk055cx 25 December 2017) For Reflection: A Report of the All-Party Parliamentary Humanist Group On Religion or Belief in the UK Parliament.11

25. What areas should be a priority for the Commission and why? We believe that the Commission’s priority must be to ensure that the current democracy and human rights framework is preserved, and in a time when the Government has stated that it is deeply sceptical of these mechanisms, that there is no regression or rolling back of rights. In this regard, although all of the areas laid out by the Government are interlinked and interdependent, we believe that the Commission must prioritise access to justice for all people through the judicial review process, and ensuring that the HRA remains intact and a functional means of holding all government decisions to account. The Commission must ensure that the rule of law is maintained and the HRA does not get watered down to exempt certain groups of people from either its protection or from being accountable to it.

November 2020

11 All-Party Parliamentary Humanist Group, Time For Reflection: A Report of the All-Party Parliamentary Humanist Group On Religion or Belief in the UK Parliament (https://humanism.org.uk/wp- content/uploads/APPG-report_religion-in-parliament_Jan2020_print.pdf, 2020)