On February 5 two eminent civil liberties advocates from opposite sides of the Atlantic discussed the importance of individual and collective engagement in defending liberty.

Following a touching tribute by Martin Westgate QC to a true friend of liberty – Sir Henry Brooke – David Cole of the American Civil Liberties Union addressed an auditorium of human rights lawyers on how and why “harnessing the power of the democratic system is the best tool for the protection of civil liberties” with Martha Spurrier of Liberty responding.

Cole sought to highlight that whilst President Trump poses a tremendous threat to fundamental rights he has created an opportunity for civil liberties in the long term. He reminded us of the explosion of civic engagement and the unprecedented energy that America has drawn upon in the face of the many challenges the President has faced since his inauguration, starting with the Women’s March on 21 January 2017.

Cole opened by looking at the Muslim travel ban (Executive Order 13769), explaining that usually when a government goes after foreigners, and does so in the name of national security, the citizenry is usually unlikely to object. This time the nation responded by flocking to airports in protest. Judges of the lower courts have now defeated three iterations of the travel ban, though 7 out of 9 Justices lifted the emergency injunction in favour of the Trump Administration, and we now await the Supreme Court’s finding on the constitutionality of the ban.

It is prudent to note that the ACLU filed their first case just one day after the ban came into force. It is with this energy and drive that human rights defenders must all fight for our rights.

Cole proceeded to discuss the challenges faced by undocumented minors in federal custody and their abortion rights; the ruling of two federal courts against the Administration’s policy regarding transgender service people; and The Sanctuary Campaign whose aim is to convince local governments to adopt pro immigrant policies.  Unsurprisingly for a Trump appointee, he noted that the current Head of Immigration, Scott Lloyd, has no immigration experience (ACLU’s blog on People Power).

Before concluding, Cole highlighted that the people have long looked to the courts for change and to advance social justice – when in truth change comes from the people. Using the National Rifle Association (America’s longest standing civil rights organisation) as a perfect example he explained that checks come from all walks of life starting at the grass roots. That includes the First Amendment as a structural check on abuse of power, the press, religious institutions, universities and importantly civil society.

 

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it”

– Judge Learned Hand –

 

Spurrier was powerful in her response, wishing that we had seen the same levels of mobilisation here in the United Kingdom following the Brexit referendum.  She recalled having questioned what could be achieved by the 48%.

But there is hope. Spurrier continued to postulate that the response that we have seen to President Trump generates hope for safeguarding civil liberties on this side of the Atlantic. Spurrier called upon the audience to be more vigilant about events closer to home and to do what we can to stop the erosion of fundamental rights.

Whilst we may not see the power of the citizenry as Cooke did in 1648, Spurrier invited us to speak outside the echo chamber [of human rights lawyers and liberals] and to also challenge those we know. To stand up to our friends and allies when the things we think are important are under threat from “our side”.

She drew upon the fight for abortion rights in Northern Ireland to highlight ignorance – including the educated and ardent human rights supporters amongst us. Noting that vehement advocates fighting for rights of a similar nature in Poland were not conscious of the life sentence the crime of abortion carried in Northern Ireland. Further, whilst many people are mortified at immigration detention in the United States they have no idea that the UK employs indefinite immigration detention.

She reminded us that without the EU Charter of Fundamental Rights, if tomorrow we took away the Human Rights Act, the Government would be free to amend decades of EU policies, regulations, treaties and public law decisions for the promotion of individual rights, from equality for women, disabled people and the LGBT community to the Modern Slavery Act. And there are areas that may not receive the same vigilance and guardianship from the domestic courts here as had been prompted in the US by ACLU’s swift action.

 

“Hope is work

– Michael F. Bennet –

 

With the above in mind Spurrier stressed that we cannot shy away from the hard cases; we must passionately defend the rights of prisoners and the marginalised, before encouraging those conversations that can be had now that people are listening.

In Spurrier’s words “Let’s get to work” and fight for the architecture of civil liberties.

 

–  Sarah Askew, HRLA Executive Committee

*Image courtesy of Alex Miljus, ACLU

Video recording of the event is available to view here

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