Dr Anna Loutfi is a practicing barrister specialising in UK employment, human rights and equality law, focusing on freedom of expression and thought. She holds a PhD in the comparative history of Central and Eastern Europe, with a specialisation in law, and is deeply familiar with the history, politics and culture of Hungary, where she resided as a doctoral student and later faculty professor at the Central European University, Budapest (2001-2013). She is affiliated with the Dickson Poon School of Law, King's College London and is currently a consultant with The Bad Law Project, a rule of law think tank in the UK.
On 13 February 2023, Anna Loutfi, a practicing barrister and legal academic, held a talk at the Danube Institute. Loutfi is currently working as a legal adviser of the Bad Law Project focusing on the issue of the rule of law, the question of the expression of thought and equality. In her presentation, she argued that
Britain suffers the effects of the devaluation of common law.
According to her, the integration of the international human rights regime into the British legal system had ripple effects throughout the society and in the fields of legal practice. British common law contained the principle of freedom of speech and equality before the law by default. With the introduction of equality and human rights laws, however, the freedom of expression became codified, and quite narrowed down with blanket restrictions.
Although the ratification of the European Convention on Human Rights by the UK took place in 1951, it was only codified in 1998, enshrined in the Human Rights Act. Until than, nobody felt there was any urgency to pass a new human rights act, because it was believed that common law held the defence of traditional human liberties by default. But after 1998 everything changed: this new law ‘installed a human rights regime’. This was strengthened by the Equality Act of 2010, which compiled the equality legislation of the different parts of the United Kingdom under one umbrella law. After these laws, only those rights and protections were defendable that were encompassed within the convention. This was the very start of the problem, Loutfi argued. From the on, fundamental rights were defined with generic and ambiguous terms. Common law rights evaporated in this regime. The language of the new equality laws emphasised the defence of ‘all religions and beliefs,’ which in turn engendered a turn to understanding the freedom of expression as a specific type of belief.
All the classic common law precedents were thrown out, and defendable opinions were set to a very high bar.
They had to be ‘religion-like’: something that is a weighty and substantial part of one’s life, has seriousness, cohesion and importance, and (not least) worthy of respect in a democratic society. Not only did it become harder to defend an honest opinion, but the decisions of the judiciary became totally arbitrary. For example, one case held that ‘belief in democratic socialism’ is an honest and defendable standpoint; another stated that lack of belief in transgenderism and a literal understanding of parts of the Bible (in this case, Genesis, 1:27, which states that humans were created male and female) did not constitute a belief worthy of protection.
There have also been cases which are not just similar, but basically the same, and yet the court made differing decisions in them. In one instance, ‘ethical veganism’ was held up as a protectable belief in one case, while in Conisbee v. Crossley Farms it was overruled as not serious enough, a typical example of contradictory legal practice. And there are also the cases that are decided on totally irrational legal bases, Loutfi highlighted. In the case of Maya Forster, her belief that ‘sex is real, important and immutable’ was simply considered a view ‘not worthy of respect in a democratic society’ and thus not to be protected. While this decision was appealed, and Maya Forster won the second instance trial, it is concerning that the judiciary in a Western country can make decisions on such arbitrary grounds—working fully in line with international human rights conventions.
The speaker pointed out that it was the abandoning of common law grounds that resulted in all these dubious decisions. She cited the example of a Welsh courts that ruled against parents who sought to withdraw their children from liberal sexual education in an elementary school. Courts have basically thrown out the whole practice of common law, which specifically names parents as sole custodians of their children. This is another case of the dismissal of common law and the imposition of an over-politicised practice on the judiciary.
As for the politicisation, the speaker also warned about the swaying of the notion of acceptable opinions. While Maya Forster won her case, it was just because it was argued that her opinion is not outright Nazism, which would be unacceptable. But there are a lot of people on the political left who are throwing around labels of Nazism, fascism, or white supremacism to brand every opinion or even honest questions that are uncomfortable for them.
It is now enough for someone to have voted for Brexit, against open-door immigration policy, or does not believe in carbon taxes, to be labelled a Nazi.
This could influence the the legal processes in the long run, as the United Kingdom today is a media culture, and the judiciary likes to keep in line with fashionable political opinions. Society has become disentangled from law; people do not read any more, and it is impossible to balance the legal system with the overheated, emotionally-driven political culture that has been created in the society.
Loutfi expressed her overall concern about creeping legal authoritarianism in the United Kingdom, backing her case up with heaps of judicial evidence that proves that the West is in danger of being overrun by political forces bent on the destruction of traditional notions of free speech, and imposing their own authoritarian agenda.
Anna Loutfi stressed that common law today is like a ‘caged animal, which sheds its fur, the lights dimming in its eyes, and cannot reproduce anymore’. All this means the death of a good legal practice, and the inevitable narrowing of fundamental rights. Granted, human rights laws defend the right to holding personally important beliefs, but what about artistic expression? What about the right to have a working hypothesis? To change one’s mind? In the contemporary political environment, sanctions can poured upon people who do not identify with mainstream political opinions, and they may face loss of income and social standing without the meaningful protection of the law. The West is indeed heading to a new antidemocratic age, unless people stand up against the ever-growing politicisation of the legal system, Loutfi concluded.