Chapter 11

Telling Us Who We Are

There is a strong dose of late 1940s exceptionalism still evident in British political culture. It may yet cause the country to leave the Council of Europe, opting out completely from the European Convention. The passion for independence demanded by it is driven by a strong but selective memory of past glory, experienced today as something that is not only within living memory but also within the reach of the future as well. ‘Exceptionalism’ is attractive to all countries—‘Do what I say because I say it, not because I do it: I do what I want’—but very few can carry it off: Britain in the nineteenth century for sure; the USA in the second half of the twentieth and perhaps to some extent still today. But this is not true of Britain now, and nor was it in the 1940s, or even for a long time before that, perhaps since the Edwardian era. It takes strong economic power—hinged upon domination of other territories either directly or indirectly—to be able to make the rules that one wants and enforce a morality on others that one does not practise oneself while pretending to do so. Britain does not have that, has not had it for a long time. The memory lives on as an active force in the culture, however, constantly preying on the politics of the present while just as ceaselessly being foiled by the exigencies imposed by this reality of weakness. Britain has been riding both these horses since the 1940s, a fantasy island constantly being called to account by geographic and socio-economic reality.

In the United Kingdom, the truth is that – almost unnoticed – human rights have crept into an important position as a binding agent whose adhesive qualities (it is no exaggeration to say) help to preserve in place the whole national project. Like the European Union from which the country is disastrously about to depart, the UK is a multinational experiment. So far as the country as a whole is concerned, and in a way that is reminiscent of the EU’s use of the term, human rights have become an important way of establishing a set of irreducibles in a culture that values tolerance and diversity. Unlike other jurisdictions with greater certainty over what it entails to be a citizen of a specific place, Britain has made a great virtue of not being sure of what is involved in being British. Even the citizenship was of the ‘United Kingdom and Colonies’ until 1983, and from that point on the national status has been divided up between various kinds of citizens (not to mention the Irish who despite being neither British nor Commonwealth have enjoyed being everything (free movement; the right to vote; automatic residency rights; access to social benefits)). All this confusion has been especially valuable in the management of the waves of immigration that have occurred since the 1950s. The emphasis in the UK has been less ‘when in Rome do as the Romans do’ and more ‘live and let live’.

A sophisticated but controversial expression of what this involves in the religious context was articulated by the then Archbishop of Canterbury Dr Rowan Williams in a speech in the Royal Courts of Justice on 7 February 2008 in which he outlined an approach to religion that sought to combine tolerance with respect for fundamental human rights. But the impression given by media treatment of his remarks was of a religious leader intent on insulating all faith-based behaviour from the oversight of the law, and this caused great controversy at the time. But a vital part of what Williams was saying then was about the need for a societal floor past which religiously supported bad behaviour would not be allowed to fall. This applies to cultural practices as much as it does to faith. There are limits to the variety which the state otherwise welcomes among its people, one rooted in the need to adhere to the law for sure, but the other more general, informing the content of that law and—beyond the law—the assessment that we must all make of the differences that we encounter. This second control on diversity is our sense of what our polity imposes on all of us in the name of the protection of fundamental human rights. These rights belong to no faction but are rather owned by us all. They set the basic rules in an otherwise very open-minded politico-legal culture. Now human rights understood in this way go beyond the Human Rights Act, but that measure stands as an important indicator of our society’s direction of travel, towards celebration of the different (within limits) rather than an imposed homogeneity rooted in the versions of Britishness dictated to the rest of us by those in power. (We return to this problem in Chapter 13.)

Now to the various national dimensions. An enticing aspect of the country we are discussing is its uncertainty about its name. Britain or Great Britain? Neither if we wish to remember Northern Ireland. And what of those other places for which the state has a responsibility of sorts, the Channel Islands, the Isle of Man—not quite as ‘British’ as the Isle of Wight, but not exactly Iceland either. The proper title is the United Kingdom of Great Britain and Northern Ireland, expanded from its previous ‘United Kingdom of Great Britain’ after the English–Scottish Union in 1707, but reduced by the independence of much of Ireland (in 1922) from its grandest point as the United Kingdom of Great Britain and Ireland (from 1801). The upsurge of national sentiment in Scotland and Wales that has been such a feature of politics in the past forty years has been managed by arrangements for the devolution of power that have placed an obligation to respect human rights at the core of their negotiated settlements. Both the Scotland Act 1998 and the Government of Wales Act of the same year (together with later legislative amendments) require the devolved authorities not to make any subordinate legislation or do any other act which is incompatible with any of the rights in the European Convention on Human Rights. Nor can either of the law-making bodies created for each place tamper with any of the same rights. Public power exercised in both places outside the devolved arrangements must in the usual way respect the Human Rights Act itself. The control here, therefore, is both the Human Rights Act and, more directly so far as the devolved authorities are concerned, the European Convention itself. So far as the latter is concerned, the devolution legislation allows (unlike the treatment accorded to Westminster’s primary legislation) the quashing of (devolved) legislation which contravenes its terms. The centrality of human rights protection to the constitutional settlements in both parts of Britain has made repeal of the Human Rights Act more difficult to manage than English-centric politicians might have expected. In its recent report the European Union Committee of the House of Lords reported, wholly unsurprisingly, ‘strong support for the role of the European Convention’ in both Scotland and Wales.

And then of course there is Northern Ireland. As is well-known the Province had been the subject of long-running litigation in the 1970s between the United Kingdom and Ireland over the ill-treatment of detainees by British forces, and disputes around human rights (often in the Strasbourg Court) had become a feature of the seemingly endless conflict that gripped this part of the United Kingdom from 1968 right through to the Good Friday Agreement of 1998. The resolution of the often bloody campaign of violence in which the subversive Irish Republican Army (or IRA) engaged was predicated on a new-found expression of support for human rights on the part of the United Kingdom state which it had long opposed. Needless to say this advocacy of human rights had not been the reason for the violence in the first place; the goal of the resurgent Republican movement had been a ‘reunification’ of Ireland as an independent Republic encompassing the whole island. But as the likelihood of a success of this tangible sort receded, so defeat came to be masked in the language of victory on the human rights front. The Northern Ireland Act of 1998 delivered on this aspect of the Good Friday deal, and subsequent developments of it have all stood by it. Respect for human rights, exemplified in a commitment to the European Convention on Human Rights, is therefore a central pillar of the resolution of this conflict in a way that goes beyond the requirement to act compatibly with the Convention that is also (as with Scotland and Wales) a feature of these devolved arrangements. There is an international dimension too with the Republic of Ireland committing itself to incorporation of the Convention, achieved in 2003, and with no current suggestion of any reneging on the promise.

The Conservative strategy document on rights, written before the party secured a governing majority at the 2015 general election, makes little or no mention of the wider UK aspects of its plan to repeal the Human Rights Act. The proposals made thus far by the Tories make very clear who they think ‘we’ are. Over recent decades the party’s reach across the United Kingdom has shrunk markedly, its unionist dimension disappearing with it. The Tory Party’s now thoroughly English perspective has led it to drive through changes to parliamentary procedure which empower English MPs to vote on English matters without the aggravation of any of the Celtic fringe joining them in the lobbies. A respect for human rights is not the only thing that makes sense of the country’s disparate communities and nations, but it is an important one. Its value may only be fully appreciated when it is gone.

Britain, Europe and Human Rights