Statues are falling: The case of HM Stanley – an erasure of history or a necessary revision?

by Sinéad Coakley

All around the world, we are seeing the removal or modification of tangible cultural heritage, either by forceful means or by government action. This global debate was triggered by the abrupt and harrowing murder of George Floyd in the USA at the hands of a man employed by the state to protect him. It provoked mass protests around the world highlighting the much overdue need to adequately address systemic racial inequality, institutional racism and controversial heritage.

The statues at the centre of this debate across Europe are predominantly statues of men involved in Europe’s much-celebrated imperial exploits. Figures such as Cecil Rhodes, Robert Milligan, and Winston Churchill have come under intense scrutiny across the UK following the dramatic removal of Edward Colston from a plinth in Bristol. We, as a society, now find ourselves at a time of reckoning as we question the statuary on our streets. We need to consider the role that cultural heritage has within our communities and whether removing these statues is a removal of history.

Cultural heritage is an expression of the ways of life of a community, which is passed on from generation to generation. Tangible heritage such as statues and monuments denotes the physical representation of the values, beliefs and traditions of that community. The Committee on Economic, Social and Cultural Rights have reiterated that cultural rights are essential for the maintenance of human dignity and positive social interaction between individuals and communities.

The United Nations Educational, Scientific, and Cultural Organisation (UNESCO) further affirm that cultural heritage should be recognised and acknowledged for the benefit of present and future generations. Thus, ideally the statues in the public realm should reflect, and be a source of, communal bonds in which all members of the community (local communities and the wider state) can identify with and protect. So what should we do with controversial heritage – cultural heritage that does not promote human dignity and social cohesion?

Two communities having this dialogue at the moment are Denbigh and St Asaph in North Wales. Both have had to consider the fate of two statues commemorating a lesser-known historical figure – ‘Denbigh’s Son’ – Henry Morton Stanley. Stanley has come under scrutiny due to his involvement in colonialism as he explored central Africa and worked as an agent of King Leopold II (whose own statue was removed in Antwerp for his genocidal policies in Africa). Both statues are surprisingly recent only having been created in 2011 in the hope to attract tourism.

At the time there was a letter of protest against the erection of the statue arguing that his expeditions have shaped the racial inequality still rife in todays society. Despite this, the statues were still commissioned and displayed. Local artist, Wanda Zyborska, holds an annual protest of the Denbigh statue by re-veiling it in black rubber; the rubber is particularly symbolic given the exploitation of rubber in the Congo. During the recent Black Lives Matter protests, protesters turned their back to Stanley and “took a knee” (a symbolic protest now synonymous to the BLM movement first initiated by Colin Kaepernick in 2016).

On 24^th June both councils decided the fate of these statues. Despite persistent pressure from the community to remove them both councils effectively voted to keep the statues in place (for now). St Asaph Council, whose statue depicting Stanley is an obelisk portraying his life, opted to modify the obelisk with a plaque depicting a more neutral explanation of history.

A working party will be set up to draft the wording that would better reflect today’s climate. This is something that Bristol Council tried in 2018 to address Colston’s role in the slave trade. However, this caused further controversy as it was felt the plaque laundered Colston’s enslavement of black people. Denbigh Council, on the other hand, voted (6-5) that the statue depicting Stanley standing with an outstretched hand would not be removed, but would open up the debate to a public consultation. This consultation will take place once lockdown restrictions are lifted in Wales. Both decisions here have the opportunity to promote much needed dialogue. St Asaph Council has the power to enable the community to decide collectively what is an appropriate and accurate explanation of history. Denbigh Council also has the opportunity to start dialogue and reassess whether the statue has a place within their community.

Other communities have already made attempts to address these questions. The University of Liverpool has agreed to rename a building named after former Prime Minister William Gladstone, for his links to the slave trade. The statue of slave owner Robert Milligan was removed by the Canal and River Trust in London as a way of recognising the wishes of the community. Throughout America, statues of Confederates have been removed. Likewise, Alaskan and Australian communities are deciding the fate of statues of Captain James Cook for his links to colonialism. In London, a commission will be set up to review and improve diversity across London’s public realm to ensure that the landmarks suitably reflect the capital’s achievements and diversity.

The removal of these statues has been met with severe opposition in certain quarters. Prime Minister, Boris Johnson, has argued that the removal of any further statue is the erasure of our history. This is the predominant argument that underpins a lot of the discussion surrounding these statues and it is something that needs addressing.

Firstly, arguing that the removal of these statues is an erasure of our history implies a role that statues do not necessarily achieve. As David Olusoga correctly states, statues are not particularly good at telling us our history. History is complicated. Pure objectivity does not exist in accounts of the past and there are many interpretations of it. Resisting the removal of these statues is resisting the realities of the new (more objective) understanding of the past. By removing the statues we are no longer giving legitimacy to a history that they infer. British exceptionalism has allowed us to portray our history in a whitewashed manner – ignorant to the mass oppression of minority groups.

Secondly, in some instances the intentional destruction of cultural heritage can indeed be to erase history. Throughout history, cultural heritage has been destroyed in this way because it is an identity marker of a group of people. It is an assault upon a peoples’ identity in an aim to demoralise, disenfranchise and humiliate them, as seen during the breakup of the former Yugoslavia. In some cases, the destruction of heritage is part of a broader plan of genocide – to erase the very existence of a group of people and remove them from the annals of history.

However, this is not what is happening here. This is not an assault upon our cultural heritage but a call to acknowledge present day racism and structural inequality by reconsidering the past. There have been calls for the removal of these statues for years. They are not being removed with the intent to erase history or to culturally cleanse a people. Instead, people within the community are demonstrating that there is no space for these symbols of intolerance and hate within the fabric of their community and they reject them. Regardless of the reasoning behind the creation of these controversial statues, we must focus on the message they send in the present day.

It is a message – seen by many of – endorsing colonial iconography and white supremacy. It validates a history of intolerance and grave violations of human rights. By removing these statues of the likes of Colston and Stanley local communities are not removing them as historical figures, nor are they removing them from the historical record – they are simply removing the idea that they are worthy of celebration within the fabric of our culture.

The on-going global pandemic has gifted us with the ability to stop and evaluate the way in which we live our lives at an individual level but also as a community. We need to take this gift and ask ourselves these difficult questions in an open, inclusive dialogue. There is no one-size-fits-all approach when it comes to how communities deal with their past. This is apparent in the different approaches taken so far across the UK (and the wider world). Whilst the blanket removal of some statues is welcome, it does stifle the opportunity for much needed dialogue.

I believe dialogue is needed in all communities. It will enable communities to collectively understand their history and cultural heritage exposing why these particular statues are symbols of intolerance and oppression. Cultural heritage is supposed to outlive many human generations and as a result, in considering the public setting in which these statues are placed, communities should be focusing on what message they want, as a community, to send to future generations. We need to consider why we celebrate the figures that we do and whether they merit our reverence – a dialogue Denbigh and St Asaph have been afforded at the moment.

 

ABOUT THE AUTHOR

Sinéad is currently a PhD candidate at The University of Liverpool. Her research focuses on transitional justice responses to the intentional destruction of cultural heritage in post-conflict states. Her research interests include: minority rights, cultural rights, cultural heritage, transitional justice and international humanitarian law.

International Human Rights Weekly News Roundup

 

This week’s stories in focus:

A ‘weapon of repression’: China’s national security law:

by Bethany Webb-Strong

On the 30^th June, China announced a new national security law which grants Beijing sweeping powers over semi-autonomous Hong Kong, representing a colossal threat to Hong Kong’s sovereignty.  The security law details 66 articles which criminalise secession, subversion, terrorism and collusion with foreign forces to endanger national security. Suspected individuals, including non-residents accused of violating the law on Hong Kong territory, may face penalties as severe as life imprisonment and complex cases can be sent to mainland China for trial.  The law grants increased police powers, allowing for searches of homes and electronic devices without a warrant and restriction upon residents travelling overseas.

The national authorities have explicitly passed the legislation in reaction to escalating protests and violence in the city since last year;  Chief Executive, Carrie Lam declared ‘these acts have crossed the ‘one country’ red line and called for resolute action’.  Although Lam asserts the new law will not undermine Hong Kong’s autonomy, the legislation will take precedence over Hong Kong law in cases of disparity. Critics have denounced the law as ‘the end of Hong Kong’ and Joshua Rosenzweig, the head of Amnesty International’s China Team, has proclaimed that the law ‘represents the greatest threat to human rights in the city’s recent history’.

It is predicted the measures will be used by China to quash dissenters, threatening the rule of law and fundamental freedoms including the right to freedom of expression. High Commissioner Michelle Bachelet has reiterated that implementation must comply with China’s human rights obligations and cannot criminalise ‘conduct and expression that is protected under international human rights law’.  Amnesty International have highlighted the speed with which the new law was passed, suggesting this is an ‘ominous signal’ that the security law may be used against pro-democracy candidates in the upcoming Hong Kong elections in September.

More than 370 individuals have already been arrested since protests against the new law began on the 1^st July, the anniversary of Hong Kong’s return from British governance to Chinese role.  Many journalists and lawyers in Hong Kong are concerned over whether the broad provisions will affect their work and stifle the reporting of pro-democracy protests as the city grapples with the new measures. Mere hours after the legislation was enacted, the pro-democracy party led by Joshua Wong, Demosisto, disbanded.  Tik Tok is the first company to declare it’s exit from Hong Kong and is amongst several other social media and technology firms who have expressed disquiet about the impact of legislation upon their operations.  Facebook, Twitter and Google have suspended the processing of Hong Kong government requests for user data until they can assess the full implications of the new legislation.

The new security law has triggered debates in the UN Human Rights Council, with Cuba representing 53 states who have announced their support of the draconian measures.  The UK led a statement in opposition to the new legislation, backed by 26 other states. Boris Johnson has criticised the law for breaching the Sino-British joint declaration, promising in response that the UK will provide Hong Kong residents with British national status with a route to citizenship.  New UK human rights sanctions legislation is due to be published in the coming weeks which will allow for sanctions to be imposed against individual perpetrators of human rights violations.  However, it is unclear whether Chinese officials will be amongst those named on publication.  Although not party to the Human Rights Council, the US has also stood publicly in opposition against the new law; the US secretary of state, Mike Pompeo announced the US would ‘not stand idly by while China swallows Hong Kong into its authoritarian maw’.  With all eyes fixed on Hong Kong this week, the new national security law has undoubtedly polarised the international community.

 

 

UK announces sanctions under new human rights regime:

by Lauren Ng

On July 5^th, the Secretary of State, Dominic Raab, announced that the UK will be imposing new human rights sanctions against individuals accused of the “most notorious human rights abuses” in recent years:
“Today this government and this house sends a very clear message on behalf of the British people that those with blood on their hands, the thugs of despots, the henchman of dictators will not be free to waltz into this country.”

The measures will be effective immediately and will affect 49 individuals and organisations from Saudi Arabia, Russia, Myanmar and North Korea. This is the first time the UK has imposed human rights sanctions on human rights violations and abuses, independent of the UN and EU. Notable implicated cases include the death of Russian lawyer Sergei Magnitsky in 2009 and the murder of Jamal Khashoggi in 2018 by Saudi Arabian officials. The sanctions will comprise of asset freezes and travel bans for those named and penalised.

While the sanctions have been largely favoured by MPs, concerns were raised with regards to the absence of Chinese targets on the list. Tom Tugendhat, the Conservative chair of the Foreign Affairs Select Committee, noted that no Chinese officials involved in the repression of Uighur Muslims were included. In addition, a growing number of MPs have since called for the Hong Kong chief executive, Carrie Lam, to be incriminated as well for her support of the new security laws in Hong Kong enforced by Beijing.

It has also been recognised that the sanctions will inevitably cause further tension in the geopolitical relationship between the UK and Russia.  A day after Raab’s announcement, the Russian Embassy retaliated, stating that Moscow reserves every “right to reciprocate” and will likewise be imposing sanctions against the UK.

With the first measures for the newfound global British human rights regime in place, only time will tell as to how the new measures will affect the wider diplomatic relationships between countries.

 

Other stories from around the world

 

International

• Women Face Rising Risk of Violence During Covid-19 (Human Rights Watch)

 

America

• Report Exposes Impact of Privatizing US Criminal System (Human Rights Watch)
• Donald Trump’s Attack on the ICC Shows His Contempt for the Global Rule of Law (Human Rights Watch)

 

Asia

• Myanmar: Court Martial Latest Accountability Sham (Human Rights Watch)
• UN rights office expresses alarm at Hong Kong arrests under new security law (UN News)
• Philippine court asked to annul Duterte-backed anti-terror law (Al Jazeera)

 

Latin America

• A new deal could ease Venezuela’s humanitarian crisis. The international community must get behind it (Human Rights Watch)

 

Middle East

• Fresh evidence of war crimes committed by all sides in Syrian conflict, probe finds (UN News)

 

Africa

• Tunisia: Two-Year Sentence for Homosexuality (Human Rights Watch)
• Youth activist speaks up for environmental protection at Human Rights Council(UN News)

 

Europe

• Britain to resume sale of arms to Saudi Arabia despite Yemen fears (The Guardian)
• Domestic Abuse bill: MPs back ban on ‘chilling rough sex defence’ (BBC)
• Grenfell Tower inquiry: Fire ‘inextricably linked with race’ (BBC)
• Russian space official Safronov arrested for treason (BBC)
• Turkey jails Amnesty activists in ‘terrorism’ case (BBC)
• High court hears human rights legal challenge to England’s lockdown restrictions (Guardian)

 

 

Spotlight on Clive Stafford Smith OBE

Part 1 of 2

Each month, the HRC Blog features a significant figure from the Human Rights community to go under the Spotlight, answering questions put by students from the University of Essex.  This month, we feature Clive Stafford Smith OBE.  This is part 1 of 2.

 

About Clive

Clive Stafford Smith is the founder of ‘Reprieve’ and a well known human rights lawyer.  He has spent his career fighting against the death penalty in America, only taking cases of those who could not afford a lawyer, assisting in the representation over 400 prisoners and preventing their execution in 98% of cases.  Clive is also known for his work in representing detainees at Guantanamo Bay, successfully suing the US government to gain access to the facility, and helping to secure the release of some 80 detainees to date, with seven clients still there.  In addition to visiting and representing the detainees, Clive tracked down the families of ‘disappeared’ prisoners across the Middle East, prompting some unwelcome ‘interest’ from US allies, including the Jordanian Secret Police, who detained him in 2004.  In 2000, Clive was awarded an OBE for ‘humanitarian services’ and has won a raft of awards in the field of human rights.

 

Students’ Questions Answered

Clive was gracious enough to allow the students at Essex an opportunity to send him  some questions about his experiences and ongoing work in the field of human rights.  Clive answered questions on a range of topics.  This first part focuses on the Death Penalty and the impact of COVID 19

DEATH PENALTY

Q: Due to the racial bias in its administration, historic links have been made comparing the death penalty in the US to lynching methods previously used in the South. From your experience working on capital punishment within the US criminal justice system, in what ways would you agree that the death penalty is a “direct descendant of lynching”, and in what ways would they differ?

A: First, it must be said that the US has a direct form of lynching today, which is the assassination programme, a simple case of “execution without trial” (which is what lynching was). The archetype of this is the case we have pending of Bilal Abdul Kareem, an African American comedian-turned-war-correspondent who is in Syria, and who the US has tried to killed five times to date. So there is more than one form of US death sentence.

But in terms of the death penalty as it is more commonly conceived, it is only a system of societal control, the same as lynching. The underpinnings of lynching involve a racism that seeks to play poor white people (the KKK and their ilk) against (primarily) poor black people to prevent them seeking common cause – a demand for equality.  Likewise, it is ludicrous to think that the death penalty solves anything.  Instead, it is a way to pretend that we are solving the manifest problems in society (crime, which is mainly rooted in poverty, the proliferation of guns, drugs, and a lack of healthcare) by blaming a small number of disproportionately black ‘criminals’ and executing them.  Of course, this does nothing to solve the problems.

At the same time as with lynching, where the ‘victim’ was generally a white woman (who might only have been the object of a cat-whistle, but might have been raped by someone), we use the death penalty to value people differently.  As Justice Brennan wrote in his dissent in the McCleskey case:

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. Petitioner’s Supplemental Exhibits (Supp. Exh.) 50. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. Petitioner’s Exhibit DB 82. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, Supp. Exh. 51, while, among defendants with aggravating and mitigating factors comparable to McCleskey’s, 20 of every 34 would not have been sentenced to die if their victims had been black. Id., at 54.  Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim.  Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.

I was privileged to represent Warren in his last appeal, and it is indubitably true that he died because the US could not face the fact that he was being killed due to the colour of his skin.

 

 

Q: Your decades’ long work seeking to counter the death penalty in the US will have exposed you to the depth and extent of racism in the United States. How do you think the human rights community can contribute to the struggle to denounce and overcome racism in the US?

A: First, British people should take a look in the mirror.  At least the US talks about racism and tries to confront it.  The British don’t, and the comments I have heard from British people in the past BLM-weeks have been sad. “I believe all life matters,” is a refrain you would never hear in the US, any more than you would go to the funeral of someone’s child and hear someone say, “I believe the life of my own child matters too.”

Also, the British legal system is rife with racism yet nobody talks about it.  At current rates, it would take 100 years for there to be proportional BAME parity among QCs and judges (and 50 years for women).  Almost three quarters (74%) of judges went to private schools.

That said there are real problems in the US, a country that was built on slavery (much as the wealth of Britain was made, in large part, on the same dreadful practice).  Yet at least in the US we have the tools to combat it.  We can question jurors about racism (Turner v. Murray) – there is no questioning at all in the UK.  We can challenge racism in all the stages of the legal process (Rose v. Mitchell, McCleskey v. Kemp) – it is unheard of in the UK. We can challenge the racial decision making by jurors (Tharpe v. Sellers) – it is a crime to speak to jurors about their service in the UK. And so forth.

But the real issue is that we need people who are making the effort. That means you.

 

Q: What kind of practical obstacles have you faced in your journey of bringing justice to those facing the death penalty?

A: There are many. Some of the rules of the US Supreme Court are just fatuous for their failure to take into account reality.

 

Marita and Kris Maharaj

When I started doing capital trials, I had just graduated Columbia Law School, and most of my colleagues had gone to firms on Wall Street where they were paid $1,000 an hour to waste their lives representing corporations over money. We were paid $1,000 for an entire capital case.  And when the clients were on death row, they were meant to represent themselves – they could only have lawyers if they had volunteers…

 

 

And then there is the issue of innocence – the US Supreme Court has held that “mere” innocence is not enough to release someone from death row (Herrera v. Collins).  This is why Kris Maharaj – my British client sentenced to death 33 years ago, now 81 years old – remains in prison despite the magistrate judge finding that he is innocent by “clear and convincing evidence” last September 13^th – nine months ago.

But there are many other reasons.  One is the standard of proof.  While people say they must find a person guilty “beyond a reasonable doubt”, my not very scientific studies suggest that judges think this means around 83% sure – which we may translate as saying they are aiming to convict one innocent person in every six cases, or one million of the 6 million Americans who are in prison or facing it. (As Robin Hood reminds us, if you aim that low, you always miss.)

Sad to say, similar problems permeate the British system too.

 

Q: How does the approach to working on behalf of detainees in certain black sites/ secret prisons differ from cases of prisoners facing the death penalty and is one more challenging than the other?

A: Part of the problem with black sites is that you cannot get to your client, there is no rule of law, and they have no legal rights.  So that is much more challenging.  But at the same time, we have got 740 of the 780 people out of Guantánamo largely through publicity, as generally public opinion favours those being held without trial more than it favours those being held on death row after an unfair trial.

 

 

COVID 19

Q: How has the COVID19 pandemic, considering government responses to the outbreak in particular, impacted upon detention centres like Guantánamo Bay and US death row prisons?

A: Prisons are, in the words of the Washington Post, “petri dishes of the virus.”  My clients cannot “social distance” from anyone.  The best example is Kris Maharaj: 81 years old, held now in a dormitory with 45 other old men, locked in their in “quarantine” now they have had 4 men test positive, which means you are locking him in with the virus, in beds that are 3 feet apart, 24/7.  We got him off formal death row in 2002, but now the State of Florida is intent on executing him by Covid 19, before we can get him out of prison.

 

Q: Do you think lockdown measures have caused attitudes to change towards detention or have helped to raise awareness about the conditions experienced by detainees?

A: No. I think people think they have had it like prison which is nonsense.

 

Q: How has Reprieve’s work been impacted by the COVID19 pandemic?

A: I can really only speak for myself. It is busier than ever and actually I have generally found I waste lots of time travelling when I can get much more done by staying home. The only thing I really miss is being able to go to Guantánamo and see the clients in person, but at least I can talk to them regularly on the phone.

 

Part 2 of our Spotlight with Clive Stafford Smith OBE will cover the topics of counter-terrorism, The US Criminal Justice system and the ‘de-mystification’ of the curriculum.

 

 

The fight for equality starts at the local level

By Myriam Naoual 

While we often talk about the role of international entities and NGOs in the fight against discrimination, local not-for-profit organisations and charities do not receive such recognition or attention.  However, these organisations are usually the ones contributing more directly to promoting equality within the local community.  My organisation, Ipswich and Suffolk Council for Racial Equality (ISCRE), is one of them.  Its main purpose as a Charity is to support individuals and organisations in the local community to understand the nature and extent of inequality in fields such as the criminal justice system, housing, employment, education, health, and social care.

ISCRE is one of the very few remaining local Racial Equality Councils.  It was created in 1977, a time when Racial Equality Councils were being implemented all over the country in response to the overt discrimination and violence against minority communities at the time.  It was set up following the Race Equality Act 1965, the very first piece of legislation outlawing racial discrimination in public places in the UK.  The principal reason for the creation of ISCRE in Suffolk was to address a number of problems faced by the BAME community locally, notably with regard to housing, education and the police force.  At the time, cases of discrimination were prevalent in Ipswich.  Local authorities were pushing black minorities to establish themselves in only three areas of the town and were making it difficult for them to live elsewhere.  In schools, the BAME community was left behind in the curriculum and black children were made to feel inferior.  In policing, racial discrimination was pervasive as black people were often being stopped for no apparent reason.  In this climate of inequality, ISCRE was there to improve relations between public bodies and racial minorities by raising awareness about the challenges they faced.

Nowadays ISCRE still provides a platform for BAME communities to engage with mainstream service provision.  However, it has now expanded to cover all aspects of equality. We work across all public services, including in the provision of criminal justice, prisons, schools and the health sector.  We focus on the communities which are hard to reach or isolated, including individuals with disabilities and people who need cultural or religious support.  We do not aim to speak on behalf of the communities, but rather we engage with them to establish where services are not responding appropriately to their needs.  As an organisation, we are working to eradicate inequalities by challenging decision makers.  More importantly, we scrutinise service providers to ensure that when providing their services, they understand and take into account the different cultural backgrounds of the people living in Suffolk.

The cover of the ISCRE Annual Report – a painting of 2 of their colleagues and 2 trustees

A good example of our current work is our prison project. The purpose of this project is to look critically at the relationship between crime and race, by working both with those currently in prison and with police officers.  In prison, there is often no space for men to talk about how their cultural experience is related to ethnicity or religion, and how each individual’s challenges differ depending on their cultural backgrounds. It is often believed that people commit crime because of their race, whereas in reality it is mostly because BAME individuals come from the poorest communities. Police officers do not yet have the adequate training to understand the challenges faced by people from the BAME community and how they are disproportionately affected.  ISCRE aims to challenge common misconceptions and to start a discussion about disproportionality in the prison setting.  We try to give men a safe space to discuss their cultural experience.  We help them understand why they are in custody and how beyond prison they can make more informed decisions.  We also seek to create a positive relation with police officers by informing them and raising awareness about the diversity of backgrounds.

In addition to providing a platform for local communities to address discrimination in their public services, ISCRE also devised a way to raise awareness at the local level to prevent discrimination, as well as to ensure access to legal help for individuals who have been discriminated against.  In 2013, the project ‘Tackling Discrimination in the East’ (TDE) was born.  TDE provides free legal advice, assistance and representation to anyone experiencing unlawful discrimination whilst living and/or working in Suffolk (and to a lesser extent Norfolk).  The project’s main tools are public legal education, awareness raising, leaflet guidance, public scrutiny and legal casework.  TDE is now part of Suffolk Law Centre, a charity which was set up by ISCRE in 2018 and which also provides a general Legal Advice Clinic for individuals from vulnerable backgrounds.

Working for ISCRE and Suffolk Law Centre has made me realise how important local work is.  While it is often assumed that those who can really make a change in the fight against discrimination are lawmakers and politicians, I believe that the fight for equality starts at the local level, where it is led by affected communities themselves.  By working alongside members of the community on a day-to-day basis, I can see the positive impact of the work we do on people’s lives here in Suffolk, especially for the most vulnerable. Unfortunately, most local charities do not get the level of recognition they deserve for challenging disadvantage and promoting equality for everyone.  We hope that the current Black Lives Matter movement and the newly acquired consciousness of society will raise awareness about all the work achieved locally to prevent discrimination and challenge inequalities.

ABOUT THE AUTHOR

Myriam Naoual is a University of Essex Human Rights Centre alumna and a legal intern/paralegal at Ipswich and Suffolk Council for Racial Equality (ISCRE). She is passionate about promoting social justice and aims to achieve a career as a discrimination lawyer.

 

The time has come for Human Rights to ‘take a knee’

by Dr Andrew Fagan, Director, Human Rights Centre

Turmoil has become the new norm within many liberal-democratic societies. Following a decade of economic austerity within many societies, the consequent rise of right-wing populism, the emergence and rapid spread of Covid-19, and now the ongoing exposure of the systemic racism which has underpinned so much of so-called western civilization for generations, one may be forgiven for feeling somewhat overwhelmed by events.

What does the state of turmoil entail for the human rights community within those notionally liberal democratic societies currently bearing the brunt of so much disorder and discontent? What posture should we adopt amidst this state of turmoil?

Given the undeniably toxic character of our current age, it is easy to imagine that many human rights defenders will be severely disconcerted by the state of affairs. Turmoil signals a challenge to an existing liberal democratic order within which, or so many have assumed, the struggle for human rights had been largely achieved through the legal eradication of systemic injustice and inequality. Based upon the assumption that human rights are an integral component of liberal-democratic societies, any concerted challenges to the prevailing order in those societies will be seen as hostile by many. Turmoil may be followed by fundamental changes to the ancien regime and, if this regime was genuinely based upon respect for human rights for all, then such changes might be expected to severely undermine those achievements. The human rights community may have good reason to be fearful of the current disorder if the assumptions concerning the status of human rights within such societies were generally true and valid. Sadly, they are not.

While one must acknowledge the successes and accomplishments of the struggle for the formal legal recognition of many peoples’ human rights over the past two generations (or so) within many developed societies, it has become manifestly obvious that law alone is not sufficient to meet the challenge of systemic economic, political and social injustice. A persistent fixation upon the law as the predominant instrument for overcoming systemic injustice has, at the very least, failed to eradicate deeper and wider conditions which have surfaced during our moment of prolonged turmoil.

Liberal democracies have established political rights designed to ensure fundamental political equality and yet many liberal democracies are beset by right-wing populism. Liberal states’ recognition of international human rights commitments for economic subsistence have done nothing to prevent the ever-increasing spread of profound socio-economic inequalities within many of the world’s most affluent societies. The existence of various national human rights bodies has done little to prevent the grossly disproportionate and discriminatory impact of Covid-19 upon marginalized communities. Finally, the raft of equality and anti-discrimination legislative measures to combat racism in the United States and elsewhere, has proven to be wholly inadequate to counter the scourge of racism.

The principal tools that we have typically drawn upon in our attempts to secure human rights within our own societies have too often failed to deliver on the promise of human rights. As difficult and as painful as this acknowledgement will be for many, the time has come for the human rights community to consider alternative strategies and tools for waging the struggle. The current turmoil may be credited for forcing us to acknowledge our own failures and disappointments. After all, had we been generally successful in our campaigns for genuine democracy, socio-economic equality and humane societies based upon mutual respect, we would not be where we are now. The time has come for the human rights community to “take a knee” in the face of the great many injustices which afflict so many within liberal democratic societies.

 

What do I mean by this?

Taking a knee constitutes a symbolic gesture of solidarity with the victims of systemic injustice. While it is most closely associated with the struggle against contemporary racism in the US, its potential for mobilising concerted opposition against the intolerable harms which many are exposed to is much wider than this. Adopting this posture as the symbolic basis for a different approach will entail a very difficult acknowledgement of how some of the very institutions and practices which we assumed were part of the struggle against social injustice were themselves, unwittingly perhaps, caught up in those very conditions which sustained systemic injustices.

For the human rights community to take a knee against human rights violations and social injustice will require adopting a far more social and political strategy than has typically been the case for a community in which law has been routinely seen as the most legitimate instrument for realising human rights objectives. Embracing a more overtly social and political approach to defending the norms of human rights will also, necessarily require a far more overt enthusiasm for contributing to and supporting peaceful popular protest as a legitimate and essential instrument for the pursuit of human rights.

That so many people are prepared to take their struggle for social justice onto the streets should be seen as both an entirely legitimate instrument for democratic politicking and as marking a failure of the liberal democratic order to deliver on its promises to people through more conventionally institutionalised means. The human rights community needs to show that it is capable of overcoming the institutional constraints imposed upon it by an order which has allowed so much injustice to grow for so long. Human rights has an opportunity to show that, despite many contrary doubts, it can be an essential and integral element of the causes which so many people are currently struggling to achieve. It is time for the human rights community to take a knee against systemic injustice.

 

ABOUT THE AUTHOR

Andrew Fagan is the Director of the Human Rights Centre, within the School of Law at Essex University and has been a Human Rights Lecturer at Essex since 1998.  Andrew has extensive multi-disciplinary teaching experience and interests, spanning the theory and practice of human rights. His research focuses upon the normative, political and cultural challenges to human rights and he is particularly interested in the contributions which radical philosophies and politics can make to defending human rights against multiple challenges. Andrew has taught and lectured upon human rights across the world; including, Central Asia, East Asia, Europe, South East Asia and North and South America.

 

 

 

 

 

 

 

Black Lives Matter: from global to local – diary of a first-time activist

by Sophie Kabangu

The tragic death of George Floyd had a massive impact on global activism. People all over the world started protesting against police brutality.  Watching it unfold on the news, I realised that there was something different about this protest compared to others I had seen on TV.  I had never been to a protest but was very aware of their importance; protests are the reason we have civil rights, 8-hour workdays, ‘Pride’ and rights for women.

One protest that had a huge impact was the March on Washington in August 1963. At that rally, Martin Luther King delivered the historic “I have a dream” speech,  to promote racial equality in the United States.  It has been recorded that more than 200,000 people attended.  As result of this, President John F. Kennedy introduced the Civil Rights Bill in 1964.  Another powerful protest that had a huge impact on the world was the demonstration to bring down the Berlin Wall.  People throughout Germany protested, mainly peacefully, for two months in 1989.  The security forces were outnumbered by protesters and eventually the wall came down. Throughout history, peaceful and non-peaceful protests have led to change.

March on Washington 1963

As Black Lives Matter protests broke out globally, I felt inspired.  Due to covid19, I was not willing to travel to London to join the protests and I felt that simply sharing Instagram posts was not enough.  My friends were supportive of my idea to have our own small peaceful protest in Colchester.  A graphic design student at Norwich University of the Arts (NUA) created the first of many posters and ‘Black Lives Matter Colchester’ went live in the evening of May 31^st.  By Monday morning, 1^st June, 60 people had clicked that they would be attending my event.

I had many messages from people asking if they could help in anyway.  A Learning and Partnership Manager, working in Nigeria for a UK-based education NGO called Street Child, contacted me through Facebook and was more than happy to help.  He made me aware that the police had to be informed of the event and taught me how to respond to questions professionally.

As it was my first time organising a peaceful protest, I was extremely apprehensive and underestimated the incredible response, on one day spending 14 hours responding to enquiries!  Due to Covid 19 and the lockdown, I was fully aware of the risk to myself and others and predicted that people might not support the decision to protest during a global pandemic.  Despite this, I persisted because I had chosen to stay silent many times before, but I now understand the importance of standing up and at least trying to make a difference in the world.  My number one concern was ensuring that everyone was safe; masks, gloves and hand sanitiser were all essential. I also made it very clear that social distancing would be enforced.   I created a PayPal Account for donations and within the first hour we raised £300 and over the course of the week £2000.  The funds were used to buy PPE and other equipment for the protest such as megaphones and water, with the remainder being donated to ‘Black Lives Matter UK’.

Black Lives Matter Protest Colchester Castle Park 7 June 2020

The original plan for the peaceful protest was to march through Colchester town centre and then have speeches in Castle Park.  However, due to the number of people that said they would be attending, I quickly realised that marching would not be safe and social distancing could not be enforced, so instead we all met in Castle Park.  I led the speeches, followed by other students from the University of Essex, NHS nurses and young black teenagers.   We also chanted in solidarity; “No Justice, No Peace”, “Black Lives Matter” and “Justice for Belly” (In reference to the death of rail worker, Belly Mujinga, from COVID-19 after a ‘spitting attack’).  It was estimated that at least 1400 people attended.

During the days leading up to the protest, I was frequently asked why I felt the need to protest over a murder that happened in the United States.  I went on BBC Essex Radio and was asked if racism happens in Essex specifically.  What many white, British people fail to realise is that racism still happens in the UK and it is ingrained within British culture.  Some British people believe that racism is only a problem in the US.  There are calls for the UK to decolonize its curriculum and not focus solely on a white-washed history of Kings, Queens and wars won.  Racism in the UK is Systemic.

Black Lives Matter Protest Colchester Castle Park 7 June 2020

The UK is not innocent when it comes to issues involving black people; Mark Duggan was shot and killed by police in 2011 and this is just one case where the UK has failed the black community.  In my view, the fact that the statue of slave trader Edward Colston was still standing in 2020 is outrageous.  There are debates about whether or not these statues should be removed, but I struggle to understand why the topic is up for discussion. The fact that there are other statues of slave traders still standing in the UK speaks volumes.

These protests were not just for George Floyd.  People all over the world are demanding change; the way the system works has to change, systematic racism must end, microaggressions must stop, the British education system needs to change.   It is no longer enough to share posts on Instagram and Twitter.  It is time to speak up and be heard.  When teachers and lecturers think its acceptable to use the ‘n-word’ when reading literature and when harmful stereotypes are incited by the media, ‘performative allyship’ such as posting a black square on Instagram, is not enough.  It is important that people sign petitions, donate, write and protest.  It’s important to recognise that this all adds up.  To be silent is to ignore your privilege and stand with the oppressor.

 

ABOUT THE AUTHOR

Sophie Kabangu studies Sociology with Human Rights at the University of Essex.  She is an activist, and has spent the last year working on a campaign with Amnesty International to help homeless people in Colchester.

 

 

50 years on from the Equal Pay Act; the gender pay gap remains

by Isabella Hall

May 29th 2020 marked 50 years since the enactment of the Equal Pay Act; a major victory for the women’s equality movement sparking real hope that discrimination on the basis of gender – at least in the context of earnings – would become a thing of the past. Paying women the same as men for doing similar work seems like a simple concept, but in the 50 years since the landmark legislation, equality has yet to be achieved. Social structures and cultural bias contribute to a substantial difference in the average earnings of men and women, known as the gender pay gap.

 

What is the gender pay gap?

The gender pay gap is commonly misunderstood to simply be the difference men and women are paid for the same job, a misunderstanding which is the main contributor to the denial of the gender pay gap’s existence. However, the factors which contribute to this difference are much less black and white. Men often occupy more senior roles, while women are more likely to stay at lower level jobs for longer. Some may argue that men aim higher than women, that women are better suited in lower paid jobs such as carers or teachers, or that women are more likely than men to work part-time jobs. While these examples may not necessarily result in unlawful discrimination under the Equal Pay Act, they contribute to an environment which is discriminatory and ultimately hinders the progression of women’s equality.

Companies with more than 250 employees in the UK have been legally required to report their gender pay gaps since 2017, and results are made available to view through the government website. While this initiative promotes transparency and is a step in the right direction for closing the gender pay gap, it is not without its problems. The results do not take into account the age of employees, length of employment or difference in job roles. Additionally, it has been reported that one in six employers have made mathematical errors which have created incorrect results, thus distorting the accuracy of the national statistics. Instead of focusing on unreliable percentages, it is necessary to look at the reasons why such a gap exists.

Why do women get paid less?

The most recent report shows that the gender pay gap among all employees is 17.3%. The number one reason for this is that women and men overwhelmingly do not share the same roles. This might suggest there is not an issue: if women and men are not doing the same jobs, why should they get paid the same? However, the reasons why men and women do not work in the same jobs is both the problem and the starting point for identifying possible solutions. Let’s look at three contributing factors in more detail.

Women are less likely to hold senior roles

As of 2019, just 23% of senior officials were women. It is indisputable that senior roles are paid more than junior roles, but in order to effectively contribute to reducing the gender pay gap we must look at the gendered environment which leads to such a low number of women occupying such roles.

Senior roles are earned by years of hard work and availability on behalf of the employee, a position that is much harder to achieve when the responsibility of childcare is placed on women. Maternity leave, part-time roles and required flexibility are all factors which hinder women from earning more senior roles. The burden of childcare often means women are forced to quit working altogether, starting from square one when making a return to the workforce. Additionally, employers’ ‘pregnancy fears’ mean women are often not considered for promotions due to the assumption they will take time off in the future to have children.

Women are more likely to work in lower level jobs

The majority of women work in jobs which are related to traditional family roles such as caring, teaching, cleaning and catering; 79% of health and social work and 70% of education jobs are held by women. Teaching and nursing are often regarded as more ‘feminine’ and therefore better suited to women, and lower paid jobs often offer the flexibility required to balance raising children with undertaking work. Caring, catering and educational jobs lack progressive opportunities even if the level of availability and commitment needed is attained.

The issue of women overwhelmingly working in lower level jobs starts before entering the workforce; the narrative is often created while still in education. Stereotypes play a part in the educational choices girls and boys make in secondary school. Girls are more likely to choose subjects such as humanities, arts and healthcare, while boys tend to lean towards sciences, engineering and maths. These gender stereotyped expectations create a vicious cycle; boys and girls are less likely to choose an educational field which is overwhelmingly occupied by the opposite sex, thus not contributing to the diversification in such fields.

Women are more likely to work part time

40% of women in employment work part time, compared to just 13% of men, with the primary reason being the responsibility of childcare being on the woman.   Jobs such as teaching, catering, cleaning and caring are more likely to be flexible enough to accommodate the demands of childcare. Working part time also means that employees are less likely to achieve pay rises compared to their full time counterparts, yet another factor contributing to the gender pay gap.

 

What can be done to reduce the gender pay gap?

In the 50 years since employers were banned from paying men and women differently for working the same job, disparity still remains.  So what can be done to tackle the issue?

• While gender pay gap reporting is beneficial, it is not the perfect answer and should be improved to include all relevant factors, such as length of employment and age of employees. The effectiveness and accuracy of reporting should be diligently monitored to ensure full transparency, and eradicate the potential of mathematically impossible

 

• Prejudice in promotion and recruitment processes should be reduced in order to encourage and accommodate women in achieving senior roles. Women should be given the same opportunity to attain senior roles as men, regardless of whether they have children or not. Processes could be made transparent and unbiased by creating gender-neutral job advertisements, diverse employment panels and de-identifying CVs.

 

• Tackling gender stereotypes in secondary schools will encourage girls to study in subjects which may lead to higher paid jobs, such as maths, science, computing and engineering. Focusing on educational choices will inevitably increase gender equality in all job industries, and encourage boys to work in sectors traditionally seen as more ‘feminine’ by society.

 

• The main focus to effectively erase the gender pay gap should be ensuring flexibility in all job types and encouraging shared childcare responsibilities. Men should feel able to work part time and take on more of a caring role without being stigmatised by society or employers. All jobs – in any industry, no matter how senior – should offer flexibility to ensure women (and men) have the opportunity to meet their full potential without negatively impacting the decision to have a family.

 

There is no doubt that women have become more equal since the Equal Pay Act 1970, both with regards to cultural stereotypes and in employment. However, we must not overlook the gender pay gap and its obstruction to effective and complete gender equality. Improving attitudes surrounding childcare and education could be the key to tackling the issue of the gender pay gap.

 

ABOUT THE AUTHOR

Isabella Hall is an LLB graduate from Oxford Brookes University and is currently pursuing an LLM in International Human Rights Law from the University of Essex. Her areas of interest include refugee and women’s rights, with a particular focus on gender based violence.

Time for a Rights-Based Welfare State

by Rossella De Falco

Towards a more resilient economy after the COVID-19 global pandemic

The UN Special Rapporteur on extreme poverty and human rights has recently blamed austerity for weakening the resilience of societies in the face of shocks like the COVID-19 pandemic. The newly appointed Olivier De Schutter underlines how individuals are experiencing increased barriers in accessing healthcare as a result of regressive fiscal policies.   Indeed, even relatively robust healthcare systems, such as those of Italy and Spain, have been pushed to the brink after years of budget cuts.

De Schutter’s predecessor, Philip Alston, also denounced spiralling levels of hardship and material deprivation in the UK in the aftermath of the 2008’s global financial crisis. During his country visit, Alston depicted the lives of individuals depending on food banks and charities for their next meals, disabled people who were being told to go back to work against their doctors’ orders, as well as children growing up in poverty. Notwithstanding such appalling evidence, George Osborne, the main architect of fiscal retrenchment in the UK, is already calling for another period of belt-tightening to deal with the fiscal damage wrought by the coronavirus lock-down. However, is cutting social spending the only fiscal option available to governments at times of economic crisis?

The answer is no. Restructuring sovereign debt can, and must, be achieved in line with international human rights law. Technically, what is usually labelled as austerity is a pro-cyclical fiscal measure, which means reducing a state’s deficit by either raising revenues (increasing taxes) or decreasing spending (cutting public budgets) during a negative fluctuation in the business cycle. This explains the term pro-cyclical: as GDP growth turns negative, pro-cyclical politicians depress the economy even further by cutting the debt maturated during periods of prosperity.

Typical austerity measures implemented by governments around the world have encompassed eliminating subsidies on fuel, food or agriculture, rationalizing and narrow-targeting social safety nets, large-scale privatisation, tax increases on basic goods and services purchased by low or middle-income groups (instead of wealth and capital) as well as labour, healthcare and pension reforms. An exceptionally bleak example of these measures was Greece. The Southern European nation accepted the Troika’s international bailout programme, whose economic conditionalities included draconian budget cuts, with concerning implications for the rights to health, social security and work. As a result, Greece faced a public health emergency, with malaria outbreaks, peaks in suicides and mood disorders, an HIV epidemic, widened health inequalities and a severe deterioration in the underlying determinants of physical and mental health.

While implemented at immense human cost, austerity did not even achieve its aims. Nobel-winning economists such as Joseph Stiglitz and Paul Krugman had tried to stop governments from applying austerity, calling it an “utter disaster”, a “suicide pact” and “a delusion”. Indeed, the International Labour Organization (ILO) calculated that spending cuts at times of crisis, far from stabilising the economy, generated more unemployment and depressed output in the long-term. Even the main supporter of austerity, the International Monetary Fund (IMF), recognized that fiscal consolidation was associated with lower growth than expected, due to an overestimation of fiscal multipliers, with the IMF’s former director, Christine Lagarde, declaring that the Fund misjudged the capacity of societies worldwide to absorb such ‘tough, frontal treatments’. Hence, the enactment of austerity worldwide after the 2008’s recession remains a conundrum. However, many suggest that austerity policies were nothing more than a by-product of neoliberal economic thinking, embodying a deliberate assault on universalism that prioritise free-markets over human rights. This is bewildering, as the crisis precisely resulted from the long-term shortcomings of unregulated financial markets, including mismanagement, corruption, as well as lack of transparency and accountability.

A rights-based approach to economic recovery can prevent another global backsliding in human rights, saving lives and placing people at the centre. Instead of austerity, governments can apply stimulus, embracing a counter-cyclical approach to fiscal policy. This has already happened, and it worked, in Iceland. According to The Economist, Iceland’s banking collapse was the hugest, relative to the size of an economy, that any country had ever suffered. Indeed, Iceland was particularly vulnerable to financial shocks after it reinvented itself as an offshore tax heaven for the world’s ultra-rich in the mid-1990s. Thus, Iceland considered IMF’s offer to apply an international bailout programme, absorbing private debt and cutting social spending. However, this galvanised public outrage and prompted several riots. As a result, in March 2010, a country-wide referendum was held, and Icelanders said “Nei!” – no in Icelandic – to austerity.

After rejecting the bailout, Iceland implemented a modern-day equivalent of the New Deal, boosting labour market programmes. This allowed the unemployed to get back to work and generate new income, which, in turn, stimulated aggregate demand. In the meanwhile, social spending rose from 21% to 25% of GDP over 2007-9, preserving pensions, social safety nets and universal healthcare. To shelter the most vulnerable groups, the Icelandic government also implemented debt relief programmes. As a result, the country achieved swift economic recovery and kept its position among the happiest nations in the world. None of the nightmares predicted by the staunchest austerity hawks came true. Bearing this lesson in mind, we can now turn to the upcoming crisis, with its own peculiarities.

Luckily, many in current global policy-making circles are supporting government intervention and spending to fight the virus slump. A rights-based approach to fiscal policy, matured after a long normative evolution, can now be brought to fruition. In addition to fiscal stimulus, debt restructuring and debt forgiveness should be carried out where needed, with the IMF and World Bank-proposed debt moratorium for the poorest countries being the first step. By the same token, the Costa Rican government has asked the World Health Organization (WHO) to create an intellectual property pool for sharing patents as to develop coronavirus vaccines and diagnostics. Furthermore, governments can invest in high-return public investment, build fairer progressive taxation systems, lift levies on wealth and capital, as well as combat corruption, tax evasion and illicit financial flows.

Even more ambitiously, states can reduce military spending and decrease corporate welfare. Before any reform, ex-ante human rights impact assessments (HRIAs) should evaluate the effects of policies on relevant stakeholders. In line with the recent UN Guiding Principles on Human Rights Impact Assessments of Economic Reforms (2019), a recovery policy that results in human rights backsliding can be pursued only after all other alternatives have been exhausted, and it must be temporary, legitimate, reasonable, necessary, proportionate, non-discriminatory and protective of minimum essential levels of need. Noteworthily, although human rights law does not dictate which economic system states should take, it demands strong procedural requirements on democratic participation, as to guarantee human rights in all policies.

A rights-based approach to public policy, however, cannot focus only on economic dips. The COVID-19 crisis is showing how universal healthcare and social protection floors save lives and make economies resilient. Therefore, socioeconomic systems that fulfil human rights are not only in line with international law; they are also economically feasible, sustainable and resistant to shocks. Neoliberalism is not the only economic theory: feminist, ecological, neo-Keynesian, innovation and public value economics are only some of the alternative views on how to arrange societies. Indeed, the traditional Manichean opposition between human rights and economics can be overcome through economic pluralism and democratic participation in policymaking. It is time to attain a  rights-based welfare state, placing people’s interests at the centre.

 

ABOUT THE AUTHOR

Rossella De Falco is a social scientist interested in advancing human rights.  She holds an LL.M. in Economic, Social and Cultural Rights from the University of Essex and an M.A. in International Affairs from the Johns Hopkins University, School of Advanced International Studies (SAIS).  She is currently a Ph.D. Candidate in ‘Human Rights, Society and Multi-Level Governance’ at the University of Padova, Human Rights Centre ‘A. Papisca’.  Her thesis investigates the relationship between fiscal policies and the right to health in Europe after the 2008 global recession.

 

Proposed amendments to the Human Rights Act to disadvantage UK war crimes victims

by Alexandra Fowler (first published on Oxford Human Rights Hub)

On 18 March 2020, the UK Minister for Defence introduced into the UK Parliament his promised package of new legislation designed to ‘protect veterans’. Entitled the Overseas Operations (Service Personnel and Veterans) Bill, the proposed laws would amend the UK’s Human Rights Act 1998 (HRA) in ways that impact on its human rights obligations, including under the European Convention on Human Rights (ECHR).

Civil Claims by Victims in UK Courts

Civil claims for compensation in UK courts for death, abuse and other mistreatment amounting to war crimes can be brought in two ways; the first is an action in UK common law for the tort of assault and/or battery.  The second avenue is that under the Human Rights Act 1998, which was enacted to give effect to the UK’s obligations under the ECHR. Importantly for victims, Article 13 of the ECHR (see HRA ss6-8) requires a member State to grant an effective remedy (often monetary compensation) for violations of protected rights. The HRA/ECHR regime applies in whichever territory the UK exercises sufficient authority and control (jurisdiction), and this can occur outside EU territory (Al-Skeini). While time limitations may operate to refuse civil redress in tort, an HRA claim can still be upheld, such as in Alseran (2017).

Against this background, the Bill’s Section 11 proposes to insert a new provision (s7A) in the HRA which imposes a maximum of six years’ time limit (or 12 months from the date that the victim knew or ought to have known that the alleged violation was committed by UK troops) for bringing civil claims under the HRA in connection with overseas operations. Although this appears to bring things in line with the time period for personal injury claims under the Limitation Act 1980, the provision is troublesome because in recent conflicts in which the UK has been involved war crimes victims already face substantial difficulties in making claims. As in Alseran, many if not most victims have been prevented by both the local law and by logistics from making claims until long after the alleged abuse took place, often significantly more than six years. The existing HRA requires courts to take such factors into account in deciding whether the claim has been improperly delayed.  The new Bill will take this discretion away, resulting in most, if not all, of the remaining claims from Iraq and Afghanistan being time barred, and future claims running the risk of being so too.

Is a Time Bar consistent with UK Obligations under the ECHR?

Is the time bar restriction in the new Bill consistent with the right to a remedy stipulated in Article 13 of the ECHR? Much of the European Court’s caseload deals with unreasonable delays in obtaining a remedy, and the Committee of Ministers has accepted that deadlines within national systems to accelerate or conclude investigations and/or the judicial process are legitimate (see Rec(2004)6 on the improvement of domestic remedies). Given the provisions in the Bill, many alleged victims will probably find that a judicial remedy is not available by the time they finally lodge a claim, but it is true that on the face of the law an opportunity has been given for a remedy in the courts.

Of course, remedies need not be judicial. The UK operated an extensive system of administrative remedies over the years of its involvement in Iraq, and its Ministry of Defence paid nearly 1500 claims totalling almost £22 million in compensation for war crimes over the period 2003/4 – 2016/7.  In addition, over 4500 claims from Afghan civilians had been made, up until 2015, resulting in out-of-court payments of estimated £5.3 million.

If this Bill is enacted, the operation of a credible administrative compensation mechanism will be essential to avoid potential liability for breaches of ECHR Article 13. Even so, it sends a very detrimental signal to the world about the UK’s commitment to justice and human rights.

 

ABOUT THE AUTHOR

Dr Alexandra Fowler is a specialist in public international law at the University of Westminster, London. She holds a Doctor of Juridical Studies from the University of Sydney, and has taught international law and constitutional law at a number of Australian universities.  Her research interests include victim compensation in international humanitarian law, international human rights and international criminal law, and transitional justice;

Wellbeing is political… experiencing ‘social shock’

by Caroline Bald, lecturer and researcher in the Centre for Social Work and Social Justice, University of Essex 

The sheer speed at which the Covid-19 pandemic has changed our daily lives, bringing with it a new language and daily routine, is of a scale an elderly neighbour, whom I’ve waved to many times but still don’t know by name, considers only akin to his childhood experience during the Second World War, where even then “we could hear the bombs.”  The otherworldliness hit when returning to this blogpost after only a matter of days.  So many have moved to online communication for the first time;  workspaces hastily put together;  empty streets and marked out queues at shops.

Coronavirus has in ways never before in our lifetime highlighted wellbeing and health as a political issue. One might call it the phenomenon of ‘capitalism meets coronavirus’.  Many sit down each evening to hear the British Prime Minister speak in words unheard of just a few weeks ago.  Some, meanwhile, are profiteering in a newly opened market.  Events of the last week have helped to reinforce my view that wellbeing is indeed political and always has been (Bache and Scott, 2017).  The crisis is forcing many, for the first time, to reflect on what previously was taken for granted: access to food, shelter, money and services, reinforcing Maslow’s hierarchy of needs.

 

This article is an attempt to capture and reflect on wellbeing narratives in this historically significant moment, as I venture to ask if we are seeing a collective sea change as a form of ‘social shock’ or a “paradise built in hell”, or is this neoliberal business as usual, with a new face?

 

Wellbeing as a public discourse

In an age of identity politics, resilience is considered a key characteristic, with the ability to bounce back forming a pervasive discourse.  My research has explored wellbeing as a discourse, related to power and privilege.  Never before, in my experience, has wellbeing and collectivity been quite so foremost in discussion and in the media.  Our new-found shared socialism, such as the ‘volunteer army’, supporting the NHS, or the national #clapforcarers campaign, at first glance, appears encouraging.  However, the new language of wellbeing is unsettling; from ‘herd immunity’ to ‘social distancing’ to ‘lockdown’.  It is the language of war and science, with models and mobilisation being presented alongside talk by a Chancellor for whom party political rhetoric now seems a world away.   The unseen Covid-19 virus has become a common enemy, while questions remain about where it came from, and how to ‘turn the tide’ against it.

Workers, who just a few weeks ago were labelled ‘unskilled’, are now heroes, and hotels have given the homeless shelter, with any businesses involved in pandemic profiteering being rejected and policed.  The Government has pledged help for businesses and the self-employed, and following an online campaign, free parking is now being provided for NHS staff, and there are reports of the Government challenging Travelodge’s decision to evict vulnerable homeless families.  Yet still, while it may appear that there is a new age of compassion, there is a need to pause and consider whether change this sudden can last.

When previously presenting on wellbeing, I was often met with attempts to ‘psychologise’ or ‘medicalise’ the subject.  At one point, I advocated taking the ‘woolly out of wellbeing’ after discussions settled on problematising, if not at times even ‘weaponising’, wellbeing from what was essentially an intention that a ‘good life’ should be grounded in human rights.  What constitutes a good life has been the source of debate through the ages, largely centring on individual liberty and collective responsibility, and politics too may be most commonly understood as party political with a dualism between individualism and collectivism.  What we are bearing witness to now is a blurring of political lines and the spectacle of a Conservative Chancellor of the Exchequer using the policies of socialism alongside the language of compassion and kindness.

Reflecting on the right to a social life as fundamental to wellbeing, it is interesting to note that the terms ‘self-isolation’ and ‘social distancing’, may appear to be concepts attached to this current pandemic, but in fact are nothing new.  There has been much discussion in recent years of isolation as a real danger to mental health, with evidence to suggest that loneliness, particularly among the elderly, can kill.  Yet in the last fortnight we have been presented with ‘social distancing’ as a measure that will save lives.  Supermarkets are trialling ‘golden hours’ where vulnerable and older adults, and now NHS staff are able to ‘shop safely’, with the intention of offering them access to products at a time when food supply has never been more challenged.  This also brings with it, however, the concern that supermarkets may become ‘superspreader’ hives of infection, putting essential workers and the vulnerable at risk.

 

Balancing rights with emergency legislative measures

The Coronavirus Act 2020 came into force last week, bringing with it sweeping changes to liberty and collective responsibility.  The necessary speed of the legislative process serves to illustrate what certainly is a time of exceptional circumstance.  However, human rights experts have raised concerns about the breadth of the legislation’s impact.  In addition to the Act giving police greater authority, such as being able to ‘stop and disperse’,  Section 14 (1) of the Act removes the duty on Local Authorities to assess and provide care needs for adults, many of whom will be elderly and from the very groups that the current focus is on protecting.  In the space of just a few months,  wellbeing public policy has shifted from paternalism to patronism to preservation, all to be in place for the next two years, conceding a late challenge from opposition parties to allow for six monthly reviews.

 

Wellbeing and work

The nexus of wellbeing and work has been seen in the public debate about how best to manage the risk to health and wealth.    The current public health narrative of ‘stay safe/stay home’ contrasts with the established ‘wealth before health’ narrative of neoliberal policy, evident in the Government’s initial response to the crisis, which resulted in criticism of the ‘herd immunity’ strategy, and its implications for the vulnerable.  Richard Branson’s request for government help for the airlines prompted a swell of opinion against the billionaire, whose firm announced all staff must take two month’s unpaid leave, highlighting the tension between public and privately held wealth.  And while social gatherings are being dispersed by police, some workers face corporate policies forcing them to risk their health to attend work or lose their income.

As academics we have moved quickly to remote, online working without necessarily considering this as a blurring of the personal and professional.  Increased working in the virtual space has also expanded and enriched opportunities for data harvesting, with the Cambridge Analytica scandal long forgotten.  There are increasing concerns about the loosening of general data protection regulation (GDPR), including the apparent unquestioned move to online resources, like Zoom, a platform the Ministry of Defence now no longer uses, due to security risks.  In the understandable haste to respond, firm boundaries have become fluid, including emergency registration for health and care professionals, possible relaxation of disclosure and barring service (DBS) checks for volunteers and early release from prison.

 

The inequality of wellbeing

Finally, it is important to reflect on the inequality of wellbeing, particularly now.  From the recent ‘Imagine’ Gal Gadot-led penthouse sing-a-long to the wave of personalised emails from big business CEOs, assuring that the wellbeing of their staff is paramount.  What about those on zero-hour contracts or working in sweatshops?  These issues still remain and the plight of those workers is only deepened by this crisis.  The U.S. has reported a sharp increase in gun sales, with queues that paradoxically respect social distancing practices.  Lord Price, former CEO of Waitrose, recommended a relaxation of limits to the number of driving hours to assist with fulfilment of deliveries.  Many are now collating a list of those companies who have responded economically, though not necessarily ethically.

All this has led me to consider whether wellbeing will continue to be collectively understood as political.  I truly hope so, but I suspect business will need a little help to overcome this ‘shock’ into being ‘social’.  After the crisis is over, will health continue to be recognised as trumping wealth?  Will we remember the NHS heroes once the dust settles?  We are seeing the positive impact on the natural world with CO2 emissions declining in China, the ‘Amazonian effect’ being widened as nature ‘fights’ back.  Our right to wellbeing, unharmed by air pollution, policing excesses, street-level bureaucracy or enforced isolation remains paramount.  I ask in the coming months we stay safe, we stay ‘virtually’ social and we reflect on how wealth before health has not served human rights well.

 

ABOUT THE AUTHOR

Caroline Bald is a criminal justice social worker,  post-graduate research student, lecturer and researcher in the Centre for Social Work and Social Justice and Programme Lead for the Masters in Social Work and Human Rights.  Caroline is currently researching how students make sense of wellbeing in social work education with a view to informing care profession critical pedagogy.  As a critical theorist, she writes about social work education and criminal justice practice.  Caroline runs a ‘TwitterChat’ for social work academics and students every Thursday 7-8pm GMT for resources, collaboration and activism #SWjoinin