Tag Archives: European Union

How to restore the lack of trust

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“The self-preservation society”. Today’s European Union (#Brexit) referendum has exposed deep issues of mistrust 

One of my favourite films growing up was “The Italian Job”. Not the horrible Hollywood makeover but the 1969 British original. A bunch of plucky mainly cockney criminals robbing an Italian bank in Turin and then attempting to escape over the Alps into Switzerland. Criminals yes, but with a touch of Robin Hood. There is something in every British soul that identifies with the under dog even if the film ends with Michael Caine and the other crooks trapped in a bus on the edge of a precipice. They end with the dilemma: should we edge forward to try and collect the gold or retreat safely but let the gold fall. It sounds a bit like today’s referendum.

Whichever way the UK’s EU referendum goes today (and I very much hope we remain in the European Union), the “leave campaign” has been remarkably successful. Led by some of the most privileged people in British public life, they have been able to portray themselves as the under dogs. Today’s vote is very much a vote against the perceived establishment (or establishments). Just about every British organisation (political parties, businesses, trade unions, NGOs, international organisations, global experts) are for “Remain” and yet around 50% of the population will vote against their advice. The more the Remain side marshall a serious organisation to speak, the more it seems to strengthen the “Leave” campaign.

The real revelation of the campaign then has been the depth of this distrust of officialdom within large sections of the population. This seems to have built slowly over many years- in part the result of the 2008 financial crisis but also the wider effects of globalisation felt everywhere in the world: widening the gaps in society between those that benefit and those who do not. Think only of how the Bernie Sanders or Donald Trump campaigns in the USA have exploited this. In the UK, the Leave campaign has been able to tap into this distrust against the elites even though it is a campaign run by an elite of its own. If “Remain” wins today’s referendum – this distrust will not go away, if “Leave” wins the distrust is likely to grow when the disaffected see that the promises made on trade, expenditure and immigration cannot be met.

The irony is that the leaders of both sides of the debate, David Cameron and Boris Johnson, both went to the same elite private school and university – and have been debating room rivals for many years. It seems that their private views on the EU are almost identical – they have (for reasons of political power) picked opposing sides of the debate – as any private school debating society does. The problem is the consequences of this petty rivalry will be profound, not just for the UK but also for the rest of Europe. Perhaps this is just the British way – to follow ‘our betters’ – the fictional Robin Hood himself was no man of the people in most versions of the story, rather he was an Earl looking to reclaim his status. Those that really try to push ideas that will change the lives of working people, such as Thomas Paine, tended to get exiled for sedition and forgotten by many British people – he is more remembered for his role in the French revolution or the US War of Independence.

But the referendum has revealed a deep mistrust in all types of organisation that needs to be rebuilt. This requires some serious thinking. As I debated on the BBC’s Moral Maze a couple of weeks ago – we need to understand the new forms of social contract that are developing in our societies and each organisation needs to be clear about how it relates to specific communities and where its accountability lies. Legal licence to operate is no longer sufficient for business and political licence is no longer sufficient for governments – both need also to develop their social licence. Yes, OK, I have written a book on this (yawn), but now is the time for some though questions about legitimacy, trust and consent whichever way the referendum result goes tonight. Sitting in a bus on the edge of a precipice is not a sustainable option.

δημοκρατία: Democracy remains a Greek word

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Are referenda back in fashion?

The quip or blunder about whether or not the French know the meaning of the word “entrepreneur” is often attributed to George W. Bush (like so much else). By comparison, there can be less ambiguity about whether “democracy” is still a Greek word – especially after the result of last Sunday’s referendum.  European heads of state will meet tomorrow (12 July) in Brussels to negotiate over whether Greece remains in the Eurozone. Last Sunday’s referendum gave the Greek Prime Minister, Alexis Tsipras, the political capital he needed to gain the backing of the Greek parliament last night – having delivered a decisive “No” (60%) to the previous terms from Eurozone. 12 hours ago, the Athens Parliament gave Tsipras the authority to negotiate a new bailout by 250 votes to 32. Such a mandate would have been inconceivable only a week ago.

It is still anyones guess whether tomorrow will see the emergence of any new bailout offer between the Eurozone and Greece, or even whether it is in either’s interests to do so. But the referendum has unquestionably given Tsipras much greater authority – strengthening his social contract with the Greek people. The referendum was a gamble, but clearly one worth taking whatever the outcome of the bailout negotiations and Greece’s future in the Eurozone or even European Union. A deal that Tsipras could never have sold back at home would have been in no one’s interests, so the referendum is actually in the interests of his country’s creditors too – even if they did not express this sentiment at the time.

There have been plenty of other referenda in Europe over recent years, one of the most recent, before the Greek vote, being Scotland’s 2014 vote on whether it remained part of the United Kingdom (the Catalonian unofficial referendum a few months later was not recognised by the Madrid government). Recently the UK Government has confirmed that another referendum will be held in the next two years, this time about the UK’s ongoing membership of the European Union. Previously, Scandinavian countries have had referenda about whether or not to join the European Union (EU), and Ireland, France and the Netherlands have also held referenda on specific EU treaty requirements. Sometimes referenda have led to de facto changes in international boundaries – such as those in Kosovo in 1991 or Crimea in 2014 – or to legitimise existing territorial claims – such as in the Falkland Islands in 2013. In countries where referenda are a regular occurrence, such as Switzerland, they seem to be becoming more frequent with up to 10 a year now; likewise in many US states such as California and Arizona.

There are two schools of thought. Those following the social contract theories of Locke or Rousseau tend to see them as a valuable extension of democracy – in fact Rousseau’s ideal “Republic” would have a referendum on every issue (each of us would be so well informed that we could vote before coffee each morning). Others despise them, such as the former British politician and European Commissioner, Chris Patten, who stated in an interview:

“I think referendums are awful. The late and great Julian Critchley used to say that, not very surprisingly, they were the favourite form of plebiscitary democracy of Mussolini and Hitler. They undermine Westminster. What they ensure, as we saw in the last election, is if you have a referendum on an issue politicians during an election campaign say oh we’re not going to talk about that, we don’t need to talk about that, that’s all for the referendum. So during the last election campaign the Euro was hardly debated. I think referendums are fundamentally anti-democratic in our system and I wouldn’t have anything to do with them. On the whole, governments only concede them when governments are weak.”

It should be noted that Chris Patten was also Britain’s last Governor to Hong Kong which was returned to China in 1997 – without a referendum. One can expect him to have strong feelings on the subject, as do many residents in Hong Kong to this day as it happens (as demonstrated during the 2014 protests). It is true that referenda have been the ally of despots to legitimise their annexation of territory but perhaps there is now more evidence, over recent years, that referenda are becoming part of the social licence of democratically elected and accountable governments – winning an election every four or five years is essential but not always sufficient when it comes to major issues of identity or self-determination. The important caveat, and it is an important one, is that law matters and when referenda run against the fundamental values of a nation, then constitutional courts can override such popular expression – as we have seen in the USA on the issue of gay marriage.

So, referenda are no silver bullet, but perhaps they are making a come back as an essential addition to the legitimacy of governments. Perhaps Rousseau was right all along.

Why don’t we love the European Convention on Human Rights?

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This is a question to ask anyone on the continent of Europe, from the West Coast of Ireland to the Ural Mountains. The European Convention on Human Rights (ECHR), and its Court in Strasbourg, owes nothing to the European Union for its existence as it was created immediately after the Second World War and has 47 member states, including Russia, Turkey and the Caucuses (in fact every county apart from Belarus). The Council of Europe, which oversees the European Convention and the Court, was inspired by Winston Churchill (the UK’s wartime leader) who believed that political union based on core values was essential to prevent future European wars.

It is therefore perhaps surprising that the 2015 manifesto commitment of the recently elected UK Government is to scrap the UK’s Human Rights Act that incorporates the ECHR into law. The ECHR was very much a Conservative Party creation, drafted under the guidance of David Maxwell-Fyfe in the late 1940s, a politician who was to go on to become the UK’s Lord Chancellor. So why are we here?

Human rights are rarely popular

Human rights are not usually a vote winner, in particular when we consider their legal aspects. Perhaps this is because most legal cases relate to specific (often marginalised) individuals and not the majority. When the majority does benefit through policy changes, such as child protection, gender equality, care of the elderly, personal security, education, health and so on, these are rarely regarded as human rights issues (which in fact they are). In the UK, the debate about the much-cherished National Health Service is rarely framed within the terms of the “right to health” and the UK’s commitments under the United Nations Covenant on Economic, Social and Cultural Rights.

The legal cases that have been taken to the Strasbourg Court have been much more associated with the civil and political rights of individuals including prisoners, asylum-seekers, suspected terrorists and so on. Tabloid newspapers have long had a field day on such issues – resulting in many to comment “what about my human rights?” The fact human rights law defends sometimes unpopular minorities for reasons of legal precedent (they are the “canaries in the coal mine”) is rarely explained to non-lawyers (and I am no lawyer). Given the lack of public awareness, some might argue that a debate about a “British Bill of Rights” in the place of the ECHR might be a good thing – to engage the wider public. However, there are a number of important reasons why this might not be the case.

A British Bill of Rights?

At first glance it sounds rather nice: evoking the 800 years legacy of the Magna Carta and all that. But the debate about what should be in such a Bill of Rights will be fierce and might well surprise some of its supporters. Our commitments to human rights within the United Nations are now far more expansive than under the ECHR – including economic, social and cultural rights and more recently the recognition that business too have a direct responsibility to respect human rights. If all of these human rights are to be strengthened under UK law – fantastic – but is this what the Government wants? Will we be litigating to protect rights within the education system, healthcare, water provision or the indignity of food banks?

The UK is generally serious about its United Nations human rights commitments and its place at the top table in New York and Geneva – in particular its permanent seat on the Security Council. Therefore it would be hard to ignore the full range of internationally recognized human rights if the process is to be reopened? If, however, a British Bill of Rights were to be restricted to civil and political rights only, it is likely to be a near carbon copy of the existing UK human rights legislation unless we were to leave the European Court and the Council of Europe altogether. I believe that leaving the ECHR would have very serious international consequences as set out below.

It is also important to note that Scotland, Wales and Northern Ireland are likely to take a very different view on such a British Bill of Rights. Both Northern Ireland and Scotland have their own Human Rights Commissions aligned to the ECHR – they might want no part of a British Bill of Rights that was not fully aligned to the ECHR (and therefore what is the point of replacing the existing UK Human Rights Act?). Does the government really want to provoke such discord at the very time it is trying to keep the Union together? In many ways what is being proposed is actually an English Bill of Rights and not a British one – suddenly it doesn’t sound so compelling. Should the English have fewer human rights than the Scottish, or vice versa?

Leaving the European Court on Human Rights?

It might well be the case that the problem some British politicians have with the ECHR are not the rights themselves, but the lengthy delays involved in cases and (in the case of the right of prisoners to vote) decisions that offend political sensibilities. Occasionally frustrating government ministers is the job of any human rights court, and what is rarely reported in the UK press is how the European Court offends such sensibilities in Moscow, Budapest or Ankara too. The UK leaving the ECHR would send a very clear message to other politicians in every capital across 47 countries (not all of which have outstanding records on human rights) that the days of accommodating the opinion of a court beyond their borders is over? I feel for the British Ambassador in any of these capitals when he or she has to explain this to local human rights defenders, and I worry very much for all those risking their lives for freedom everywhere as the ECHR is also much admired model for those working to developing the capacity of their regional human rights courts in Africa or the Americas.

Citizens within the UK would also be stripped of their ability to petition beyond this country for justice. If we assume that the legal systems of the UK are flawless then fine, but I have yet to meet a British judge who believes this to be the case. Some countries allow their citizens to petition under United Nations human rights conventions but the UK has signed very few of the optional protocols that allow for this. I have heard nothing to indicate that the UK would allow for this as part of such a British Bill of Rights.

Finally, it is worth adding that although the Council of Europe is nothing directly to do with the European Union (which was set up later has far fewer member states), the EU has endorsed the ECHR and recognizing the ECHR is now essential for all EU members. This includes the work of the EU’s External Action Service around the world as well as the internal role of the Fundamental Rights Agency in Vienna. Any plan to revoke the UK’s recognition of the ECHR would play directly into its forthcoming referendum on EU membership.

Where do we go from here?

As is often said at such moments, no one would choose to start from here. The UK Government is right to demand greater efficiencies and clarity from the Strasbourg Court process – as the Brighton Declaration suggested (during the UK’s turn as Chair of the Council of Europe in 2012).

A public debate on the value of human rights law is also welcome as well as the nature of the UK’s international commitments. The challenge will be that an a priori commitment to revoking the UK Human Rights Act might raise the expectations of those hoping the UK will step away from some of its wider human rights obligations – something no internationally responsible democratic Government is likely to do. The debate about a British Bill of Rights might, therefore, waste a lot of time, energy and money if we end up very much where we started in a couple of years time. Worse than that, unless handled with extreme care, the debate might alienate further democrats and civil society in Northern Ireland, Scotland and Wales – and send a very perverse message to other governments around the world less committed to human rights.

We are where we are, and so we must all hope for some level headed and inclusive discussions that really do put human rights in their full context and what is at stake for both British interests but also human rights defenders worldwide. If the UK (or just England) were to leave the ECHR it might not affect the lives of most British people directly in the short-term unless you are unlucky enough to have your fundamental human rights put at risk over the years ahead. But it would have an immediate impact on this country’s international relations and the wellbeing of vulnerable communities across Europe and around the world, as well as integrity of the component parts of the United Kingdom. I know that Government ministers want what is best for this country and so they need to proceed very carefully now the genie is out of the bottle. This too at a time when the UK Anti-Bribery Act and the UK Modern Day Slavery Act set new benchmarks for how our Government, companies and charities must behave around the world in accordance with international standards.

For those of you reading this commentary outside of the UK, perhaps it resonates with your own national discussions. If not now, it might well over the months ahead as discourse in the UK might embolden those who see little value in Churchill’s legacy and the post war social contract.

Immigration – more than a numbers game

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The UK election will be decided in less than three weeks and immigration is indeed one of the main issues  as it has been in many other European countries. Whilst the party leaders will debate the UK’s membership of the European Union, none has so far mentioned the two airplane loads of passengers washing up dead on the European coast this week alone. Let me rephrase this. The equivalent of two plane loads of irregular migrants assumed dead in capsized boats trying to make the Italian coast from Libya in the past week. If they had been airline crashes then the media coverage would have been tenfold greater. But they are not plane  passengers, they are nothing more than “clandestinos” and supporting their rights wins few votes. Perhaps the biggest moral issue for Europeans in this generation is rarely a central political concern, particularly to those in the North and West of Europe far from the Mediterranean. When agreement is reached, it is often perverse – such as ending support for Italy’s “mare nostrum” humanitarian interventions for fear that it just attracts more migrants.

However, political debates about immigration are not really about numbers. How does any society decide it has enough migrants? About 9% of the UK’s population is foreign born, whilst in Australia or Switzerland it is 24% and it is over 80% in the United Arab Emirates or Qatar. How to know when enough is enough? It is very hard for host populations to make objective decisions about this, so too their politicians. One common factor for most of these countries is that it is the localities within them with the lowest percentage of immigrants that are often the most anti-immigrant in sentiment. So perhaps it is not about numbers at all, but about the perception of those numbers, about qualitative and not quantitative issues. The target to reduce net immigration to the UK by the current coalition government to 100,000 was all but abandoned last year – so perhaps mainstream British politicians are also realizing this.

Immigration debates then become more meaningful when they are about qualitative issues. Sometimes this can raise tough questions about cultural identity and religion – some of which we discussed in the aftermath of the Charlie Hebdo attack in Paris in January. These can be uncomfortable and challenging discussions but they are what the immigration debate in Europe is really about (but in code), not about the numbers. At its essence is the clash between those that believe Europe should remain predominately white and of Christian heritage and others who see Europe as part of an interconnected world united by a set of universal values but not a set of religious beliefs or a shared bloodline. Those of you who read my blogs know what side of this discussion I am unambiguously on – but it is where the debate really is. In fact it is less and less about immigration at all, as each of cultural identities is beginning to become independent from where in the world any of us are born.

On a more positive note, some British politicians are taking a much smarter position of immigration – linking it more to abuse and exploitation than to numbers. It is an undoubted fact, that some immigrants coming to the UK (in particular those entering illegally) are vulnerable to considerable exploitation in the labour market. This came to prominence in 2004 when 23 Chinese workers drowned whilst picking seashells in the North of England and the issue of unregulated third party labour providers came into focus. The Gangmasters Licensing Authority, which now regulates the role of labour providers in UK agriculture, horticulture and shellfish farming, is a very important step towards ending labour market exploitation. Fundamentally, it focuses on ending exploitation not just for foreign-born workers but also native workers too – exploitation is exploitation. The powerful message this sends is that the UK wants to be home for migrants but not at any cost – not if it means undercutting the protections and rights of native workers or the migrants themselves. This is surely the most effective way of controlling immigration – regulating the labour market and not just the borders.

No UK Government minister has yet been willing to extend the remit of the Gangmasters Licensing Authority to other business sectors donated by temporary agencies, such as hotels, catering or construction. But perhaps after the forthcoming election, whichever party wins, it would make good political sense to do so, in particular if Britain’s newest piece of legislation, the Modern Day Slavery Act, is to become more than a piece of paper.