Canada’s Last Chance? Truth, Reconciliation, Identity, and the Way Forward

A former high school teacher and now friend, Rex Taylor (@RexFTaylor) , posted to Facebook an article by John Ralston Saul ( (novelist, essayist and co-chair of  The Institute for Canadian Citizenship) regarding the conclusions of the Truth and Reconciliation (“Truth and Reconciliation is Canada’s last chance to get it right” Globe and Mail, 5 June 2015)  looking into the nightmarish ‘Indian Residential Schools’ system that rightfully should be a shameful and condemned chapter in Canadian history. Rex had asked for my opinion on this article, and due to the limits of commenting in-line on Facebook, I thought this would be a more effective medium.

Canada: A Nation in its Spring

First thing first: Canada is multi-cultural nation unique in my opinion amongst other States in the international community. (Mea culpa: I am a mixed-race Canadian citizen, as well as being a British citizen – currently living in London, UK) Growing up in Toronto, I was immersed in a diverse community where the word different did not necessarily mean bad. In contrast, my experiences in the UK have many a time included statements such as “if they’re going to come to our country, then they should accept the way things are here…”, often times whilst tucking into a tasty curry. (I’ll return to the concept of ‘the Other’ later…)

It was a period of transition, however, whereupon a culturally European-centric domination within Canada was being replaced by a more reflective and inclusive system of tolerance, exploration, and camaraderie. Certain stalwart and entrenched attitudes sounded off about this departure from their self-styled vision of historic privilege (and no, I’m loathe to go around accusing all of inherent expressions of privilege) wherein their homogenous vision of Canada was relegated to the waste bin of history. These growing pains are inevitable, particularly given a difficult existential question posed to most students in Canada: What is a Canadian?

“…No constitution, no Charter of Rights and Freedoms, no sharing of powers can be a substitute for the willingness to share the risks and grandeur of the Canadian adventure. Without the collective act of the will, our Constitution would be a dead letter, and our country would wither away.”

Prime Minister Trudeau, 17 April 1982

I suspect that such a question’s elusive answer depends greatly upon one’s self-identity, their surrounding community, and their experiences within the Canadian context. The lack of a single definition can be both traumatic and exciting – much of our identity comes from certain historical (genealogical) linkages that provide relational sets of rules and expectations of conduct, and where these do not sound in a national identity, one may begin to question the value of a society where expectations and rules may differ from one person to the next, from one to community to another. On the other hand, there exists a freedom to carve out a truly unique identity for Canada, one distinct from our colonial past and its cultural homogeneity. Canada is still in its ‘spring’ – though a process started in 1867, we only truly separated completely from Britain in 1982 with the Constitution Act (Canada) / Canada Act (UK) repatriating the Constitution and establishing our Charter of Rights and Freedoms. In a positive light, it is perhaps enlightening to remember the spirit of the nation when it became a truly sovereign and independent State:

However, in order to pursue the freedom of that Canadian identity (what PM Trudeau referred to as a “fresh start”), we must confront our past treatment of disenfranchisement of Canadians who suffered greatly from discriminatory policies and continue to experience the generational effects of those transgressions. This includes, inter alia, the horrific legacy of the so-called ‘Indian Residential Schools’, as well as our troubled relationship with the indigenous peoples of Canada.

(Dis-)Honouring the Treaties: Rediscovering our Canadian Legacy

By very brief means of a history, the nature of the relationship between the indigenous communities in Canada and the European nations that settled there were established by treaties, such as the Great Peace (1701), the Peace and Friendship Treaties (1725-1749), the Royal Proclamation (1763), and the Numbered Treaties (1871-1921). Most of these treaties meant land acquisition rights for Europeans in exchange for material goods thereto unseen amongst the First Nations peoples. Alliances were forged that ultimately lead the British domination of North America, and subsequently the repelling of American attempts to seize Canada after the US Independence from Great Britain. In short, there would have been no Canada without our First Nations brothers and sisters – settlers would have succumbed to the harsh winters and lack of geographic knowledge would have meant defeat at the hands of the USA.

Interestingly, from my perspective as a public international lawyer, is how these treaties are in essence international covenants between sovereign peoples. In fact, the Truth and Reconciliation Commission frequently refers to these agreements in the recommendations (Calls to Action). However, it is clear that this treaty-based relationship has deteriorated over the centuries, with many of the treaty provisions being ignored, unilaterally rescinded, or forgotten. The conditions of living for the First Nations indigenous peoples have been repeatedly subject to interventions due to public health and welfare concerns – often without consulting the people themselves.

One of these interventions was the Indian Residential School system. Originally conceived as a means of ensuring education for subsequent generations of Native people, the schools (typically run by the Church with the approval of the Canadian government) sought to assimilate children by preventing them from exploring their First Nations identities. The federal police, the RCMP, were authorised by law to remove Native children from their families by force and relocate them into the residential schools. These children were made to dress in non-Native clothing, and set a curriculum intended to create industrial workers – farming for the boys, and seamstresses for the girls. Religious indoctrination was part and parcel of this ‘education’, where the spiritual aspects of the children’s heritage was sacrificed for Christian worship. As funding became an issue for these schools, the work carried out as ‘education’ was typically used to subsidise the running costs of the school – in essence, these were Canada’s sweatshops run with child labour.

And if that were not enough, the children were subject to extreme physical and sexual abuses at the hands of their Church-provided teachers. The emotional and psychological traumas suffered by these people continue to present in generational challenges regarding their relationships with family and community. Alcohol and substance abuse amongst these victims is both common and tragic. It is unsurprising that Canada’s highest ranked jurist, the Rt Hon Beverley McLachlin (Chief Justice of the Canadian Supreme Court), has agreed with many that this dark Canadian legacy should be considered as ‘Cultural Genocide’.

We as Canadians, both indigenous and non-indigenous, must turn our attention to this matter that deeply affects such core community within our lands. We owe it not only to the victims of this legacy, but also to ourselves as Canadians who must understand how our relationship with the First Nations is perhaps the first and foremost aspect of answering the question of What is a Canadian?

Beginning Again, Remembering the Past

Over the past 33 years, the relationship between the Canadian federal government and the First Nations reads like a dysfunctional family history. The Oka standoff in Quebec, numerous blockades – notably the one I witnessed personally just outside of the Six Nations of the Grand River reserve in Caledonia, Ontario (this dispute began in February 2006 and continues today), and numerous failings regarding quality of life on the reserves across Canada. One cannot help but feel frustration and anger that such a situation exists in a country that is typically viewed by the world as a beacon for tolerance and understanding in a multi-cultural population.

We have, of late, seen a much more politically engaged Native population, eager to address these concerns and to seek constructive methods for building a new and positive relationship. Here is a video by John Ralston Saul from October 2014 addressing this very point:

However, as with any Truth and Reconciliation process, we should begin with a certain ethical foundation:

  • Our intentions should always drive towards a strong, dignified, and respectful pan-Canadian relationship with each other going forward.
  • We are all Canadians – any approach that aims to create an ‘us and them’ division ultimately will fail. Canada should never have two-tier citizenship, in attitudes or in practice.
  • Inclusion and consultation with affected persons should be the bedrock of any policies, whether specifically dealing with indigenous peoples or non-indigenous groups.
  • We must recognise the failings of our past: there is not a light under which the current treatment of the Aboriginal peoples of Canada can appear to be positive. For instance, the current system of land claims settlements based on the Treaties is a violation of our principles of law, namely to have legal redress in a timely manner. The current system typically takes over 20 years to consider each claim, and that is simply unacceptable.
  • Equally, mutual respect between all the peoples of Canada requires that we individually do the heavy lifting of changing, what Trudeau referred to as the ‘willingness to share the risks and grandeur’. Ralston Saul suggests that it is the non-Natives of Canada that are the only ones that must change. I disagree – change must come of us all, and we must together embrace the effort to begin again, to have ‘failed and to try again’.

McLachlin CJ (in her speech of 28 May 2015) points out three principles that apply not only to the TRC, but overall to the relationships of Canadians throughout the land, what she refers to as essential to the ‘norm of tolerance’: “first, insisting on respect for the human dignity of each person; second, fostering inclusive institutions and cultural attitudes in civil society; and third, maintaining the rule of law.

“Living together in the ethic of tolerance is not easy. But it is worth the effort.”

Rt Hon Beverley McLachlin, Chief Justice of Canada

While the first two of the Chief Justice’s points are relatively undeniable, it is the third point that should be scrutinised by both sides of this situation. Certainly, the legal obligations undertaken in the past by Britain and France, now inherited by Canada, have been treated with a declining sense of importance by provincial and federal authorities – in certain circumstances completely violating what amounts to international law. This too is not typically the vision of Canada that most citizens wish to see as their identity. Equally, however, both Native and non-Native participants in reconciliation must submit to the precept that it is the law that treats us all as equals, and we all must commit to adhering to the law whilst moving forward towards a mutually beneficial process of re-establishing normal and positive relations between all Canadians. It is this commitment to the legal and social equality of its citizens that takes us further into the realm of answering the question of our collective Canadian identity, non-Native and Native citizens alike.

Asymmetric Citizenship: How the Canadian adventure may end in disaster

While accepting the premise of Chief Justice McLachlin, and (personally) finding much to admire in PM Pierre Trudeau’s 1982 vision of the ‘Canadian adventure’, there is one more aspect that truly ought to concern all Canadians: Canada must be for all of us, equally and simultaneously.

Much of the Constitution of Canada is predicated upon a collective system of resource sharing and power sharing in order to offset the various means of fluctuating circumstances that can befall one community or another from time to time. The financial relationship between the provinces was conceived as a means of equalising the Canadian quality of life in a manner that no Canadian would be left behind.

Sadly, this Constitutional premise has been sorely neglected in relation to the sharing of Canadian resources with the indigenous peoples to whom we owe our nation’s existence. All one has to do is pay attention to the plight of Natives living on certain reserves where there has been a complete collapse of social welfare and infrastructure. It is a difficult thing to realise standing at the intersection of Bay and King Sts in Toronto that there are entire communities without adequate sanitation, running water, or even shelter against our notoriously unforgiving winters. It is difficult perhaps due to a lack of active consideration, or worse, complete ignorance. As a society, we should be able to stand in the most advanced of cosmopolitan metropolises and still feel a kinship with the East Coast fisher, the Prairies farmer, the Inuit hunter. A Canadian is a Canadian is a Canadian – we must equally “share in the risk and the grandeur”.

When we can allow our fellow Canadians to be treated less than equally, I would be remiss to neglect Shakespeare’s sage wisdom in the Merchant of Venice:

“If you prick us with a pin, don’t we bleed? If you tickle us, don’t we laugh? If you poison us, don’t we die? And if you treat us badly, won’t we try to get revenge? If we’re like you in everything else, we’ll resemble you in that respect.” – Shylock, Act 3 Scene 1

While I have suggested that the future of the Canadian citizen must be grounded in the rule of law, we must also accept that, much like Shylock, the turbulent response of the Native peoples was warranted given the abhorrent history of treatment by the colonial and post-colonial governments of the country. As mentioned in the TRC’s Call to Action recommendations, the history of the residential schools ought to form a part of the factual background when dealing with those persons who have taken up acts of civil disobedience and action to draw attention to this plight.

However, if we are to move forward together, we must not simply be aware of the tragedy of the residential schools as events that affected only the indigenous people of Canada. I have been aware of public attitudes when discussing similar events that traditionally fulfill the international legal definition of genocide, e.g. the Holocaust, the Rwandan Genocide, the conflict in the territories of the former Yugoslavia. Most of the perception is that these crimes were committed against a particular group who were the identified victims. I am often concerned that, while indeed the targeted protected group are the primary victims of these crimes, the path towards eradicating actions conceived in genocide (in the present case, the aforementioned cultural genocide) must rely upon the larger humanity recognising that these crimes are crimes against all of us. The diversity of humankind is its strength – linguistically, socially, culturally, ethnically, genetically – and attempts to reduce this diversity injures the human condition for us all. In Canada, the heritage of the Native peoples in Canada is as much a part of their identity as it is ours. We collectively must work to alleviate the injustice and inequality between Native and non-Native citizens because in the final sum, each of our individual identities can only truly be conveyed in relation to all of our fellow Canadians. Understanding the place of the residential schools requires us all to employ, in a word, empathy.

Is this Canada’s last chance?

John Ralston Saul has employed the rhetoric of this moment being the proverbial gun-to-the-head for any conception of Canadian identity being one of compassion, tolerance, and inclusiveness. While most of his discourse is agreeable and well-considered, I’m afraid I cannot agree with the terminal diagnosis that he has determined for Canada.

This is not a country defined by last chances, but moments of reckoning whereupon we are called upon to recognise our history, reconsider our direction, and reinvest ourselves in pursuit of our principles as a nation. Saul himself states: “The story of Canada is the story of many such peoples, trying and failing and trying again, to live together in peace and harmony.” Agreeing with this, it follows that we can never assume that we have perfected the Canadian formula. Indeed, even if we could fully implement the recommendations of the TRC, we must be brave enough to realise that other challenges may arise in the future.

What makes us all Canadian is a commitment to ourselves and each other that we will come together in these moments of reckoning with the entirety of our community’s will to deliver on the promise of Canada for all of her citizens. The Constitution provides us a very robust and principled framework for engaging these challenges. However, as noted by PM Trudeau, it is the people who breathe life into this country, no matter what hurdles come our way.

While it is right and overdue that the dishonourable legacy of the residential schools be openly addressed and rectified, it is important for all Canadians that we maintain our commitment to each other, conceived in dogged determination and hope for our nation’s future. We must, in our uniquely magnificent multi-cultural diversity, empathise with each other in a manner consistent with tolerance and admiration for our differences, and to truly feel the tragedy of the few is a tragedy for us all. This is not only a moment of healing for the indigenous peoples of Canada, it is a moment for us all to come together in strength and support for all Canadians. We must move forward together, or the dream of Canada shall wither on the vine.

Is this Canada’s last chance? No, it is not. However, answering the question ‘What is a Canadian‘ will greatly depend on how we deal with our past and work towards ensuring a bright and inclusive future for all people in Canada.

I wish to take the opportunity to dedicate this post to my friend and teacher Mr Rex Taylor. You opened the eyes of many of your students and imparted the skills of critical thinking and compassion. I could not possibly have begun to answer the question had it not been for teachers like you.

Oh Canada: A Eulogy for Innocence

CAN Pegman w tearOh Canada…

You are the country of my birth, my youth and that beacon in my heart that reminds me that another way is possible where our individual and collective voices trumped violence and terror. Alas, our voices are now momentarily silent from the shock that has followed from the targeting of our soldiers on home soil. Our hearts have taken a blow as we consider the implications that the events in Québec and Ottawa have for our unique multicultural democracy.

As noted by MPs whilst locked down in the Parliament speaking to the world’s press, ‘ours is an open society that is welcoming for all’. There were no barriers preventing these individuals from storming Parliament Hill because that is not the Canada we want – one where our politicians and institutions reside behind fortified ramparts, only accessible after multiple security checkpoints. One Canadian journalist even stated that there is weekly yoga open to the public on the lawn out front.

We should remember that the casualties of these attacks have been two soldiers at home.

Our collective sorrow at the presence of political violence in Canada is understandable. I had grown up thinking of our soldiers as wearing the blue berets of peacekeepers. I enjoyed the positive reputation that the country of my birth afforded me when travelling elsewhere in the world. Having moved to the United Kingdom, I still get a prompt apology when an incorrect assumption is made based on my distinctly non-British accent. (To be fair, I always say there is no reason to apologise. I’m from Toronto. As Alec Baldwin quipped in 30 Rock: “It’s like New York, without all the stuff.”)

FLQ and the October Crisis of 1970

But this is not the first time that Canada has borne witness to such acts on home soil. In 1970, during the FLQ October Crisis, terrorists (I won’t even acknowledge their agenda for separatism – it is an insult to those separatists in Québec who act peacefully as one should in a just democracy) kidnapped a British diplomat (James Cross) and killed a Québec Provincial Minister (Pierre Laporte), and also set off almost a hundred explosive devices during their campaign. Ultimately, James Cross was released in exchange for safe passage to Cuba for the kidnappers. However, in order to deal with the crisis, the War Measures Act was invoked, suspending habeus corpus, and the military was deployed in Québec and Ottawa to re-establish order. This crisis was where Prime Minister Pierre E Trudeau famously stated: “Just watch me” in response to a question of how far he would be willing to go to deal with the matter.

During that crisis, Warrant Officer Class II Walter Leja of 3 Field Engineer Regiment was gravely injured whilst attempting to disarm an FLQ mailbox bomb. He was later awarded the George Medal by Queen Elizabeth II. A watchman, Wilfred O’Neill, was killed when another bomb went off at a Canadian Army recruitment office in Montréal.

The legacy of this crisis was such that violent political extremism was condemned as repugnant and unnecessary, and as testament future separatist efforts were pursued under the rule of law by peaceful means.

Oka: A Breakdown of Relations with First Nations

In 1990, following encroachment upon lands subject to claims by the Mohawk Nation and an attempt by Québec Police (Sûreté du Québec) to dismantle a barricade around that land, a stand-off ensued between the Canadian Military and the paramilitary arm of the First Nations, the Warriors. In a famous image from the tense events, a Native Warrior stood face-to-face with a Canadian soldier in an effort to provoke violence. Here is the CBC evening news report on that day:

What makes this distinct from the FLQ, and what gives pause to labelling the events as ‘terrorism’ is difficult relationship that has endured between the Government of Canada and the First Nations. Under the original alliances with the British Crown, the First Nations were recognised as ‘friends of the Crown’, as opposed to subjects – the status of non-native Canadians.

A colleague of mine who served in the Canadian Forces at the time was deployed to Oka. Conversing with him on the matter, he stated that it was the most difficult mission he had ever undertaken. Given that he was also deployed in the first Gulf War, I asked how this engagement differed. His answer was as stark as it was to the point: “When I looked down sight of my rifle, I realised I was aiming at a fellow Canadian. I’m not sure I could’ve shot.”

A Mohawk Warrior and a Canadian soldier engage in an iconic scene from the Oka Crisis

Sadly, during the initial police intervention, SQ Corporal Marcel Lemay was struck and killed by gunfire. The stand-off lasted 78 days, with the Mohawks and the military commander Lieutenant-Colonel Robin Gagnon (Royal 22e Régiment) negotiating for a peace. It should also be noted the intervention of the Mohawk women who intervened and ordered the Warriors to de-escalate tensions. However, this crisis formed the basis for further tensions in other parts of Canada with First Nations peoples. Much is yet to be resolved.

Post-9/11: Responding to the ‘War on Terror’

The events of 11 September 2001 in the United States prompted Canada to reorient our military efforts to support the American-led and ISAF/NATO operations in Afghanistan. Putting Canada ‘on a war footing’, Canadian military forces entered Afghanistan in late 2001, with the initial insertion conducted by the elite Joint Task Force 2 (JTF2).

 PPCLI soldiers killed by American friendly-fire: (clockwise from top-left) Sgt Marc Léger, Cpl Ainsworth Dyer, Pte Nathan Lloyd Smith, Pte Richard Green. (2002.04.17)

PPCLI soldiers killed by American friendly-fire: (clockwise from top-left) Sgt Marc Léger, Cpl Ainsworth Dyer, Pte Nathan Lloyd Smith, Pte Richard Green. (2002.04.17)

On 17 April 2002, four soldiers from 3rd Battalion Princess Patricia’s Canadian Light Infantry (‘PPCLI’) were killed, and eight wounded, following a friendly-fire bombing by an American F-16 mistaking the Canadian’s live-fire training operation for a Taliban assault (the Tarnak Farm incident). These casualties were the first for Canadian Forces since the Korean War.

Capt Nichola Goddard
PPCLI Capt Nichola Goddard, the first female military casualty in Canadian history (2006.05.17)

In another tragic first, on 17 May 2006 Canada suffered its first female servicemember’s fatality, when PPCLI Captain Nichola Goddard’s armoured vehicle was struck by RPGs.

The toll on our soldiers from the Afghan conflict was extreme. According to currently available reports, 158 soldiers were killed and 1,859 were injured or wounded. The Canadian public attitude towards the war shifted from supportive (from 2001-2005, only 1 in 5 Canadians opposed the war) to opposition (by 2010, 56% were opposed to the mission in Afghanistan). However, throughout the conflict, the dissent was mostly directed towards the political decisions and not targeted towards Forces personnel.

On 15 March 2014, the last Canadian soldiers in Afghanistan returned home.

This week…

WO Patrice Vincent was killed when he was struck by an individual known to police for having radicalised ideologies and sympathies for Islamic State terrorists. 2014.10.20)
WO Patrice Vincent was killed when he was struck by an individual known to police for having radicalised ideologies and sympathies for Islamic State terrorists. (2014.10.20)

On Monday (2014.10.20), two soldiers walking in a parking lot outside a veteran’s support centre were run down by a car driven by a 25-year-old man who was known to police for radical ideology and sympathies for the terrorist group ISIL/ISIS/Islamic State. 53-year-old Warrant Officer Patrice Vincent succumbed to the injuries he sustained in the attack. The other soldier is still in hospital. The perpetrator also died of injuries sustained when he was shot by Québec Police attempting to apprehend him.

Corporal Nathan Cirillo, 24, was killed by a gunman while standing guard over the Tomb of the Unknown Soldier at the National War Memorial in Ottawa, Canada (2014.10.22)

Then, earlier today (2014.10.22), a gunman approached the National War Memorial in Ottawa and opened fire on the honour guard protecting the Tomb of the Unknown Soldier. Despite medical interventions by civilian by-standers, Corporal Nathan Cirillo died of his gunshot injuries.

The gunman proceeded towards the Canadian Parliament buildings, entering inside and reportedly firing more than thirty times. The Sergeant-at-Arms (typically a ceremonial post) for the Parliament, Kevin Vickers, intercepted and killed the perpetrator just outside the rooms where Canadian MPs were holding their caucuses. Reports have suggested that the federal police (RCMP) and Canadian Army are still looking for multiple suspects believed to be involved. Most of the capital was subject to lockdown until 2025hrs EST. Parliament Hill remains closed to the public.

…going forward

The subtitle of this post is ‘A Eulogy for Innocence’. The innocence I speak of is that which all Canadians have in relation to our self-image as a tolerant nation inclusive of all that transcends the problems elsewhere in the world. This innocence is, unfortunately, one of youthful naivety. Canadians are today, perhaps more than at any other time, now realising that not everybody else in the world thinks fondly of our Northern paradise. Furthermore, we also must come to realise that our servicemembers experience real peril when we send them out on deployment. While these professionals carry the Maple Leaf on their shoulders, they represent the best of us: compassionate in the face of tragedy, defiant in the face of tyranny, and resolutely heroic in the face of danger. The True North Strong and Free.

When they come home, however, Canada should be the one corner of the earth where we all share in these values. They should not find themselves facing the possibility that their fellow citizens may pose a danger to their lives.

Caption
Fusilier Drummer Lee Rigby, Royal Regiment of Fusiliers, who was murdered outside the Royal Artillery Barracks in Woolwich, London by British-born radical extremists. (2013.05.22)

Living in south-east London, I was very close to where Fusilier Drummer Lee Rigby was murdered on the streets of Woolwich outside the Royal Artillery Barracks. The deranged acts of his killers were a result of similar radicalisation as had occurred with the attacker on Monday. (The gunman in Ottawa has not, at time of publication, been identified by authorities as having shared in radical ideology.) And it is further lamentable to consider that here in the UK, soldiers on home soil have had to be on guard against numerous threats in the past, including from the IRA. To see so many soldiers in uniform in public during the 2012 Olympic Games was disconcerting at first, but they did a wonderful job of securing the venues and providing assistance where needed.

Nonetheless, I think that any person serving their country should never have to hide that identity for fear of retribution whilst at home. But pragmatic security concerns have made it so. After all, rhetoric will be of little comfort to their family if practical measures could have saved a soldier’s life.

What makes me sad is that these measures that I have grown accustomed to here in Britain could possibly be necessary back in Canada now. The barriers outside Westminster Palace (British Parliament) and the security just to enter will need to be considered for Parliament Hill in Ottawa. Self-protection measures for soldiers in uniform in Canada will have to be developed in order to keep them safe when amongst the public.

But saddest of all for me is that after today’s horrific tragedy, is that my military friend’s psychological dilemma of even pointing his rifle at a fellow Canadian may no longer be a justifiable concern. When citizens take advantage of their mutual goodwill towards each other to commit heinous acts of violence, suspicion may be the legacy that lingers longest amongst us.

I sincerely hope that I am proven wrong.

UPDATE (2014.10.26): It is too early to consider how this week’s events could alter the national conversation that most Canadians know we must have in order to go forward from this tragedy. However, I wish to point out that I have never heard a more patriotic and emotionally-rousing performance of the National Anthem prior to any Hockey Night in Canada. Click here: Ottawa, Toronto, Montreal unite for stirring Canadian anthem (Courtesy NHL)

What is the value of the ‘European’ human rights? If you’re Conservative, apparently absolutely nothing…

UK-EU Blended Button
Yes, I know that’s the EU Flag. The ECHR doesn’t have a flag. You get the point.

Waking up to the dawn of new Conservative Party plans to scrap the European Convention on Human Rights for the UK was both disturbingly incoherent and troubling in implications. Likely a response to the party-political challenge posed by UKIP towards the Tories, it seems that Europe is a source of headache within a party that seems to be schizophrenic in its approach. While espousing the strength and leadership of the UK, Tories – in the same breath – suggest that where the UK must abide by rules it helped bring into existence is antithetical to ‘British democracy’.

Hogwash. But let me tell you why…

International Law: Pacta Sunt Servanda

One of the jus cogens (non-derogable) rules in international law is Pacta Sunt Servanda – all treaties are binding. (This rule can be found in the Vienna Convention on the Law of Treaties Article 26) In essence, where a state signs up to a treaty it is held that the state intends to abide by the terms in good faith. While the VCLT acknowledges principles whereby treaties can be terminated or suspended (Arts 54-64), threatening both the ECHR and the EU to withdraw unless concessions are made after the UK has entered into such obligations is antithetical to the principles that treaties are binding.

What goes beyond the pale is the consistent statements from the Tories that somehow the UK can withdraw from those aspects that it deems unattractive yet continue to reap benefits from such institutions that it publicly (and possibly privately) denounces. On the implications of ECHR, the Tories are suggesting that a concession (or reform in their parlance) will be made allowing the UK to ignore rulings from the Strasbourg Court, effectively only making a court an ‘advisory body’. It is notable that this is not what the European Convention set out (and was agreed upon by the UK). Article 46(1) states: “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

For this ‘reform’ to take place, all signatories (‘High Contracting Parties’) would have to agree to modification of this Article. How could this be? If the ECtHR (the Court) is perceived as advisory only, then can it possibly be that human rights in the UK and elsewhere in Europe truly have a judicial means of enforcement? No, this would amount to a gutting of any teeth that human rights have developed since their inception in the wake of World War Two. Furthermore, in 2013 the ECtHR rendered 916 judgments, with only 13 judgments (1.4% of the total cases) involving the UK. Of those 13 cases, 8 judgments found at least one violation by the UK of a Convention right. It should be remembered as well that ECHR rights apply only between an individual and the state (vertical effect), not between individuals alone (horizontal effect).

Of note to a possible withdrawal from ECHR by the UK, such an action would be incompatible with our membership in the Council of Europe (it is a requirement), and likely to be ineffectual in the EU (given that ECHR rights are incorporated almost verbatim by the EU’s Charter of Fundamental Rights). Isolation of our little island appears to be the policy of the Conservative Party.

So, it appears that the Tories’ approach to ECHR is to declare that because in the case of eight people who’s rights were found to be violated, international protections afforded all 63+ million British citizens should be abandoned, and so few negative consequences under an international treaty are sufficient for the British state to act in a manner inconsistent with its good faith obligations under international law. The caveat that saves the British reputation at this point is that this is not draft legislation, so at present cannot be construed as representing official state policy or law. Once we cross that line however, we may find international reactions to be significant and legion.

Domestic Law: The Human Rights Act 1998 – The UK’s domestic efforts to enforce rights

Further to deriding the ECHR, the Tories have also suggested tearing up the Human Rights Act of 1998 (‘HRA’) which came under the Blair Labour government. This document is vital for domestic enforcement of human rights, and stands as the primary reason for why there are so few interventions from Strasbourg over UK jurisprudence. Without this legislation, the UK courts would be powerless to enforce human rights, meaning that any violations would have to go to Strasbourg, a scenario that would significantly increase the likelihood of ECtHR interventions. However, in the event of UK withdrawal from ECHR as well, this would mean that there would effectively be no human rights in the UK.

Let me repeat that. Tearing up the Human Rights Act and withdrawing from ECHR means that, as a British citizen, you would have NO human rights.

Such a consequence gives me pause.

However, the Tories have suggested that it would be ‘democratically correct’ that the Parliament of the UK should be the ultimate arbiter as to what rights are afforded to its citizens. Cue the sounds of the masses shouting ‘Hurrah’ for British Democracy, politicians being elected ‘to protect democracy’ from the threat of human rights, and the sounds of gavels falling ordering those horrible criminal foreigners being sent home. This would cure all our ails, and the rails of HS2 will be made of gold.

I think not.

Firstly, human rights are a shield, not a sword. My colleagues know that I am pragmatic and realist in my attitude to human rights’ role in the rule of law, but I have never ever suggested that they do not occupy a very important part of the fairness and just nature of our society. Human rights cannot threaten democracy. Human rights are not accomplices after the fact to criminal actions. Human rights are the baseline measure of how a country treats its people. Human rights enhance our ability as citizens to engage with our nation’s democracy with confidence. And most importantly, human rights universally apply to us all.

Where human rights laws have challenged policies on counterterrorism, immigration or welfare, it is those policies that should be reformed, not the human rights that prevent abuse of individuals by the state. Certainly, the operation of human rights do not pose existential threats to any democracy.

Human rights, in reality, typify the ability of minorities to avoid persecutions by a majority – akin to the difference between a real democracy and a dictatorship. These rights should be controversial. They should, from time to time, create a paradox whereby the easy road is made unavailable in dealing with difficult situations. Human rights forces us as a society to address the complexity and consequences of state actions without sacrificing those elements that make a country worth living in in the first place.

The HRA only being passed in 1998 is shocking to me. While certainly not the only means of rights enforcement before that point, most British people must traverse the breadth of the domestic legal order before seeking redress in Strasbourg. Often referred to as a ‘foreign human rights court’, I’d support the idea of moving the seat of the court to somewhere in the UK just to negate such disingenuous statements. But that the seat is external of the UK should compound the tragedy that in even 8 cases, justice could not be meted out here at home.

What is being suggested is that the HRA and ECHR should be replaced with a ‘British Bill of Rights’.

Firstly, how simple a people are we where such pandering could gain traction? Just because a document contains ‘British’ in its title does not translate to superior content. Arguably, the current content of the ECHR is limited in domestic scope by the HRA – not all of its provisions have been given direct effect in British courts. What more would be removed from these minimal rights to make them acceptable to the ranks of the Tory part who are petrified of their UKIP shadow?

Secondly, a ‘Bill of Rights’ already exists in the American constitution (they are the first 10 amendments). Very few of those amendments parallel the current human rights regime in Europe. (The Second Amendment – the right to bear arms – is not a right that I would wish for the UK.) Invoking the name ‘Bill of Rights’ also suggests an enhanced constitutional status of those ‘British rights’. Unfortunately, most citizens in the UK do not realise that such constitutional protections do not exist here. All that is necessary to alter laws that are constitutional in nature is a majority vote in the Commons, a process made that much easier with a majority election win by a single party. Hence the attachment of this human rights review to the desire for a Tory majority in May 2015. This is how the original HRA was passed under a Labour win in 1997. However, HRA incorporated already-existing rights laws from an international treaty and did not seek to ‘re-write’ those human rights. The model of the HRA was taken from the Canadian Charter of Human Rights, part of the Constitution Act of 1982 in Canada. Again, in Canada, under Article 38(1), changes to human rights require (a) resolutions passing in the Senate and the House of the Federal government, and (b) passage in two-thirds of the provincial legislatures where the population of those provinces is more than 50% of the Canadian population. Changing human rights in the Great White North is not a process undertaken lightly.

In the UK, there are no provisions that protect our constitutional laws from being tinkered with by any single political party which gains a majority – disturbing when you consider that in voter turnouts of barely 65% since 2001, a majority in Parliament could result from less than a third of the electorate supporting that party. That such a case may significantly impact legal protections and enforcement of human rights is doubly disturbing.

And that is where the nub of the domestic conversation lies: human rights without a means of enforcement against the government/state are meaningless. They are relegated to the pages of academia, and have no value for the people they are meant to protect. Whatever the Tory iteration of this ‘British Bill of Rights’, it will be borne of political frustration as opposed to any real criticisms of the ECHR regime. And worse, this rewrite is likely to contain less rights with less enforcement where ‘Parliament’ (read ‘Government’) has final say as to whether they have violated your rights. Considering that one of the principles of the rule of law is that no one can sit in judgment of their own case, I heavily suggest that this is what the Tories’ plan for human rights will ultimately endeavour to accomplish. But then again, how can they violate your human rights if they have effectively taken them away from you?

Selling out human rights because the UK state was caught out a handful of times would be laughable if it weren’t so fundamentally frightening. It’s time here in Britain that we stop acting like a petulant toddler refusing to play nicely with others. We need to stop threatening to become international delinquents if we don’t get our way. We should focus on adapting to the changing geopolitical challenges before us, and working within our international legal obligations, as opposed to constantly suggesting that the UK be treated exceptionally from all other nations.  Pining for our history (as is espoused by UKIP) increasingly seems to come at a cost for our future. The empire is dead and buried (as it should be), but our best days may still lie ahead.

It’s time to grow up.