EU referendum myths: prisoners’ voting rights and EU membership

IMG_0284The most frustrating, but perhaps inevitable, feature of the EU referendum campaign is the wealth of ill-informed comment, and straightforward untruths, being disseminated by those campaigning. In some cases it is possible to argue that differences of opinion might lead to understandably different perspectives on the same issue. However, in other cases it is hard to avoid the conclusion that there has been a deliberate attempt to mislead.

A case in point is the leaflet above which presents ‘5 positive reasons to Vote Leave and take back control’. Reason number 2 which is ‘to take back control of our laws’ includes the following carefully worded statement:

If we vote to remain, EU laws will overrule UK laws and the European Courts will be in control of our trade, our borders, and big decisions like whether prisoners are allowed to vote.

The obvious red herring here, which those campaigning to leave the EU well know, is that Britain’s membership of the EU has anything to do with prisoners’ voting rights. The leaflet is careful to state that this is something which is of concern to ‘European Courts’, however, what it fails to mention is that the court which ruled that UK prisoners’ rights had been breached by denying them a vote is the European Court of Human Rights, which is not a court of the  European Union, and that withdrawal from the EU would not remove Britain’s obligations under the European Convention on Human Rights.

The European Court of Human Rights is an international court which was established in 1959 to uphold the European Convention on Human Rights. The 47 states which recognise the jurisdiction of the Court form the Council of Europe. These include all member states of the European Union, but also nineteen states which are not members of the EU including Russia, Switzerland and Turkey. Britain was a founding member of the Council of Europe, some fourteen years before it joined the European Community in 1973. It is perfectly possible, therefore, to be party to the ECHR without being a member of the EU.

It could, of course, be argued that leaving the EU would be a necessary precursor to withdrawal from the European Convention on Human Rights. However, this does not seem to be the case. While the European Convention provides the EU with a standard for the protection of human rights, which is an expectation for member states, there is no formal link between the ECHR and EU membership. Moreover, while there is now an expectation that states wishing to join the EU will sign up to the ECHR, the status of existing member states is somewhat different. As Steve Peers points out in his excellent post on this issue, historically there has been no requirement that existing member states sign up to the ECHR, France, for example, was not a party to the convention until the 1970s.

Of course all EU member states, including Britain, are now party to the convention and the central question is, therefore, whether Britain could withdraw from the ECHR and remain a member of the EU. This has been the subject of a number of authoritative studies including this House of Commons library note. In short there is no formal requirement that withdrawal from the ECHR would trigger withdrawal, or ejection, from the EU, and such a course of action seems unlikely in the extreme. EU member states do have to guarantee certain fundamental rights and values, which are embodied in the ECHR, which means it is not possible to jettison altogether respect for human rights. However, if Britain were, for example, to claim that these values were also embodied in a different framework, such as a British Bill of Rights, then there is no reason why its EU membership would be threatened by withdrawal from the ECHR.

Once interesting consequence of all of this is that while Britain could withdraw from the European Convention on Human Rights and remain a member of the EU, if Britain were to leave the EU and the ECHR, and then decided to reapply for EU membership, it would in all likelihood need to sign up to the convention before gaining readmission to the EU. At present Britain has the option of being a member of the EU and not a member of the Council of Europe, but that option only exists as long as Britain remains a member of the EU.

All of which is a roundabout way of making a number of simple points:

  • The judgement on British prisoners’ voting rights did not emerge from an EU court.
  • Withdrawal from the EU will not alter Britain’s obligations under the European Convention on Human Rights.
  • Withdrawal from the EU is not necessary in order for Britain to withdraw from the European Convention on Human Rights.
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Should Britain be having a referendum on EU membership?

This is a slightly extended version of my ‘First Person’ column in The Lincolnshire Echo (Thursday 3 March – Wednesday 9 March edition).


refsThe forthcoming referendum on Britain’s membership of the EU will be David Cameron’s third significant referendum since he became Prime Minister in 2010. The previous two, on changing the electoral system and on Scottish independence, resulted in victory for the status quo and the Prime Minister will be hoping for a similar outcome in June.

Mr Cameron’s fondness for referendums is an interesting exercise in direct democracy. Providing additional opportunities for the public to participate in politics is good for democracy and clearly enhances the legitimacy of the result. Moreover, at a time when trust in politicians is low, allowing the public to take responsibility for difficult decisions might serve to bring home the challenges involved in governing the country and may help to restore trust in the political process.

However, using referendums to deal with the important or controversial issues is not without its pitfalls. While the public like the idea of referendums, on the basis that people generally like to be consulted, this is not always reflected in practice. Turnout in referendums is usually less than in national elections, although the Scottish independence referendum was an exception to this. Low turnout can mean that far from being indicators of national opinion significant decisions can be taken on the basis of relatively small but well organised campaigns.

A more significant problem is that in order to work, referendums need to boil complex issues down to simple yes or no answers. The referendum on electoral reform, for example, offered voters a choice between two, not dissimilar, electoral systems – the Alternative Vote and the current system of first-past-the-post – when there are, of course, many other voting systems which might be adopted. Britain’s relationship with the European Union is multi-layered and complex. In some areas Britain undoubtedly benefits from this relationship, in others it does not. In the case of the EU referendum, the issue is complicated by the fact that we don’t even have the comfort of being able to opt for the status quo. Mr Cameron’s new deal on Britain’s EU membership means that we are being asked to choose between two possible futures, neither of which are entirely clear.

Of course a referendum campaign provides a prime opportunity for the public to be informed about the important issues involved. However, if the last two referendums are anything to go by, the EU referendum campaign will generate more heat than light. There will be competing claims regarding the financial costs of membership and both camps will seek to scare the public about what might happen if Britain leaves or remains in the EU.

The campaign has not got off to a good start with considerable attention focused on personalities rather than issues. This is, in part, an unfortunate consequence of the referendum acting as a proxy for a Conservative leadership contest.

There is also a common, but mistaken, assumption that referendums serve to settle issues. Last year’s referendum on Scottish independence has certainly done little to dampen support for the SNP and the question of Scottish independence is likely to be back on the agenda if Britain leaves the EU against the wishes of Scottish voters. Britain’s relationship with Europe has remained one of the most divisive issues in British politics since the previous referendum in 1975. Whatever the outcome of this year’s referendum it seems unlikely to bring an end to that debate. It is hard to see the losing side quietly conceding defeat. The Conservative Party, in particular is, perhaps irrevocably, split on the issue and irrespective of the outcome there is a good chance that Mr Cameron will not be Prime Minister by the end of the year.

Whatever the limitations, referendums provide exciting opportunities for national debate on issues which matter to all of us. It is to be hoped that this latest exercise in direct democracy will serve to enhance our understanding of the complex issues involved but I am not optimistic.

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The criminalisation of homosexuality: a malign legacy of empire

pride-828056_640Last week the Indian Supreme Court agreed to reconsider an earlier ruling which recriminalized gay sex in India. Homosexuality was decriminalised in India in 2009 when a lower court ruled that Section 377 of the Indian penal code which penalises gay sex as an ‘unnatural offence’ punishable by up to ten years in prison, was unconstitutional. The judgement was widely seen as a significant step towards equality in India. However, in December 2013, the country re-enacted section 377 when the Supreme Court ruled that it was up to Parliament, not the courts, to rule on such issues. The judgement was widely condemned by human rights activists in India and around the world. Only days after the re-introduction of the ban, the UN Secretary General, Ban Ki-moon, took the opportunity of a speech in India, to declare that he was ‘proud to stand for the equality of all people including those who are lesbian, gay, bisexual and transgender’ and that ‘criminalizing consensual, adult same-sex relationships violate basic rights to privacy and to freedom from discrimination.’ However, the conservative-dominated Indian parliament has been reluctant to consider the issue, and the Supreme Court’s decision this week to revisit it’s earlier ruling as ‘a matter of constitutional importance’ is perhaps the best opportunity to restore the rights of same-sex couples in India.

The legal battle over India’s gay sex laws highlights a significant, but often forgotten, legacy of British imperial rule, which continues to have an impact around the globe. Section 377 of the Indian Penal Code is a legacy of British colonial rule. The criminalisation of homosexuality was introduced into India by the British in 1860 and spread quickly throughout the Empire. While there is evidence that same-sex relationships were widely accepted in pre-colonial Africa and Asia, the criminalisation of homosexuality reflected a particularly European morality based on Christian traditions which viewed same-sex relationships as unnatural. The spread of these values throughout the Empire often went hand-in-hand with attempts to spread the gospel of Christianity. (Incidentally, the promotion of heteronormative behaviour in the colonies is also widely credited with giving the world a term for the missionary position, although the origins of this are not entirely clear.)

Decolonisation predated the decriminalisation of homosexuality in the UK with the result that when Britain left the Empire in addition to railways and modern drainage it also left behind a framework for the legal repression on homosexuality. Scholars have long asserted that the criminalisation of homosexuality was a malign legacy of British colonial rule. For example, in research reported in The Washington Post, Enze Han and Joseph O’Mahoney found that laws criminalising homosexuality are much more prevalent in former British colonies:

We investigated whether and why there is a variation in laws regulating and punishing homosexual conduct around the world. Looking at a variety of data on 185 countries, we found that former British colonies were much more likely to have laws that criminalise homosexual conduct than former colonies of other European powers, or than other states in general. For example, 57 per cent of states with such a law have a British colonial origin. Almost 70 per cent of states with a British colonial origin continue to criminalise homosexual conduct.

Ironically, apologists for Empire often point to repressive policies in the former colonies as evidence of the kind of thing that happened when the benign hand of British rule was lifted. At the same time, as Han and O’Mahoney point out, those regimes which have sought to recriminalize it, often claim that tolerance of homosexuality is an attempt to impose ‘Western’ values on the developed world, or little more than a form to neo-colonialism. Neither of these are correct. Clearly, homosexuality is no more peculiarly western than are teeth and toenails. While the passage of laws to criminalise homosexuality in many cases clearly does have its roots in colonial rule. It could be argued that many years after independence, former colonial powers can hardly be held responsible for the re-criminalisation of homosexuality in a number of their former colonies. However, it is important to remember that the legacy of empire was not conducive to equal rights in many forms and the laws which are now being re-enacted have their origins in British colonial rule.

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What does the British public really think about the Empire?

Empire 2In the midst of the furore surrounding the statue of the British imperialist, Cecil Rhodes, at Oriel College, Oxford, YouGov ran a poll on attitudes towards the British empire. To the apparent dismay of many in the media, the poll revealed considerable support for the Empire. The results of this poll are perhaps not surprising as previous polls on the subject have revealed even higher levels of support for the Empire. However, the results were also somewhat more nuanced than the headline figures suggest.

The poll which received the most publicity asked whether people thought the British Empire was ‘a good thing’, ‘a bad thing’ or neither. Asking whether the British Empire is ‘a good thing’ is not, of course, a very good question. The British Empire was wide, diverse and long lasting. Asking people if it was a good thing, is rather like asking people if they think fire is a good thing, it can be incredibly beneficial and also horribly destructive, and ultimately your view probably depends on whether you’re sitting beside it or in it! Nevertheless, the Empire remains an important experience for Britain and those nations which were part of it, and as the Rhodes statue episode illustrates, is still the source of considerable public and political debate within the UK.

The poll certainly confirmed that a large proportion of the public have a positive view of Britain’s imperial past. More than twice as many of those polled (43%) thought that the British Empire was ‘a good thing’ than those who thought it was ‘a bad thing’ (19%). A similar proportion (44%) thought that Britain’s history of colonialism is something to be proud of, compared to (21%) who thought it was something to regret. However, a significant proportion of respondents were somewhat ambivalent, which perhaps reflects the problem with the question, with 25% agreeing that it was neither good or bad  and 23% stating that is was neither a source of pride or regret. 13% of respondents to both questions said they didn’t know.

EmpireWhile the poll clearly showed strong support for the Empire, if we break down the results there were some interesting variations. Conservative, Liberal Democrat and UKIP supporters were all more likely to agree that the British Empire was a good thing, with UKIP supporters, perhaps not surprisingly, the most supportive. Labour supporters were the only group more likely to think the Empire was a bad thing (30%) compared to 28% who thought it was good, and a source of regret (34%) rather than pride (31%). A greater proportion of men (51%) thought it was a good thing compared to women (35%), while those in the older age categories were more likely to have a positive attitude towards empire than younger respondents. Those in the 18-24 age group were evenly divided with the same proportion (32%) agreeing it was good as bad. In contrast 48% of those aged 60 and over thought it was a good thing. There was also one interesting regional variation. A majority of people in all regions, between 41% and 45%, felt that the Empire was a good thing, with the exception of Scotland, where more people thought it was a bad thing (34%) than thought it was good (30%), and a source of regret (36%) rather than pride (34%).

Perhaps the most interesting question, and one which received less media coverage related to how Britain talks and thinks about its past. This was a much more complex question and the responses, perhaps not surprisingly, revealed considerably more uncertainty. A slightly larger proportion (29%), agreed with the statement that ‘Britain tends to view our history of colonisation too positively – there was much cruelty, killing, injustice and racism that we try not to talk about’, while 28% agreed ‘Britain tends to view our history of colonisation too negatively – we talk too much about the cruelty and racism of Empire, and ignore the good that it did.’ A similar proportion, 27%, thought that ‘Britain tends to get the balance between the good and bad sides of our colonial history about right.’ This rather convoluted question, nevertheless reflects the complexities of Britain’s imperial past, and also the ambivalence which can result when people are presented with a more complex picture.

This is not the first time that YouGov has polled on this question. In a similar poll in 2014 although the wording was slightly different (respondents were asked to distinguish between pride and shame) a much larger proportion (59%) agreed that the Empire was something to be proud of, compared to 19% who agreed that it was more something to be ashamed of. In 2014, they also asked whether people felt that the countries which were colonised by Britain are now better off or worse off as a result of being colonised, with 49% thinking they were better off compared to only 15% who thought they were worse off. Perhaps most remarkably, 34% of those polled in 2014 said they would like it if Britain still had an empire.

The apparent drop in support for the Empire between the two polls perhaps reflects the circumstances in which the polls were undertaken. The 2014 poll was taken at the time of the Glasgow Commonwealth Games and also included a question regarding which countries people especially wanted to do well at the games. This may well have helped to generate a more positive image of Empire in the public mind and of its impact on world today. The holding of the games in Glasgow may also explain the absence of the kind of regional variation in support for Empire seen in the more recent poll. In contrast the most recent poll was taken in the context of a fractious debate about the statue of Cecil Rhodes. While the poll still revealed considerable support for Empire it also perhaps reflected a wider appreciation that the legacy of Empire is more mixed.

The marked differences in response, and also the large proportion of non-committal responses, also suggest that the Empire is not a salient issue for the public. That is, it is not something on which the majority of people have a clear and fixed view. Given the distance in time since the end of Empire, not to mention its peak, this is perhaps not surprising. It also perhaps serves to reinforce the argument that there is a need for more education about Britain’s imperial past. A wider understanding of the impact of the British Empire both on the world, and on Britain today, may not lead to greater consensus on the issue but it might serve to move it beyond simplistic chauvinistic debates regarding the sources of national pride.

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The not-so-invisible man

An excellent essay by Andy Beckett on the role of the Cabinet Secretary, Jeremey Heywood, in The Guardian‘s excellent long read series. No blog just read the article, ‘The most potent, permanent and elusive figure in British politics’.

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