Interview: Nigel Biggar says human rights are not enough and the British Empire was good as well as bad

16 Sep

If the BBC wishes to balance its coverage of the culture war, it should invite Nigel Biggar to deliver at least three series of talks on Radio 4.

The first would be about his new book, What’s Wrong With Rights?, in which the Regius Professor of Moral and Pastoral Theology at Oxford takes issue with the excessive claims for the doctrine of human rights made by some human rights lawyers and other “rights fundamentalists”, and contends, as he puts it in this interview, that “We as a society cannot live on rights alone”.

This opening salvo would be succeeded by a tremendously popular series of talks in which Biggar would demonstrate that the British Empire was good as well as bad, so too was Cecil Rhodes, and would expose the shoddy history being peddled by those “on the Corbynite Left or among Scottish Nationalists” who assert that “Britain equals Empire equals Evil equals America equals the West”.

He observes here that they get away with this because “most people know bugger all about the British Empire”.

In Biggar’s view,

“Not allowing our imperial history to be rubbished is important, because if indeed our imperial history was all that they say it was, namely a litany of atrocity, then the moral authority of the West is eroded.”

Biggar, born in Scotland, is now at Christ Church, Oxford, has also worked in the United States and the Republic of Ireland, and regards himself as British rather than either English or Scottish.

His third series of talks could be devoted to his defence of the Union, and of the United Kingdom as a “highly successful” multinational state.

Any BBC producer who wishes to check what Biggar sounds like will find, by listening to a podcast he recorded on this theme, that he speaks in a calm, lucid, moderate, humorous tone.

Although he challenges received ideas, there is no hint of extremism in what he says. As he puts it here,

“I’m an Anglican. And a Burkean. I like incremental change rather than ruptures. Just for the record, I did vote Remain, but my heart is Brexity.”

Unlike some Conservatives, Biggar does not believe withdrawing from the European Court of Human Rights would necessarily discourage judges from taking decisions which properly belong to parliamentarians:

“If lots of [European] judges see themselves as champions of this gospel of human rights, then it’s possible that judges in our own courts may see themselves in the same way.”

ConHome: “One of the things which prompted you to write your book was a series of judgments by the European Court of Human Rights in cases about the conduct of British troops in Iraq.

“You observe in your introduction that

“the jurisprudence was alarmingly imprudent, partly because the court comprised a majority of judges whose countries had no living tradition of sending troops abroad, whose historical imaginations were accordingly limited.”

“Would it be fair to say that this limited historical imagination is at the root of a lot of the things you’re writing about?

“Many well-intentioned people go astray because they don’t even realise that history has much to teach us – not in the sense of straightforward lessons, but by informing one’s understanding of the world.

“They’re trapped in the present, and they’re therefore extremely susceptible to what you end up calling the moral arrogance of the rights fundamentalists.”

Biggar: “Yes. My first love, and my first degree, was in history, before I became a theologian cum philosopher cum ethicist. The philosophical side of me likes precision. I like clarity. I appreciate the force of logic.

“But the other side of me wants, as it were, ethical concepts to be able to hold their heads up before the messy realities. So that’s why I found myself thinking between philosophy and history a lot, to see if these concepts really can walk on the battlefield, as it were.

“On the point you raise, this had to do with the judgment in Al-Skeini and Others v. the United Kingdom in 2011. It had to do with six killings of Iraqis by British troops in Basra in 2003.

“The issue was whether or not the British should have conducted investigations of their deaths in accordance with Articles 2 and 3 of the European Convention on Human Rights.

“The crucial question was whether British occupying forces had authority and control, so that according to the court, what applies in Europe should apply in Basra.

“Now I noticed on reading through the judgment that the British judges were sensitive to the fact that formal control – jurisdiction – is one thing, but effective control is crucial.

“Because if, as one British judge put it, Basra was on the verge of anarchy, then you don’t have effective control, and therefore you need to allow the security forces greater leeway, because if the state collapses, no rights get any protection at all.

“The British judgments were that there was no effective control, therefore the European Convention should not be transferred from, let’s say, peaceful Hamburg to anarchical Basra.

“The European Court’s judgment quoted a lot of the British judges, and made clear that the criterion as far as they were concerned was effective control, but then having done that, proceeded to drop the qualification ‘effective’, and just decided that the British had authority and control.

“Why? It’s no coincidence that the judges of a British court belong to a country that has a long tradition of an active military. British judges, some of them at least, were aware of the military realities and the political fragility.

“None of this was apparent in any of the rest of the European Court’s judgment.

“At this point, there was a national difference. The British judges had a sensitivity to a factor that European judges with a different tradition just didn’t have.

“And that was crucial in the judgment. There is a general problem with international courts when they come to judge this kind of thing.

“The same applied to the French, of course. Should the British and the French be willing to submit to the judgment of a court that doesn’t really have the experience or the imagination to make prudent judgments?

“In this court judgment, reached unanimously, there were 17 judges. The European Court recognised that it was a serious issue.

“Giovanni Bonello, the Maltese judge, went way over the top in his political rhetoric. In his case it was clear that in addition to his political objections to the occupation of Iraq, his view was that the duty of the court is to uphold the sanctity of human rights.

“He exorted the court to

“stop fashioning doctrines which somehow seem to accommodate the facts, but ratherto appraise the facts against the immutable principles which underlie the fundamental functions of the Convention.”

“Not ‘to accommodate the facts’ because these principles are ‘immutable’, these principles are sacred.

“It is a hostage to fortune for a military power such as Britain to allow its military operations to be subject to the judgment of a court that does not share its assumptions.”

ConHome: “The Americans don’t do this.”

Biggar: “No they don’t. The Americans submit to no international court, and I suppose for the first time I began to appreciate why the Americans don’t.”

ConHome: “What’s your view on the proposed opt-outs from the European Court of Human Rights which the Government is reported to be considering? Or even that we might withdraw altogether?”

Biggar: “If you read Noel Malcolm’s Policy Exchange study [reviewed here on ConHome], that seemed to me to be a devastating critique of the quality of reasoning in the judgments of the European Court.

“So there are reasons to think about withdrawing.”

ConHome: “Noel Malcolm is pretty definitive about that. He thinks we should withdraw.”

Biggar: “Yes he is. I’m not as definitive…”

ConHome: “You’re an Anglican.”

Biggar: “I’m an Anglican. And a Burkean. I like incremental change rather than ruptures.

“Just for the record, I did vote Remain, but my heart is Brexity.

“I voted on a 55/45 per cent basis. When I woke up on the morning the result was announced I thought, ‘Oh.'”

ConHome: “You weren’t in mourning.”

Biggar: “I wasn’t in mourning. I thought this is a different set of challenges.

“But back to the European Court. The problem with the way in which human rights are deployed and developed has to do with the attitude of judges, how they see themselves.

“If lots of judges see themselves as champions of this gospel of human rights, then it’s possible that judges in our own courts may see themselves in the same way.

“In which case, getting rid of Europe’s not going to help.

“It seems to me the problem is not confined to the European Court.”

ConHome: “We’re quite capable of making our own problems. The threat to the Union with Scotland, although Europe plays into it, is essentially a British problem.

“And I was very struck by the podcast you did a couple of years ago for These Islands, in which you said you had ‘sleepless nights’ before the 2014 referendum on Scottish independence.

And that you very much think of yourself as British, not as English or Scottish. An Anglo-Scot, but really a Briton.”

Biggar: “Yes, very much so. The prospect of not being able to call myself British did cost me sleep. And it made me wonder, ‘Why? Would the world really cave in if Biggar had to call himself English? It’s not that bad. Many people do.’

“But I’ve always had a very fierce and deliberate sense of being British. I’m married to an American, I could have made my life and career in America. I was absolutely clear I wasn’t going to do that, I was coming back here.

“What is it I’m attached to? And I noticed how people speaking up for the Union in 2013, and during the campaign in 2014, the argument was almost entirely in terms of economics.

“And it still is to a large extent. And I thought to myself, that’s important, but it’s not what makes me emotionally attached to the idea of Britain.

“And so after the referendum, which went the right way as far as I’m concerned, I sat down and wrote an article for Standpoint to try to articulate what I think it is that Britain means.

“I said the difficulty is it’s like trying to describe the ground you stand on. You take it so for granted that you find it very hard to articulate.

“I came up with Britain is a multinational state, highly successful, to the point where, on the whole, we identify with each other enough that when wealthy London taxpayers find their tax pounds going north to Newcastle or Glasgow or Belfast or Swansea, they don’t complain, in the way that Germans would complain if their tax euros were to go to Greece.

“So we have achieved – and it was an achievement, it was built up over centuries of co-operation and experience – a level of unselfconscious identification with each other – and of course we josh, we joke, we tease.”

ConHome: “More than that. Dr Johnson was incredibly rude about the Scots, although Boswell gives us the best of Johnson.”

Biggar: “One of the main arguments against Scottish nationalism, with its default resentment of the English, and especially if separation comes onto the cards, and the Scots find the English are not going to give them everything they want, we will find a degree of international hostility between Scotland and England we have never experienced since the 1700s.

“And then there’s the larger issue of the role of Britain in the world. I’m a supporter of the West. Britain is a middle-ranking but an important pillar of the West.

“That’s partly a legacy of our imperial past. There’s a continuity between the British Empire and the American-led international order.

“There are some, on the Corbynite Left or among Scottish Nationalists, who say that Britain equals Empire equals Evil equals America equals the West.

“I know enough history to know that Britain equals Empire equals Evil, that’s not true.”

ConHome: “Did anyone reply to your defence of Cecil Rhodes in Standpoint in 2016? You demonstrated that there were good and bad things about Rhodes, but he wasn’t the Hitler of South Africa.”

Biggar: “Good question. Not a single reply.”

ConHome: “This is possibly quite astute of your opponents, not to reply, but still it’s disastrous if you’re not going to get a proper argument about it – if they just avoid the argument.”

Biggar: “My experience of that row, and then the subsequent row about my views on colonialism, is that a lot of the other side don’t know their history, and don’t particularly care to.

“The Rhodes Must Fall lobby, the decolonisers, they’re not interested in the truth about history. And when you say, ‘What you say is not true’, they kind of just move on.

“The agitation is about using history for political purposes. My view is the use of history is pretty unscrupulous. So long as it suits their purposes, they will call Rhodes a Hitler, or in the latest bout of Rhodes Must Fall agitation there was one African PhD student who was reported by The Guardian to have described Rhodes as ‘génocidaire’. 

“There’s no sensible historical ground for that at all.

“But the truth about the past is not going to be the main factor, I think [in whether Rhodes’s statue will be removed from the facade of Oriel College, Oxford].

“What will predominate are emotions about the present, and the felt need to make black minority ethnic agitators feel at home. I say agitators because not all black minority ethnic students or people support the agitators.

“To remove the statue [from Oriel] I think would be to yield to irrational forces, who don’t care very much about the truth about history, and do care about symbolic coups.

“And if Rhodes goes down, all manner of statuary all over the country is going to be in question.

“Rhodes’ record was certainly a mixed one. But there are very few people who are honoured by statues whose careers weren’t mixed.”

ConHome: “Many academics have remained silent on these questions. You express yourself in a temperate manner, but you do speak up.

“For many politicians, scholars and journalists, this is a difficult judgment: when should one jump in to this culture war, often waged in such a rancorous way?”

Biggar: “I didn’t jump in.”

ConHome: “What happened?”

Biggar: “Well I did jump in on Rhodes, it so happened, in 2015, when the Rhodes Must Fall campaign came onto the stage. I’ve spent much of the past ten years reading about imperial history.

“Not allowing our imperial history to be rubbished is important, because if indeed our imperial history was all that they say it was, namely a litany of atrocity, then the moral authority of the West is eroded.

“In late 2017 I published an article in The Times saying we should feel pride as well as shame in the past. A project I had launched in July of that year called Ethics and Empire came under attack by a group of students online.

“Then within a week there was a second and third online denunciation, from 50 Oxford academics and then 200 or so academics worldwide.

“And that took me completely by surprise. I wasn’t looking for a fight. But now, because I care about what’s at stake, I’m stuck into it, and right now I’m half-way through writing a book with the working title Colonialism: A Guide For The Perplexed.

“Though I’m wondering about changing it to something more irenic like Why The British Empire Was Pretty Good.

“How do we handle the cultural war? Well I think we have to inform it. Part of the problem is that most people know bugger all about the British Empire.

“But most people have picked up that right-thinking, progressive people don’t defend it.

“The majority will take the path of least resistance. One thing one has to do is tell the truth about the past. So that’ll be part of my contribution.”

At the end of the conversation, we reverted to What’s Wrong With Rights? and Biggar declared:

“We as a society cannot live on rights alone. Rights talk so dominates public discussion that necessary talk about duties or about virtues or about the common good tends to get pushed to the side.

“Here’s a concrete example of why it matters. You remember in 2015 the Charlie Hebdo murders took place, because Charlie Hebdo had published cartoons of Mohammed that Muslims found offensive.

“And of course in reaction to those murders everybody was affirming the right to free speech. Charlie Hebdo should have been free to do as they damn well pleased and if Muslims are annoyed, that’s just too bad.

“Now of course that was right, and the murderers had no justification.

“But I did think, ‘Yes, OK, we want to affirm the legal right to free speech. But the question of how we handle free speech within the legal parameters is a moral question.

“And in the case of Charlie Hebdo, I thought well, publishing these satirical cartoons of Mohammed in Charlie Hebdo – what exactly were you trying to achieve in doing this?

“Because the people who read Charlie Hebdo, they’ll be people on the Left who are probably secularists, who get a kick out of seeing Mohammed mocked.

“Well, you know, it’s a free world, I guess if people want to do that, and enjoy that, that’s fine.

“But what did it achieve constructively? Did it achieve anything positive in terms of relations between French Muslims and other citizens?

“I do think we’ve got a duty to tell the truth, and if it so happens some people are annoyed by that, well that’s just too bad. But we shouldn’t say things just to annoy other people – we shouldn’t spit on other people’s sacred cows just because it gives us kicks.

“Freedom of speech is one thing – having the right is one thing – having the qualities of character to restrain yourself when you should restrain yourself, and to be charitable, or to be just, these are questions of virtue, and if we don’t have ways of training citizens in the virtues of self-restraint, we won’t have a citizenry who are capable of respecting other people’s rights.

“So the legal right’s good, but it just isn’t enough. We need to be talking about the formation of virtue more. Who does it, and how is it done? Which virtues are we going to promulgate?

“Rights are not enough. That’s something I really would like to emphasise.”

Where is the Conservatives’ Constitution, Democracy and Rights Commission?

17 Jul

The Shamima Begum legal proceedings are a culture clash and a timely warning.

The clash lies in the gulf between metropolitan and provincial Britain.  The former’s take is audible, sophisticated and always liable find a sympathetic audience at some point in the courts.

At its core is the conviction that Begum is British – and that she should be tried here for any crimes she is alleged to have committed.

Those who hold it tend also to say that she was a child when she left the country to join ISIS; that she has renounced it, and that she is not a security risk.

The provincial view is less openly expressed, instinctively and reflexively held – and one to which the courts would resist.

It is that Begum betrayed her country when she travelled to support a terrorist group that seeks to destroy our way of life.  She therefore has no human or other right to the citizenship that the Government removed.

That’s not to say that the Supreme Court will necessarily find in her favour when it considers Ministers’ appeal against yesterday’s ruling by the Court of Appeal.

Sajid Javid argued when as Home Secretary he removed Begum’s citizenship that she would not be left stateless because would not be stateless because she could claim Bangladeshi nationality through her parents.

The Court of Appeal ruled yesterday that she should not be sent to Bangladesh or Iraq, where she was involved with ISIS, because she might face ill treatment.  You can imagine how that will go down in the Red Wall and elsewhere.

The Special Immigration Appeals Commission took a different view, and we will now have to see what the Supreme Court has to say.

Javid suggested yesterday that Begum is a threat to national security; that she is unlikely to be prosecuted in the courts if she is allowed back into Britain; that she will become a poster girl for Islamist extremism if this happens.

He also said that “the judgements and precedents set in this case could bind the hands of the Government in managing past and future cases”.

That some British citizens and others who also went to join ISIS have already returned here doesn’t mean that Javid is wrong.  It isn’t hard to see how yesterday’s judgement has wider implications.

It’s claimed that appeals are now likely to be lauched on behalf of 30 British women and 60 British children detained by the Kurdish authorities in Syria.

All of which raises the question of what is happening to the former ISIS terrorists who have already re-entered the country.

Some will be subject to Terrorism Prevention and Investigation Measures (Tpims) – one of which may be slapped on Begum if she returns here.

These haven’t been proved to be watertight: readers may remember the case of Mohammed Ahmed Mohamed, who while disguised in a burka escaped the police tasked with monitoring him.

It’s tempting to believe that were the Human Rights Act to be recast and Britain’s membership of the ECHR revoked, judgements like yesterday’s wouldn’t be made.

The point can’t be proven one way or the other, but we suspect that any British court would be capable of making it whether we were signed up to the ECHR or not.

None the less, reforms to ensure that there is “a proper balance between the rights of individuals, our vital national security and effective government” would doubtless have an effect on the courts.

The words in quotes are from the Conservative general election manifesto.  We hope that they are acted upon.  Where is the Constitution, Democracy & Rights Commission it promised “in our first year”?

At any rate, it is far from certain that Begum will actually return, whatever the Supreme Court decides.  So her story has more chapters to come.

The timely warning is bound up with a point we made only two days ago: today’s papers cover not only Begum’s court case, but Russian espionage claims – that it tried to hack into our Coronavirus vaccine research.

The timing is doubtless connected with the impending publication of the report next week into claims that Russia interfered with the 2016 general election and the 2017 EU referendum.

Our argument was that government shouldn’t focus on the threat to our security from China to the exclusion of those from Russia and Islamist extremists – who, as Gerry Adams once said of the IRA, “haven’t gone away, you know”.