It’s a strange time to be taking my UK citizenship test. Strange because I’m being asked to assure the Home Office that I will respect the law. I am asked to be aware that in the UK the rule of law is one of the four main values that I will be asked to affirm if I am granted citizenship. Strange because a few days ago the Prime Minister used his majority to state that the UK is intending to breach international law. Among other legal and political figures, human rights lawyer Amal Clooney resigned as UK envoy, stating that she’s unable ‘to urge other states to respect and enforce international obligations while the UK declares that it does not intend to do so itself.’
It is doubly strange because I was not expecting to learn much preparing for the test. I have been in the British education system since primary school and I hold two postgraduate degrees from English universities. It was easy for me to mock memorising dates in the best style of ‘facts, nothing but facts’ as Dickens lampooned in Hard Times (published in 1854).
But the dates and events chosen to demonstrate Britishness have touched me in unexpected ways.
I realised as I crammed that the selection of facts highlights pressing political questions (and that’s without going into the disturbing silences of what has been left out of the official history). I realised that some of the dates I had to memorise really were important.
The date of the Magna Carta, 1215, when the King’s power was first curtailed. The Habeas Corpus Act, 1679 (this one gives me the shivers every time, as the right to appear in court and not be unlawfully imprisoned was suspended in my own country of birth, Argentina, less than 50 years ago, leading to 30,000 people being disappeared by the military government). The Bill of Rights of 1689 that established Parliament’s mandate to limit the monarch’s power. The Official Handbook for the test declares that Charles I was the last king to believe in the divine right of kings (although it doesn’t explain how he lost his head and how the UK became a republic between 1649-1660). We are asked who the Chartists were (the answer deemed correct is those who campaigned for the working class to get the vote, not that the working class campaigned); the late development of women’s right to vote, only in 1928 at the same age as men (21 years of age), and only in 1969 at age 18. These few and selective facts nevertheless gave me a sense of how much time and how much struggle has gone into enforcing accountability from those in power, and to demand the participation of ordinary women and men in national decisions. It took over 700 years for the absolute might of a king to become constrained by a system developed over centuries to gradually guarantee that all citizens can expect their rulers to be held accountable by the law.
And that matters because if there is one rule for them, for those in power, and another for us, the governed, equality loses all meaning. It matters because it makes the majority subject to the arbitrary use of force, physical or legal, as benefits the interests and prejudices of rulers.
I have only recently become aware of how important this history of struggle for the rule of law to include the most powerful has been for me. I have not been afraid to hold my beliefs and opinions; I have taken for granted the expectation of due process, of rulers respecting my human rights. For the 30 years I have made England my home, I have been grateful that the UK guaranteed the rights of those of us who were not citizens.
Perhaps in contrast with my early experience, where a different political opinion from the one held by government could be lethal, and Habeas Corpus requests were ignored. I was aware that I relied on the freedom available in the UK to demand that others around the world should also be entitled to rights under the rule of law. And indeed the UK has a long history of citizens’ initiatives to extend rights around the world. I was also aided by the privilege of my relatively pale skin, of having a European passport while the UK was part of selected laws and regulations of the European Union. I don’t think I was alone in feeling confident when I first worked with human rights organisations in the 1990s, that it would be possible to have an international system to enable the extension of rights to more and more people around the globe.
The international recognition of human rights in the 20th century, spearheaded by developing nations to curtail the power of colonial powers, expanded the idea that every person is entitled to a say in their own lives and to protection against harmful rulers. And for these ideas to have any real meaning we need to have social institutions that can implement laws, based on social agreement that nobody can be above the law. That’s what the Magna Carta was all about. It is right to feel proud of a system of government where we are all equally subject to the rule of law, including our rulers.
When I am asked about my commitment to the rule of law I realised that I am frightened that those in power in the UK do not currently exhibit the same commitment.
It has reminded me of my shock and fear when I read what was in the manifesto that brought Johnson’s government to power with a large majority. As Guy Aitchison sets out clearly, the manifesto proposed to remove the checks and balances of the UK’s (unwritten) constitution, giving government the power to sideline Parliament and reduce judicial scrutiny of government action. In their own words, they threatened ‘to reform judicial review to ensure it is not abused to conduct politics by another means.’ This in the weeks after the Tories were prevented by the courts from implementing their Brexit deal without parliamentary scrutiny and then from proroguing parliament. The strangeness of the word, proroguing, obscures the fact that closing down the institution that guarantees citizens’ representation, that upholds the country’s sovereignty, and the main check on executive power, is an attack on democracy. In other countries we call that a coup attempt, an attempt by the executive to bypass the elected legislature.
It was unthinkable that it could be happening in the UK; and indeed we have had trouble thinking about it and having a public conversation about the implications. When the High Court overturned the decision, I was relieved to see that no one is above the law. Yet the manifesto is a clear riposte and challenge to that decision.
The events of the past few days suggest that Johnson’s actions to disregard the rule of law are not an oversight but a strategy. How else are we to understand that the Tory manifesto further threatens to “update” the Human Rights Act to rebalance rights in favour of “national security and effective government”? I am not reassured. In 2020 we are beginning to see what was intended: labelling XR an extremist group (where non-violence has been the central pillar of their actions) and putting all protest at risk of criminalisation; the Overseas Operations Bill passed in parliament this week, putting a time limit on bringing torture cases to court, in contravention of human rights treaties signed by the UK.
These gradual changes in where to draw the line between freedom and governance have not arisen in a vacuum.
Governments have been legislating for more executive power and less judicial oversight for some time. The inhumane treatment of asylum seekers, who are detained in their thousands in the UK; the ongoing abuse of Windrush British subjects who are denied their lifelong contribution to UK life; stripping people of their citizenship without recourse to legal process, on the say so of the Home Secretary (possible by law since 2014) are some examples. The state of limbo which EU citizens living in the UK, and UK citizens living in European states, have been subjected to since the referendum, where clarity only arrives with news of rights curtailed.
I was asked in the citizenship test what my responsibility was in becoming a UK citizen: the response deemed correct was ‘looking after myself and my family’. That is not enough. What about making a contribution to society? What about social responsibility, public service? These are the qualities that I admired when I first arrived in the UK, when I felt welcome in my difference and where civic-minded concern with the welfare of others was valued.
I am more than willing to affirm that I will ‘observe its laws faithfully and fulfil my duties and obligations as a British citizen.’ Respecting the institutions that shape our laws, and the rule of law, is fundamental to me. But is it fundamental to our rulers? And are we, the ruled, ready to once again struggle to ensure that nobody is above the law?
Marcela López Levy is a sociologist and group therapist. She is currently an Honorary Research Fellow at the Centre for Researching and Embedding Human Rights (CREHR) of Birkbeck College.