One of my ‘not sure where this is going’ pieces.
As a Cub Scout, back in the 1960s we were taken to a Police Station, one of those educational trips that I recall with a mix of fascination and horror (the gas works visit is memorable only for the appalling smell and the fact the Troop leader slipped all the way down a metal staircase using words I’d not heard before). One of the things that I remember was the Sergeant taking our fingerprints and telling us that these were unique to each of us: ‘so you’re all individuals, you’re all different’.
Two statements that have very different consequences.
It’s so easy to focus on the differences. Language, culture, social mores, skin pigmentation, dress, diet… And that’s why we need some sort of social controls, to make sure that those differences don’t become inequalities. It’s part of a civilised society that it permits individualism and doesn’t abhor differences. But some rules are needed. Guidance, to ensure a balance.
But man-made rules have a habit of entrenching anomalies. Certainty begets uniformity which is anathema to individualism. And the human condition comes in an almost infinite variety of alternates. Binary gender distinctions cause difficulties when the expectations of gender definition explode into an almost myriad of options as it has recently.
‘We want to be treated fairly. We need rules.’
Another two statements with very different impacts because if I learnt anything as a lawyer, it is that justice (in the sense of the proper application of the rules) does not always mean fairness (as in achieving a balance between two positions).
Caster Semenya is currently before the Court of Arbitration in Sport. If you don’t know the case then in summary Semenya is a woman who generates freakishly high levels – ‘male’ levels – of testosterone. She won the Olympic 800 metre title and the first three in that race had a similar characteristic. The next three didn’t and one of them said, with a certain force ‘there were two races going on out there’.
For a period Semenya could only compete by artificially reducing – with chemicals – her testosterone. That requirement was suspended for research to be done and since then she has raced without ‘correction’.
Men and women have undertaken different competitions since sport was codified because of the hormones men generate enabling greater musculature and endurance. But even so both men and women have a range of testosterone levels, as well as other features: height, muscle bulk, metabolisms etc. You take your opponent as you find them. You have to accept those who are ‘freakishly’ endowed. Michael Phelps wouldn’t have had his success as a swimmer without his unusual frame and feet.
The rules after the Semenya case will be ‘unfair’ to someone, when they are settled. They cannot avoid that. But justice will be served by certainty. And eventually you just have to accept that, where you impose rules, sometimes there will be an anomalous result which will be categorised as unfair.
Difficult cases make bad law.
Another cliche from my legal career. If you make exceptions for the exceptional then that can undermine the basic premise.
Which brings me to Shemima Begum and the question of her citizenship. Should someone who left England for the caliphate in Syria and ISIS be allowed back when it collapses, even if she expresses no regrets, justifies egregious terrorist acts against innocent concert goers and challenges the authorities to find evidence against her?
The rules, to me are clear. She’s a British Citizen. The Bangladeshi antecedents of her parents are irrelevant. So if she turns up at a British consulate they should do what they would do for any other citizen. Help them get back here. It is also an international obligation.
The fear, as expressed by the Home Secretary, who has sought to strip her of her citizenship is that the law is inadequate to deal with her ‘crimes’and her threat. We cannot gather the sort of evidence that is needed to succeed against her in a British Court, he warns. She is a danger to our security.
Maybe. Very possibly. But bend the rules at your peril, Mr Home Secretary. And if she’s a danger? There are plenty of laws to control her if proved. And if not, as with other home grown potential terrorists, use the security services to monitor her.No, it’s far from foolproof; yes it will be devastating is she manages to carry out an atrocity. But deny her the rights of citizenship? We are on the slippery slope that led the US to set up their holding camp in Guantanamo Bay, to justify ‘extraordinary rendition’, to condone torture on the spurious grounds that the US does not carry out torture so by definition what it does cannot be torture. Let’s face it we were complicit in all this behaviours and we need to be better than that.
We live in a Society where the rule of law is a paramount but delicate construct. It has often failed us; the lack of control over global social media companies is a disgrace to many but be careful what you wish for in imposing wide controls. Censorship benefits dictators and warlords, not democracies. But yes, some control is probably essential but treat lightly and accept that too little is always better than too much.
And Ms Begum? Is she a terrorist? A naive youngster who’s been indoctrinated? Victim or criminal or something of both? Justice says she must be allowed back. Fairness says she shouldn’t be tried and found guilty in either the press or the Home Secretary’s Office or the Court of Public Opinion but in a properly constituted and rigorously run Court of Law. Humanity says we should always be careful before we demonise any individual.
We cannot complacently take the things that make living in the UK worthwhile and ignore them because it suits an agenda. I’ll give you an historic example.
In 1974 two bombs went off in Birmingham pubs killing 21 and injuring 182. The Provisional IRA never claimed responsibility though later it was found likely to have been them and the outcry was rightly huge. The hunt for the guilty consumed the national agenda. Six Irishmen were soon arrested, found guilty and imprisoned for life. 15 years later their convictions were quashed as unsafe; the police fabricated evidence.
Had we had the death penalty and public hanging it would have been a spectacle championed by many. And it would have been wrong, so wrong. It is too easy to assume, to ignore factors that fail to support a particular narrative, particularity when the atmosphere is raw and at its most febrile. And when that happens, not only are innocent people damaged, but the rule of law also takes a knock. And that is the real tragedy.
It has taken us centuries to get to this point. We cannot – must not – let the seductive and reductive arguments of opinion-formers and politicians – especially short leash politicians intent on creating a persona; yes, Mr Javid, I mean you – to undermine this.
Sometimes Justice and Fairness are incompatible but mostly they make for comfortable bedfellows. Like any good marriage, there will be falling out and disagreements but they survive with understanding and compromise. But most of all they thrive if we fight complacency.
That way we might just get the society we desire even if, often times, we don’t deserve it.
Four years ago yesterday the first post for 1000 Voices Speak For Compassion was put up. While this is possibly slightly off point the anniversary inspired me to put this up. Maybe you might go and have a look at the FB group here and see what else has emerged.