The UK's 'Statue Wars': Can Human Rights Law Assist in Their Resolution?
| Author | Cumper, Peter |
INTRODUCTION
On 7 June 2020 Black Lives Matter protestors in Bristol toppled a statue, erected in 1895, of the seventeenth-century slave trader--and philanthropist--Edward Colston (1636-1721). (1) They rolled it through the streets and dumped it in the city's docks. Four of the protestors (the 'Colston Four') were subsequently acquitted of charges of criminal damage to the statue by a jury at Bristol Crown Court. (2)
This well-publicised event focused attention on a debate that had been simmering over memorials to controversial figures, such as that over the statue of the nineteenth-century imperialist Cecil Rhodes outside Oriel College, Oxford. (3) But the toppling in Bristol ignited a furious explosion of ill-tempered argument concerning the memorialisation of figures from Britain's slave-trading, colonial and imperial past. (4)
In the months that followed the toppling of the Colston statue it was reported that a 'reckoning' had taken place with the removal/planned removal or renaming of over 70 such monuments, buildings and streets. (5) The statues removed ranged from those of slave traders such as Robert Milligan outside the Museum of London Docklands and Sir John Cass at the University of East London to that of the notorious colonial governor Sir Thomas Picton in Cardiff City Hall. (6) But calls for removal have extended much further to include memorials in public places to prominent national 'heroes' such as Sir Francis Drake, Sir Oliver Cromwell, Major-General Robert Clive ('Clive of India'), Lord Horatio Nelson, Sir Robert Peel and Sir Winston Churchill. (7)
In their turn, these calls for 'decolonisation of public space' have themselves been subjected to a backlash, both in rhetoric and in legal regulation. For example, the then Prime Minster Boris Johnson commented on Twitter that:
We cannot now try to edit or censor our past. We cannot pretend to have a different history. The statues in our cities and towns were put up by previous generations. They had different perspectives, different understandings of right and wrong. But those statues teach us about our past, with all its faults. To tear them down would be to lie about our history, and impoverish the education of generations to come. (8) Early in 2021, the then Local Government Minister Robert Jenrick introduced changes to planning regulations so as to require planning permission to remove unlisted statues, plaques or memorials. (9) In an article in The Sunday Telegraph, the Minister criticised "the flash mob" and "town hall militants or woke worthies" who are attempting to "censor our past or pretend we have a different history to the one we have". (10) The government proceeded to introduce a 'retain and explain' policy whereby, upon applications to remove such items, "local planning authorities should have regard to the importance of their retention in situ and, where appropriate, of explaining their historic and social context rather than removal". (11)
In the criminal law sphere, the maximum penalty for damage to a memorial, irrespective of the value of that damage, was increased from three months to ten years' imprisonment by virtue of section 50 of the Police, Crime, Sentencing and Courts Act 2022. This change addressed a perceived:
concern ... voiced in Parliament and society that the law focuse[d] too heavily on the monetary value of the damage with insufficient consideration given to the emotional or wider distress caused by this type of offending ... (12) As a consequence, all such matters are now potentially triable in the Crown Court.
The United Kingdom thus finds itself caught amidst the kind of 'statue wars' once more commonly associated in the public mind with statues of Confederate Civil War generals, (13) or Soviet-era dictators. (14) Its self-image as a beacon of moderation, toleration, democracy and civility has been seriously called into question, (15) with the controversies raising profound and uncomfortable questions concerning identity, history and the national "mythscape". (16) Indeed, one prominent commentator has advocated the removal of all statues of historical figures in the public realm, on the basis that they are "lazy, ugly and distort history." (17)
The 'debate' over the commemoration of figures from Britain's imperial and colonial past has undoubtedly generated more heat than light, becoming one of most visible areas of conflict in the contemporary 'culture wars'. (18) The stage seems set for protracted, acrimonious and possibly even violent disputes between those who flatly oppose any memorialisation of historical figures associated with slavery, colonialism and imperialism, versus those who counter that to destroy such monuments is to "censor our past" and "lie about our history". (19) It is a situation in which, given these starkly opposed battle lines, there seems to be very little possibility of finding any common-ground. (20)
In this article we explore the potential for a hitherto un-utilised mechanism to facilitate nuanced and balanced resolutions of these disputes, namely human rights law.
It is axiomatic that, in one sense, human rights discourse is very close to the epicentre of these conflicts. After all, they concern memorials to men (and it is almost always men) who participated in and profited from the Atlantic slave trade and colonial exploitation, activities based on assumptions of racial superiority. But, until now, little attention has been paid to how human rights law might apply to these memorial disputes in the UK. (21) Admittedly, the role of human rights and memory/memorialisation in the transitional justice context has been extensively interrogated, (22) and some scholars have critiqued the role of human rights in the memorialisation of past atrocities in such situations. For example, Lea David has argued against what she terms human rights "ideology" as a way of dealing with the collective memory of historic crimes, arguing that they constitute an "oppressive force" prescribing a "proper way of remembrance" with which states are expected to comply. (23) However, in this paper, we take a different approach. We contend that UK human rights law, far from mandating 'proper' ways of remembering rather, in the context of the current statue wars, may provide a mechanism whereby nuanced and sensitive balances can be struck between the different interests in play, which include the collective memory of the various groups concerned and the importance of historical debate.
With this aim in mind, this paper will analyse the recent jurisprudence of the European Court of Human Rights (the Court or ECtHR) as it relates to collective memory and historical expression. It will be argued that the interests at stake in these disputes are captured by Articles 8 and 10 of the European Convention on Human Rights (ECHR): the rights, respectively, to private and family life, and to freedom of expression. We maintain that, often (and especially when they were erected many years after their subjects lived), the statues at the centre of the current disputes, rather than primarily being seen as 'history' as members of the UK Government and others claim, can be conceived as embodying, carrying and expressing particular collective memories. As such they may have considerable value to certain groups, relevant to identity and a sense of belonging to place, community and a shared past. (24) However, crucially, such embodiments of some people's collective memory, where they comprise monuments to slave-traders and colonialists, might gravely interfere with the collective memories of those whose forebears were the victims of such men. In celebrating certain figures from the past--quite literally by putting them on a pedestal--such monuments may not only fail to take into account, but could risk causing serious insult to, the very different collective memories of those whose ancestors were enslaved and/or subjugated by the men depicted. In such circumstances we argue, following Strasbourg case law, a public monument might potentially cross the threshold so as to constitute an interference with the Article 8 rights of (at least some of) those living under its 'shadow'. (25)
Statues, we argue, are carriers of collective memory and a form of expression, engaging Article 10, but they also have the potential to interfere with the Article 8 rights of those living in their vicinity or passing beneath them. Neither Article 8 nor Article 10 has hierarchical priority over the other and, as the ECtHR has emphasised, they "deserve equal respect". (26) As we shall see, where there is a clash between these rights, the structures of the Articles require the striking of a 'balance', using criteria that attribute weight to the various interests in play. (27) This exercise, far from prescribing 'proper ways of remembrance', requires a fine balance to be struck that neither mandates the 'tearing down' of statues nor their preservation in perpetuity. If we apply this balancing methodology to disputes over statues commemorating slavers and colonialists in public space, we can see them as carriers of identity and collective memory, and as forms of expression which may have value for (parts of) the communities in which they stand. But they may also interfere with the rights of others to their identity and collective memory, where those people's ancestors were subjected to grave human rights abuses by the figures depicted.
Finally, in the Strasbourg Article 10 case law, we see that the search for historical truth has special value, and we argue that the balancing human rights approach could foster the kind of critical and inclusive dialogue that might contribute to a better understanding of British history--doing so in a way that the current statue-scape status quo cannot provide. Indeed, these statue wars create an opportunity to engage in a critical conversation about important contemporary issues, most notably the representation...
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