October 08, 2015

Horse 2002 - Repatriation, Reparations and The Crown

Last week British Prime Minister David Cameron visited Jamaica and Grenada, to engage in trade talks which among other things involved the building of a prison to hold 1500 inmates at the cost of £25m, and the repatriation of prisoners back to Jamaica without the need for their consent to be transferred.
Cameron made the first trip to the Caribbean by a British PM in fourteen years since Tony Blair in 2001, made a similar trip which involved talks and the training of several hundred police officers. Previous to that, it was also 14 years earlier that Margaret Thatcher visited the Caribbean but that had more to do with a Cold War context. Three trips in 28 years by a British PM to the Caribbean seems a little paltry to me; considering the mark that Britain has left on that part of the world.

Investigations were made into David Cameron's family history and it was discovered that General Sir James Duff who Cameron is related to on his father's side of the family, was compensated £4101/0/1 by the Crown after the passing of the Slavery Abolition Act 1833.
It seems rather a bit rich to me, that when compensation was paid out by the British Government in the 1830s, it wasn't paid to the people who were often kidnapped, made to work against their will and beaten and killed if they did not, stolen from their homelands and deposited in a place where they neither knew the language nor kith nor kin, but rather monies were paid to the capitalists who treated people as chattel and who made profits on the blood and bones of the people they oppressed.
Even 180 years later, that should be the cause of scorn, shame and a lot of inward looking but sadly, none of this seems to have occurred at all.
At the 200th anniversary of the passing of the Abolition of the Slave Trade Act 1807, the then Prime Minister Tony Blair did say that "slavery was a thing of the past" but stopped short of an apology. The real message which came out of that is that even if you commit crimes against humanity as a nation, you can not be held responsible and that you do not feel as though you need to apologise. "Bigger gun diplomacy" is as alive in the 21st century as it was in the 19th century.

In an open letter which was published in the Jamaica Observer, historian Sir Hilary Beckles wrote to David Cameron to "contribute in a joint programme of rehabilitation and renewal"
Exactly what such a joint programme of rehabilitation and renewal would entail I don't know exactly but at very least, I think that it should employ at least some level of apology.

Most telling, Beckles' letter reminds Cameron of what Britain has done in the world:
I speak, Sir, of the legacies of slavery that continue to derail, undermine and haunt our best efforts at sustainable economic development and the psychological and cultural rehabilitation of our people from the ravishes of the crimes against humanity committed by your British State and its citizens in the form of chattel slavery and native genocide.
In this regard, I urge you to be aware that the issue of reparatory justice for these crimes is now before our respective nations, and the wider world. It is not an issue that can be further ignored, remain under the rug, or placed on back burners, as your minister who recently visited us so aptly described your agenda for Jamaica and the Caribbean.
It will generate the greatest global political movement of our time unless respected and resolved by you, the leader of the State that extracted more wealth from our enslavement than any other.
-   Sir Hilary Beckles, Jamaica Observer, 28th Sep 2015.

Intriguingly, Beckles says that "we ask not for handouts or any such acts of indecent submission. We merely ask that you acknowledge responsibility for your share of this situation".

There's an interesting thought. Handouts are one thing but where actual damages have been caused, there is usually a case for compensation. I don't think that it would be difficult to prove a case which for many people is still ongoing, of pain and suffering and emotional distress, which stems from the results of slavery and empire.
People like Dr Shashi Tharoor who is a member of the Lok Sabha, the "House of The People" in the Indian Paliament (the lower house in a bicameral system), thinks that the case to be made that Britian does owe reparations should be made:

The real problem with reparations is the question of who pays and who should be liable. In the case where private profits were extracted from empire as a result of slavery, should the descendants 180 years later be held liable for the actions of people they have never even met? Maybe there are vast estates which still exist as a result of 180 year old profits but is that enough to make someone pay for the actions of someone they might disagree with?
There is a case to be made that the eternal person of the Crown should be held liable for the damages caused by slavery and empire but again, that's a complicated subject.

The obvious question is "Who is the Crown?" Fortunately, that question is answered fairly easily:
Corporation - a body which is recognised by law as having a separate legal personality, distinct
from those of its members. A corporation may, for example, generally hold property, and may
sue and be sued, in its own name.

Corporation sole - a corporation consisting of one person and his or her successors in a
particular office or station. Examples include the Crown, government ministers, and bishops.
- The Law Commission, The Execution Of Deeds And Documents By Or On Behalf Of Bodies Corporate - (Mar 2005)

For all practical intents and purposes, the Crown is like a trustee corporation. The Crown is a different person at law to the monarch and whereas the monarch dies (the King/Queen is dead, long live the King/Queen) the legal person that is the Crown survives into perpetuity. Nations like the United States who don't have the person of the Crown for obvious reasons, are more explicit about who their equivalent person is. The United States has Incorporated and Unincorporated Territories which are held in possession by either the individual states or the federal nation state - the Republic.
Parliaments themselves in acting on behalf of the person of the Crown, do so in the same manner as a board of directors and they are elected by the stakeholders who are the electorate. Of course, this still means that Parliaments who act in the capacity of a board of directors, will still act against the wishes and will of the electorate but in the case of Australia for instance, where this is proscribed by the Section 51 condition in the Constitution that governments should act for "good government", this has never ever been tested at law.

The Crown is also a different person, that is a different Corporation sole depending on which jurisdiction you happen to be talking about, and that was confirmed in 2005:

 9.  The instruction in issue in this case was given to the Commissioner (who was required to direct the Director) by the Secretary of State. He was not of course acting on his own behalf but on behalf of the Crown, from which his authority derived. But it is now clear, whatever may once have been thought, that the Crown is not one and indivisible: R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Indian Association of Alberta [1982] QB 892, 911, 916-917, 920-921, 928. The Queen is as much the Queen of New South Wales (In re Bateman's Trust (1873) 15 Eq 355, 361) and Mauritius (R v Secretary of State for the Home Department, Ex p Bhurosah [1968] 1 QB 266, 284) and other territories acknowledging her as head of state as she is of England and Wales, Scotland, Northern Ireland or the United Kingdom. Thus the Secretary of State as a servant of the Crown exercises executive power on behalf of the Crown in whatever is, for purposes of that exercise of executive power, the relevant capacity of the Crown. The question which divides the parties is: by what test is the relevant capacity of the Crown to be ascertained?
- Lords of Appeal:
Regina v. Secretary of State for Foreign and Commonwealth Affairs (Appellant) ex parte Quark Fishing Limited (Respondents), 13th Oct 2005

If the Crown in New South Wales is a different person to the Crown in Queensland for instance, are those persons jointly, severally or perhaps even both, liable for damages. In the case of India, the person of the Crown who held the Dominion of India no longer exists and if they are liable, to what extent does that bind the person of the British Crown? Similar sorts of questions can be asked about the Crown who held possessions in the Caribbean. The Crown in Jamaica is a different person to the Crown in Grenada, Barbados and Antigua. All of them inherited the same powers as the dominions were granted as a result of the Statute of Westminster 1933 upon gaining their independence; so does that mean that the person of the Crown in Jamaica would sue the person of the Crown in Great Britain?

Of course there is the unpopular problem of what extent a country's problems are its own. India has been a republic since 1948 and whilst it might like to recover monies that it loaned Britain during the First and Second World Wars (which is fair and reasonable and can be easily ascertained by looking at a set of accounts), the question remains as to what current part of India's problems are India's fault and current part of India's problems are Britain's?
A country like South Korea which arguably had the worst economy in the world in 1955, slowly dug itself out of a hole. Has India done that job for itself and to what degree? With ex-colonies in the Caribbean who only won their independence after the Second World War, as Britain pulled its hands back from the economic tiller, what sort of directions did these ships of state sail?
I don't know the answers to those questions and because I am a white male (and therefore in the eyes of many, the chief case of every problem in the world) living in Australia, which has its own terrible history when it comes to the treatment of its first peoples, I'm mostly ignorant about what it's like to live with the effects of oppression, having never experienced it myself. To what extent should I be held liable for the crimes and damages perpetrated by my people, who stole countries and whom I've never met?

There is an interesting passage in Dr Tharoor's speech above:
Britain made all the profits, controlled the technology, supplied all the equipment and absolutely all these benefits came as British private enterprise at Indian public risk. 

If you were to think of something more recent like the 2008 Financial Crisis where £500 billion was thrown at the banks (primarily Lloyd's TSB and The Royal Bank of Scotland), public risk was again on the line as benefits were paid to private enterprise.
Assuming that even was possible, if the British public was made to pay damages, then the people who would actually be paying for those damages to be paid as reparations would most likely be the poor and the old, who would see cuts to services as a result of new budgetary requirements. The same sorts of people who won their fortunes on the backs of slaves 180 years ago, are the sorts of people who would like to throw all the poor people off the scepter'd isle today; or would like to the the Great British public liable, whilst they get away scot free.

I have none of the answers here; in fact, I'm quite sure that I don't even grasp the nuances of the question but I do know that the experience of former PM Kevin Rudd in Australia who made an apology from the floor of the Parliament to the "Stolen Generations" was both symbolic and cathartic - it also cost the Crown zero dollars. I don't know what sort of things would need to be included in an apology from Britain for slavery and empire but I do know that acknowledgement of the damage is necessary; as yet, no British Prime Minister has even looked like making that acknowledgement. How hard is it to say sorry?

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