Author’s note dated 11 March and 23 April 2021: the Hate Crime and Public Order (Scotland) Bill successfully completed Stage 3 of the parliamentary process at Holyrood by 82 votes for to 32 against. On 23 April 2021, the Bill received the formality of the Royal Assent.
Today, I was talking to a group of students about the fact that cultural factors can sometimes be a much more powerful driver towards changing society’s attitudes about certain issues.
Sometimes when Governments take a very legalistic approach to societal issues e.g. equality and discrimination, they can end up being accused of overkill or using a sledgehammer to crack a nut. A good example of a current controversy is the Hate Crime and Public Order (Scotland) Bill making its way through the Scottish Parliament.
The Bill is about to embark on Stage 2 of the legislative process
Lord Bracadale, a retired Scottish judge, was commissioned by the Scottish Government in 2017 to review the state of Scotland’s hate crime laws and many of his recommendations are to be found in the Bill.
A link to Lord Bracadale’s Report can be found below:
Now, most reasonable people are going to say hate crime is an issue which should be tackled, but when you ask how it should be tackled that’s when things get controversial.
Critics of the Hate Crime Bill say that it will stifle free speech, but it’s supporters say that it will clarify the law. Who is right and who is wrong?
A link to a recent article on the controversy surrounding the Hate Crime Bill can be found below:
The Scottish Government, of course, has been criticised in the past for passing laws to combat discrimination – think the Offensive Behaviour at Football and Threatening Communications etc (Scotland) Act 2012 which was eventually repealed on 20 April 2018.
The Scottish Government also had to put its proposals on the back burner to make it easier for transgender people to self-identify in the face of opposition within the SNP and in society more widely.
These are just some examples of the difficulties faced when you decide to go down the legal route. You can pass a law, but will people respect it and, more importantly, obey it?
Conclusion
When I was discussing the significance of culture versus the law this morning, what I meant by that is that organisations and individuals can often drive change in society much more profoundly – even when there is no legal duty to do so.
One example at the organisational level is that of Glasgow University’s recent attempts to confront and make reparation for its historical links with the Trans-Atlantic Slave Trade.
Individuals such as Glasgow City Councillor, Graham Campbell, have done a lot of good work to highlight the City’s historic links with the Slave Trade. Councillor Campbell has also taken a lead in pushing for the creation of a National Museum in Scotland to commemorate the victims of slavery.
When Black lives didn’t matter … that much – except perhaps merely as a commodity – is something that British society is having to confront in June 2020. Humans could be property to be bought and sold – quite legally.
Statutes of historical personages have been torn down or defaced in this country because of the death of George Floyd, an African American, in Minneapolis, USA. Unless you have been living in a vacuum, Mr Floyd died at the hands of a Minneapolis Police Officer on 25 May 2020.
Black Lives Matter
The protests that have kicked off around the world in the wake of the death of Mr Floyd have stirred memories of Britain’s murky past in the matter of race relations. It is not something at which this country can take pride.
Some readers may recognise the picture by JMW Turner at the top of this Blog, but if you don’t it relates to a particularly egregious and shocking incident in British legal history – but more about that later.
I’m thinking, in particular, about Britain’s role in the Trans-Atlantic Slave Trade. It may come as a surprise to many Britons that this country was an active participant in the mass enslavement and trafficking of our fellow human beings to the plantations, factories, mills and mines of the New World or the Americas.
It seems almost unthinkable today that such practices were allowed to flourish when we have strong laws in place prohibiting slavery (e.g. Article 4 of the European Convention on Human Rights as implemented by the Scotland and Human Rights Acts 1998).
Sir John Hawkins, Elizabethan Merchant Adventurer (1532-96)
Sir John Hawkins, the National Maritime Museum, London
As far back as 1562, Sir John Hawkins, cousin of the more famous Sir Francis Drake, had sailed to West Africa on trading voyage when he captured a Portuguese slave ship. After securing his human cargo, Hawkins then set sail for the Caribbean – then part of the Spanish Empire – to find buyers for his merchandise. Although England and Spain were in an effective state of war, the Spanish colonists were more than happy to do business with Hawkins.
And so began, the lucrative trade in human beings from the British perspective: Hawkins would carry out another two trading voyages to the Spanish Empire. On his third voyage (1567-69), he nearly came to grief when he tangled with a Spanish naval squadron at the Mexican harbour of San Juan de Ulúa (near Vera Cruz), narrowly escaping death. Many of his men were not so lucky, but that’s another story.
Although Hawkins was responsible for the enslavement and trafficking of hundreds of Africans – and by the way, the English Crown also got its cut from these enterprises – his activities were really minuscule when compared to what would come later.
An image of John Hawkins’ coat of arms (complete with the image of an enslaved African or a Moor- the name generally given to inhabitants of North Africa) can be seen below:
The coat of arms of Sir John Hawkins, part of whose wealth was derived from slave trading activities
The Asiento
British participation in the Trans-Atlantic Slave Trade would really hit its stride as a result of the Treaty of Utrecht 1713-1715 which ended the War of the Spanish Succession. Under the terms of the Treaty (Part X), the British gained possession of the naval fortress of Gibraltar and the Island of Menorca. More significantly and, from a purely profitable point of view, the British also took control of the Asiento for an initial period of 30 years.
The Asiento was the hugely lucrative contract or monopoly to supply Spain’s American Empire with African Slaves. Queen Anne (1702-14), the last Stewart monarch of the British and Irish Isles would hold a 22.5% stake in the company which administered the Asiento according to Hugh Thomas in his magisterial The Slave Trade: History of the Atlantic Slave Trade, 1440-1870 (Simon Schuster: 1997; First edition).
For nearly the next century, British vessels would carry millions of enslaved African (men, women and children) via the horrific Middle Passage to destinations in the Americas to be brutalised and exploited by their White masters.
By this time, of course, Scotland and England had entered into political Union in 1707 and this meant that Scottish merchants and financiers could take full advantage of what became known as the Triangular Trade. Ships would sail from British ports, laden with trade goods, heading for the coast of West Africa; they would pick up their human cargoes and take the Middle Passage to the Americas where the slaves were sold; then the return voyage could begin with the ships laden with tobacco, rum, cotton etc for sale in Britain.
Altogether it was a very profitable enterprise and vast wealth flowed into Britain.
Needless to say, the conditions which the slaves endured was horrific, with them being crammed into the holds of the ships for up to six weeks. Many slaves would not survive the passage, succumbing to disease and infection.
A depiction of conditions on a slave ship can be seen below:
A depiction of the horrifically overcrowded conditions endured by African Slaves on the slave ship, Brookes (1781)
The Zong Massacre
This is where JMW Turner’s picture (The Slave Ship) heaves into view. It is the depiction of a shocking event which involved the crew of a British ship called the Zong. In 1781, the Zong, which belonged to a Liverpool merchant syndicate, was carrying slaves from West Africa to the Americas. The lives of the slaves were insured, but not in the way that we think of modern life insurance: they were cargo or excess baggage; pure and simple. Slaves were goods or beasts of burden.
A depiction of the Massacre on the Zong
The Captain, Luke Collingwood, or another crew member had made what would turn out to be a fatal error (for some) in their navigational calculations and the Zong was way off course from Jamaica. With supplies of drinking water becoming evermore scarce, a fateful decision was made: a large number of slaves (over 130) would be thrown overboard in order to conserve supplies. Murder? Not quite … jettisoning excess baggage/livestock? This was an acceptable practice on slave ships and insurance had been developed to cover such eventualities.
The owners of the Zong would later attempt to recoup their losses by claiming under their policy of insurance. In the infamous case of Gregson v Gilbert [1783] English Reports 83, the syndicate would be forced to take legal action against the insurers who were refusing to pay compensation. Before anyone misunderstands matters here, this was purely a commercial question of liability for lost cargo, not human lives, certainly not a question of human rights.
At first instance, the court found for the syndicate owners and the insurers were ordered to pay compensation to cover the losses. On appeal, however, the syndicate would ultimately lose the case as Lord Justice Mansfield and his fellow judges would rule that the Captain and the crew had been negligent.
Lord Mansfield had been the judge in an earlier case – Somerset v Stewart (1772) 98 ER 499 – in which the issue of the freedom of an enslaved African, James Somerset was at stake. For abolitionists, this case represented a victory because Somerset was allowed to go free, but whether it represented a general proposition that English common law did not permit slavery within the territory of England has always been the subject of some debate.
Hardly a resounding victory for human rights, but this case would serve as a rallying call to arms for British anti-slavery activists, like the ex-slave, Olaudah Equiano (born in modern day Nigeria) and Granville Sharp.
Sharp later attempted to have crew members of the Zong charged with murder, but the Solicitor General for England, John Lee made a very telling statement:
“What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder… The case is the same as if wood had been thrown overboard.”
Insurers also covered losses (within limits) incurred by slavers who had to kill rebellious slaves while in transit. I well remember the late Professor Robert Burgess regaling the class with the tale of a failed rebellion where the owners of the ‘cargo’ successfully claimed from the insurers the value of the slaves who had been killed by their captors. The sting in the tale was that compensation was not payable for the slaves who had committed suicide following the failure of the rebellion. The policy did not cover such eventualities (see Jones v Schmoll (1785) 1 Term Rep 130n). A human tragedy reduced to an interpretation of the wording in an insurance document.
You can read more about insurance and slavery by accessing the link below:
From 1788 until 1833, the Westminster Parliament would pass legislation chipping away at the edifice of slavery in the British Empire. The practice of enslaving one’s fellow human beings would not be achieved overnight, but the road to eventual abolition would be under construction via the following statutes:
Regulated Slave Trade Act 1788 (or Dolben’s Act)
Abolition of the Slave Trade Act 1807
Slavery Abolition Act 1833
The Act of 1788 did not abolish the practice of slavery, but it laid down limits on the numbers of slaves that could be carried in accordance with the vessel’s tonnage. It was the first British Act of Parliament which attempted to curtail some of the worst practices of the Slave Trade.
More significantly, in 1807, the trade in slaves in the British Empire was abolished. Britain was not the first European country to do this – the Kingdom of Denmark had done so in 1792, although this law did not come into force until 1803. It is important to note that neither the Danes nor the British prohibited the ownership of slaves – this was still a perfectly legal practice.
Eventually, in 1833, the Westminster Parliament passed the law which would abolish slavery – eventually – as a legal practice in the territories of the British Empire. I say eventually because the institution of slavery would not be abolished at the stroke of the Royal Assent. Compensation for loss of property rights would have to be paid to slave owners (great and small) and there would be a transitional period (from 1838 until 1840) in which the slaves would migrate to their new legal status of freed men and women.
In total, it is estimated that the British Government established a fund of some £20 million (£16/17 billion in today’s values) which would be used to compensate soon to be former slave owners.
Ironically, the British would become ardent opponents of slavery throughout the world and they would use their considerable global influence to eradicate the trade and the institution whenever they could.
That is perhaps the problem which has contributed to a sense of collective amnesia amongst the British. Yes, considerable pride is taken when it comes to the abolition of slavery, but memories are extremely hazy when it comes to activities of British mercantile interests which made fortunes from the opportunities afforded by TheAsiento.
For more information about the background to the abolition of slavery in the British Empire, please find a link below to an article in The Guardian:
As the events of the last week have shown, reminders of Britain’s links to the Trans-Atlantic Slave Trade are everywhere: Edward Colston’s statute in Bristol; Henry Dundas’ statute in Edinburgh (who delayed the abolition of slavery by some 15 years); and Robert Milligan’s statute in East India Docks, London. Furthermore, British Street names reflect connections with prominent slave traders and their interests in the West Indies: Cochrane Street and Jamaica Street in Glasgow. The legacy of slavery is all around us, but for so long we have been wilfully blind or forgetful about this.
In 2020, it is difficult for us to appreciate how pervasive the institution of slavery was. It had been around since the earliest human communities and it still exists. Great scientists such as Sir Isaac Newton (1643-1727) invested heavily (and ultimately unwisely) in the infamous South Sea Company which traded in slaves (amongst other goods). From the British Royal family all the way down to ordinary individuals, investing in slavery could be a profitable financial activity.
Anti-Slavery International estimates that, today, there are more people (some 40 million individuals) living in conditions of modern slavery or unfree labour than there were when the Slavery Abolition Act 1833 was passed by Parliament.
If anything positive comes from the death of George Floyd, hopefully it will make us more aware of the fact that there was a time when Britain was not a beacon of civilised values and although Britannia undoubtedly ruled the waves, but many people could be slaves.
Seán Crossan's Scots Law 