Action on Home Education: impact challenges

Daniel Monk, a Reader in the School of Law looks at the background to a short debate about home education that took place last week in the House of Lords

home-educationThe right of a child to an education is widely accepted as being a ‘good thing’. It is what some people describe as an ‘apple pie’ issue: something that is so obviously nice, and comforting, that no one could possibly object. But what the right to education means in practice is complicated and contested and inherently political. And nowhere are the underlying tensions as acute as in debates about home education.

This is because ‘education’ is often equated with ‘schooling’, and the latter exposes the child not only to other children but also to the ‘professional’ gaze of teachers, inspectors and social welfare agencies. Consequently, home education challenges popular assumptions about child development and ‘socialisation’ and at the same time raises questions about the state’s role in both enforcing the right to education and in defining the content of education. These latter questions go to the heart of debates about the nature of democracy and this is evident from comparative perspectives. In Germany home education is unlawful, whereas in the USA it is constitutionally protected and practiced on a large scale. This country adopts a characteristically mid-Atlantic position. It is well established in law that parents can comply with their legal duty to educate their children by means of home education. But while this is unquestioned by policy makers, what is disputed is the extent to which home education should be monitored.

Concerns about raising educational standards, the number of children ‘missing education’, increased inspection of independent schools, and an emphasis on ‘safeguarding’ agendas in inter-agency cooperation, have all highlighted the anomalous position of home-educated children. And at the same time the number of home educated children has and continues to increase and is sometimes referred to as a ‘quiet revolution’. There has been a 65% increase in children recorded as home educated over the last seven years, and estimates vary from 36,000 to far higher. However, no one knows precisely how many children are currently home-educated. This is because unless a child is being removed from a school, parents are not obliged to tell anyone.

The reasons for this increase are complex and varied. Home educators include those who object to conventional schooling, sometimes on the basis that it is too permissive and liberal and, conversely, sometimes for being too traditional and overly prescriptive. But they also include parents who have felt that have no other option as a result of failures to address bullying in schools or through the much-criticised practice of ‘unofficial’ or ‘illegal’ exclusions.

Even when a local authority knows about children in their area that are home-educated there is confusion about what their current monitoring duties and powers are, and this is compounded by the fact that the current guidance produced by the Department of Education in 2007 is both out of date, unclear and provides advice based on questionable interpretations of the existing law that restricts a more pro-active investigatory role.

Attempts to address the issue were made by the last Labour government. It commissioned a review of the law, The Badman Review, which recommended the introduction of a compulsory national registration scheme. This was included in – but subsequently dropped from – the Children, School and Families Bill 2009. At the same time a report by the House of Commons Select Committee for Children Schools and Families (2009) concluded that it was ‘unacceptable that local authorities do not know accurately how many children of school age in their area are in school, are being home educated or are otherwise not at school’. The Committee heard from Sue Berelowitz, The Deputy Children’s Commissioner, who argued that it was ‘not acceptable that the state should not be able to vouch for the education of so many of its citizens’. In its final report the Committee also quoted extensively from an article of mine. This confirmed what others have found: that in an age of political sound bites, Select Committees are institutions that can often be refreshingly receptive to academic research. More recently, in May 2016, the Wood review of local safeguarding children boards, commissioned by the Department for Education, concluded that in relation to home education, that a ‘local authority is not able to assess either the quality of education being received by the child or whether there are any safeguarding issues that require attention’ and that ‘this needs to be addressed urgently’.

Despite these widespread concerns, to date both the Coalition and the current Conservative governments have refused to act. One possible reason for this is the highly effective lobbying by home education activists. While apolitical, the lobby’s arguments against enhancing monitoring cohere with predominantly Conservative parliamentarians’ concerns about expanding the role of local authorities (in particular in the context of education), the necessary additional expenditure, and perceptions of the ‘nanny’ state. However, the contingency and indeed inherent contradictions underlying these concerns came to the fore in 2015 when the government initiated a consultation about the law regarding unregistered schools. This was motivated by wide-ranging safeguarding and welfare concerns raised by OFSTED, but also by distinct concerns about ‘radicalisation’ and the perceived existence in some places of ‘a narrow Islamic-focused curriculum’. While wishing to address these issues, the government at the same time made explicitly clear that it had no desire to address issues relating to home education. In responding to the consultation I argued that not only did this further exacerbate the anomalous position of home education, but that it also failed to acknowledge that home education could be exploited by anyone wishing to avoid the proposed enhanced monitoring of other out-of-school settings.

Tying to motivate the government to act over home education is hard. But concerns about unregistered schools have, albeit unintentionally, opened the door to calls to act more widely, and for those not uncritical about the ‘radicalisation’ agenda this linkage highlights the messy complexity of political strategizing. Another way of keeping the issue of home education on the agenda, indeed any issue a government would like to shelve, is by drawing an issue to the attention of sympathetic parliamentarians who are receptive to engaging with work by academics. I adopted this approach here, and last week the cross-bench peer Baroness Deech asked an oral question in the House of Lords about the government’s failure to respond to the recommendations of the Wood review. These questions provide approximately seven minutes for a mini-debate. Condensing detailed academic arguments into a briefing note to effectively assist peers in this debate was challenging and brought to mind the quip: ‘I’m sorry this is such a long letter, but I didn’t have time to write a shorter one’. In response to Baroness Deech’s questions and to those of the six other peers who spoke, Lord Nash, the Parliamentary Under-Secretary of State for Schools, offered no clear answers. But the questions and the short debate send a message of support to local authority professionals who struggle in difficult circumstances to do their best to support and protect home-educated children and reminds the government that their inaction is not unnoticed.

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Soldiers aren’t being harangued by lawyers – it’s a myth designed to discredit the Human Rights Act

This article was written by Dr Frederick Cowell from Birkbeck’s School of Law. It was originally published on Left Foot Foward

Theresa May’s government is pushing a narrow, meaningless conception of human rights

theresa-may-3

There has been some controversy over the government’s plans to use the emergency powers provisions of the European Convention on Human Rights (ECHR) to exempt British forces from lawsuits.

Despite the bullish selling of the proposals it is worth noting they can’t exempt soldiers from being responsible for torture or allow them to use the death penalty. In these cases the Human Rights Act (HRA) could still be used to bring claims against British forces and they could still be subject to war crimes prosecutions under the International Criminal Court Act.

But it’s the tone of this announcement and the context in which it takes place which makes it worrying for the protection of human rights.

As Dr Marko Milanovic notes, there is little evidence of an ‘industry’ of ‘vexatious litigation’ against the armed forces, which is the stated rational for these proposals.

Yet, it seemed to provide the warm up to the Prime Minister’s speech at the Conservative Party conference where she promised to never again ‘allow left-wing human rights lawyers to harangue… our armed forces.’

Theresa May has been here before; in 2011 when she was Home Sectary she addressed the Conservative Party Conference claiming that there was an illegal migrant ‘who cannot be deported because, and I am not making this up, he had a pet cat.’

Except, she was making it up. Taken alongside the wider drip feed of negative stories about the HRA, many of which are based on misrepresentations of the law, this appears to be part of a process of ‘monstering’ the HRA, designed to create the political conditions for its repeal.

The repeal of the HRA and its replacement with a ‘British Bill of Rights’ has been Conservative Party Policy since 2006. In 2007 the then Leader of the Opposition David Cameron said that a British Bill of Rights could enhance the protection of rights by including rights not included in the ECHR, such as the right to a trial by jury.

Later this was quietly dropped with the emphasis on HRA repeal focusing on criminals using the right to family life to avoid deportation. In 2012 the Commission on a UK Bill of Rights concluded that the HRA shouldn’t be repealed but noted there were ‘perceived problems with the Human Rights Act… largely caused by a lack of public education’.

Ironically the escalation of anti-HRA rhetoric came precisely at the time when the UK Government achieved a major victory on reforming the European Court of Human Rights, with the 2012 Brighton Declaration, which led to a reduction in its backlog of cases. In 2014 the government were able to change immigration rules to make it much harder for criminals to use the right to a family life to resist deportation, again addressing a criticism often levelled at the HRA.

There is a split in the Conservative party between those who think a Bill of Rights should be framed narrowly, to amend the HRA, and those who think it should lead to UK withdraw from the ECHR, in a form of second Brexit. The current Justice Secretary has confirmed that it is still government policy to introduce a British Bill of Rights, although since winning the 2015 General Election this has been subject to a series of delays.

In her Conservative Party leadership campaign in July Theresa May stated that she would not campaign to leave the ECHR as there was no parliamentary majority for such a move. This leaves the door open to withdraw the ECHR at a later date which is considerably easier to do following withdrawal from the EU.

The contents of a British Bill of Rights is as of yet unknown however, the tone of announcements seem to indicate a strong focus on who shouldn’t have rights and where rights shouldn’t be applied.

The 2014 Conservative Party paper ‘Protecting Human Rights in the UK’ contain some indications, such as references to preventing human rights being used in ‘trivial’ cases, that there are moves to distinguish between undeserving and deserving rights holders in a future Bill of Rights.

Repeated criticism by many leading figures in the government of the HRA being used to challenge welfare policy or immigration decisions has been framed in language pointing to an undeserving rights holder. This is also accompanied by claims that certain groups needing to be protected from human rights law, or where human rights law is used by those charged or convicted of a crime that human rights law needs to focus on the victims of crime.

When the recent announcement on the liability of the armed forces is seen in this context, it reads like a trailer to a much narrower, and potentially more meaningless, conception of human rights being pushed by the current government.

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The Iraq War, Brexit and Imperial blowback

This post was contributed by Dr Nadine El-Enany, lecturer at Birkbeck’s School of Law. Here, Dr El-Enany shares her personal thoughts on the historical context of the EU referendum, and the British vote to leave. This post first appeared on Truthout on Wednesday 6 July 2016.

The Union Jack, the flag of the UK

Brexit is a disaster we can only understand in the context of Britain’s imperial exploits. A Bullingdon boy (Oxford frat boy) gamble has thrown Britain into the deepest political and economic crisis since the second world war and has made minority groups across the UK vulnerable to racist and xenophobic hatred and violence.

People of colour, in particular those in the global South, know all too well what it is to be at the receiving end of the British establishment’s divisive top-down interventions. Scapegoating migrants is a divisive tool favoured by successive governments, but the British establishment’s divide and rule tactic was honed much further afield in the course of its colonial exploits. Britain has a long history of invading, exploiting, enslaving and murdering vast numbers of people, crimes for which it has never been held accountable.

Brexit

While the British Empire may be a thing of the past, British imperialism is not. This month the Chilcot inquiry reported on the role of Tony Blair’s government in the 2003 invasion of Iraq which resulted in the death of nearly half a million Iraqis and the destabilization of the region, for which its inhabitants continue to pay the price. It is no coincidence that the Blairite wing of the Labour Party, amidst the Brexit chaos, launched a coup against their current leader, Jeremy Corbyn, who was set to call for Blair to be put on trial for warcrimes.

The referendum that resulted in a 52 percent vote in favour of Britain leaving the EU was initiated by the Conservative government. Shortly after the result was announced, it became clear that the leaders of the Brexit campaign had not wanted this result. Boris Johnson MP appeared ashen-faced at a press conference. He had neither expected nor wanted to win the referendum. He only wanted to be next in line for Number 10 Downing Street. David Cameron, who had led the Remain campaign, resigned as Prime Minister immediately. He had called the referendum in a bid to keep the Conservative Party together, without sparing a thought for the lives that would be destroyed if the bet did not pay off. His gamble backfired, as did Boris Johnson’s. Michael Gove MP, who had been Johnson’s right-hand man in the Leave campaign, betrayed him within days of the result, announcing he would be running for Prime Minister, thereby ending Johnson’s bid to lead the country.

This series of events has thrown the Conservative Party into disarray, the very outcome Cameron had wanted to avoid. Nigel Farage, who stoked up unprecendented levels of racist hate and deserves much of the credit for the Brexit win, resigned as leader of the UK Independence Party on Monday, saying he “wants his life back.”

As political leaders jump ship in the wake of the Brexit vote, reports have emerged of a Britain divided, of a traumatized population, grieving and suffering the onset of depression. There is talk of the need for reconciliation in a country where communities and families have been divided. Alongside this, there are expressions of anger and demands for the British establishment to be held accountable for the outcome of the referendum.

There is no doubt that the feelings of anger and loss in the wake of Brexit are real, but where is our collective sense of outrage in the face of the establishment’s divisive and destructive actions elsewhere? After all, the deregulatory reforms entailed in austerity policies imposed in EU countries with disastrous consequences, including cuts to vital welfare services, following the 2007 financial crisis, as Diamond Ashiagbor has argued, is “medicine first trialled on the global South since the 70s”. Ashiagbor notes “European states are experiencing this as a category error, in part because they have not been on the receiving end of such policies”, which are all too familiar in the global South.

Brexit is the fruit of empire

In the week following the announcement of the referendum results, two news items probably escaped most people’s attention. The UK Supreme Court delivered a ruling that further impedes the prospect of the Chagos Islanders returning to the home from which they were forcibly removed in 1971 by the colonial British government as part of a deal to allow the US to establish a military base on the largest island, Diego Garcia.

Also in the news last week were reports of 94-year-old Kenyan, Nelson Njao Munyaka, who testified in the High Court about killings he witnessed by British soldiers under 1950s British colonial rule. Munyaka is one of 40,000 Kenyans suing the British government over injuries and loss suffered in the course of its repression of the Mau Mau independence movement. Munyaka spoke of witnessing the shooting of his workmates, being made to carry their corpses and the flashbacks he suffers of the physical and verbal assaults he endured at the hands of British soldiers.

Brexit is not only nostalgia for empire — it is also the fruit of empire. Britain is reaping what it sowed. The legacies of British imperialism have never been addressed, including that of racism. British colonial rule saw the exploitation of peoples, their subjugation on the basis of race, a system that was maintained through the brutal and systematic violence of the colonial authorities.

The prevalence of structural and institutional racism in Britain today made it fertile ground for the effectiveness of the Brexit campaign’s racist and dehumanizing rhetoric of “taking back control” and reaching “breaking point.” This rhetoric is entirely divorced from an understanding of British colonial history, including the country’s recent imperial exploits, which have destabilized and exploited regions and set in motion the migration of today.

Islamophobia powered the Blair-Bush war machine, allowing the lie to be peddled that only the Arab world produces brutal despots, and that the lives of nearly half a million Iraqis are an acceptable price to pay for Britain to be the closest ally of the world’s superpower. Just as the political leaders who called the EU referendum along with those who led the Leave campaign did so with no plan in place for the aftermath, so did the Bush-Blair coalition embark on the 2003 invasion of Iraq with catastrophic consequences. Thirteen years on, Iraqis continue to feel viscerally the trauma of war and the pain of their divided society. Only this week, another suicide bombing in a busy market place took the lives of more than 200 people.

Read Dr Nadine El-Enany's original blog post at Truthout

Read Dr Nadine El-Enany’s original blog post at Truthout

The British establishment does not care to learn lessons from the past. Recall its thoughtless and entirely self-interested military intervention in Libya in 2011, which has left the country in a war-torn state of violence and chaos, a hot-bed for ISIS. But we can learn lessons — lessons that might help the left build solidarity and resist repression in more productive ways. We can begin by understanding Brexit instability and our feelings of loss and fear in the context of longstanding and far-reaching oppression elsewhere. As for privileged Remainers with power and influence, they are disingenuous not to accept a large slice of responsibility for the outcome of the EU referendum. From New Labour’s redefining of the Left as “extreme centre,” to Labour’s “austerity lite,” to their support for imperial wars and the mainstream media’s marginalization of left voices and people of color, and their denial of racism, they oiled the wheels of the Brexit battle bus. It is no use for the powerful liberal mainstream to cry crocodile tears now. They would do better to recognize their role in creating the conditions for the sort of racism that propelled the Brexit campaign to victory.

Note: This post represents the views of the author and not those of Birkbeck, University of London

(Copyright, Truthout.org. Reprinted with permission)

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Hillary Clinton, Riot Grrrl and Subversive Property

This post was contributed by Dr Sarah Keenan, lecturer at Birkbeck’s School of Law. Her book ‘Subversive Property: Law and the Production of Spaces of Belonging’ is published by Routledge.

This post was originally published on Critical Legal Thinking on Thursday 10 March

I came late to riot grrrl. It was 2004 and there was a rush on tickets in Brisbane to see a band called Le Tigre. It seemed like every lesbian in the city was going.

“What kind of music is it?” I asked my then girlfriend.
“They’re girls”, she answered, “they shout a lot.”

Bikini Kill performs in Washington, D.C., in the 1990s. (Image copyright Pat Graham / www.patgraham.org)

Bikini Kill performs in Washington, D.C., in the 1990s. (Image copyright Pat Graham / www.patgraham.org)

This did not sound appealing to me, but I went for fear of missing out. Watching Kathleen Hanna, Joanna Fateman and JD Samson perform dance-aerobics while playing their infectiously energetic feminist synth pop/punk was the most affirming performance I had ever attended. I bought their three album back catalogue the following day, started reading up on them, and discovered Bikini Kill, Kathleen Hanna’s previous band, one of the founding bands of the riot grrrl movement.

Riot grrrl began as a group of bands playing hardcore feminist punk on the northwest coast of the USA in the early 90s, and grew into a cultural force which continues to influence DIY culture and ‘third wave’ feminism today. Rather than political lobbying, riot grrrl feminism was and is focused on women creating spaces where they can create music and other art, exchange ideas and embrace punk’s anger while completely rejecting its machismo. While riot grrrl was by no means a perfect political movement – most significantly, it was very white-dominated – it did forge a new kind of grassroots anti-establishment feminism that continues to inspire and provide a psychic home for many women, queers and nerds.

It’s now eleven years since that Le Tigre gig, and barely a week goes by without my playing a track from this feminist punk genre. The discordant pain and uncensored rage of riot grrrl music, balanced by its sharp irony and humour regularly helps me to leave home in the mornings, and recover when I return. Riot grrrl, together with the new wave, post-punk and queercore genres that followed, have profoundly helped to shape my view of the world and my place in it.

I was sickened at the discovery that ‘Rebel Girl’, a classic Bikini Kill track, had been used in a recent promotional video for Hillary Clinton’s presidential nomination campaign. Clinton — former US Secretary of State and multi-millionaire Democratic Party establishment figure, who voted for the war on Iraq, has consistently supported Western military intervention in North Africa and the Middle East, sat on the Wal-Mart board of directors while the company waged a campaign against unions, retains complex and significant ties with corporate power, and whose friend and supporter Gloria Steinem recently suggested that young women supporting Bernie Sanders are doing so to get attention from ‘boys’ — is not a rebel girl.

While Clinton is keen to claim the feminist label, her proven commitment to US capitalism and imperialism mean that her feminist politics will only ever be narrow, white and liberal. For Clinton’s capitalist-loving, war-mongering machine to exploit the radical, grassroots, anti-establishment, DIY-sound of riot grrrl was a particularly offensive co-optation.

Within a few days of the Clinton campaign releasing the video, Tobi Vail, Bikini Kill drummer and feminist punk icon, responded by issuing YouTube a copyright infringement notice. As a result, the video was taken down. Now those clicking on the link get this.

Unsurprisingly, copyright and other forms of intellectual property are not generally associated with the riot grrrl movement. Vail filed the notice reluctantly, stating in an interview:

I was seriously trying to just ignore it (because I’m not so into telling people what to do and that song has a life of its own and I’m just one person in the group Etc Etc) but Bikini Kill fans and friends would not allow it… it’s basically an advertisement… we don’t authorize use of our songs in advertisements…

It was not the royalties that mattered to Vail. She was not seeking to enforce a right to exclusively possess the song; as she said, it ‘has a life of its own’. Rather, issuing the notice was about retaining political integrity and meaning for ‘Rebel Girl’ and for the riot grrrl movement more broadly. The fact that it was Bikini Kill fans who ‘would not allow’ this track to be used by the Clinton campaign is significant. Part of the joy and momentum that powered the riot grrrl movement was the space that it created for fans — primarily young women — not only to consume music and ideas, but to participate in their making and to take ownership of them. Riot grrrl belongs to its fans, who in turn constitute the movement.

Building a space of belonging for girls and queers who did not otherwise feel safe anywhere, including in their family homes, was central to riot grrrl. This centrality is made clear in recent reflective pieces written by key figures in the movement. In ‘Run Fast’, the title track of Kathleen Hanna’s current band, The Julie Ruin, Hanna looks back on riot grrrl as a movement of collectively making space and forging identities:

in the end we made
tiny islands where we didn’t always have to be afraid.

In her recent memoir, Carrie Brownstein of Sleater-Kinney similarly describes her journey from riot grrrl fan to key player as one of creating a particular kind of space.

I’ve always felt unclaimed. This is a story of the ways I created a territory, something more than just an archipelago of identities, something that could steady me, somewhere that I belonged.1

When Vail issued the copyright notice on the Clinton video, it was to protect the space of belonging that has been carved out by riot grrrl over the last three decades. While property tends to operate in the interests of power, it can also be used as a tactic to subvert hegemonic relations of belonging and create new ones.

While lawyers tend to emphasise the right of exclusive possession that comes with property, feminist writers have highlighted the importance of belonging.2 Belonging is a more complex concept than exclusion: while it relates to questions of ownership and possession, it is also about identity — about fitting in and feeling safe or ‘at home’.

In my work on property, I have argued that property can be best understood as a relationship of belonging that is contingent on space. My relationship of belonging with riot grrrl culture, for example, will constitute property while I am at an L7gig (yes, they have recently reformed), where I will stride in like I own the place, confidently take up space in the crowd, sing/shout along to the choruses, laugh at jokes about tampons and exchange knowing glances with other fans. But my relationship of belonging with riot grrrl culture will not provide me with any of the privileges of membership or ownership were I to attend a classical music performance at the Southbank Centre. My attribute of being a riot grrrl fan will operate as property in some spaces but not in others.

Read the original article on Critical Legal Thinking

Read the original article on Critical Legal Thinking

More significantly, if we accept that attributes such as whiteness, masculinity and heterosexuality are relational rather than essential or biological, then we can agree with writers such as Cheryl Harris3 and Margaret Davies4 that such attributes can constitute property — they are relations of belonging. However, those attributes will only function as property if they exist within broader spaces that give them power and meaning. Whiteness will only constitute property while we continue to live in a white supremacist world. Similarly, masculinity will only constitute property while we continue to live in a patriarchy, and so on. This analysis means that if the normative goal is to challenge the way whiteness and other identity categories operate as structures of exploitation and oppression, then it is the spaces that privilege whiteness etc which must be undermined and challenged. We need to build different spaces, as the riot grrrl movement did.

Understanding property in this way allows for property to be subversive. The spaces that give power and meaning to relations of belonging are not fixed and do not have to empower relations that are oppressive, exploitative or conservative. Property is experienced in complex and overlapping ways not solely determined by law.

Property can be productive of social goods in a way that subverts hegemonic power relations. By creating spaces where young women, queers, punks and nerds not only belong but also feel ownership of what is produced, riot grrrl was and is a powerful materialisation of subversive property. By preventing (or at least delaying and inhibiting) Hillary Clinton from using Bikini Kill to fuel her campaign for the ultimate position of establishment power, Vail’s copyright notice was an effective assertion that this music and the psychic and material space it created still belong to us.

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Article footnotes:

  1. Carrie Brownstein, Hunger Makes Me a Modern Girl (Riverhead Books 2015) 11. 
  2. Brace, Laura, The Politics of Property: Labour, Freedom and Belonging (Edinburgh University Press, 2004); Cooper, Davina, “Opening Up Ownership: Community Belonging, Belongings, and the Productive Life of Property” Law & Social Inquiry 32, no. 3 (2007): 625-664; Keenan, Sarah, Subversive Property: Law and the Production of Spaces of Belonging (Routledge, 2015); Strathern, Marilyn, “Cutting the Network” Journal of the Royal Anthropological Institute (1996): 517-535. 
  3. Harris, Cheryl I, “Whiteness As Property” Harvard Law Review 106, no. 8 (1993): 1707-1791. 
  4. Davies, Margaret, “Queer Property, Queer Persons: Self-Ownership and Beyond” Social and Legal Studies 8, no. 3 (1999): 327-352. 
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Unavoidable distractions

This post was contributed by Alexis Alvarez Nakagawa, PhD Candidate and associate tutor in the School of Law

“After each death, I find myself mouthing a cumbersome chain of lawyerly words, hoping for ironclad prosecution and maximum sentences, to bring to justice those who have killed Rekia Boyd, Tamir Rice, Mike Brown, and numerous others. I hear myself invoking the heroic terror of the criminal justice system. I make no illusions that this will spackle the gaping fault of the United States’s racial terrain.

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To digress for a moment, I also work on refugee law, and though I support and believe in refugee claims for securing better lives for individual applicants, these prosecutions seem to me much like the promise of refugee law to affect real change: vacant. The international refugee law system, while important to scores of individual claimants, represses a more meaningful commitment to free movement and serves to further stabilize and legitimize a system of border violence and geopolitical exploitation.

 

Criminal prosecutions in these cases of police murder are (sometimes) offered as individual sanctions only after the harm has been done, and they do not seek to reduce the widening net of carceral politics. But then again, is this the time to abandon the use of criminal justice?”

Eddie Bruce-Jones, Black Lives and the State of Distraction.

Eddie Bruce-Jones’ article Black Lives and the State of Distraction, which appeared in at the Los Angeles Review of Books last week, is a beautifully written and insightful short piece that shows the difficulties and tensions that arise for anyone who tries to think critically from and through the experience of being involved, at some stage of their life, in the criminal justice system and tries to relate this experience to a broader agenda of social change and political emancipation.

However, perhaps what is most striking about Eddie’s article, beyond his thoughtful analysis is his sensibility in approaching very difficult political and theoretical issues. A sensibility that shows that this piece was written not only as a insightful meditation about the barbarities and paradoxes of the system, but also by the stroke of a cathartic impulse –an impulse that many of us feel from time to time – that departs from the unpleasantness of and discomfort with current theoretical standpoints in criminology and criminal justice studies.

In what follows, I would like to deploy some thoughts that focus more on where I might disagree with Eddie, even if I really feel identified with his mood and even when I believe that, very probably, he will identify with my own. That is why, more than to formulate some serious objections to his thinking, I would like to suggest a slightly different but complementary approach with the ultimate aim of opening up a discussion. Thus this commentary on Eddie’s work is also an invitation to debate to anybody that would want to add or move forward our ongoing conversation.

Dr Eddie Bruce-Jones

Dr Eddie Bruce-Jones

I would like to formulate three brief points of difference with Eddie’s piece.

1) Maybe I should begin by stating that I sadly believe that there is no effective way, for the moment at least, to provide some kind of real and effective reckoning of state violence within an abolitionist framework. I have to wonder, on this point, what we would do in these cases of structural violence, of racism and sexism if we do not plead for “justice” or at least for the application of the same standards that allegedly everybody would receive in those circumstances?

I recall that Nils Christie, one of the founders of the abolitionist theoretical and political movement, used to say that even in the cases of state violence (more precisely, he was speaking about genocide) an abolitionist position would be to sit the “perpetrators” and the “victims” together so that they can negotiate towards a solution (and also maybe a “reconciliation”). Besides this solution not seeming very “practical” in our current cultural context, more importantly, in many respects, this approach seems familiar to some past failed experiences and, more precisely, similar to the “state mandated reconciliation” of South Africa’s transitional process. Though, we know with some detail how this story ends: nothing changed very much in South Africa in the wake of its transition to democracy.

On the contrary, we can suggest that this transition legalized a “double way” system in which the state violence was acquitted in exchange for lean confessions, while still all the inhabitants at the margins of South African society continued to be “processed” by a very racialized criminal justice system. In other words, they legalized what we already have in fact in every criminal justice system around the world.

2) One thing that needs not to be left out of view, I believe, is that abolitionist strategies can also legitimate undesirable agendas (such as prosecutions, as Eddie points out). Leaving aside how many abolitionist strategies and alternatives to prison have been used so far to extend the scope of the criminal justice system and with that the framework of social control (rather than reducing them as was the original idea), I think that this strategy, in this context of state violence, can even also be used to legitimate the grounds of an state of exceptionality (in other words, “impunity”) precisely in these, that are what we can call fairly, “the worst cases”.

This is especially true if we know, as we surely do, that the criminal justice and prison system will not disappear in the short term and will continue to exist for all the other “regular crimes”. As Eddie himself has noted to me in a subsequent conversation, it is very hard to envision the end of the criminal justice system without thinking at the same time about abolishing the state and without disclosing the intertwined relationship between law and violence—so hard, in fact, immediately after one starts to seriously contemplate abolitionism, the very idea of it begins to fade away as a too-distant outcome.

But, I may add that, to make matters even worse, if we accept, as I am probably keen to accept, that we need to abolish state sovereignty to be able of practically think about abolishing the criminal justice system, we face a new and more intractable problem: the very idea of sovereignty is so centrally tied to the state as with notions of autonomy, self-determination and freedom that underpin the idea of political emancipation (and which in turn encompass the main goals of abolitionism), that we very quickly reach an unavoidable dead end: we cannot have abolitionism with sovereignty, but it seems that we also cannot have abolitionism without it.

On the other hand, I think that some matters of principle (let’s say “the prison is bad, and therefore we should not take the risk of legitimating it in any case”) may lead us to a form of practical paralysis. Or, in other words, to even worst “distractions” than the distraction of prosecutions: it may lead us to the work of engineering “beautiful distractions” that very probably will not have any political relevance today. Or is it that only prosecutions can be a distraction? Can’t be a purist abolitionist strategy constitute an even worst distraction for current and pressing issues that needs an answer today? I am not saying that we must always surrender to the tyranny of the now, but I strongly believe that the danger and temptation of being “distracted” is equally present in many abolitionist positions. How then can we be able to stand by the side of a radical openness to an alternative future without being distracted from our current, present demands? How can we avoid allowing our radical goals from stealing us completely from this untreatable reality?

Alexis Alvarez Nakagawa

Alexis Alvarez Nakagawa

3) In another but related vein, I believe that still some prosecutions can serve to expose structural violence, racism and sexism and that some criminal trials are more than just distractions and can be good “catalysts” or “triggers” of broader political struggles. And not only that! To some extent, in these kind of cases, not only can (human) perpetrators go to trial, but also in many relevant ways, the state or sovereign violence is put under scrutiny at the dock.

And of course, there is a lot of space there for de-legitimating state violence and even the criminal justice system. It might be possible to think in a way of de-legitimating the structural violence of the system with the tools of the system itself. Can we use the criminal justice system against itself? Can we re-direct its violence against its violence? I believe that precisely in these cases of police violence, racism, sexism and even genocide or other gross human rights violations, we have a very good opportunity to achieve this.

I think that it is even possible, within this framework, to defend a more “up-to-date” abolitionist position: one that of course pursues the same goals as the other more purist abolitionism, but by more unclean, impure and maybe effective ways. Can we find within all this a thread, a hint, the onset of a road towards a new abolitionism? Can be this a good synthesis between a radical openness and an engagement with current pressing issues?

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The Imitation Game gets gay life in 40s and 50s Britain spot on

This post was written by Dr Andy Harvey – a Researcher at the Birkbeck Sport Business Centre and an Associate Lecturer in the Department of Psychosocial Studies. It was originally published on The Conversation.

The Imitation Game has scooped up eight Oscar nominations this year, including the coveted Best Picture. Since its release in autumn 2014 the film has attracted widespread positive critical appraisal and commercial success.

Its story of British mathematical genius Alan Turing who broke the German Enigma codes in World War II is now widely known. Equally well-known, at least in Britain, is the fact that Turing was gay, a homosexual, to use the terminology of the day, and that he reputedly committed suicide in 1954 at the age of 41 after receiving hormone therapy as a result of a conviction in 1952 for gross indecency. He was posthumously pardoned for his “offence” – in 2013.

The film has also attracted criticism in some quarters for underplaying Turing’s homosexuality, and foregrounding a (non-sexual) relationship with fellow mathematician, Joan Clarke, played by British actress Keira Knightley. But besides such personal details, the film’s more general portrayal of homosexual life in the 1940s and 1950s does stand up to critical scrutiny.

Wartime liaisons

Blackout during wartime afforded opportunities for homosexual liaisons that many wouldn’t have experienced before. Men could find each other under the cover of complete darkness and, no doubt, because the authorities had more pressing matters to hand.

However, homosexuality remained illegal under the hated “Labouchère” amendment to the Criminal Law Amendment Act in 1885, which outlawed “gross indecency” between men. This was the law that sent Oscar Wilde to jail for two years of hard labour – and which was used to prosecute Turing. It was widely regarded as a blackmailer’s charter. And so although the scene in which Turing is blackmailed by the Russian spy John Cairncross may not be historically correct, it is certainly a good reflection on the times. In this sense the film captures the perpetual threat that homosexual men had to live with.

The war years may have been relatively kind to homosexual men but prosecutions for sexual crimes increased in the period immediately after the war, reaching a peak in 1961. Police tactics were often rebarbative and generated genuine fear. The police pursuit of Turing in The Imitation Game provides an insight into the importance the police gave to prosecuting homosexual “crimes”.

Men often went to great lengths to cover their tracks. A groundbreaking study by Michael Schofield, published in 1960, revealed the diversity of homosexual lives in the period and the myriad ways they negotiated through the undeniable difficulties they often faced. In his autobiography, London journalist Peter Wildeblood, who was another high profile victim of homophobic laws and police tactics, claimed it was necessary for him to watch every word he spoke, every gesture that he made. Turing’s sexual discreetness in The Imitation Game is an accurate representation of how most homosexual men had to behave.

Tolerance, conviction

There has been a growing appreciation in queer academia that there was often tolerance and acceptance of men leading homosexual lives at a domestic level, not just from immediate families and local communities, but also from landlords and landladies. There was widespread public disquiet at these draconian laws. Sympathy for another famous victim caught up in a police sting saw actor John Gielgud receive a standing ovation when he returned to the stage in Liverpool after his conviction for gross indecency in 1953 secured lurid headlines in the newspapers.

But while there may have been a certain degree of tolerance toward homosexuality, especially for those men who lived “respectable” and quiet lives, criminal proceedings remained a real threat for many. Patrick Higgins’s review of court cases in Heterosexual Dictatorships (1996) shows that homosexual lives continued to be led across the breadth of the country throughout the 1950s, albeit in the shadow of the law, and involved men from all walks of life. For example, the court records show a case from Rotherham, Yorkshire, where 17 unskilled and semi-skilled men pleaded guilty to 41 charges of homosexual acts. In the same year in Barnsley, 12 men confessed to homosexual acts. Prosecution was widespread.

Despite, or rather because of the occasional high-profile trial and the number of less famous prosecutions, homosexuality was largely pushed into the dark recesses of society. Paradoxically, its very invisibility acted as a cloak for those seeking liaisons with other men. In practice no-one suspected other people of being homosexual. Again, the presumption that Turing could not possibly be gay comes across in the film if only as a minor sub-plot, but it strikes a true chord.

The Imitation Game may play fast and loose with a great deal of historical accuracy, as films are entitled to do. But the artistic portrayal speaks to a greater truth. In the light of what we know about homosexual life at the time, The Imitation Game mostly gets it right. The Conversation

Other blog posts by Dr Andy Harvey

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Birkbeck’s School of Law contributes to consultation on policing and HIV

MatthewWeait_400x400This article was contributed by Matthew Weait, Professor of Law and Policy at Birkbeck’s School of Law.

There is robust empirical evidence indicating that traditional approaches to policing can result in adverse health outcomes for those who are at particular risk of harm.  In particular, a focus on their law and order function, a narrow view of what constitutes public safety, and a conservative occupational culture has meant that in many parts of the world the police have contributed to an enhanced risk of HIV infection among so called “key populations”, including sex workers and injecting drug users.  There is, for example, evidence that police may use the possession of condoms – an effective barrier against infection – as evidence to support an allegation of prostitution, and the possession of syringes as evidence to justify the arrest of drug users.  The consequence of this is that sex workers wishing to avoid harassment and arrest may not carry condoms with them, thereby reducing the opportunity to practise safer sex, and drug users avoid carrying their own “works”, thereby increasing the possibility that they will share those of others and so increase their risk of infection with HIV and other blood-borne diseases.

These negative effects of traditional policing are increasingly recognised, and efforts are being made to address them.  An important milestone was reached this month at a Consultation on Policing and HIV in Amsterdam, convened by the Centre for Law Enforcement and Public Health (CLEPH) and supported by the Law Enforcement and HIV Network (LEAHN), the International Development Law Organisation (IDLO) and the School of Law at Birkbeck.

I attended the international consultation along with more than 100  senior police officers, representatives of key populations, policy makers and academics.  After a day of discussion and deliberation, the attendees agreed the Amsterdam Declaration on Police Partnerships for Harm Reduction, an important document that commits its supporters to an approach to policing key populations that is informed by the principles of harm reduction and which will promote rather than hinder health through active collaboration and partnership.

I am delighted that the School of Law has been involved in this significant international development. I had the privilege of working with some extraordinarily enlightened police officers from all across the world, each of whom realises the importance of working with those at heightened risk of acquiring HIV in reducing that risk.  There was an incredible energy in the room, and a real willingness to make progress. The School of Law at Birkbeck has an internationally recognised reputation for research and scholarship that can contribute to progressive legal change, and it was a privilege to showcase this and to put the School’s principles into practice.

Professor Weait, of Birkbeck's School of Law, chaired a panel at the Consultation on HIV and Policing in Amsterdam, with (left to right) Annette Verster, World Health Organization; Pye Jakobsson, Global Network of Sex Worker Projects; Marja Lust, Amsterdam Police; Julian Hows, Global Network of People Living with HIV; Dr Zhannat Kosmukhamedova, United Nations Office on Drugs and Crime; Dr Sanjay Patil, Open Society Foundations

Professor Weait, of Birkbeck’s School of Law, chaired a panel at the Consultation on HIV and Policing in Amsterdam, with (left to right) Annette Verster, World Health Organization; Pye Jakobsson, Global Network of Sex Worker Projects; Marja Lust, Amsterdam Police; Julian Hows, Global Network of People Living with HIV; Dr Zhannat Kosmukhamedova, United Nations Office on Drugs and Crime; Dr Sanjay Patil, Open Society Foundations

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