Law, Race and Brexit Britain

This blog was contributed by Devin Frank, a graduate of the School of Law at Birkbeck. He will soon be returning to the College as a PhD candidate and part-time seminar tutor.

centreforraceandlaw

Credit: Cole Peters 2017.

On 15 May 2017 students and academics gathered for the launch of Birkbeck’s new research initiative, the Centre for Research on Race and Law, focusing on Law, Race and Brexit Britain.

After an introduction to the new Centre by the Acting Dean of the Law School, Dr Stewart Motha, and the co-director of the Centre, Dr Sarah Keenan, five speakers discussed how conceptions of race permeate law, politics and policy — not only in Britain, but across numerous jurisdictions.

At the heart of the discussion was an underlying paradox: conceptions of race and racism manifest through law, while law in itself is often a last defense against racism. Reflecting on my own experience working as a caseworker and paralegal, nowhere is this paradox more apparent than within the immigration systems of the Western world, particularly in the UK, US and Australia. Having endured the horrors of having to read and engage with Home Office refusal letters, it is abundantly clear that racism is not only tolerated within the diameters of immigration decision making, it is actively encouraged. When faced with a letter claiming that an individual’s immigration application is refused based on a legally accepted notion of race, the response of any lawyer is then to plead with the law, often in the form of an appeal or judicial review, to seek a legal remedy to the artificial and racist conception of law that allowed for injustice in the first place.

After Professor Patricia Tuitt, Executive Dean of the Law School, skillfully laid the foundation for considering how race and racism permeates all institutions, including that of law, the next four speakers showed how race matters in political discourse, immigration controls, EU trade policy and Brexit Britain. Tuitt’s opening talk had reminded us that the colonial dogma of race still infects the bureaucratic mechanisms of all aspects of society, including the university – a critique from which Birkbeck and the Law School are by no means immune.

Professor Gurminder Bhambra (University of Warwick) aptly highlighted the need to ‘get history right’ in order for concepts to have useful meanings — something that was an abysmal failure in the Brexit campaign. Bhambra began by examining the Brexit referendum data to debunk the myth that the Leave result was the resounding voice of ‘the left behind’ white working class. Rather, Bhambra showed that the vote to Leave was determined by property owners, pensioners, and well-off white middle class voters.

race-and-law-blog

The rhetoric of ‘taking back control’ lacks any kind of historical or political reality: Britain is not and never has been a nation, rather it is an imperial polity. British citizenship only came to refer primarily to people living in Britain in 1981, as this citizenship was formerly shared between Britain and its colonies. The British psychosis brought on by a fear of non-white migration goes to highlight the need for research initiatives such as the Centre for Research on Race and Law to further facilitate discussion based on sound research, with dignity and respect.

Following the EU referendum, it became all too common to ignore the underlining causes, divert attention away from blatant racism and xenophobia and pose a simpler question: ‘what about the economy?’. Professor Diamond Ashiagbor (Institute of Advanced Legal Studies) discussed the relationship between economic inequality, race and global trade in the context of ‘Empire 2.0’, encapsulated in Secretary of State for International Trade, Liam Fox’s, plan to negotiate new trade deals with Commonwealth countries in order to compensate for the EU trade that will be lost with Brexit. Ashiagbor argued that leaving the EU against the backdrop of rewriting/forgetting histories of empire, migration and race will exacerbate the internal economic equalities caused by open markets and global trade.

Drawing on ideas stemming from the political economist Karl Polanyi, Ashiagbor argued that markets only work without destroying society if they are constrained, and if social redistribution is facilitated. Pre-Brexit, such constraints and redistribution were put in place by domestic British law and also by EU law. The irony of Brexit racism, Ashiagbor argued, is that much of the labour migration upon which Britain has relied and against which the Leave campaign rallied, has long been fuelled by European plunder of the rest of the world. The sense of ‘the left behind’ voting for Brexit fails to capture the reality that the industrialised working class (both white and non-white) in the UK has long been supported by extraction from colonised states. Only through the plunder of resources and exploitation of labour from the Global South has the UK been able to build its welfare state.

Professor Iyiola Solanke (University of Leeds) sought to address the question: what of the forgotten groups that will be affected by Brexit? In the news and within mainstream discussion many rightly pose the question: ‘what status will EU citizens have in the UK and what status will UK citizens have in Europe?’. While this is a pertinent question, Solanke noted that it fails to address the situation of third country nationals, such as spouses and family members of European citizens in the UK, and so-called ‘Zambrano families’ (those who care for EU/UK citizens). While it seems likely that predominately white men, coming from the United States and earning high incomes working in London’s financial centres will find the legal categories to remain in the UK regardless of the ultimate Brexit deal, the future status of black parents from Nigeria, Ghana and Jamaica currently in the UK caring for their British children is much more ominous.

Finally Dr. Nadine El-Enany, Senior Law Lecturer and Co-Director of Centre for Research on Race and Law spoke about the importance of taking critical race scholarship seriously. With explicitly racist far-right movements on the rise in many parts of the world (including but not limited to the Brexit and Trump victories), El-Enany argued that it is more important than ever for legal academics not only to offer analyses which critique the role of law in upholding racism, but also to be creative about the strategic use of law for immediate survival of the most vulnerable in society. Drawing Mari Matsuda’s work, El-Enany argued that we have much to learn from critical race feminists who have written about the need to be strategic in relation to law in order to survive in a structurally violent world.  El-Enany recounted that during her own PhD studies she was told that race was not a useful analytical concept for scholarship on migration law, and that her intellectual development and psyche were significantly hindered by this falsity for many years. The new research Centre will lead the way, and provide a much needed space, to support the study of the relationship between race and law.

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Law on Trial: Can the EU regulate a financial crisis?

This post was contributed by Daniele D’Alvia, MPhil Law student in Birkbeck’s School of Law. Here, Daniele reports on the Law on Trial 2016 event held on Thursday 16 June: “Can the EU Regulate a Financial Crisis?”

This year, Law on Trial – the School of Law’s week-long programme of free-to-attend public lectures and panel discussions – focused on the EU referendum. The annual showcase brought together academic staff, recognised internationally as authorities in their field.

Law on Trial 2016

Law on Trial 2016

The 16th of June 2016 has been a landmark event for the 2016 ‘Law on Trial’ series of conferences. Indeed, the 4th day of ‘Law on Trial’ has been specifically dedicated to the role of financial law in Europe. The main question that Professor Michelle Everson has posed for the panel discussion, namely ‘Can the EU regulate a financial crisis?’ has shown to be a popular topic for the high interest that the audience has manifested during the event.

In particular, Prof. Ellen Vos (Maastricht University) illustrates the regulation and the role of European agencies. She reminds of the importance of delegating powers to agencies in the EU in order to regulate risk and uncertainty (for instance, risks in the environment, food, health and safety and specifically in relation to financial crisis). On this line Prof. Michelle Everson introduces the concepts of moral hazard, risk management and systemic risk. These terms are exceptionally important in the understanding of the current financial crisis and pave the way for the speech of the third guest speaker, namely the head of the compliance office of Wells Fargo, Patrick Devine.

He gives an outstanding presentation by pointing out how the current financial crisis is global in nature, but the solutions provided therein are local. For instance, think of the EU banking insolvency procedures there is not a universal bank insolvency law, because insolvency law is national in nature. To this end, the Single Resolution Mechanism in Europe is a first attempt to provide a uniform regulation of bank insolvency through the operation of the Single Resolution Board. He outlines that the credit-crunch that occurred in America in 2007-2008 was only the trigger, but not the cause of the current financial crisis. Indeed, he concludes that the cause of the current economic crisis is just inside the same economic system, namely capitalism.

This has always been the cause in his view and the legislative frameworks have only tried to regulate the trigger and not the environment in which triggers stand. Finally, Dr. Matthias Goldmann presents the idea of Karl Polanyi on the utopia of the ‘self-regulating market’. Indeed, in 1944 Polanyi wrote the ‘Great Transformation’, which divided between a society that uses markets as one valuable tool, and ‘market society’ that places everything on the auction block, even labour. Therefore, Dr. Matthias Goldmann argues that the idea of ‘market society’ has been one of the causes of the current financial crisis and he, therefore, provides a re-interpretation of the phenomenology of contemporary financial markets, where the market itself should play a more prominent role.

In the end, the panel discussion has been dominated by the conception of risk in financial crisis and how risk can be prevented or regulated.

The conception of risk and financial risk between economic theories and philosophical arguments

I would like to introduce here the concept of the ‘past qualification’ of risk based on a possible re-interpretation of Professor Frank Knight’s book ‘Risk, Uncertainty and Profit’, which has developed a philosophical argument on risk instead of a pure economic theory on profit. The book has always been recognised for its outstanding contribution towards a distinction between risk and uncertainty, namely between objective and subjective dimensions of risk towards a theorisation of insurable form of hazards and true uncertainties.

Prof. Knight’s theory of risk is part of the remarkable story on risk.[1] Indeed, according to Bernstein risk management is a revolutionary idea where far from being an antagonist, as the mysterious fate or the voluntas dei, the future has become an opportunity. The concept of risk-taking has been developed in Western countries from Fibonacci’s Liber Abaci (1202), Cardano’s Liber de Ludo Aleae (1525) and Galileo’s Sopra la Scoperta dei dadi (1623) through the laws of probability framed, inter alia, by Pascal and Fermat,[2] and in particular the science of statistics of Graunt, Petty and Halley,[3] promoting the concept of insurance as a commercial tool in the eighteenth century. In other words, the story of risk has initiated by formalising its ontological meaning based on an objective dimension.

This was a necessary conclusion because from an epistemological point of view the discourse on risk can be complex. Risk under this new light is the probability of occurrence of an event that may or may not occur, but risk is always a measurable uncertainty. In Prof. Knight’s words:

‘the practical difference between the two categories, risk and uncertainty, is that in the former the distribution of the outcome in a group of instances is known (either through calculation a priori or from statistics of past experience), while in the case of uncertainty this is not true (….) the best example of uncertainty is in connection with the exercise of judgement or the formation of those opinions as to the future course of the events, which opinions (and not scientific knowledge) actually guide most of our conduct’[4].

So, it is possible to state that the knowledge about risk is the knowledge of a knowledgeable situation. In other words, the ontological discourse on risk is representing what is knowable in principle or a priori by virtue of laws of probability and the science of statistics. It is knowledge of objective facts. For this reason, in my view the real revolutionary idea of Prof. Knight is the categorisation of risk on the past line.[5]

The practical effect of the ‘past qualification’ of risk in global financial markets

Now, the words of our guest speaker Mr. Patrick Devine are even more intelligible: in his view capitalism has always been the cause of the current financial crisis. In philosophical terms we could say that the past qualification of risk in its objective dimension has always been the cause of every financial crisis because simply it has always been there, but it has never been regulated. In Patrick Devine’s words: ‘we regulate the trigger of a crisis (we could say what has caused the uncertainty), but not the environment in which the triggers stand (we could say the real risk).

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Footnotes

[1] Bernstein (1996). Peter L. Bernstein (1996) Against the gods: the remarkable story of risk (John Wiley & Sons)

[2] Bernstein (1996) pp 57-72.

[3] Bernstein (1996), p 92.

[4]   Knight (2002), p 233.

[5] Knight expressly said that uncertainty is the formation of opinions as to the future course of events (i.e. a subjective belief).

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Law on Trial 2016: Brexit – Should the UK leave the EU?

This post was contributed by Birkbeck Law students Janet Cheng and Henrique Nobre. Here, Janet and Henrique report independently from the Law on Trial 2016 event held on Tuesday 14 June: “Brexit: Should the UK leave the EU?”. Speakers at the event, which Janet and Henrique moderated, were Professor Justin Frosini; Professor Christopher Lord; Professor Albert Weale; Dr Angela WardDr Roch Dunin-Wąsowicz.

This year, Law on Trial – the School of Law’s week-long programme of free-to-attend public lectures and panel discussions – focused on the EU referendum. The annual showcase brought together academic staff, recognised internationally as authorities in their field.

Law on Trial 2016

Law on Trial 2016

Henrique Nobre’s report

The second evening of the Law on Trial event reflected the public expectation in discussing this extremely hot topic. The room was full of students, academics and members of the public eager to listen to our guest speakers’ arguments on Britain’s membership of the European Union.

The beginning of the session was very engaging, especially when Dr Angela Ward showed a copy of the tabloid The Sun full of scaremongering arguments and urging its readers to vote leave. Dr Ward shared with us her extensive experience and opinions on how a leave vote would endanger our economy and international relations.

Arguments were presented in relation to the position that the UK will assume in relation to trade agreements, the impact on freedom of movement, the possibility of national instability, e.g. a second Scottish referendum and the possible end of the United Kingdom, and the general uncertainty of a positive outcome.

The guests were outstanding in presenting positive and negative arguments without trying to compel the audience. The intention of the event was not to campaign for one side or the other, although it is difficult to hide personal views when talking about an issue that will affect all of us. The audience opinions were varied and contributed massively to a very fruitful discussion.

To moderate an event of such a high level and importance was a real pleasure. The panel was highly selected, the event was extremely well organised, the public was participative and there is no better company on stage than Janet Cheng (President of ELSA Birkbeck).

I felt that the event was a great opportunity to voice and discuss our concerns and that Birkbeck School of Law has chosen the right momentum to do it. As mentioned at the end of the event, independent of personal views, I urge everybody to exercise their democratic right and vote to the best outcome.

Janet Cheng’s report

The referendum coverage has been dominated by debate on immigration and trade in the media and national press from both sides of the campaign. These might be the voters’ greatest concerns, however, there are still many other issues we should be aware of.

Our panel was comprised of five outstanding scholars – Dr Angela Ward, Professor Christopher Lord, Professor Justin Frosini, Professor Albert Weale and Roch Dunin–Wasowicz PhD, all from different academic backgrounds. Through their expert presentations, looking at subjects including the review of the latest newspapers’ headlines; environmental ethnic concerns; political views in European countries and so on, the audience gained a better picture of the whole referendum.

When it came to the second part of the evening, the members of the audience were enthusiastic in expressing their views and questions to our panel. Although thoughts and opinions might differ, I think we had a healthy channel to express our views and opinions freely. And this is most important to our democratic society.

Tomorrow, we have to decide whether to leave or remain.

Looking ahead into an uncertain future the two sides weigh up the risks and opportunities and come to different conclusions. Is it safer to continue with our current multi-national arrangements, minimizing risk and change, or is the EU an outdated 1950s concept which ties the UK to the old world and which is dysfunctional and doomed to fail?

Are there realistically alternative modes of international co-operation in a more connected world? Are the advantages of a single market outweighed by regulation and the opportunities of trading with the rest of the world? What should our immigration policy be? From a legal perspective, how should our laws be made in today’s global society and how much democratic control of legislation do we want?

The decision facing us will have far-reaching consequences for the future of the UK. This is the most important decision voters are likely to be asked in our lifetime so we encourage everyone to reflect seriously and to exercise their right to vote.

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The EU Referendum: Will It Be In Or Out?

This post was contributed by Dr Ben Worthy of Birkbeck’s Department of Politics. It was originally posted on the 10 Gower Street blog on 9 June 2016.

drapeaux européens

On 8th June Birkbeck Politics staff discussed the UK’s EU referendum, looking at what has happened so far and what may yet take place on the 23rd June.

The panel began by looking into why the UK was having a referendum, discussing the many hidden and not to hidden factors behind it. These stretched from Cameron’s gamble, that a referendum would cure the short term threat of UKIP and unhappiness in the Conservative party, to the long term distrust towards the European Union project in the UK, harking all the way back to Britain’s campaign of attempted sabotage of the project in the 1950s and reluctant joining in the 1970s.

Reflecting on the campaign so far, the panel spoke of how referenda are, by their nature, proxies for all sorts of other subjects. The EU referendum is actually about immigration, democracy and sovereignty. Despite their popular appeal, they can also be anti-democratic in focusing so narrowly on a single decision, and pursuing a seemingly simple answer to what are complicated issues.

There was also concern at the low level of debate and failure, on both sides, to engage with facts or global realities, from international trade to the modern mass movement of people (see the Treasury Committee report here that similarly complained of the ‘inconsistent, unqualified and, in some cases, misleading claims and counter-claims’ made by both sides).

The panel also reflected on how different views of the EU split different parts of England and the United Kingdom-creating what has been called a Disunited Kingdom of intentions and support. What would happen if Scotland and Northern Ireland voted Remain but England and Wales wished to leave? It could all get complicated and this paper speaks of some of the profound constitutional consequences. But do referenda’s ever solve an issue (think Scotland in 2014)? The panel thought it is unlikely to be the last EU referendum the UK has.

In terms of the voting itself, the polls so far show a knife edge result, resting on the margin of error. To find out what our panel think will happen on the 23rd June (and why José Mourinho’s views could prove decisive) listen to the podcast below.

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  • For polling data and analyses see John Curtice’s What UK Thinks website and Matt Singh’s Number Cruncher Politics
  • The betting odds are here  (it looks roughly 77% remain vs. 25-28% Leave)
  • The House of Commons Library impartial background research on the referendum, Brexit and issues it raises here
  • On the panel were: Rosie Campbell‎; Dionyssis G. Dimitrakopoulos‎; Dermot Hodson‎; Deborah Mabbett‎; Jason Edwards
  • Courses in the Department of Politics
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