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.

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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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Ever closer to different destinations: How the renegotiation changed the EU’s aims

This post was contributed by Professor Simon Glendinning and Dr Roch Dunin-Wąsowicz, of the London School of Economics (LSE).This post originally appeared on the LSE blog – read here.

On Tuesday 14 June, Dr Dunin-Wąsowicz will speak at ‘Brexit: Should the UK leave the EU?’. The event will run as part of ‘Law on Trial: Europe at the Crossroads’  – the School of Law’s week long public debate on the EU referendum (13-17 June). For details and to book your place, please visit the ‘European Law on Trial’ website.

Law on Trial 2016

The EU is the result of an ongoing creative project, write Simon Glendinning and Roch Dunin-Wąsowicz, who report on the last session of the LSE Commission on the Future of Britain in Europe. Tracing its Kantian origins, they explain that historically, the idea of “ever-closer union” was conceived as a way of overcoming the pathologies of national states. This ambition has not disappeared, but it is now accepted that some Member States might be more integrated than others. After David Cameron’s 2016 renegotiation, with its emphasis on  sovereignty, there is no requirement for the UK to move towards deeper integration.

The EU is now effectively a multi-speed union without a single final destination (telos). In order to understand how David Cameron’s renegotiation brought about this change, we need to examine what, if anything, is understood by the phrase “ever closer union among the peoples of Europe”.

As a member of the EU a state may both enhance the sovereignty it retains, and have a say in the development and powers of the union in those areas where sovereignty is shared or pooled. The 2016 renegotiation, with its emphasis on the definition of ‘ever-closer union’, should be understood in this light.

The concept of Ever Closer Union

Talk of “ever closer union” is a contraction of the full enigmatic formulation: “Ever closer union of the peoples of Europe”. It holds together two features of the European Union that seem to be intractable, irreducible and contradictory. First, it seems to contain an internal tension within it between the singularity of a “union” and the plurality of “peoples”. And, second, it seems to sustain an ambiguity over whether it concerns (primarily) a political body aiming to cultivate conditions for closer cultural or spiritual relationships between peoples – call that a union of minds – or a political body aiming at closer political relationships between nations – call that a union of governments.

Both of these interpretations have been defended in the theoretical literature on the emergence in Europe of a “political body” beyond Europe of the nations. Both have their roots in the writings of the philosopher Immanuel Kant. The first interpretation is probably Kant’s own. It is the idea of political institutions which create sustainable conditions of co-operation and understanding between the peoples of Europe that makes war between the nations increasingly “less likely”. The second interpretation is illustrated by the work of the contemporary philosopher Jürgen Habermas, who construes the European project as a movement towards the creation of an international or supranational state in Europe.

The renegotiation: “Sovereignty”

These two conceptions of institutional design of the EU were strikingly present in the differences between the first draft and the second draft of the renegotiation achieved by the UK government in February 2016 under the title of “Sovereignty”.

The original draft of the text proposed by Cameron and Tusk outlines a clear telos of “trust and understanding among peoples living in open and democratic societies sharing a common heritage of universal values” and yet stipulates that it is not “equivalent to the objective of political integration”. In a fascinating development, this formulation did not survive into the final text. It was replaced by a lengthier,and much more legalistic one, focused almost entirely on the UK’s “opt-out” of any further political integration – should it take place.

The final document “recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union”. It also outlined that Treaties remain the only source of legitimation of the Union and “do not compel all Member States to aim for a common destination”, leaving the telos of ‘Ever Closer Union’ undefined, but the possibility of deeper integration among some Member States strongly implied.

The original tension between unity and plurality of the ambition for “ever closer union among the peoples of Europe” clearly remains here – but it is now expressed differentially rather than internally: some peoples within the Union might be more integrated than others. The general tension is nevertheless retained in what one might call its voluntarism: there is no requirement for Member States to move towards deeper political and economic integration; it therefore remains dependent on whether nations desire it, and should some Member States desire it, then they are free to pursue it. Should others (not only the UK) not desire it, they are not obliged or compelled to do so. The possibility is affirmed here of amulti-speed union without a single telos.

Whether the telos of “Ever Closer Union” is conceived as a union of minds or of governments, the renegotiation showed for the first time that there is no longer a shared vision of a single telos of union among the 28 Member States of the EU – or, at least, no single aim of political integration common to them all.

The reality revealed by the negotiation is that there are in fact different “tiers” of European Union integration: a tier focused around the Eurozone and increasingly common economic government and deeper political integration (which may or may not survive in the form of a single group); a tier focused on commitments to an increasingly single-market; and a tier from the post-Communist European Member States who are rediscovering their own sovereignty at the same time as engaging in a process of European integration, and still deciding their path in the Union.

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Statue of Europe, Brussels

The history of the European political project

These developments raise important questions about the historical character of the Union itself, and indicate that its understanding of its own (ideal) historical telos changes in the course of its own (actual) history of making and attaining new institutional conditions.

The general historical “scansions” of the history of the European political project become crucial. The main feature of its early development was a hope among many that there would be a rapid movement towards an international state. The basic political motivation for this was the conviction, powerfully reinforced by the experience of nationalism and wars among the nations of Europe, that national political formations are intrinsically pathological and should be replaced by a more rational international system that would be effectively immune to them. The hope for rapid development did not last into the era of “functionalism” where a slower step-by-step approach was taken: the EU taking over certain national functions in the expectation that there would be a logic of successive developments in different areas “pulled” into play by the earlier transfers of competences to the European level.

Both of these models preserved a supra-national or “federalist” telos as their guiding ambition: the movement towards a union of governments. However, during the course of the second half of the twentieth century the idea of the nation state as an intrinsically problematic political form began to lose its hold on the political imagination. Instead, it was increasingly widely believed that it was not the form of the nation-state as such that was the problem but the form of government within that state. In particular, the pathologies were strongly connected to authoritarian, totalitarian and otherwise non-democratic regimes. A democratic nation-state, by contrast, was regarded as an instrument of peace and security both within itself and between such states.

The return of the nation

This shift powerfully altered the “horizon” of thinking about the ends of European Union. Federalism no longer appeared to be the only rational ambition of “Ever Closer Union” (though many cleaved to that idea and still do), and in its place a new “mantra” – with a new corresponding telos – has appeared to have taken hold within many national governments and on some of those working within the EU institutions: “National where possible, European where necessary”.

The now known reality of a differentiated union with overlapping circles of engagement and perhaps with multi-speed elements means that there is a delicate equilibrium in place. If Britain departed, the vision of Europe as an area of free trade in a single-market would have considerably diminished force within the EU, and there would be pressure, especially on countries in the Eurozone, to make a decision over the extent of economic and political union that they would be prepared to accept or want. Further opt-outs might be sought by various states, perhaps especially from post-communist countries unlikely to want to give up only recently acquired independence and sovereignty. The EU could start unravelling – not in one go, but gradually, in the way of the Holy Roman Empire.

At this stage in its history the EU is now faced with the alternative of either altogether abandoning the idea of supranational union in favour of a form of intergovernmental cooperation that finds agreement to pool or share sovereignty where it can; or of an EU of two Europes, one pushing towards political union and centred on the Euro, and another based on market rationalisation, but both existing independently and not adversarially within a broader European Union.

Conclusion

The idea of ‘ever-closer union” has never had a single or fixed teleological sense which has driven the political project of co-ordination and co-operation between the Member States – neither for the UK nor for the rest. Nevertheless, it is significant that the chapter of the renegotiation that contains a discussion of this phrase is entitled “Sovereignty”. In other words, it is an essentially political concept belonging to an essentially political project. And on this score, the idea of collective action is such that any member of a democratic club may help set the rules and their interpretation.

This political process in an ongoing political project is illustrated by what took place in the 2016 renegotiation, and includes what, if anything, is understood by the distinctive and ambiguous phrase “ever-closer union among the peoples of Europe”.

This post represents the views of the authors and not those of the BrexitVote blog, nor the LSE. Image:Statue of Europe

Simon Glendinning is Professor of European Philosophy at the LSE’s European Institute and Director of the Forum for European Philosophy.

Roch Dunin-Wąsowicz  is a sociologist. He is a graduate of the New School for Social Research in New York City, holds a PhD from the LSE’s European Institute and is Managing Editor of LSE BrexitVote. @RochDW.

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