Making Anti-Racial Discrimination Law: A Comparative History of Social Action and Anti-Racial Discrimination Law 0415467802, 9780415467803

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Making Anti-Racial Discrimination Law A comparative history of social action and anti-racial discrimination law

Iyiola Solanke

Making Anti-Racial Discrimination Law A comparative history of social action and anti-racial discrimination law

Making Anti-Racial Discrimination Law examines the evolution of anti-racial discrimination law from a socio-legal perspective. Taking a comparative and interdisciplinary approach, the book does not look simply at race and society or race and law but brings these areas together by drawing out the tension in the process, in different countries, by which race becomes a policy issue that is subsequently regulated by law. Moving beyond traditional social movement theory to include the extreme right wing as a social actor, the study identifies the agenda setting role of extreme right wing confrontation in law making, a feature often neglected in studies of social action. In so doing, it identifies the influence of the extreme right on anti-racial discrimination law. Focusing primarily on Great Britain and Germany, the book also demonstrates how national politics feeds into EU policy and identifies some of the challenges in creating a high and uniform level of protection against racial discrimination throughout the EU. Using primary archival materials from both Germany and the UK, the empirical richness of this book constitutes a valuable contribution to the field of anti-racial discrimination law, at both undergraduate and postgraduate level. The book will interest specialists and academics in law, sociology and political science as well as non-specialists, who may find this study stimulating and useful to expand their knowledge of anti-racial discrimination law or pursue teaching goals, policy objectives and reform agendas. Iyiola Solanke is a Lecturer in Law at the University of East Anglia.

Making Anti-Racial Discrimination Law A comparative history of social action and anti-racial discrimination law

Iyiola Solanke

First published 2009 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2009 Iyiola Solanke Typeset in Times New Roman by Keyword Group Ltd All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A Catalogue record for this book has been requested ISBN10: 0-415-46780-2 (hbk) ISBN13: 978-0-415-46780-3 (hbk) ISBN10: 0-203-87525-7 (ebk) ISBN13: 978-0-203-87525-4 (ebk)

Contents

Preface and acknowledgements List of abbreviations Introduction Table of cases and statutes 1

ix x xi xxix

Black European Union citizens

1

Introduction 1 Imperialism, war and labour migration 2 The British Empire and black Britons 5 The Germans in Africa and black Germans 8 ‘Guest workers’ in Germany 13

Belonging 14 Belonging in Britain 14 Belonging in Germany 17

Conclusion 21 2

Understanding racial violence

25

Introduction 25 A matrix of racial violence 25 Overt racial violence 29 Personal 29 Institutional 33 Covert racial violence 38 Personal 39 Institutional 43

Conclusion 45 3

The response to overt racial violence Introduction 48 The international response to overt racial violence after World War II 49

48

vi

Contents The national response to overt racial violence 53 The response to overt racial violence in Great Britain 53 The Race Relations Act 1965 (RRA 1965) 60 Legal definition of ‘institutional racism’ 62 The Race Relations (Amendment) Act 2000 64 The response to overt racial violence in Germany 65 Post-World War II legal regulation of racism 66 Post-reunification violence 70 The Kahn Commission and the creation of Article 13 Treaty of Rome 73 The Anti-Discrimination Law (Antidiskriminierungsgesetz/ADG) 2005 77

Conclusion 78 4

The response to covert racial violence

80

Introduction 80 Covert racial violence in employment in Britain 81 Discriminatory vacancies 82 Exposing covert personal racial violence: the PEP study on racial discrimination in Britain 85 The Street Report and the Drake and Ennals Report 87 The Race Relations Act 1968 (RRA 1968) 89 Exposing covert institutional racial violence (‘indirect’ discrimination) 91 The Race Relations Act 1976 93

Covert racial violence in employment in Germany 95 Anthropological and social research into the ‘Mischlingskinder’ 96 Commissioner for Foreign Affairs (Ausländerbeauftrage) 99 The legal response to covert racial violence in Germany 102

Conclusion 104 5

Restoring voice and visibility Introduction 106 Ethical responsibility 107 Models of integration 108 Social investigation 111 Influence of investigations 114

Ethics of ethnic data 118 Ethnic data in Britain 120

106

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vii

Ethnic data in Germany 122 Ethnic data in the European Union 125

Conclusion 126 6

Civil society and the ‘political opportunity structure’

129

Introduction 129 The political opportunity structure 129 Pluralism 131 Corporatism 133

Impact of group action on the legal response to racial violence under corporatism and pluralism 135 Ad hoc groups 136 Established groups 141

Conclusion 144 7

The impact of race in the news on race and law

146

Introduction 146 The media and race 147 The value of media coverage 151 The US Civil Rights Movement 153 The murder of Stephen Lawrence 154 The MacPherson Inquiry 156 The ‘African village’ in Augsburg Zoo 158

Conclusion 162 8

Anti-racial discrimination law in the European Union Introduction 164 The content of EU anti-racial discrimination law 166 The Race Directive 167

The role of social action in the evolution of Article 13 and the EU Race Directive 169 Investigations by the European Parliament 170 The Evrigenis Committee Report into Racism and Xenophobia 171 The Ford Report 173 The Piccoli Report 175 Lobbying 176 The Starting Line Group 176 Confrontation with the extreme right wing 181

164

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Contents Implementation of the Directives and beyond 183 An area of ‘freedom, security and justice’ 185 Strategic litigation: the role of the ECJ 186 Excavation 188 Dialogue 189

Conclusion 189 9

Conclusion

Bibliography Index

191 199 220

Preface and acknowledgements

This book focuses on the nexus between anti-racial discrimination law and social action. It seeks to understand when and why social action can make a difference to the evolution of these laws. It uses a comparison between Germany and Britain to highlight the constraints and opportunities for civil society to participate in law making. I would not have been able to complete this book or the thesis on which it is based without the support of my family and friends in Chicago, Ibadan, Lagos, London, New York, Norwich, Washington DC, and Winston-Salem. Thanks go to all for their help and advice along the way, but in particular to my Mother, who first taught me staying power. I am also grateful to the time and energy invested in the original research by my supervisors, Damian Chalmers and Nicola Lacey, both at the London School of Economics, who helped me to turn my initial maze of ideas into a structured doctoral thesis. Financial support is also crucial for a successful doctoral project. This doctorate was funded by a number of sources: the Law Department at the London School of Economics, ERASMUS, the German Academic Exchange Service (DAAD), the Studienstiftung des deutschen Volkes and the Hertie Stiftung. As a result of this, I was able to collect material from a variety of locations in London and abroad including the National German Archives in Berlin, the library of the Commission for Racial Equality in London, the British Library of Political and Economic Science, the National Library in Berlin, the Wissenschaftszentrum Berlin (WZB), the law library of the Humboldt University, the library of the European University Institute in Florence, the United Nations Library in New York and the Friedrich Ebert Stiftung library in Bonn. Katie Carpenter at Routledge recognised the potential of the thesis and gave me the encouragement to rework the material into a marketable book.

List of abbreviations

AS BT BVerfGE CEC Drs GNA MH OOPEC PRO Rn SO TUC UN WP

Archivsignatur Bundestag Bundesverfassungsgerichtentscheidung Commission of the European Communities Drucksache (parliamentary document) German National Archives (Berlin) Magazinhaus Office for the Official Publications of the European Communities Public Records Office (London) Randnummer (margin number) Standort Trades Union Congress United Nations Wahl Periode (parliamentary session)

Introduction

This study is about the evolution of laws created to deal with racial discrimination. For the purpose of this study, race is understood as a dynamic ideological and social construct originating in the transatlantic slave trade and the establishment of plantation economies based on enslaved labour. While race has increasingly been abandoned as an analytical category1 in favour of ethnicity, colour ‘remains a primary signifier of exclusionary practices in the West’.2 The primary subject of this study is therefore the evolution of laws to protect the dignity and equality of people of colour. There is nothing obvious or inevitable about the evolution of these antiracial discrimination laws in any legal system. This emergence is not a natural or neutral phenomenon.3 I do not take for granted that rules prohibiting racial discrimination appear in legal systems simply because a practice or situation is recognised as deleterious to particular groups, in this case, black people. Racial discrimination does not have to be recognised as an important social problem4 or tackled using the force of law. It is the process whereby this occurs that this study explores. The study is both historical and comparative. It focuses on Great Britain5 and Germany.6 Anti-racial discrimination laws have evolved in these countries at different times. Unlike in the USA, neither British nor German law contained statutes or judicial doctrine that determined the relationship between groups defined by skin colour. There were no cases such as Dred Scott,7 which ruled African American slaves had no rights that white Americans were bound to recognise, and there was no constitutional provision that ruled that a slave was only three-fifths

1 2 3 4 5

Gilroy (2000). Alexander & Alleyne (2002: 543). Hepple (1986: 4). Edelmann (1988) quoted in Bacchi (1999: 6). In later chapters, when discussing the United Nations or the EU, I will refer to the UK. When speaking of race relations law I will refer to Great Britain, as these laws do not cover Northern Ireland. 6 Unless otherwise specified, ‘Germany’ refers to the whole of that country post-1989. 7 Dred Scott v Sandford, 60 US 393, 19 How. 393, 15 L.ed.691 (1856).

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of a man.8 Although not law, racial discrimination was custom.9 English law, for example, did not compel people to discriminate against others because of their race or colour, but it likewise did not prohibit such discrimination.10 There was no English case that had expressly declared racial discrimination contrary to public policy.11 Practices of basing decisions in public or private matters – be it, for example, in relation to housing (to whom to rent a room), access to public services (whom to serve in a pub) or employment (whom to hire or fire) – on skin colour, nationality or culture was not subject to legal regulation. These legal systems now contain protection from racial discrimination. A formal legal prohibition of racial discrimination has been active in England, Scotland and Wales since 1965 when the first Race Relations Act was introduced. The prohibition now covers not only employment, but also a range of other spheres such as education, housing, membership of trades unions and advertising.12 Individuals can seek redress for a complaint of racial discrimination in one of the covered fields.13 The British coverage is arguably the most developed in Europe. Even though German constitutional14 and labour law15 has contained provisions prohibiting racial discrimination since 1949, meaning that the prohibition on racial discrimination in Article 3 (3) GG predates the ICERD.16 Yet victims of racial discrimination, for example in the field of employment, do not have an accessible and individually actionable legal remedy for this injustice. Paradoxically, the German legal system has contained a prohibition against racial discrimination for longer, yet offers the least protection to individuals. Why has race equality law evolved so differently? It is the process whereby an individually enforceable prohibition against racial discrimination emerged in Britain and Germany that this study explores. The study is also socio-legal. I am particularly interested in the role played by voluntary social action in the evolution of these legal norms.

8 9 10 11 12

13 14 15 16

United States Constitution of 1787, Article 1, Section 2, Clause 3. Little (1972: 77–8). Street (1977: 298–9).

Hepple (1970: 151). Race Relations Act 1965 (RRA 65); Race Relations Act 1968 (RRA 68); Race Relations Act 1976 (RRA 76). The Race Relations (Amendment) Act 2000 placed an obligation on public authorities to eliminate unlawful discrimination and promote both equality of opportunity and good race relations when carrying out their functions. For a review of the working of this duty see Commission for Racial Equality (CRE)/Schneider-Ross (2002) ‘Towards racial equality: an evaluation of the public duty to promote race equality and good race relations in England and Wales’, London: CRE. The Race Relations Act 1976 (Amendment) Regulations 2003 (RRA 2003) has most recently amended race equality law by transposing the EU Race Directive into national law. Since December 2004 the Employment Equality (Religion or Belief ) Regulations 2003 has made religious discrimination in the field of employment unlawful. Grundgesetz (GG) Article 3 (3). Betriebsverfassungsgesetz (BetrVG) Paragraph 75. Chalmers (2001: 202).

Introduction

xiii

Together with critical legal theorists, I challenge claims of law’s autonomy. Kairys, for example, argues that law is not value neutral but created according to specific interests. He accuses doctrinal theorists of pulling a mythical veil of disinterested objectivity over the reality of the social conflict which underlies legal structures.17 From this perspective, legal ideas are understood as ‘the outcome of historical, cultural, political or professional conditions’.18 Critical legal scholars attribute value to social action, as do sociologists and political scientists. Chambliss, for example, argues that ‘a system of legal control is not inexorably linked to some teleological design, but is the product of human activity that is both purposeful and rational.’ Thus the legal control of criminality, drug use, rape or racial discrimination is a consequence of human action.19 The main question of this study – whether social action made any difference to the evolution of anti-racial discrimination law, or whether non-governmental activity played only a marginal role, with the main actors being those sitting around the negotiation tables20 – provides an opportunity to conduct an empirical investigation of these more critical legal theories: if culture, politics and history are factors in the production of law, in what way do they make a difference? In order to answer this question, it is necessary to have both a theory of action and to specify what is meant by social action.

‘Action’ What is ‘action’? This question has been answered differently. The idea of a pursued outcome, or an end, was inherent in the functionalist theory of action. For Parsons, action implied both an agent (an actor) and an intention, ‘a future state of affairs towards which the process of action is oriented’.21 ‘Intention’ meant that an actor had not only knowledge of the present but also a plan for the future. In relation to British discrimination law, an act is said to be intentional when an actor ‘knew when he did them that those consequences would follow and if he wanted those consequences to follow’.22 This planning was core to the functionalist theory of action – the idea of non-intentional action was ‘objectionable’.23 More recent social theorists have questioned this linkage, arguing that action can be unintentional and yet nonetheless action. Giddens gives the example of a person switching on the light and in the process disturbing an intruder. Given that the switch thrower did not know that an intruder was there, it cannot be said that the disturbance was intentional: the intention was to illuminate the space, rather than to alert the prowler hovering in the darkness. Yet, this action made a

17 18 19 20 21 22 23

Kairys (1982: 4). Cotterrell (1998: 12). Chambliss (1993: 9). Tyson (2001). Parsons (1949: 44). J H Walker Ltd v Hussain and others [1996] IRLR 11, para. 39. Parsons (1949: 64).

xiv

Introduction

difference to events. Giddens argues that consequently intention must therefore be seen as separate to action. This study relies on Giddens rather than Parsons: action refers only to something that is done and is separate from intention. It draws on Gidden’s idea of agency which, in contrast to Parson’s theory of action, simply ‘refers to doing’.24 Nonetheless, such action has causal power, the ability to bring about change, to mobilise persons or resources in order to achieve an outcome. This kind of action exerts ‘transformative’25 power on the evolution of anti-racial discrimination law, so that whatever happened would not have happened in its absence. This transformative capacity26 can be unintentional, and can be exerted either directly or indirectly, meaning that action can have direct and indirect consequences – an act can influence events ‘far removed from it in time and space’.27 I will show, as Giddens argues, that this can be so irrespective of whether the act was intended or unintended. My focus is on law. Despite being used interchangeably, there is a difference between ‘law’ and ‘policy’, the most important being that law is coercive whereas policy is preference. Policies do not by themselves confer actionable legal rights and do not have to be pursued through the use of law – a policy of racial equality does not have to include legal measures. For example, the European Union had projects on the promotion of racial equality for a number of years,28 but a clear policy was only introduced with Article 13 TEC in 1997 and a detailed legal prohibition only appeared with the Race Directive of 2000. The study draws a distinction between law and policy because, as will be shown, the consequences of social action can be different for each. A conflation of the terms overlooks the evolution from policy to the use of law. An important finding of this research is that policy recognition neither always nor automatically leads to legal definition. It would be helpful to define recognition and definition. In brief, recognition refers to the adoption of race as a policy issue and definition to the creation of a formal legal prohibition. Recognition refers to the moment when racial discrimination is acknowledged by politicians and decision makers as an issue that needs to be addressed officially. This is manifested by its appearance on the policy agenda. Legal systems may confer, but do not pioneer recognition.29 Recognition by itself is neither a commitment to make policy changes nor a promise to use law. Definition refers to the formalisation in law. In the case of racial animus, reaching the legislative agenda is difficult as governments are reluctant to tackle such a complex problem. How does an issue become an item on a policy or legislative agenda: under what circumstances do legislators abandon voluntarism and turn to use the coercive force of law?

24 25 26 27 28 29

Giddens (1984: 10). Giddens (1984: 15). Giddens (1993: 116–18). Giddens (1984: 11). Bell (2002: 54–72). Chalmers (2001).

Introduction

xv

These phases are dynamic: decisions taken in each phase have implications for the other. Factors informing the appearance of a policy can influence the scope of the legal definition. But at the same time, each phase is discrete: policy does not have to lead to a legal definition but can remain a passive acceptance of the problem rather than an active commitment to legislate. Each moment contains within it the possibility of both stagnation and action, but no guarantee of either. There is no automatic development from one phase to the next. This, I argue, is determined by social action. By focusing on action rather than actors I hope to create a robust analytical framework for this comparative socio-legal study. Social action What do I mean by social action? Social action, or collective action, is voluntary action. It occurs in civil society,30 a sphere of personal interaction that lies between in the economy and the state.31 This sphere is a home for a ‘global public’ comprising women’s, environment, democracy and human rights movements, such as Amnesty International or Globalrights.32 Interaction here is voluntary and communicative in contrast with the role of ‘authorised power’ and ‘money’ in political and economic society respectively.33 It is widely seen as an autonomous sphere, acting to some extent as a counterbalance to state power. The sharpness of this distinction has, however, faded over time, making it harder to separate the ‘public’ from the ‘private’.34 Olsen argued that collective action could not be seen as a corollary of individual action. He emphasised that group members have both collective and individual interests and, in some cases, individuals (‘free riders’) may be able to enjoy improvements brought about by others regardless of any personal participation in voluntary action to secure them.35 Because of these ‘free riders’, collective action had no logic because the larger the group, the less likely it would be able to further its common interests.36 However, Olsen’s logic was falsified by the legislative ‘victories’ of the civil rights and women’s movements during the 1960s. The logic of collective action came to be understood anew following the passage of the Civil Rights Act (CRA) 1964.37 The evolution of the Civil Rights Act 1964 was described using the language of ‘victory’ and ‘winning’. Aspects of competition, struggle and persistence were emphasised. This set a new tone for the study of social action. A new

30 31 32 33 34 35 36 37

Arato (2000); Cohen & Arato (1992); Walzer (1995); Young (2000). Cohen & Arato (1992: 509). Keck & Sikkink (1998: 14). Young (2000: 155–60). Graziano (2001: 103). Olsen (1965: 16). Olsen (1965: 36). Costain in Petracca (1992); Gamson (1975); Gelb and Hart in Guigni et al (1999); Young (2001).

xvi

Introduction

consensus emerged, led by Gamson, which attributed a key role in the evolution of non-discrimination law, to the proliferation of collective action in the form of voluntary associations, non-governmental organisations and social movements.38 The assumptions made about social action – that this could be successful given the dedication and cooperation of many people and organisations39 – were not challenged until the 1990s. When President Kennedy sent a civil rights message to Congress early in 1963, the legislation he requested was relatively modest, concerned primarily with voting rights. He hoped to advance civil rights using executive action, while using legislation to target other social and economic fields. Civil rights leaders and organisations, led by the National Association for the Advancement of Coloured People (NAACP) welcomed Kennedy’s initiative, but pressed for more powerful legislation. The insistence for nothing less than full rights by organised groups was coordinated with an increase in mass demonstrations and other forms of peaceful protest. A coalition of organisations rallied under the Leadership Conference on Civil Rights, a coordinating umbrella agency. The Leadership Conference comprised 86 civil rights, labour, church, fraternal, ethnic, women’s, professional and veterans’ organisations. Headed by Roy Wilkins, Executive Secretary of the NAACP, it also included the major civil rights organisations such as the NAACP, the Congress on Racial Equality, the Southern Christian Leadership Conference, the Student Non-violent Co-ordinating Committee, the National Urban League, and the National Council of Negro Women. It established a Washington office that worked solely on advancing the Civil Rights Bill. It was also supported by leaders of the major religious faiths. In August 1963, the Leadership Conference organised a peaceful march on Washington, ‘attended by some 210,000 persons of all races, creeds, and colours’40 to petition Congress for a full redress of all grievances. This was at the time the largest demonstration ever held in the United States. President Kennedy responded by suggesting additional legislation that ultimately became part of the Civil Rights Act (CRA) 1964. In the Senate, this was supported by 73 to 27; in the House of Representatives 289 to 126. The vote cut across political party lines and across traditional liberal–conservative differences. An entirely unprecedented Republican–Democratic, liberal–conservative coalition in Congress guided the bill through debate in both houses and final passage. Equally importantly, there was clearly mass national consensus for such action as illustrated by the numerous organised movements that lobbied for the act in Washington and in communities around the country. The bill was strengthened

38 Buechler (2000); Costain (1992); Dekker et al (1997); Gamson (1975); Guigni et al (1999); Jenkins (1983); McAdam (1983); Sabatier (1975); Tilly (1978); Young (2001); Zirakzadeh (1997). 39 US Information Service (1964: 5). 40 US Information Service (1964: 6).

Introduction

xvii

by Congress with the inclusion of clauses on equal employment, voting census provisions and a grant of authority to the Attorney General to intervene in civil rights cases.41 The act passed by Congress was wider than that envisaged by its advocates. The Civil Rights Movement set the standard of what could be achieved by voluntary, organised social action. The passage of this legislation was a huge victory for African Americans. Passage of the CRA 1964 was taken as evidence that collective action not only had its own logic, but that non-governmental organisations could act in a planned, strategic and sustained way, maintaining their momentum over a long period of time. In order to explain the success of this movement, post-behavioural theorists focused on organisational structure and resource mobilisation,42 questions of emergence and maintenance.43 In the 1990s, however, questions appeared that challenged some long held assumptions – was, for example, the march on Washington really instrumental in the passage of the Civil Rights Act 1965 or was this a result of ‘open-mindedness, or of a strategic stance of mainstream politicians within congress?’44 To what extent were outcomes the effect of movement actions and/or the effect of outside events and actions? Some began to argue that movements and other forms of voluntary associations do not make a difference to the evolution of law.45 The meaning of ‘influence’ was revisited and expanded, and interest turned to discussing the context under which social action occurred. The pro-democracy bias of scholarship was also questioned. The meaning of influence The last decade of the 20th century brought with it a review of the meaning of ‘influence’. Gamson had in 1975 defined influence in relation to two outcomes: first, in terms of acceptance of a group’s claims; and, second, through securing new advantages.46 More recent indicators of influence are broader and include the ability to attract new members and financial resources, to set agenda items and to influence the appearance, amendment or repeal of law and regulation.47 Changes at the micro level, such as the co-optation of decision makers, reorientation of

41 US Information Service (1964: 4–5). 42 Buechler (2000) gives a history of scholarship in this area. McCarthy and Zald are seen as the originators of this ‘entrepeneurial’ approach, which uses a synthesis of economic and organisational theory to explain collective action. It is criticised for its over-emphasis on the role of elites in the mobilisation of resources. Sociologists such as Charles Tilly and Doug McAdam see them as an integral part of the political economy, stressing the role of political opportunities in the development of collective movements. See Giugni et al (1999). 43 See, for example, Koopmans and Rucht (1995); Koopman and Statham (2000). 44 Guigni et al (1999: xiv). 45 Rucht (1999). 46 Using these indicators, Gamson (1975) concluded that the political system was not open, but opened through the perseverance of social actors. 47 Rucht (1999).

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Introduction

individual lives or personal development,48 are also included. The definition of influence I use in this study is taken from Rucht: influence will be demonstrated by the ability of social action to influence directly or indirectly the appearance or non-appearance of a policy and the appearance, amendment or repeal of race equality regulation. The context of social action Interest was renewed in the complexity of tracing how social movements matter. New scholarship argued that ‘interventions of other interested parties, environmental changes, and . . . multiple causal chains lead to a plethora of possible effects in a situation where influences other than social movement activity necessarily contribute to the effects.’49 A new aim of scholarship was ‘to show how different conditions and historical circumstances are conducive to varying movement outcomes’.50 Burstein, for example, argued that in order to understand the connection between group interests and public policy, it is necessary to analyse how groups ‘function in complex, competitive environments’.51 Events were given historical contingency so that ‘logics’ rather than a singular ‘logic’ of collective action were discussed.52 In drawing attention to the context in which action is embedded, these postbehavioural scholars de-emphasised the type of actor. Typologies making a distinction between social movements and interest groups were found to be superfluous – ‘the duality of SMOs and interest groups cannot withstand scrutiny; there exist simply organisations – “interest organisations” – trying to influence public policy’.53 This conflation is relevant for the current study. If types of actors can be conflated, this opens a possibility for more attention to be paid to forms of social action. There are advantages to such an approach. In general, a focus on actors is susceptible to the problem of either overlooking important actors or not being able to identify them because their actions were not visible: power does not always have to express itself in order to make its presence felt. The ability to suppress an issue from discussion is equally an indication of power.54 An actionled approach also facilitates comparison. In order to explain differences in the evolution of race equality law, it is necessary to identify common variables. This would not be possible with a focus on actors as social actors vary from country to country. The search for a single definition could frustrate a comparative study

48 49 50 51 52

Guigni et al (1999); Kelly & Breinlinger (1996). Guigni et al (1999: 268–9). Guigni et al (1999: xxviii). Burstein (1999: 5). Roy & Parker-Gwin (1999), for example, discuss the differences between the trade union logic for collective action and the business logic for collective action. 53 Burstein (1999: 19). 54 Bachrach & Baratz (1962: 949).

Introduction

xix

such as this before it begins. Categories of social action, by way of contrast, can be held constant. The pro-democracy bias Also challenged was the pro-democracy bias that dominates much scholarship on civil society. Although definitions of civil society are neutral, the interests of political theorists have stressed positive and constructive participation in democratic society rather than those groups that do not enhance liberal democracy.55 The focus in political theory on group action promoting democratic values meant that organisations that did not fit this mould were not studied as part of civil society. The extreme right wing has consequently not always been recognised as a social movement. There is still no consensus on whether such groups promoting non-democratic ideals and values can be looked on as movements. With the growing popularity of organisations in Europe encouraging their members to engage voluntarily in violence, however, this exclusion of ‘bad civil society’ or ‘participation which undermines democracy’ has been reconsidered.56 Touraine has classified groups such as the extreme right social ‘anti-movements’. Social anti-movements are authoritarian and promote closure rather than openness. In their obsession with identity, they embody a rejection of modernity. However, these anti-movements, he argues, can be the catalyst for the social movements of ‘good’ civil society.57 Given these recent reconsiderations, the study will focus on action rather than actors and incorporate examination of both ‘good’ and ‘bad’ civil society. Such an examination offers an opportunity to see how legislators respond not only to reformers but also to those whose actions threaten to undermine liberal democracy by unseating fundamental values and principles. The empirical study does, in fact, demonstrate some of the interaction suggested by Touraine between social anti-movements in ‘bad’ civil society and social movements in ‘good’ civil society. Forms of social action Berry mentions four forms of social action: law, including litigation and administrative intervention; confrontation (such as protests, or whistleblowing, or shareholder actions); information (releasing research results, public relations campaigns, direct personal presentations to government or testimony before Congress); and constituency influence (organising letter writing campaigns, publicising voting records and contributions).58 Researchers have found that

55 56 57 58

Arato (2000); Cohen & Arato (1992); Walzer (1995); Tester (1992). Chambers & Kopstein (2001: 838). Touraine (2000: 114–15). Berry (1977: 267–70).

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Introduction

groups highly reliant on patrons tend to use ‘insider’ tactics such as information more than ‘outsider’ strategies such as confrontation. The form of action an organisation adopts contains information as to the nature of the group. The choice of method is said to depend on both the internal characteristics of the organisation and the external political context. Factors relating to the organisation include its internal resources, the character of the groups’ membership, its sources of financial support, and the degree of conflict faced.59 The type of issue being tackled is also important to the form of action. Newer issues may be more controversial than older ones and have less public salience, in terms of public visibility, and the size and composition of the public whose interest they arouse. While some publics are homogenous and small, others are heterogenous, large and divided.60 These ‘policy circumstances’ are an additional factor that can affect the form of action chosen. The public salience of antiracial discrimination law in Europe can be described as small, heterogenous and divided. Thus strategies of dealing with both legislators and public opinion must be determined accordingly. As social action is tailored to issue, groups active in this area ‘with little public support will endeavour to keep things quiet’.61 There is therefore less confrontation used in relation to campaigning for race equality law. I focus on the use of direct presentations through lobbying and indirect presentations through research. Confrontation, lobbying and research all appeared during the collection of empirical data in the case studies. Of interest was the fact that their influence was different in each case study. Right wing confrontation had a direct impact for law in Britain, but an indirect consequence in Germany. Lobbying had direct consequences in Britain and Germany. Research had a direct consequence in Britain, but no consequence at all in Germany. These differences suggest that context is relevant and make it possible not only to compare the different impact, but also to explore the reasons for this. Confrontation The confrontation with which I am concerned differs from non-violent protest or demonstration exemplified by the Civil Rights Movement of 1960s America. This confrontation is located in ‘bad’ civil society – it is the confrontation of social ‘anti-movements’. I focus on two forms of confrontation: violent physical confrontation on the streets and ideological confrontation at the ballot box. This physical violence and ideology is informed by racism and xenophobia. It can arise from either the extreme right wing or from the right wing in the mainstream of the political spectrum.

59 Baumgartner & Leech (1998: 173–4). 60 Olsen & Mezey (1991: 17). 61 Baumgartner & Leech (1998: 147).

Introduction

xxi

How does this confrontation influence the evolution of anti-racial discrimination law and policy? In Europe, confrontation with the extreme right wing on the streets and electoral success at the ballot box has in some places exerted significant influence on the evolution of anti-racial discrimination law. Recognition can occur against a background of rioting and increasing intolerance, accompanied with a strong and growing support for xenophobic and fascist ideology at the ballot box. As Touraine suggests, this confrontation crystallises opposition and creates the conditions for a collective response. In Britain, but for violent right wing confrontation, the evolution of race equality law may not have happened. Recognition in 1965 was the unintended direct consequence of an ideological confrontation with extreme right wing values co-opted by the mainstream conservative party. This occurred during the byelection at Smethwick in 1964, which led to the Labour government commitment to legislate against racial discrimination. Right wing confrontation in Germany after reunification did not have the same direct outcome domestically, but unintentionally was the direct cause of formal policy recognition in the EU. This is an interesting example of political and legal interpenetration between the EU and its member states: while the right wing violence in Germany did not lead to changes in anti-racial discrimination law at the national level, it had direct consequences for the evolution of anti-racial discrimination law within the EU. This contrast in consequences leads to the question of what determines when a social anti-movement gives rise to a positive legal response. As this form of action did not directly lead either to policy change or legal evolution in Germany, the impact of the context must be assessed. I argue that the status of the victims is a key determining factor, in particular their level of actual or perceived belonging to the polity. The level of belonging determines, I argue, the extent to which a polity attempts to include black people – where they are seen as integral to the polity, the state accepts a duty to offer some protection. Where, however, they are seen as permanent migrants and foreigners, inclusion is not a priority. The more inclusive the polity, the stronger the response to confrontation. This, I argue, explains why Whitehall responded differently to Bonn and Berlin. I develop this argument by looking at the interaction of citizenship, migration and models of integration in Britain and Germany, contrasting the mono-culturalism of Germany with the cultural pluralism, or multiculturalism,62 of Britain. While mono-culturalism interprets difference as a threat and demands assimilation, multiculturalism welcomes plurality as an enrichment of public life, often struggling to reconcile diversity, neutrality and unity.63 Under the latter providing protection from racial discrimination is necessary to protect diversity, while the former sees sufferance of racial animus as punishment for the failure to assimilate.

62 Kymlicka (1995). 63 On the debate for the recognition of diversity in public institutions, see Bellamy & Hollis (1999); Gutman (1994).

xxii

Introduction

Research and investigation Research has played a role in tackling racial discrimination since the 1940s. In 1949, a subcommission on the prevention of discrimination and the protection of minorities of the United Nations Commission on Human Rights took on the task of systematically studying the ‘main types of discrimination which impede the equal enjoyment by all of human rights and fundamental freedoms and the causes of such discrimination’.64 These studies were undertaken specifically to ascertain the cause and identify the dynamics of racial discrimination. They were designed not only to collect and collate information, but also by challenging assumptions and questioning practice to change prevailing common sense on race into non sense. Such studies were the background to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). As noted by Burstein, the source of information is important for legislators. Decision makers must make choices about both where to get information as well as how to use it. The limited time constraints under which law and policy are made make good information a premium.65 It is interesting to note where legislators turn for reliable information on which to base decisions. Research may be undertaken by non-governmental organisations contracted for the purpose but can also be conducted by political actors themselves. In almost all cases, the decision-making body formed its own investigative committee. For example in Britain, Home Secretary Frank Soskice created a cabinet committee to determine the direction of the Race Relations Act 1965; in the EU, the Council of Ministers established the Khan Commission. By contrast, research into racial violence is conspicuously absent in Germany. While there are regular studies on the situation of foreigners in Germany, there is little investigation into the situation of black Germans. There may be a legitimate reason for this. The collection of information on colour and ethnicity has an ethical dimension. The gathering of ethnic data was a controversial issue in Britain and continues to be so in other parts of the EU, such as Germany, where history has made this an especially sensitive question. However, as ethnic monitoring emerges into a key issue, highlighted by the European Commission as essential to the effective enforcement of a race equality strategy, such sensitivities become less justifiable.66 The way in which investigation is conducted is illustrative: is it active – are surveys and interviews conducted with victims? Or is intelligence gathering passive, based on data sent in by ministries and officials? Active research can be a political intervention. Passive intelligence gathering can, in contrast, give the mere appearance of intervention but merely be a public relations exercise.

64 UN E/EN.4/Sub.2/40/Rev.1 7 June 1949 (‘United Nations – Commission on Human Rights (Subcommission on preventing discrimination and the protection of minorities), the Main Types and Causes of Discrimination (Memorandum submitted by the Secretary General, New York, 1949: 1). 65 Burstein (1999: 13). 66 Reuter & Oosi (2004).

Introduction

xxiii

It has been argued that gathering social data or other forms of intelligence plays only a minimal role in policymaking due to bureaucratic constraints. Feldman goes so far to say the information produced by analysts is not used.67 The importance of intelligence gathering to the evolution of anti-racial discrimination law is debateable. Was it merely ‘the traditional response of the government elite to crisis’, designed to evade rather than to tackle and transform? Or did it act as a ‘gadfly’, which provoked the establishment into a reconstitution of policy paradigms?68 In this study, research had a different use and outcome. In Britain, investigation conducted both at home and abroad had an impact on both recognition and definition: it had intended direct consequences for the Race Relations Act 1968 and the Race Relations Act 1976 – but for the PEP study of 1967 the depth and dynamics of racial discrimination in employment may never have been recognised and the definition in the Race Relations Act 1968 may not have been broadened; but for the trip made to North America by the Home Secretary Roy Jenkins the idea of ‘indirect discrimination’ may not have found its way into the race equality legislation of 1976. There is very little evidence that investigation has influenced the thinking of the legislator in Germany. While the establishment of parliamentary committees is normal practice in Germany,69 there has so far been none to look into the creation of a race equality law. In Germany, the most pertinent investigations in regard to racial discrimination are the reports by the Commissioner for Foreign Affairs regularly presented to parliament. These, however, do not seem to contribute directly to legislation. Can this be a reason why German anti-racial discrimination law has not developed? How can context explain these different attitudes towards intelligence gathering? I present an argument that continues the theme picked up in relation to confrontation – the status of the victims. I argue that intelligence gathering is a form of social intervention that can act as a mechanism for inclusion. Investigation into racial discrimination is therefore only undertaken where there is an official interest in inclusion – it is a demonstration of regard. Such a demonstration takes on added meaning in the presence of extreme right wing violence, which both denies difference and silences otherness. It is a physical subordination meted out on individuals but directed towards a group that is different,70 creating a ‘community of suffering’.71 The physical subordination of individuals therefore sends a collective message: ‘Go home, we do not want you here.’ This message remains in place unless it is publicly erased. It is erased through investigation, which acts as a public returning of ‘face’ to subordinated groups acknowledged as belonging to the polity.

67 68 69 70 71

Feldman (1989: 10–12). Davidson & White (1988). Achterberg (1984); Vetter (1986). Levinas (1987: 18–19). Werbner (1997: 242).

xxiv

Introduction

If xenophobic violence effaces, then investigation can be interpreted as a public demonstration of support and concern for those under attack. The allocation of resources indicates a commitment to undoing the silencing imposed on a group. Reversing the silencing will only be a priority where the silenced are accepted as belonging to the polity. The absence of investigation can on the contrary be interpreted as a continuation of violence, the effective perpetuation of ‘silencing’. Thus research and investigation were undertaken in Britain because the silenced were viewed as a permanent part of the polity. The absence of studies into racial discrimination in Germany is, I argue, further indication of the official lack of desire to fully recognise black and migrant persons as part of that society. Lobbying Given the policy circumstances of the theme of racial discrimination in postWorld War II Europe, confrontation is rarely a tool used by reformers in favour of race equality law. Publicity can be a double-edged sword in relation to an issue with a small and heterogenous public thus reformers are more likely to proceed via private discussions and direct contact including personal visits or letters, phone calls or informal contact and indirect approaches utilising friends within the system, or contacting assistants of decision makers and mid-level civil servants.72 I will focus on the direct methods and explore the extent to which direct contact influenced recognition and definition. Two general types of organisation are visible: ad hoc and established. An ad hoc organisation can be defined as ‘a temporary arrangement of persons interested in accomplishing a common purpose’ who may attend a ‘series of informal meetings at which interested participants listen, discuss and possibly agree to act in concert’.73 A distinguishing feature of ad hoc groups is that they are created for a particular purpose and may disband once that purpose has been achieved. They may not have any formal officers and often do not keep a record. An example is the ‘Forum’ established in Germany to organise the European Year Against Racism. The Forum is also an example of where an ad hoc organisation becomes a permanent consultative body. Alternatively, there are also examples of more established interest groups, such as the Evangelical Church (EKD) in Germany. This is a longstanding organisation with a long-term and strong public presence. Unlike ad hoc groups, such permanent organisations take up a number of issues and are present in a number of different fields. The EKD is active in many fields and was not formed to lobby in relation to racial discrimination. It can be argued that the ultimate aim of lobbying activity is to ensure that certain views and interests make a contribution to any solution adopted,74 that much

72 Pedler & Van Schendelen (1994: 15). 73 Hall (1969: 140–4). 74 Pedler (2002: 1).

Introduction

xxv

of the effort of lobby groups has ‘little direct connection with efforts to influence policy decisions as such’75 but rather to provide information either to politicians or to the public in general or to monitor events.76 The groups in this study involved in the evolution of anti-racial discrimination law appear to want to change beliefs and influence action rather than inform or advise. Their success appears largely dependent on the existence of decision makers sympathetic to their cause and thinking along the same lines. Consequently, caution is required in relation to the influence of lobbying. There is a danger of attributing too much impact to this form of action – it may be possible to attribute influence in the definition of an issue because the group shared positions already held by decision makers, in which case one is looking at mere congruence rather than influence.77 However, where key legislators do not share the lobbyists vision, an example from England illustrates the conditions under which they can be brought to do so. In relation to recognition, there is little clear evidence from Britain that the policy change was a result of lobbying: lobbying did not win the commitment in 1965, 1968 or 1976 – Home Secretary Frank Soskice was convinced by confrontation and his successor, Roy Jenkins, was also already supportive of this. There is perhaps more evidence in relation to definition. A clear example arises from Whitehall: Home Secretary Frank Soskice would have introduced a criminal sanction in 1965 but for coordinated lobbying. The Race Relations Board, which was established in the Race Relations Act 1965, is a direct and intended consequence of lobbying. Lobbying did not influence recognition in Germany – the Berlin administration responded to a legal obligation from Brussels – but lobbying has clearly altered the evolution of the legal defintion: the intervention of the Evangelical Church had a surprisingly direct and intended – albeit negative – impact. This demonstrates an important aspect of collective action – the relative power of groups and that power is the ability to constrain action, as well as to get things done.78 One obvious point is that lobbying can work both ways – either in favour of legislation or against it. I argue that this different distribution of group power in Britain and Germany is due to the ‘structure of political opportunity’.79 The political opportunity structure determines the space and channels within which groups seeking to influence law and policy must operate. These structures are ‘comprised of specific configurations of resources, institutional arrangements and historical precedents for social mobilisation’.80 Comparison shows how external elements can influence the impact of social action in their environments. The openness of pluralist systems encourages proactive lobbying while in

75 76 77 78 79 80

Salisbury et al (1992: 147). Greenwood & Aspinall (1998: 202). Lowi (1963: 681). Giddens (1984: 173–9). McAdam (1982: 37). Kitschelt (1986: 58).

xxvi

Introduction

corporatist systems such as Germany, the search for consensus gives privileged actors a strong voice to veto. Thus social action can both hinder the evolution of race equality law as well as hasten it.81 Summary The research therefore revolves around two broad questions: does social action have any causal power, first, in relation to the recognition of racial discrimination as a political issue, or the appearance of an anti-racial discrimination policy? Is it possible to identify a causal relationship between social action and the policy agenda? Second, is there a causal relationship between social action and the definition of racial discrimination entrenched in statutory law? The study can be summarised as an examination of the nexus between social action and the statute book. The comparative study shows that social action has made a difference to the evolution of anti-racial discrimination law in Britain and Germany. Social action can have an impact on the policy agenda: in the form of confrontation, lobbying and investigation it can influence when and how a legislature takes notice of this injustice. Right wing confrontation appears to be a strong influence on recognition. Lobbying and investigation can influence the issues on the table, the context under which negotiation and decision making takes place and the information available to decision makers. The role of social action seems less clear in relation to definition. Where it is influential, this tends to be because it agrees with the objectives of legislators rather than because it has convinced legislators to take an alternative course of action. Where legislators are convinced to do something else, this is due to cooperation between voluntary social action and political actors. Thus while social action can affect recognition and the policy agenda, it is not always influential for the construction of legal definitions. The empirical evidence supports the assertions of critical legal scholars that legal evolution occurs as a result of the interaction of social, historical, cultural and political phenomena.82 Yet the impact of social action is mitigated by these same factors: it depends – as suggested both by studies on the outcomes of social action83 and by legal scholars84 – on the political and legal culture within which it is embedded. ‘Different conditions and historical circumstances are conducive to varying movement outcomes.’85 In order to understand this connection, it is necessary to analyse how groups ‘function in complex, competitive environments’.86 The causal power of social phenomena is different

81 82 83 84 85 86

Guigni et al (1999: xxiv). Chambliss (1993 : 9). Guigni et al (1999); Touraine (1988). Burgess (1994); Cotterrell (1992); Lacey (2000). Guigni et al (1999: xxviii). Burstein (1999: 5).

Introduction

xxvii

in different contexts87 . . . as is the nexus between social action and the statute book.

Organisation of the book Chapter 1 sets the scene of the study by exploring the establishment of communities of colour and other minorities in the EU. In presenting the circumstances of their arrival and settlement, I also illustrate the links that existed between Africa, Asia, the Caribbean and western Europe in the 20th and 21st centuries. These links form the backdrop to themes such as home and belonging, which I discuss as a precursor to examining the response to racial violence. In Chapter 2, I present a typology of racial violence. Although racial discrimination is often looked at as distinct from racial hatred, I present them as two forms of the same anomaly: racial violence. With the help of a model from peace studies, I then disaggregate the idea of racial violence in order to elucidate the various practices it encompasses more closely. The categories used are overt personal and institutional racial violence and covert personal and institutional racial violence. Use of these categories is helpful because they allow for a more sophisticated analysis which goes beyond direct and indirect discrimination to micro-aggression and institutional discrimination. In Chapters 3 and 4, I discuss the legal responses to overt and covert racial violence in Britain and Germany, setting these within the context of international and regional cooperation. I demonstrate that while the legal response in Germany is a domestication of EU anti-racial discrimination law, the Race Relations Act is not a domestication of the ICERD agreed by the United Nations in 1965. I show the contrast between the response of the British legislature in the 1960s to overt racial violence and the response of the German legislature to the same type of violence following reunification in the 1990s. While in the UK a strong consensus was formed to drive through protection against racial violence, this was not seen in Germany. Only in 2006 was a law created in Germany to tackle direct and indirect discrimination in everyday relations. The legal response in Britain to covert racial violence was taken in the 1970s, when race equality law was expanded to prohibit indirect discrimination and a new agency created to deal with this. In Chapters 5 and 6, I offer two explanations for these different legal responses: on the one hand, the political approach towards integration and the impact of this on the stance towards social investigation and, on the other, the political system itself and its accessibility to marginalised groups and those who defend their interests. The status of the victims is a key determining factor, in particular their level of actual or perceived belonging to the polity. The level of belonging determines, I argue, the extent to which a polity attempts to include black people.

87 Giddens (1984: 286).

xxviii

Introduction

In Chapter 7, I focus on the role played by the media in generating sympathy or antipathy towards the victims of racial violence within the public and political arena. The purpose of this chapter is to assess the impact of media stories on race on the legal response to racial violence. My focus is on how the media, in particular newspapers, might influence the agenda in relation to the creation of a law providing a remedy to overt and covert racial violence. The key question tackled in this chapter is: to what extent do the media manufacture the public consent required by government to make law and policy decisions rational?88 This question has rarely been directly addressed by scholars of race and media,89 let alone in a comparative context. Race and media scholars seem to agree that, for the most part, the media undermine the quest for racial equality by feeding the public a ‘diet of crime and calamity with a starring role for minorities’.90 However, on rare occasions a newspaper covers a story of blatant racism which moves public opinion in a positive way. At these moments, the political opportunity structure is changed and the creation of laws to tackle racial violence is possible. Where racial violence is presented as racial injustice, the media can contribute to the evolution of race equality law. In Chapter 8, I consider the future of anti-racial discrimination law. I discuss the actions being taken at the European level and other initiatives that are necessary to support legal action. Thereafter I conclude by summing up the evidence that in relation to the evolution of anti-racial discrimination law in Germany and Britain, it is not only pro-democratic social campaigns that affect the appearance of the law, but also anti-social movements whose purpose is to provoke confrontation with the state and between civilians. Anti-social movements were, in most cases, responsible for recognition, but lobbying largely influenced definition. Therefore, despite their negative intentions, right wing extremist violence is as relevant to understanding the emergence of anti-racial discrimination law in Britain and Germany as pro-democratic lobbying. Taken together, the study shows that in order to explain the role of social action in the evolution of antiracial discrimination law in Europe, understanding of social action has to be broadened. Theories of collective action based on the American experience with civil rights cannot by themselves explain the emergence of anti-racial discrimination law in the European context.

88 Herman and Chomsky (1994). 89 Recent exceptions are Cottle (2004) and Roberts & Klibanoff (2006). 90 Entman & Rojecki (2001: xi).

Table of cases and statutes

Table of cases National Jurisdictions Germany BVerfGE 3, 225, 240 (BVerwGE 22, 69ff ), 66 BverfGE 8, 38, 66 BVerfGE 23, 98 SchlHA 2001, 26th January, 242–244, OLGR Schleswig 2001, 381–384, 67 KG Berlin 3. S für Bussgeldsachen, 25.06.2001, 67 BVerfGE 7, 206; 24, 251, 67 Lüth Decision (BVerfGE 7, 198, 204f ), 67 OLG Dusseldorf 14. Zivilsenat, 28.05.99, ZIP 1999, 1357–1360, 68 BAG 1.7.99, DB 99 2216 = AuR 00, 72, 69 BAG 8.6.99, DB 99, 2218, 2219, 68 BVerfGE 65, 1 (December 15, 1983), 119, 122 BVerfGE 27,1 (Mikrozensus), 123 United Kingdom Jordan v. Burgoyne [1963] 2 All ER 225; [1963] 2 QB 744; [1963] 2 WLR 1045, 55 Applin v. Race Relations Board, [1974] All ER 73, 53 Scala Ballroom (Wolverhampton) Ltd v. Ratcliffe [1958] 1 WLR 1057; [1958] 3 All E.R. 220; 102 SJ 758; Constantine v. Imperial Hotels Ltd. [1944] 1 K.B. 693, 53 Meres Will Trusts, Re [1957] WL 17747 Hill v. Royal College of Surgeons [1965] 3 WLR 391; [1965] 2 All ER 888; [1965] 109 SJ 577, 60 Thorne v. British Broadcasting Corporation [1967] 2 All ER 1225; R. v. Britton [1967] 2 QB 51; [1967] 1 All ER 486; R. v. Malik [1968] 1 All ER 582; [1968] 1 WLR 353, 61

xxx

Table of cases and statutes

Brooks v. Commissioner of Police of the Metropolis [2002] EWCA Civ 407, 63 R (on the application of Diana Elias) v Secretary of State for the Defence and CRE (intervenor) [2005] IRLR 788, 64 J H Walker Ltd v. Hussain and others [1996] ICR 291, [1996] IRLR 11, 94 Re Prestige Group plc [1984] IRLR 166; ICR 473; [1984] 1 WLR 335, HL, 94 United States Brown v. Board of Education 347 U.S. 483 (1954); 349 U.S. 294, 121 Griggs v. Duke Power Co., 401, US 424, 92 Grutter v. Bollinger et al., No. 02-241, US 539, 126 Dred Scott v. Sandford, 60 U.S. (How. 19) 393 (1857), xi Parham v. Southwestern Bell Tel Co 433 F.2d 481 (8th Circuit 1970), 92 Gregory v. Litton Systems, 472 F.2d 631 (9th Cir. 1972), 92 International and Supranational Jurisdictions Case C-300/89 Commission v. Council [1991] ECR I-2867, 178 Case C-426/93 Germany v. Council [1995] ECR I-3723, 178 Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, 10 July 2008, 185, 187

Table of legislative instruments National Legislation and Statutory Instruments Germany Antidiskriminierungsgesetz 2005, 49, 72, 77 Bundespersonalvertretungsgesetz – BGBl. Part I, p693, 66 Betriebsverfassungsgesetz, xii, 66 Grundgesetz – BGBl. P 1, 65, 102 Bürgerliche Gesetzbuch – BGBl. Part I, 24.6.1994, 66 Nuremburg Laws, 35 Strafgesetzbuch, 66 Versicherungsaufsichtsgesetz, 66 Gesetz zur Durchführung einer Repräsentativstatistik über die Bevölkerung und den Arbeitsmarkt sowie die Wohnsituation der Haushalte (Mikrozensusgesetz) of 17. Januar 1996 (BGBl. I p.34), 99 Gesetz über die Einreise und den Aufenthalt von Ausländern im Bundesgebiet (Ausländergesetz-AuslG) (Auszug) of 9. Juli 1990 (BGBl. I S. 1354), 100 Bundesdatenschutzgesetz 2003, BDSG, 122–4 Gemeinsame Geschäftsordnung der Bundesministerien (GGO III), 140

Table of cases and statutes xxxi United Kingdom Colour Bar Bill, 53–4 Commonwealth Immigration Act 1962, 14, 56 Expiring Laws Continuance Bill, 57–8 Immigration Act 1971, 22 Magna Carta, 5, 68 Public Order Act 1936, 55, 58, 60 Race Relations Act 1965, 48, 53, 60, 84–6 Race Relations Act 1968, 89–91 Race Relations Act 1976, 63–4, 90, 93–5, 140, 158, 167, 196 Race Relations (Amendment) Act 2000, 64–5 Race Relations Act (Statutory Duties) Order 2001, 64–5 Race Relations Act 1976 (General Statutory Duty) Order 2003 (Statutory Instrument 2003, No. 3007), 64 Employment and Training Act 1948, 83 United States Civil Rights Act 1964, xv, xviii Walter McCarran Act, 7

International and Supranational Legislation and Legislative Instruments European Union Treaty of Rome, 164–5 Treaty of Versailles, 2, 8, 18 Council Directive 2000/43/EC of 29 June 2000, [2000] OJ L 180/22, 185 Council Directive 2000/78/EC of 27 November 2000, [2000] OJ L 180/22, 76, 166 Council Directive 95/46/EC of 24 October 1995, [1995] OJ L 281/31, 123–4 Joint Action of July 15th 1996 adopted by the Council (96/443/JHA) OJ L 185/5, 24.7.96, 165 Joint Declaration by the European Parliament, the Council and the Commission against racism and xenophobia. OJ C 158, 25.6.1986, 172 Resolution of the European Parliament on the resurgence of racism and xenophobia in Europe and the danger of right wing extremist violence, 21 April 1993, OJ C 150/127, 31.5.1993, 176 Resolution of the European Parliament on racism, xenophobia and anti-Semitism, OJ C 308/140, 20.11.95, 176 Council Regulation establishing a European Monitoring Centre for Racism and Xenophobia of 27 November 1996, COM (96) 615, 75, 141, 165

xxxii

Table of cases and statutes

Council Resolution on the fight against racism and xenophobia, OJ C157/1, 1990, 179 Council Resolution on racism and xenophobia in the field of employment and social affairs, OJ C296/13, 1995, 180 Council Decision 2000/750/EC of 27 November 2000, [2000] OJ L 303/23, 166 Council Directive 76/207/EEC of 9 February 1976, [1976] OJ L 39/40, 166 Council Directive 2004/38/EC of 29 April 2004, [2004] OJ L 158/77, 167, 178 Council Directive 2003/86/EC of 22 September 2003, [2003] OJ L 215/12, 185 Council Directive 2003/109/EC of 25 November 2003, [2003] OJ L 16/44, 185 Council Directive 2005/85/EC of 1 December 2005, [2005] OJ L 326/13, 185 Council Directive 2003/9/EC of 27 January 2003, [2003] OJ L 31/18, 185 Council Directive 2004/83/EC of 29 April 2004, [2004] OJ L 304/12, 185 Council Regulation 2007/2004/EC of 26 October 2004, [2004] OJ L 349/1, 186 Council Decision 2004/512/EC of 8 June 2004, [2004] OJ L 213/5, 186 Framework Decision 2002/629/JHA of 19 July 2002, [2002] OJ L 203/1, 186 United Nations United Nations Charter of Human Rights, 50 United Nations Declaration of Human Rights, 33, 65, 84 Declaration on the Elimination of Race Discrimination, Convention on the Elimination of Discrimination Against Women, 53 Convention Against Torture, 53 Convention on the Rights of the Child, 53 Convention on Economic, Social and Cultural Rights, 53 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), xii, xxii, xxvii, 48–9, 50–1, 192 International Labour Organisation International Labour Organisation Convention 111, 19, 50, 69, 116 International Labour Organisation Recommendation 111, 19, 50, 69, 116

1

Black European Union citizens

Introduction There are black European Union citizens in most of the member states of the EU. Exact numbers are hard to establish as ethnic data is not collected in most of these countries.1 In most places, they live as settled racial minorities but tend to be seen by white Europeans as immigrants rather than citizens. It remains questionable whether after 50 years of political and economic integration in Europe the member states of the EU are truly home2 for black EU citizens, that is ‘a social space that is psychically and physically safe’,3 a world which is both intimate and free ‘with a doorway never needing to be closed’.4 Despite being born and fully educated in the member states of the EU, many black European Union citizens live ‘trapped’ within a white culture, insiders but perceived as ‘a perpetual outsider’5 asked not only where they are from, but also where their parents are from. Most white Europeans are likely to know more about African Americans than the black Europeans alongside whom they live, study and work. Black European Union citizens remain visible yet unknown and unaccepted, the ‘dark stranger’,6 the outsider inside. The themes of this chapter are arrival and belonging. There have been black people in Europe since the 16th century, working as slaves to the wealthy. Slaves were being advertised in British papers in 1761.7 Arrival of black people in Europe in the 20th century and the growth of settled communities since 1945 was directly related to colonial occupation and military campaigns. These were the basis of Europe’s relationship with Africa, Asia and the Caribbean. In this

1 2 3 4 5 6 7

Simon (2007). Morrison (1998: 3–12). Lubiano (1998: 10). Lubiano (1998: 12). Grant (2006). Patterson (1964). Field & Haikin (1971: 3).

2

Making anti-racial discrimination law

chapter, I will discuss the emergence of communities of black European Union citizens and the initial response to issues arising from their presence in Britain and Germany. Thereafter, I will examine in more detail the circumstances faced by black Britons and black Germans as the public and official authorities began to take notice of them.

Imperialism, war and labour migration No particular attention was paid during the formation of the European Economic Community (EEC) to colonial relations even though colonies, in one way or another, were a reality for five key member countries: France had possessions in Africa, Asia, the Caribbean and the Pacific; Belgium had present day Congo and trusteeship of Rwanda–Urundi; the Netherlands maintained dependencies in the Pacific (Surinam) and Caribbean (Aruba); Italy had a mandate over Somalia. Only Germany had no colonial connections anywhere in the world, having reluctantly relinquished control over its territories as part of the post-World War I settlement at Versailles.8 It was under French insistence (based on a desire to share the costs of keeping colonies), Belgian compliance and German and Dutch acquiescence that associationism was instituted in Articles 131-136, Part IV of the Treaty of Rome (TEC).9 France had exerted the deepest and longest colonial presence in Africa. A form of ‘European associationism’ based on the theory of ‘complimentarity between metropolitan areas and colonies – especially those in Africa – and the corollary of mutuality of benefits’ was the method by which Paris dominated while allowing for varying degrees of autonomy in the colonies. In 1946 the French formally included associationism into the constitution. There were four forms of association possible: a Union of Associated States (États associés), which enjoyed a certain amount of autonomy; the Associated Territories (Territories associés); the Overseas Territories (Territories d’outre-mer); and the Overseas Departments (Departments d’outre-mer), which were integral parts of France. The Treaty of Rome adopted this idea of association. Two types of association were created, those formed under Article 238 TEC and those contained within Articles 131-136 TEC. The former acted as a precursor to full membership in the Community – such association agreements were signed with Greece in 1963 and Turkey in 1964.10 The latter governed relationships with the former colonies. Article 136 TEC provided for renewable multilateral agreements to be made by an implementing Convention attached to the Treaty. This was initially for 5 years. It was replaced in 1964 by Yaounde I, again in 1969 by Yaounde II. When Britain, joined the EEC in 1973, it brought countries of the Commonwealth in Africa, Asia, the Caribbean and the Pacific into the Community. Her accession

8 Campt (2004); Oguntoye (1997). 9 Grilli (1993: 7). 10 Greece became a member in 1981; Turkey’s application continues to be discussed.

Black European Union citizens 3 acted as a catalyst for the instituting of the Lome Convention I in 1975, which for many years governed EU trade relations with African, Caribbean and Pacific countries. Lome II and III were signed respectively in 1979 and 1984. Lome IV, concluded for 10 years, expired in 1999.11 At the time of the signing of the Treaty of Rome, not only were colonial territories a reality for five of the founding members, but persons from the colonies were also within their midst, for example in France. This was also because protracted war had destroyed European economies and infrastructure. For many economists, such as Jean Monnet, immigration was the answer to severe labour shortages caused by the tremendous losses during the war. French economists were also concerned to rebuild the population and favoured permanent immigration by families to compensate for low population growth.12 As it is cheaper and less of a public burden to import expertise than to educate and train, usage of migrant labour can be described as a ‘borrowing of human capital’ which supplements the ‘borrowing of finance’ to pay for various services such as the provision of welfare. For example, by 1986 the USA had saved around $4000 million as a result of not having to fully train medical personnel. Foreign doctors as human capital to the USA exceeded the total of US aid to foreign countries.13 Migrant, especially skilled, labour makes in this way a net contribution to advanced industrial nations: the host country reaps the benefits of workers in prime age whose rearing and training has been paid for by the home country. Millions of people were encouraged to migrate not only from the under-developed parts of southern Europe, but also Africa, Asia and the Americas to western Europe and the United States, searching for employment and better living standards.14 The growth in migration from the colonies was undesired yet unavoidable. In France, there was agreement that Africans and Asians were less desirable than Europeans.15 However, too few Europeans were willing to leave their homes to take up menial jobs in other countries. Migrant labour from the colonies remained the only option. France decided on a policy of immigration immediately after the war: between 1946 and 1970 almost two million foreign workers entered the country.16 In the years between 1947–1954 an average of 30,500 young men left Algeria for France every year: Algerians were free from immigration controls in France while their country remained a French colony. By the mid-1950s, there were almost a quarter of a million French citizens of North African – mostly

11 12 13 14 15 16

Lome Conventions II, III and IV (OJ 1980, L347/1; OJ 1986 L86/3; OJ 1991 L 229/3). Hargreaves (1995: 10). Titmuss (1968: 126). Castles & Kosack (1973: 25). Hargreaves (1995: 10). Castles & Kosack (1973: 32).

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Algerian – origin in France.17 By the end of 1969, France had an immigrant population of 3.2 million.18 Britain expressed similar concerns. In 1949 the Political and Economic Planning Committee of the British Government warned of the problems of the absorption of large numbers of black immigrants into British society. A questionnaire circulated by the Labour Exchange as part of a Cabinet Report on the ability of black people to be integrated asked questions such as: Is it true that coloured people, or certain classes of coloured people, are work shy? Is it true that they are poor workmen? Is it true that they are unsuited by temperament to the kind of work available? According to the report, ‘coloured’ workers were physically unsuited for manual work, while ‘coloured women are said to be slow mentally’.19 The cabinet secretary advised against discriminatory controls, however, as it would be embarrassing were it to be revealed that immigration controls were operating against ‘British subjects who are not of European Race’. In addition, as people in the colonies possessed citizenship rights and the right of permanent settlement in Britain, black labourers would unlike the white European voluntary workers be undeportable should they decide to stay. This made the British authorities unwilling to engage in an organised recruitment of their labour for British industry.20 Yet between 1955 and 1961, when Britain first applied for EU membership, around 900,000 women and 115,000 men arrived in the UK from the Caribbean alone.21 Germany was more hesitant. As in other countries, external labour was needed not only to replace the indigenous workforce depleted by war but also to release German nationals for the pursuit of less arduous and more profitable work in the cities.22 The first guestworkers to arrive were part of a private initiative undertaken by a farmer frustrated at the lack of official action to overcome the shortage of farm labour.23 Others arrived via official exchange programmes, some via the Ministry for Labour while after 1957 workers from within the EEC took advantage of EC rules and agreements providing for free movement to work abroad. By 1970 the number of migrant guestworkers had risen to nearly three million.24 Unlike in Britain and France, guestworkers arrived with no rights to stay, and were given relatively few to encourage them to do so. Yet, as will be explained, stay they did.

17 The Council of Europe, Political and Demographic Aspects of Migration Flows to Europe, Population Studies No. 25 (1993: 28). 18 Castles & Kosack (1973: 34). 19 Dummett & Nicol (1990: 179). 20 Satzewich (1991: 29). 21 Patterson (1964: 418/9). 22 Meier-Braun (1997: 32). 23 Meier-Braun (1997). 24 Castles & Kosack (1973: 40).

Black European Union citizens 5 The British Empire and black Britons It is probable: [T]hat the real basis of feelings of superiority towards the African was laid in the Slave Trade, and as early as the 17th century. The effect of this on the rank and file of English-speaking people was to make all slaves members of a permanently inferior caste. All Africans were thought of as potential slaves. In addition, the interest awakened in evolution and evolutionary theories which gained momentum during the third quarter of the 19th century, was interpreted socially, as well as biologically, and since it was inconceivable that the Victorian world could be anywhere save at the moral and cultural apex of scheme, the ‘savage’ had to be graded accordingly.25 The abolition of slavery in all parts of the Empire in 1834 was not accompanied by the de-institutionalisation of white supremacy. Supremacist thinking continued under colonialism and continued to develop between 1850 and 1950, when British imperialist rule, economic and political domination were at their greatest. The psychology of racial superiority became entrenched, partly as a result of the consequences of its own policy of segregation, which resulted in huge illiteracy, poor health and inferior living conditions of the indigenous inhabitants of the colonies. Racial superiority was reflected in British governmental circles, parliament, press and other influential quarters. The pride with which historians recorded British imperial history perpetuated this attitude among future generations until ‘it became almost instinctive to us that coloured peoples were naturally inferior to us’.26 Superiority of the ‘white races’ was the unspoken premise of the Empire. In the mind of the average Briton, his duty was to civilise and bring Christianity to the ‘lesser orders – even at some personal sacrifice’. Colonisation was almost ‘the acting out of a God-like duty. In his view of himself and his country, the Britisher saw an absence of religious and racial intolerance’.27 This sense of duty also provided a justification for the racist treatment meted out in the colonies. Thus the values contained in the Magna Carta could still be actively cherished and promoted, even while they were being openly flouted. An example of non-racist benevolent rule is the colonial governance along the ‘Red Road’, so called because British possessions from North to South Africa were coloured red on colonial maps.28 In 1909 the South Africa Act, which disenfranchised African voters and withdrew their right to sit in Parliament, was passed by the British parliament.29 By 1923, the South African apartheid model was being applied by the white British settlers in modern day Zimbabwe: Africans were

25 26 27 28 29

Little (1972: 212). Brockway (1967: 77–8). Pixley (1968: 9). Constantine (1954: 52). Horell (1966).

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forced to live in crowded reserves and endure pass laws and were stripped of rights – such as trades union membership – through legislation.30 The prospect of racial equality was roundly ruled out by Sir Godfrey Higgins, Prime Minister of Southern Rhodesia when he stated: ‘[The] white man in Africa is not prepared, and will never be prepared, to accept the African as an equal socially or politically’.31 The mere suggestion by Mr Phillip Noel-Baker, then Secretary of State for Colonies, in a speech given during a visit to Zimbabwe in 1949, that the rights of Africans must be guaranteed, caused the local white inhabitants to riot. The European Community, he was told, ‘will not recognise the supremacy of African interests’.32 Similar policies of racial subjugation and segregation were pursued in Kenya. As elsewhere, ‘the British government paid lip service to the ideal of equal rights for all British subjects, irrespective of creed or colour, while continuing to accept the practice of discrimination’.33 White settlers in Kenya from South Africa strove to recreate a polity modelled on South Africa.34 Immigrants from Britain, ostensibly ‘quite free from any racial feeling’35 also shared this vision. Britain’s colonies in Africa, Asia and the Caribbean all contributed to the war effort. As colonies of the Empire, the entry into war in 1914 of the millions of people living in these countries was automatic. Many served with the Allies on the Western Front: in 1916, over 15,000 men from the Caribbean served in the British West Indian Regiment and 29,000 Indians lost their lives fighting in Mesopotamia. The Commonwealth – as the Empire became known – also contributed to World War II: the African nations of the Gambia, Ghana, Nigeria, and Sierra Leone served as staging posts and military bases. Large numbers of the population were engaged in the construction and maintenance of airfields and naval bases. Forced labour was used to meet the increased demand for raw materials, such as rubber, tin and bauxite, sisal and foodstuffs.36 In Guyana, bauxite production increased to 1,988,000 tons in 1943 from 476,000 tons in 1939; Ceylon increased her rubber production by 100% to meet the demand; scrap metal was collected in Ghana to make weapons. Children left their classrooms to cultivate additional land to increase food production. By 1944 40% of Britain’s fat ration came from West Africa. Indians made over 50 million pairs of boots and five million parachutes for the Allies. Women knitted clothes, constructed airfields and served in the auxiliary territorial service.37 Troops from West and East Africa were active as far a field as Japan, fighting under British officers. Although in theory the colour bar had been lifted from

30 31 32 33 34 35 36 37

Constantine (1954: 56). Constantine (1954: 54). Hansard, 1948–49, Vol. 464, April 26–May 13: 1400. Sorrenson (1968: 161–2). Sorrenson (1968: 1). Sorrenson (1968: 70). Sherwood (2008). SCOREBOARD, June 1996.

Black European Union citizens 7 the British forces, embassies and high commissions received instructions to find ‘administrative means’ to reject black volunteers. However, the lack of an alternative meant that the RAF had to accept men from the colonies – around 300 men from the Caribbean joined. Eric Irons, for example, was born in Jamaica and came to England to serve in the RAF during World War II.38 During this war, around 2.5 million Indians also donned the British uniform, with some troops fighting in Italy.39 Many who had fought in the war soon arrived in Britain on the Empire Windrush, which pulled into Tilbury Docks on 22 June 1948. They brought the skills picked up in service with them: engineering, masonry, mechanics, journalism, music, sport and, of course, fluent English. Their arrival enhanced the black communities already present, primarily in the dockland areas of London, Liverpool, Cardiff and other ports. In 1952, England became an even more attractive option when President Truman signed the Walter McCarran Act, which made emigration from the Caribbean to the United States almost impossible. Workers migrated to England both freely and via active recruitment by the newly established public services.40 London Transport, having failed to attract workers from Europe to address the labour shortage, began recruiting in Barbados in 1956 and continued to do so until 1970.41 British Rail and the National Health Service conducted similar recruitment campaigns – even Enoch Powell, then a Tory health minister, welcomed West Indian nurses to Britain42 and travelled to the Caribbean to encourage more to come. Women workers were recruited by advertising campaigns in Barbados and Jamaica for jobs as nursing and hotel staff, factory and transport workers. In 1957 alone, 22,000 ‘pairs of willing hands’43 arrived in Britain from the Caribbean – British industry gladly absorbed them. As British women were expected and encouraged under Beveridge’s welfare programme to remain in the home, it fell to these women from overseas to perform the functions vital to the new nationalised health and transport services, working long hours for minimal wages. Between 1955 and 1957, a total of 132,000 Commonwealth citizens entered Britain. In addition to the Caribbean, they also came from Asia, Africa and the Mediterranean. In 1960, the net intake was 58,000; in 1961 it rose to 136,000; and for the first half of 1962 it reached 95,000.44 In 1958, more women migrated than men. By the time of the 1966 census, there was a total black population of 924,200, of whom 213,300 had been born in Britain.45 Idi Amin’s expulsion of Asians from Uganda in 1972

38 http://www.nottingham.ac.uk/public-affairs/press-releases/index.phtml?menu=press releasesarchive&code=NOTT-27/99&create_date=20-jan-2004. Accessed 20 February 2008. 39 Sherwood (2008). 40 Virdee (1999: 70). 41 Sewell (1998). 42 Fryer (1984: 373). 43 Fryer (1984: 372). 44 Daniel (1968: 9). 45 Rose (1969: 99).

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increased the presence of people of colour in the British population, as did the arrival of Pakistanis and Bangladeshis in the 1980s. However, as the colour in the British population increased, so too did the resentment towards their presence and restrictions on their entry and settlement. Growing numbers of visibly different citizens did not sit well with the perception held by the British public of itself as an ethnically and culturally homogenous society.46 While black and white children mixed fairly freely during school, problems became acute on entering the labour market, especially for the girls: Constantine noted that ‘when school is over and jobs are sought, there is some difficulty in finding openings for the boys and implacable opposition from white workers to accept coloured girls among them’.47 The Daily Telegraph recorded the growing rejection by employers with the headline ‘More firms refuse to take coloured staff.’48 Both skilled and unskilled jobs were hard to find and easy to lose.49 Filmmaker Horace Ove, who hoped to work as an interior designer with a firm of architects, was told: ‘We don’t employ people like you.’ Baron Baker, who fought with the RAF during the war, was told on arrival at his appointment that the engineering job had gone. Finding housing was equally difficult – landladies refused to take ‘coloured’ lodgers for fear of what the neighbours might say and banks refused to provide mortgages: many shared a room with up to seven men, sleeping on a bed in shifts.50 The Germans in Africa and black Germans Despite hosting the infamous Berlin Conference in 1884, where African countries were shared out between England, France, Germany, Italy, Portugal, Holland and Belgium, the German Reich entered the race for Africa late and was forced out early. After defeat in World War I, she was stripped by the Treaty of Versailles of her colonial possessions in Togo, Cameroon, Namibia, Tanzania, Burundi and Rwanda and reluctantly relinquished rule over more than 11 million Africans.51 Nonetheless, these colonial relations played a role in the settlement of Africans in Germany and the appearance of black Germans. Africans were accepted in economic and military roles but rejected as neighbours and kin. After 1884, Africans from the former colonies travelled to and settled in Germany in order to study, provide domestic service or learn a trade.52 Others had to settle in the Reich because they had fought for Germany in African military campaigns, such as under Lettow-Vorbeck: an organisation comprising Lettow-Vorbeck troops, the ‘Verein ehemaliger Ostasiaten und Afrikaer

46 47 48 49 50 51 52

Layton-Henry (1981: 1) Constantine (1954: 65); Fryer (1984: 364–7). Solomos (1988: 58). Field & Haikin (1971: 47). Sewell (1998). Lusane (2002: 46). Oguntoye (1997: 30–39, 60).

Black European Union citizens 9 zu Hanover’ was founded on 26 September 1902 in Hannover.53 During World War I, Germany’s African troops numbered 12,000 men and included recruits from all over the continent.54 There was little welcome for them in German society: with the exception of those who arrived as members of the African elite, such as diplomats,55 or were captured for display in zoos and circuses,56 Africans (‘Schwarze’) were seen to have no place in German society. The hundreds who settled in Germany were treated as foreigners.57 The German women who married them lost their own nationality, likewise becoming foreigners.58 Their children – for example, Joseph Boholle had three children, Alfred Kohler had five, Thomos Toi had four59 – inherited the nationality of their father.60 Where the father did not have German nationality, the children were stateless.61 Since 1884, Africans had settled in Potsdam, Hamburg and Altona.62 They were neither politically nor socially integrated into the mainstream of German society. The majority possessed no social, economic or political power. Of the 18 registered in Berlin in 1925, only one had permanent employment.63 Jobs were found for some by the German Society for Migration in Berlin.64 Their economic poverty and social marginalisation worsened as National Socialism

53 GNA File R/1001, AS: 6729 at SO51, MH 904/3.OG; Reihe 455. 54 Lusane (2002: 71). 55 Massaquoi (1999). Massaquoi’s grandfather, Momolu Massaqoui, was the first Liberian diplomat to Germany in 1922. 56 Lusane (2002: 62); Oguntoye (1997: 37). 57 Oguntoye (1997: 16). 58 GNA File R1001, AS: 5134 at SO51, MH 904/3.OG; Reihe 454. Letter from the Auswärtiges Amt to Herrn Gunter Hoffman, Königsberg, Berlin, 19 December 1933. 59 GNA File R1001, AS 7562 at SO51, MH 904/3. OG, Reihe 455. List of Africans in Berlin from Auswärtiges Amt to Reichs – und preussische Ministerium des Innern, 18 September 1935. 60 Boehncke & Wittich (1991: 30). 61 Oguntoye (1997: 17–19). 62 Lusane (2002: 84). 63 GNA File R1001, AS 7562 at SO51, MH 904/3.OG, Reihe 455. Letter from the Präsident der Deutschen Kolonialgesellschaft to the Auswärtiges Amt, Abteilung für koloniale Angelegenheiten Berlin, 14 October 1925. They included: Wilhelm Munume, Berlin W 35 Magdeburgerstr 28 II, Ludwig Irody, Mpesa, Magdeburger Platz 3 I, Manga Mkwa, Berlin, Stieglitzerstr. 60 I, Viktor Bell, Berlin N, Driesenerstr 4 I, Richard Din, Berlin, N. Milastrasse 3 Hinth I, Michel Tio, Berlin, C. Muehlhausenstr. 2 I, Ambrosis Suza, Berlin, Sanderstr. 26 Hof II, Fuli Bonifazius aus Togo, Berlin, W Reginapals, Josef Garwa, Berlin, Roseggerstr 37 Laden, aus Togo, Sam Heinrich Dibonge, Hamburg-Elmsbuttel, Margaretenstr 50 I, Soppo Josef Muange, Hamburg, Hammerbroekerstr. 22 I, Daniel Ipuabato, Hamburg, St Georgstr 5 Hof, Adolf Ewane-Ngange, Hamburg beim Zirkus Irone, Hermann Muna Kesse (as above), Hermann Same-Ngange (as above), Jakob Mandenge-Eloto (as above), Josef Maso, Berlin Chauseestr 43 I, Mukuri Makembe, Berlin W 35, Luetzowstr 91. 64 GNA File R1001, AS 7562 at SO51, MH 904/3.OG, Reihe 455. Letter from Vereinigung für Deutsche Siedlung u. Wanderung to the Auswärtiges Amt Abteilung III, 24 November 1925.

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came to dominate.65 Parents were summoned to take their black German children from school66 and as racial ideology gripped the public, they lost any means of supporting themselves. Travel documents were withdrawn and the few who had successfully gained citizenship, such as Mandenga Diek from Cameroon (who successfully applied for nationality from Hamburg), Kwassi Bruce from Togo and Joseph Boholle from Cameroon (who had gained Prussian nationality),67 had their passports removed.68 As many were musicians touring with groups, the loss of travel papers simultaneously stripped them of their livelihood. The intensifying racial hatred concurrently removed – even for the elite – the possibility of finding work in Germany. Official intervention did not help – publicans and bandleaders refused to employ them for fear of offending their clientele.69 They were forced into poverty and only survived with social assistance. A proposal that the authorities provide them with a permanent base in Berlin was met with the suggestion that the proposer, Munume, be deported to Liberia, the destination for those who could not return home.70 In 1926 the Foreign Office agreed to provide financial support for those involuntarily unemployed who could not be repatriated, because, for example, they were married to a white German woman:71 none of the colonial powers was prepared to accept families with black and white partners,72 presumably as it might encourage similar unions in the colonies. Those who agreed to leave worked in return for their passage.73 The Nazis did not discourage this persecution but worried about its impact upon their colonial ambitions. Growing dissatisfaction among the black Germans concerned them because of its potential for generating opposition to these goals.74 For this reason they developed options to address the situation. These included repatriation to Africa or resettlement in Germany. Repatriation was a limited option: this was impossible for former soldiers or those who had

65 GNA File R1001, AS 5134 at SO51, MH 904/3.OG, Reihe 454. Document III.K.I 4255/34, 7 November 1934. 66 Oguntoye (1997: 58). 67 GNA File R1001, AS5134 at SO 51, MH 904/3.OG; Reiher 454. Document III K 1 3689/35 to the Reichs- und Preussische Ministerium des Innern from Herr Gunzert, Auswärtiges Amt, 18 September 1935. 68 Oguntoye (1997: 24). 69 GNA File R1001, AS 5134 at SO 51, MH 904/3.OG; Reihe 454. Document III K 1 3689/35 to the reichs und Preussische Ministerium des Innern from Herr Gunzert, Auswärtiges. Amt, 18 September 1935. 70 GNA File R1001, AS 7562 at SO 51, MH 904/3.OG; Reihe 455. Letter from Auswärtiges Amt to the Deutsch Kolonialgesellschaft, 28 November 1925. 71 GNA File R1001, AS 7562 at SO 51, MH 904/3.OG; Reihe 455. Letter from the Auswärtiges Amt to the Deutsch Gesellschaft Für Eingeborenkunde, 27 February 1926. 72 Oguntoye (1997: 45–8). 73 GNA File R1001, AS 7562 at SO 51, MH 904/3.OG; Reihe 455. Letter from the Auswärtiges Amt, 10 February 1928. 74 GNA File R1001, AS 5134 at SO 51, MH 904/3.OG, Reihe 454. Document III.K.I 4255/34, 7 November 1934.

Black European Union citizens 11 German wives.75 In addition, there was nowhere to send their children – black children, born and bred in Germany, some of whom were already of working age. The idea of resettlement in a ‘Negerdorf’ was seen to have three advantages – fiscal savings, employment provision and containment. First, it would alleviate pressure on the public purse; second, it would be a source of work (the sole economic activity was to be entertainment);76 and third, it would prevent contact between the black and white German communities.77 In September of the same year, the Nuremburg Law forbade ‘mixed’ marriages between ‘Aryans’ and all ‘nonAryans’, including blacks and Roma. Not only colonial wars in Africa, but also wars in Europe also had a lasting impact on the colour of the German population. Troops from the colonies were used in World War I: for example, in 1918, France used up to 77,000 colonial troops and after the war stationed about 40,000 black troops – from Morocco, Algeria, Tunisia, Madagascar and Senegal and Indochina – in Germany.78 For Germany this was the final humiliation: the use of black troops to watch over a white population contradicted the prevailing international racial hierarchy. It suggested racial parity, setting black people on the same level as whites. A 1921 article declared that ‘savages are being used to oversee a cultured people’.79 For Germans it crystallized the decline of their status in the world and, they argued, endangered the whole of the white race. German newspapers carried stories about the ‘Demutigung’ (humiliation) of Germany in particular and the ‘Schaendung’ or (desecration) of white European culture in general.80 A worldwide campaign to rid Europe of this schwarze Schmach (black menace) was vigorously pursued.81 Racial integration was as unwelcome as racial equality. It was predictable that these troops from the colonies would have relationships with white German women and inevitable that many of these women would have their children. Likewise, stationing of black troops in Germany after World War II brought to life a new generation of black Germans, fathered mainly by African American soldiers and brought into the world by white German mothers. A survey suggests that by the mid-1950s there were around 3093 black German children.82 While their numbers may have been small, these children grew up surrounded

75 GNA File R1001, AS 5134 at SO 51, MH 904/3.OG, Reihe 454. Document III K 1 3689/35, 18 September 1935. 76 GNA File R1001, AS 7562 at SO 51, MH 904/3.OG; Reihe 455. Letter from the Auswärtiges Amt to the Kolonialpolitische Amt, NSDAP, 18 November 1935. 77 GNA File R1001, AS 7562 at SO 51, MH 904/3.OG; Reihe 455. Letter from the Auswärtiges Amt to the Reichsministerium für Volksäufklarung und Propaganda, 30 November 1935. 78 Campt (2004); Huber-Koller (1997, 142). 79 Campt (2004: 53). 80 Campt (2004: 51–6). 81 Lusane (2002: 75). 82 Frankenstein (1954: 95).

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by huge moral, political and biological stigmas. They were stigmatised as representing a ‘special human and racial problem’83 – not only were they born out of wedlock, not only did they serve as a living reminder of the German military defeat and foreign occupation, but they were also visibly members of what even after the war continued to be regarded as an inferior race. They were derogatively called ‘Besatzungskinder’ (‘occupation babies’) or ‘Mischlingskinder’ (‘mixed children’). The concern about Mulattisierung – the mixing of black and German blood – was already present in the 19th century.84 In the German colonies, such as present day Namibia, children resulting from consensual or forced relations between white German men and African women were slowly stripped of rights enjoyed by whites and eventually excluded from the mainstream. The racially perjorative term ‘Mischling’ was applied here before it was used to describe black children in Germany.85 These were, in fact, the first ‘Besatzungskinder’ and ‘Mischlingskinder’. The same stigma was attached to all German children of colour, regardless of where, when or under what circumstances they were born and affected all aspects of their lives. Love for such a stigmatised black child was seen as an act of charity. Maya Opitz spent her childhood in an orphanage and foster home experiencing intense sadness, believing she was ‘too black and too ugly’86 to be loved. Throughout their history, the German state has ‘worked both actively and passively to make “fatherless” Afro-German children motherless as well as stateless and invisible into the bargain’.87 Those born in Germany were seen as black rather than German and between 1950 and 1952, many were shipped abroad in particular to African American families in the United States willing to adopt them. This occurred both with and without the agreement of the parents. It is estimated that between 1945 and 1965, 7000 black German children were adopted by American citizens.88 The circumstances of those who remained in Germany varied widely. According to a 1953 survey, 1941 lived with their mother, 388 with the grandmother, 450 in foster homes and 314 in orphanages. 350 had been abandoned by their family.89

83 84 85 86 87 88 89

Bundestag WP 1/198 (12 March 1952): 8507. Campt (2004: 60). O’Donnell (2005: 66). Opitz (1992: 81). O’Donnell (2005: 79). Fehrenbach (2005: 133). Eberling (1954). White mothers were often forced by officials to place their black children in homes. Hugel-Marshall (2001).

Black European Union citizens 13 ‘Guest workers’ in Germany At the same time that black German children were being deported, the CDU was signing agreements with European countries for guest workers.90 As in other parts of Europe, post-1945 reconstruction was confronted with the problem of a labour shortage. Not having any former colonies to turn to, workers came from other parts of Europe.91 Since the mid 1950s, ‘guest worker’ contracts were signed with European neighbours and with Turkey. The first guest worker treaty was signed with Italy only in December 1955.92 The CDU also signed agreements with Greece and Spain in 1960, Turkey in 1961 and (former) Yugoslavia in 1968.93 Between 1969 and 1973, 500–1000 migrant workers arrived in Germany every day to provide the labour needed for economic expansion.94 During the decades of migration from the 1950s, German authorities made scant provision for the integration of migrant workers. The Conservative government insisted that Germany was not a land of immigration, and thus no long-term provisions for settlement were necessary.95 Migrant workers were always perceived as foreigners, seen as a temporary part of the population. They remained ‘Gastarbeiter’, invited for a period of time only. Responding to their needs was not a priority as their social exclusion was not seen as a structural challenge to society.96 This lack of attention allowed migrant labour to become concentrated in industrial regions97 which led to a deterioration of relations between the ‘guest workers’ and German citizens. At this point a dispersal policy was created and a network of welfare and advice centres established. A working group was also established to oversee coordination between the state and national level.98 However no coherent policy was designed to bring about the full inclusion of migrant workers and their families. It was cheaper not to do so: while the estimated cost of a non-integrated minimal wage migrant worker was around DM 30,000 (€ 15,000), this rose to between DM 150,000–200,000 (€ 75,000– 100,000) for an integrated migrant worker.99 Integration or ‘Eingliederung’ focused on easing the conditions for acquiring citizenship100 and tax relief for guest workers supporting children of school age in their home countries.101 There was

90 91 92 93 94 95 96 97 98 99 100 101

BT-Drs 3/1741(the Netherlands), BT-Drs 3/1742 (Luxembourg). Meier-Braun (1997) describes five phases of integration from 1955–1995. Meier-Braun (1997: 31–46). Castles & Kosack (1973: 40). Dale (1999: 130). ‘Die Bundesregierung hat wiederholt erklärt, dass die BRD wegen der grossen Bevölkerungsdichte kein Einwanderungsland sein kann.’ WP 6/51 (8 May 1970): 2560C. Addy (1998: 4–5). BT-Drs 1/1167. BT-Drs 7/2215. Herbert (1997: 33). BT-Drs 1/1167. BT-Drs 11/3029.

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very little protection for guest workers: until the late 1960s, employers could have disgruntled ‘Gastarbeiter’ deported by reporting them to the Foreigners Police. These workers were subject to strict controls and did not enjoy the constitutional rights extended to Germans.102

Belonging In both Britain and Germany, black communities have grown alongside communities of other ethnic minorities as ‘outsiders inside’. Unlike black Britons, black Germans are usually subsumed within the broader category of foreigners, and likewise seen as temporary members of society.103 It is questionable whether their German parentage has helped or hindered them. The settlement and marginalisation of these communities will be discussed below. Belonging in Britain After independence, workers from the former British colonies were, through allegiance to the king, British subjects and as such free from immigration control. Unlike ‘aliens’, there were no restrictions on their entry to Britain and movement therein: in theory, the colonial citizen was entitled to free movement, voting rights and employment in the civil service.104 When the Empire became the Commonwealth, British subjecthood remained alongside citizenship of the colonial/Commonwealth country. Britain devised the status of colonies and UK citizenship for enjoyment by all citizens within the British Commonwealth, whereby all subjects could move and settle freely within the territory of the crown.105 Due to this right to citizenship and permanent settlement, enjoyed by workers from the Commonwealth as well as from Ireland, no provision was made for their integration into society.106 In the immediate post-World War II period, pride in the Empire was still such that the thought of imposing controls was impossible: ‘The ethos of empire was that all Her Majesty’s subjects were equal subjects without due regard to race or colour.’107 There was not only the British prestige in the world to consider, but also the immeasurable contribution to the war effort made by the colonies.108 Such sentiments had all but disappeared by the early 1960s. By 1962 controls became a reality: in 1962 the Commonwealth Immigration Act (‘the Act’) imposed entry restrictions, primarily on Commonwealth citizens from Africa, Asia and the Caribbean. The Act qualified citizenship by removing the right of

102 103 104 105 106 107 108

Dale (1999: 132–3). Kantara (1998). Dummett & Nicol (1990: 130). Dummett & Nicol (1990: 131). Satzewich (1991: 29). Dummett & Nicol (1990: 118). Dummett & Nicol (1990: 140).

Black European Union citizens 15 free entry. Entry was to be by voucher only and these were issued on a restrictive basis. Those subject to restrictions immediately became less equal than those who were not, eroding a politically important principle in relations with the Commonwealth.109 The erosion of this principle had short- and long-term results. First, it affected patterns of migratory behaviour. In the rush to beat the entry into force of the Act, migration increased: the surge in the migrant population in early 1962 was due to the imminent introduction of immigration controls.110 Second, and perhaps more importantly in the long term, the restrictions also eroded the confidence of the migrant workforce, making them reluctant to leave when work became unavailable. Paradoxically, it was the 1962 Immigration Act that created the social conditions under which the Race Relations Act became vital for public policy in England. By restricting entry, the Act raised the need to stay and in so doing sharpened competition for resources. It also laid the foundations for the growth of the black British community. Before 1962 most of the black people in Britain were young adult men ‘living more or less celibate lives in lodgings and hostels’.111 Many of them were nomadic, not intending to stay permanently. Many participated in a voluntary rotation scheme, whereby a worker would stay for a term, send his earnings home and eventually return home to be replaced in his job by another worker from his country. The introduction of controls resulted in the fear that coming back to Britain at a later date would not be possible. Consequently, workers started planning to stay in their jobs. This decision had important implications for their family life and their expectations of their host community. If the male migrant workers were not returning to their homes abroad, their families had to join them in Britain. Migration for the purposes of family reunification was not affected by the Act. Women consequently became the majority of the new entrants after 1962. Their arrival made two things more likely: first, that the communities of colour would settle on a more permanent basis and, second, that there would develop further generations of black children born in Britain.112 The arrival of families also changed the profile of needs: hostels were no longer adequate – fairly priced, larger and more comfortable lodgings were needed, a steady income, wages that could support a family, healthcare and educational provision for the young became priorities. Such basic concerns put them in exactly the same situation as the white population – seeking opportunities both for themselves and for their children, who would be wholly or partially educated and brought up in Britain. Thus the immigration controls induced a subtle shift in race relations which actually intensified the potential for social conflict. Although the Immigration

109 110 111 112

Banton (1955: 240). Field & Haikin (1971:12). Daniel (1968: 10). ‘£70,000 for study on racialism’, The Guardian, 27 September 1963.

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Making anti-racial discrimination law

Act was partly intended to reduce racial tensions by pandering to xenophobia, controls paradoxically heightened racial tension by generating new needs. Competition was now not only for work, but also for the scarce resources of settlement and establishment. Yet while the 1962 Immigration Act increased the needs of the communities of colour, it also reduced the legal basis of their entitlement to this. The pre-1962 status as British subjects was lost and the distinction between black immigrants from the Commonwealth and immigrants from elsewhere disappeared. Black Commonwealth citizens were essentially placed on the same status vis à vis immigration as non-Commonwealth immigrants. It should be recognised that this was a process of alienation, rather than a product of foreignness. The Hungarian or French worker was a foreigner in England: neither Hungary nor France had belonged to Great Britain; the highest court of these countries legal system did not reside in London; the education system was not designed in Britain and they did not speak English as their first language. People from the Caribbean, Asia and Africa were citizens of Great Britain: they had been told and believed that they were English, took the same school leaving examinations, had fought for England in World War II and adopted the traditions of England as their own. In contrast to a French or Hungarian migrant, the new citizens from Asia, Africa and the Caribbean had been educated in the language and values of Britain – they were not foreign to British ways and values, and ‘on arrival in the United Kingdom their loyalty to the Crown was in no way less than that of other British subjects’.113 Although the Labour Party initially opposed the Conservative proposals for entry controls, by 1963 it was seen as politically expedient to support them. This volte face was in response to charges that Labour was ‘soft’ on immigration and asylum seekers.114 While appeasing the white majority vote by taking a tougher stance on immigration, however, Labour could not afford to lose the high level of support it enjoyed from most black citizens. It therefore needed to continue to woo the emerging yet important black vote115 – in spite of the new immigration laws, a substantial number of black citizens were voters. These two aims are visible in the package of measures presented by the Labour Home Secretary, Frank Soskice, to deal with race relations. It was designed both to make immigration control ‘effective’ as an appeasement of white voters and also ‘to integrate’ as an appeal to black voters. Both parts of this package were seen as necessary, even though the messages they sent were conflicting: while immigration laws made Commonwealth citizens second-class citizens, the Race Relations Act sought to include them and restore their equal status. His government did this by agreeing to create a legal prohibition against racial discrimination.

113 Banton (1955: 237). 114 Goulbourne (1998: 58). 115 Ben Tovim & Gabriel (1982).

Black European Union citizens 17 The role of overt racial violence in securing this will be discussed in detail in later chapters. Belonging in Germany The evolution of British immigration law has been described as ad hoc and unplanned.116 German immigration law is straightforward: the constant anchor is Article 116 of the Constitution, which describes a foreigner as a person without German citizenship. Only foreigners are subject to immigration controls. Although the Bismarckian Reich had colonies in Africa, the relationship with its colonies or ‘Schutzgebiete’ was neither long nor interactive. In contrast to the British colonies, citizens of Togo, Cameroon, and Namibia were not seen as subjects of the Kaiser or in any way equal to citizens of the Reich. They were not able to move freely between their home country and the Reich.117 Financial prohibitions were designed to prevent and deter migration to the Reich. Colonial Germans had to pay a ‘migration tax’ of 10 Reichsmark in order to leave for the German Reich118 and 500 Marks if intending to travel to Europe.119 Movement was only free from the German Reich to the colonies or for citizens of the German Reich. Unlike in the British colonial relationship, nationality of a colony was not linked to German nationality and persons from the colonies had no special claim to acquiring German citizenship. Apart from the legal technicalities, this was seen as out of the question due to ethnic and race considerations, in particular the absence of ‘Deutschbluetigkeit’ or German blood.120 Blood is the basis of German citizenship (ius sanguinis) rather than territory (ius soli): being born in Germany to non-German parents cannot make one a citizen, whereas being born outside Germany to parents with a German ancestry can. Acquiring citizenship was near impossible for colonial citizens. Although the so called ‘Schutzgebiete’ were administered as home territory covered by German laws, citizens of these countries were ‘Schutzbefohlene’ rather than citizens.121 Only with difficulty could they gain this status, which was seen to place them on an equal legal footing with white Germans.122 The possibility

116 Bevan (1986). 117 Oguntoye (1997). 118 GNA File R1001, AS 7562 at SO 51, MH 904/3.OG; Reihe 455. Letter from the German Consulate in Togo to the German Foreign Office, 11 August 1906. 119 GNA File R1001, AS 7562 at SO 51, MH 904/3.OG; Reihe 455. Law of 15 November 1899, Koloniale Gesetzgebung Band 4, p.132 (3 (3)). 120 GNA File R1001, AS 5134 at SO 51, MH 904/3.OG, Reihe 454. Letter to the Reichsministerium des Innern from the Auswärtiges Amt, 31 May 1933; GNA File R1001, AS 5134 at SO 51, MH 904/3.OG, Reihe 454. Document R 18325, 8 October 1937. 121 Oguntoye (1997: 15). 122 GNA File R1001, AS 5134 at SO 51, MH 904/3.OG; Reihe 454. Letter From the German Chancellor’s Office (Reichskolonialamt) to the Königlich Württemburgische Ministerium des Innern, Stuttgart, 30 April 1912.

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Making anti-racial discrimination law

of acquiring it ceased conclusively when Germany lost all colonial possessions after World War I.123 Until 1918 they were persons with ‘deutscher Schutzgebietsangehörigkeit’ (persons belonging to a German protectorate); they lost this status with the Treaty of Versailles and became foreigners in Germany.124 German citizenship is therefore primarily a ‘bloodright’.125 However, until 1974 citizenship could not be passed through the mother: this was applied retroactively to babies born after 1953.126 Many black Germans were born before this date – by 1953, US soldiers fathered nearly 75% of all occupation children – so many of the black children born in Germany to African or African American fathers before 1953 were not citizens.127 Despite having German blood, their fathers determined their belonging: they were, first, foreign and, second, black, which meant that these children were not really German. Ius sanguinis did not disappear with the Nazi defeat and neither did ideas of white supremacy. De-nazification was distinct from de-racialisation: ‘American policy makers consistently sought to persuade the Germans that they were not Aryans: they were white.’128 ‘Stunde Null’ was a rejection of state-sponsored anti-Semitism not entrenched ideas of racism, which were still strong in the lands of the Allied forces – America, Britain and France.129 Two contradictory official discourses developed as a result. On the one hand, acceptance was preached. Under the influence of American religious organisations such as World Brotherhood, German decision makers – state officials, education and youth ministers, teachers, clergy, journalists and social workers – were encouraged to overlook colour and tolerate black Germans. Texts such as Maxi, unser Negerbub (‘Maxi, Our Negro Lad’), which fictionalised prejudice in the classroom and promoted racial harmony, became recommended reading for teachers. However, the general public had other ideas. Popular films such as Toxi, which fictionalised the life of an orphaned black German girl, predicted a different fate for black Germans: social isolation and eventual removal from everyday society to a life in a circus. This film, made in the 1950s caused no outrage: its popularity indicates the widespread resonance within the general public of the outsider and unequal status of black Germans that it depicted. Later films such as Der dunkle Stern illustrate a ‘marked unwillingness to even entertain the possibility of racial integration’.130

123 GNA File R1001, AS 5134 at SO 51, MH 904/3.OG; Reihe 454. Letter to the Ministry for Internal Affairs from the Foreign Office, 31 May 1933. 124 Oguntoye (1997: 23). 125 Linke (1999: 121). 126 Boehncke & Wittich (1991: 30). 127 Fehrenbach (2005: 79). 128 Schroer (2007: 33). 129 Fehrenbach (2005: 4–11). 130 Fehrenbach (2005: 125).

Black European Union citizens 19 On the other hand, tolerance was preached with a racist hue. For example, officials agreed to describe black German children as ‘farbige Mischlingkinder’ (‘coloured mixed-race children), which highlighted their colour and denied their German nationality. Skin colour was raised to a defining difference. Scientific studies confirmed the salience of race as a basis of difference leading to the paradox that as anti-Semitism became taboo, racism became acceptable.131 Despite official statements to the contrary, the enthusiastic pursuit of opportunities for these children to be adopted in America by African American families demonstrates that black Germans were seen to belong in Germany as much after the war as before.132 Likewise, the panic surrounding the entrance of 1946 black children into the public school system in Easter 1952 indicates just how strong the salience of skin colour remained in German society. This was discussed during a parliamentary debate on the fate of the ‘Occupation Babies’ and ‘farbige Mischlingskinder’ in 1952.133 Poverty was a continual problem: with the fathers absent and the mothers unwed and often unemployed because of their black child, the question of their keep was raised in the Bundestag. As in the past, repatriation to a country ‘where the climate was more suitable’ was suggested.134 The parliamentary factions of the SPD and the FDP also suggested that the United Nations be approached to help resolve the issue.135 For some, such as Frau Dr Rehling (CDU), Frau Nadig (SPD) and Frau Strobach this was an opportunity to demonstrate to the world the new colour-blind Germany. They argued that this generation of black Germans should be able to grow up as equals in the new Federal Republic.136 The concern for the welfare of the black German children did not lead to a consensus to introduce new legal measures. There was agreement that the existing legal instruments sufficed to achieve this aim, such as ILO Convention 111 and Recommendation 111 on non-discrimination in work and career and that no further measures were needed.137 This consensus was misguided: not only were these black children suffering racial discrimination in orphanages and at school, but as the trade unions were to confirm, also in employment: firms rejected black school leavers entering the labour market, blaming the attitudes of the current workforce for their decision.138 Similarly, the children born in Germany to migrant ‘guest workers’ did not belong and are still foreigners or ‘Ausländer’. In the absence of German blood, the hurdles they had to surmount for naturalisation included financial security, knowledge of the German language, culture and politics and the relinquishment of any other citizenship. This last criterion in particular has resulted in Germany

131 132 133 134 135 136 137 138

Fehrenbach (2005), in particular Chapter 3. Fehrenbach (2005), in particular Chapter 5. Optiz et al (1992: 79–80). BT WP 1/198 (12 March 1952): 8504. BT WP 1/206 (24 April 1952): 8943-56; BT Drs 1/2191; BT Drs 3/1667. BT WP 1/198 (12 March 1952): 8508-9. BT-Drs 1370, 10 November 1959. Franke (1959: 623).

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having ‘one of the lowest rates of naturalisation in Europe’139 despite guest workers settling in Germany with their families since the mid 1970s. This trend to settle was hastened by the cessation of forced rotation in 1964 and the decision to end the import of foreign labour (the ‘Anwerbestopp’)140 in November 1973. This was partly due to the oil crisis, but also the growing confidence of the migrant workers who by now were aware of their indispensability to the German economy and less afraid to make demands. Disputes with the employers led to industrial action: between 1969 and 1973 migrant workers went on strike. In some cases – such as the strike in Cologne at the Ford plant involving 12,000 Turkish workers – they were supported by German colleagues.141 The Anwerbestopp solved one problem – the number of foreign workers began to decrease immediately142 – but crystallised the trend of long-term stay. As in Britain, the introduction of a restriction on immigration led to fears of being unable to return in the future. Consequently when unemployment began to soar, unlike in previous years these migrant workers did not return to their home countries. If workers stayed longer, their families increasingly came to join them – migration continued under family reunification allowing migrant families to become established in Germany. Unlike in Britain, these migrant workers were denizens143 rather than full citizens, thus enjoying only limited constitutional rights. In 1977, the socialist government initiated a commission to develop a comprehensive national policy for migration. The Kuhn Memorandum144 became the basis of integration policy in 1979. Future priorities were to be the ‘consolidation’ – a euphemism for restriction145 – of the current migrant population as a prerequisite for effective integration. The recommendations of the Kuhn Memorandum focused on education and the acquisition of citizenship. Integration measures were to ensure that foreigners, especially those of Turkish origin felt ‘included and at home’.146 However, efforts were only to go as far as the existing law allowed – it did not mean tackling discrimination faced, for example, in the area of accommodation147 or membership of clubs.148 There was no cognisance of a need for measures taking the specific needs and circumstances of the migrant community into account.

139 140 141 142 143 144 145 146 147 148

Dale (1999: 131). BT WP 7/ 38 (6 June 1973). Dale (1999: 134). BT WP 7/117 (20 September 1974). Hammar (1990). ‘Stand der Entwicklung der Integration der ausländischem Arbeitnehmer und ihrer Familien in der Bundesrepublik Deutschland’ in Galanis (1987: 17). BT-Drs 8/3121. BT WP 9/5 (24 November 1980): 30. BT WP 8/155 (18 May 1979): 12429. BT-Drs 9/893.

Black European Union citizens 21 The change in the composition of the migrant population was acknowledged – integration policy during the 1970s placed a focus on the second and third generation of ‘Ausländer’, in particular Turkish, children who had either joined their family after 1973 or were born in Germany.149 Yet this had little impact on the types of integration measure – initiatives continued to focus on education, especially language training, and the improvement of prospects for integration into the economy. In line with the constitutional tradition, the children of migrant workers were to be treated exactly the same as German children.150 However, they remained settled foreigners, second generation immigrants, rather than first generation Germans. Such thinking helped these ethnic minority Germans as much as it helped the black Germans. For both groups, an integration policy which promoted equality and equal rights remained absent. The Conservative government under Kohl tried to deter permanent settlement by the introduction of measures to prevent family reunification.151 Measures were designed for a transient population: entry control and educational programmes: widening the eligibility criteria for a work permit, training programmes and tax relief for guestworkers supporting children of school age at home.152 For the Conservatives, integration meant inclusion in economic, social and cultural, rather than political, structures.153 The basis of the CDU/CSU approach to immigration was the idea of ‘Integrationsfähigkeit’154 or the ‘ability to be integrated’. As Germany was a country with an homogenous culture, integration meant assimilation – there was no space for diversity. Some cultures were seen to be more amenable to assimilation in German society than others. Those who were not ‘integrationsfähig’ (generally Turks, Africans and Asians) were to be repatriated. Under the Conservative ‘renewal’, a new emphasis appeared on programmes to ease reintegration in the country of origin.155 It can be argued that this state policy legitimised the overt racial violence within the population which led indirectly to the evolution of an anti-racial discrimination law.

Conclusion Law has historically been used to restrict the movement of black and migrant populations. This was the case in the British colonies and the German colonies. Even when the polity redefines its relationship with its communities of colour, these laws remain dominant. For example, the development of multicultural

149 150 151 152 153 154 155

BT-Drs WP 8 (1978) 20 April, Anlage 78; BT-Drs 8/2716, 29 March 1979. BT-Drs, WP 8 (1978) 20 April, Anlage 40. Dale (1999: 136). BT-Drs 11/3029, 30 September 1988. Schneider (1997: 112). BT WP 8/228 (2 July 1980): 18525. BT-Drs 10/5810.

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Britain is promoted alongside ever tighter entry controls.156 As shown in this chapter, the paradox of the immigration laws introduced in Britain and Germany in the 1960s and 1970s was that by limiting entry, they hastened establishment and raised the level of needs of black and ethnic minority communities. Britain is multicultural: in the 2001 Census, 13.1% of respondents identified themselves as belonging to an ethnic minority.157 This has been officially acknowledged: the transposition of the EU Race Directive was set within a larger Labour programme of building ‘multicultural Britain’.158 According to the Minister for Women, Barbara Roche: Equality is an integral part of a civilised society – and of a strong and successful Britain. We want to make our society one in which people are given the best possible opportunity to make a success of their lives, whatever their background. Everybody has a valuable contribution to make. Our challenge is to unlock the talents and potential of all our citizens.159 The anti-racial discrimination programme of the government continues this theme, but with a strategic difference: difference is no longer seen as uniform. Since 2005 the emphasis has been on diversity, on recognising the different needs of different communities. Action has now become more targeted resulting in a more tailored approach to tackle racial discrimination and create cohesive communities.160 Multicultural Britain remains, however, marketoriented Britain, where diversity and difference are potential sources of competitive advantage.161 In 1980 both CDU/CSU and FDP agreed that ‘die Bundesrepublik Deutschland ist kein Einwanderungsland’.162 However, Germany is an ‘Einwanderungsland’, a multicultural society with an estimated 300,000163 black Germans with no intention of leaving the land of their birth and more than 350,000 foreigners in retirement age who have no intention of leaving the land where their children

156 The 1971 Immigration Act curtailed the principle of ius soli: subsequently children born in Britain to Commonwealth citizens only became British citizens on application after 10 years continuous residence. 157 The minority ethnic population stands currently at 4.6 million (7.9% of the population). Figures from the 2001 Census. See http://www.statistics.gov.uk/focuson/ethnicity/. Accessed 16 May 2005. 158 This programme included the enquiry into the murder of the black teenager Stephen Lawrence and the Amendment of the Race Relations Act in 2000. 159 Roche (2003: 3). Available at: http://www.dti.gov.uk/er/equality/extended.pdf. Accessed 17 January 2003. 160 Home Office (2005) Improving Opportunity, Strengthening Society. 161 Wrench (2005). 162 BT WP 8/228 (2 July 1980): 18533. 163 In the absence of ethnic data, it is hard to say with certainty how many black Germans there are. Massingue (2005).

Black European Union citizens 23 and grandchildren are.164 Yet neither black Germans nor foreign workers enjoy acceptance as belonging to German society. As recently as 2002 the CDU again declared that Germany was not a country of immigration.165 Suggestions by President Walter Rau that Germany is a multicultural society were fiercely rejected.166 By suggesting that Germany is a multicultural society which should treat all religious symbols – from the hijab to the vicar’s collar – equally, Rau reaped condemnation from the conservatives and rejection of this model of integration.167 Parts of the Social Democratic Party and the formerly optimistic Green coalition have even declared multi-culturalism a failure,168 although this has never been officially pursued. At the same time, however, it has been recognised that it was a mistake to ignore the deeper integration needs of minority groups – black Germans, migrant workers and asylum seekers – in the 1960s.169 German politicians recently attempted to use song to draw attention to the need for active integration170 but remain reluctant to use law to protect from racial discrimination. In 1994, the CDU declared that ‘Ein Antirassismus- bzw. Antidiskriminierungsgesetz richtet sich gegen die Staatsinteressen’.171 Germany continues to be suspicious of immigration and ‘ideologically programmed for assimilation’.172 Within the ideology of the ‘volkisch’ nation based on blood, people of colour are seen as invaders, their ‘difference’ a threat to ethnic purity and national unity.173 Ethnicity is likewise a barrier to belonging. A leading daily newspaper referred to a follower of al Qaeda as a ‘Turk with a German passport’ although the man concerned was born and bred in Germany.174 For the leader of the CSU, Edmund Stoiber, the man remained an ‘Ausländer’. In a case where a young skinhead stabbed a youth of Turkish origin to death, the state prosecutor in Sulzbach described the motive as ‘Ausländerhass’ (hatred of foreigners), even though both victim and perpetrator were born and socialised in Germany.175 Yet persons from eastern Europe and their descendants who have

164 Meier-Braun (1997: 41). 165 CDU/CSU General Election Manifesto, 2002 166 (2003) ‘Rau: Vierzehn Wahlen ein Unglück für die Demokratie’, Frankfurter Allgemeine Zeitung, 29 October, p.2. 167 (2003), ‘Multikulturell’, Frankfurter Allgemeine Zeitung, 29 December, p.10; (2003) ‘Maas und Merkel rügen Rau’, Frankfurter Allgemeine Zeitung, 3 January, p.4. 168 (2005), ‘SPD-Papier: Multikulti gescheitert’, Welt Kompakt, 20 May, p.28. 169 (2004) ‘Bitte lernt Deutsch! Debatte über Integration, Werte, Nation’, Frankfurter Allgemeine Zeitung, 22 November, p.2; (2004) ‘Streit um MultiKulti’, Der Tagesspiegel, 3 December, p.5; Krägenow & Sosalla (2004). 170 Boyes (2007). 171 ‘An anti-racial or anti-discrimination law is not in the interests of the state’, Frau MdB Steinbach-Hermann für die CDU- Fraktion, on 13 January 1994. 172 Layton-Henry & Wilpert (1994: 4). 173 Linke (1999: 115–44). 174 (2002) ‘Stoiber: Ausländer bei Terrorismusverdacht ausweisen’, Frankfurter Allgemeine Zeitung, 9 September, p.2. 175 (2002) ‘Türke starb wegen “Ausländerhass”’. Der Tagesspiegel, 19 August, p.3.

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German ancestors but no contact with either the country or the language were welcomed after 1989 and automatically given full citizenship.176 A tradition of the CDU/CSU coalition, from Adenauer and Erhard to Kohl, was the reunification not only of Germany but also of Germans scattered during World War II. The Democratic Republic of Germany (DDR) was not formally recognised by Bonn and persons fleeing this regime were not asylum seekers but ‘Aussiedler’ or ‘national returnees’. According to government policy, they were to be treated as if they had lived and worked in Federal Republic of Germany. They received immediately social benefits available to West Germans, qualifications were recognised and loans were given on favourable terms.177 I will discuss in more detail how the acceptance of the black and minority ethnic population determines whether the needs of these perpetual outsiders178 are recognised. In the next chapter, however, I will look at the different forms of racial violence that have emerged, for it is this that anti-racial discrimination law must be designed to tackle.

176 This has become less accepted by the public. The returnees from the East (the Umsiedler and Aussiedler), are increasingly seen by the majority as foreigners. BpB (2001: 16). 177 BT-Drs 10/5810. 178 Herbert (1997: 30).

2

Understanding racial violence

Introduction Racial violence is a particular form of violence, informed by the belief that certain persons or groups of persons are not only different but also inferior because they have a different skin colour, religious, ethnic or national background. The victims of racial violence are ‘selected’ not in their capacities as individuals, but as representatives of ‘communities based on phenotypical characteristics, and/or religious, national or cultural origin’.1 It is these general attributes rather than individual actions that determine who is the target of violence. A distinction is often made between these violent acts and those involving racial prejudice: the former is seen to involve physicality while the latter does not. Because it does not involve physical force, the latter is assumed to be less harmful than the former. This distinction is misleading and disappears when the definition of violence is freed from confinement to a narrow focus on individual force. A broad definition of violence can incorporate ‘a continuum of behaviours from the most dramatic of using a handgun to eye rolling’.2 Absent a notion of coercion, poverty can be described as violence.3 According to Hannah Arendt, ‘violence is nothing more than the most flagrant manifestation of power’.4 I begin this chapter, by developing a typology of racial violence, which I then go on to discuss in further detail.

A matrix of racial violence The understanding of racial violence can be refined using the matrix of violence developed in the field of peace studies. Garver5 suggests a typology of violence that combines two criteria – ‘whether the violence is personal or institutionalized,

1 2 3 4 5

Witte (1996: 11). See (2001: 169). Lee (1999). Arendt (1970: 17). Garver (in Curtin & Litke, 1999: 819).

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and whether the violence is overt or covert and quiet’.6 Overt personal violence includes physical acts such as mugging and murder while overt institutional violence refers to actions of authorities, such as the police or military. Whereas covert personal violence includes domestic violence, child and verbal abuse, covert institutional violence can refer to workplace intimidation, emotional and psychological7 harassment. Deane and Litke suggest that institutional violence is often made possible by ‘systemic violence’, which creates an ‘atmosphere conducive to the creation of violent institutions’.8 Thus overt police violence is facilitated by the covert violence inherent in the justice system. Covert violence can be systemic: during the colonial period, for example, violence was no longer necessary to maintain white rule once its strictures became the norm. It became less visible because it was accepted as the status quo. The more pervasive and normative it is, the more invisible and stronger it becomes. Put together with Garver’s typology, a broad definition of racial violence would include not only overt personal and institutional actions, but also covert personal and institutionalised practices. Overt personal racial violence would include the physical aggression of the far right, muggings, beatings and murders. These are sometimes categorised as hate crimes. Overt institutional racial violence is evidenced in the actions of institutions such as the police and military, as well as in systems such as slavery, colonialism, apartheid and National Socialism. Covert personal racial violence would refer to racially abusive behaviour between individual colleagues, employees and consumers; while covert institutional racial violence highlights aggression hidden in practices and procedures, for example, bias in the criminal justice system,9 school exclusions or academic promotion procedures. Anti-racial discrimination laws in Britain and Germany tend to focus on covert personal racial violence, prohibiting it as direct or indirect discrimination and, more recently, covert institutional racial violence. There is interaction between the different categories: for example, overt institutional racial violence may become covert – it is very unlikely that police officers would overtly persecute a black man today as David Oluwale was hounded by officers of the law in Leeds;10 yet black and minority ethnic women and men continue to die during interaction with the police.11 Some forms may not fit neatly into one or another category: racial violence between army servicemen could, for example, arguably be either overt institutional racial violence or covert personal racial violence; or, indeed, both in that the overt institutional violence provides a context for the covert personal violence within troops.

6 7 8 9 10 11

Curtin & Litke (1999). Lee & Leonard (2001: 170). Curtin & Litke (1999). Leadership Conference on Civil Rights (2000). Aspden (2007). See Black Deaths in Custody. Online at: www.irr.org.uk.

Understanding racial violence 27 A broad definition of racial violence therefore opens new avenues for understanding racism. This definition recaptures the hostility and harm inherent in all forms of racial violence. The covert withholding of jobs or promotional opportunities are just as harmful to the victim’s wellbeing as overt physical attacks. Racial discrimination in recruitment is racial violence even though it does not involve physical aggression and is no less damaging than racial hatred. The broad definition also highlights more clearly those forms of racism that remain most virulent: even if the overt racial violence of the past may be less evident, covert racial violence remains an insidious problem. This matrix of racial violence also expands the scope of those who are recognised as perpetrators. While the victims of all forms of racial violence tend to share the same key characteristics – such as skin colour or ethnicity – the perpetrators differ substantially. For example, overt personal racial violence is usually thought of as the domain of bad civil society and right wing extremists but it is not only extremists who perpetuate overt forms of racial violence: there was no suggestion that the mob of Spanish citizens who attacked migrant workers at El Ejido in 2000 were extremists.12 Racial violence emanates not only from social ‘anti-movements’ that seek to undermine the democratic values of equality and tolerance, but also from those who reject and condemn right wing extremism yet engage in less visible and equally damaging everyday racism.13 Kornheiser speaks of the ordinary face of racism in the form of shop assistants or ticket clerks whose level of customer care drops as the skin colour of the client darkens.14 Consequently it is unwise to overemphasise extremism: ‘The price of overidentifying the struggle with racism with the activities of extremist groups and grouplets is that however much of a problem they may be in a particular area . . . they are exceptional . . . There is more to contemporary racism than the violence they perpetuate.’15 An understanding of racial violence beyond extremism is also crucial because the face of extremism has changed. Unlike the laced ‘Doc Marten’ footwear sported by skinheads in the past, right wing extremists are now more likely to be suited than booted. Although marginal groups such as Combat 18 continue to perpetuate the violent traditional hostility of fascism to liberalism, pluralism and democracy, 21st century right wing extremism is ‘neither revolutionary nor (overtly) anti-democratic’.16 This development has led to the curious paradox that while racial violence continues to thrive, racists are disappearing. The New Right have successfully coated racism, anti-Semitism, nationalism and authoritarianism with a democratic veneer. Many extreme right wing groups have

12 http://www.eurofound.europa.eu/eiro/2000/04/feature/es0004184f.htm. Accessed 22 February 2008. 13 Essed (1991). 14 Kornheiser (1990). 15 Gilroy (1990: 243). 16 Betz (2003: 74–93); Merkl & Weinberg (2003: 77).

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adopted and adapted to the system of liberal democratic multiparty politics, and make visible efforts to work within the mainstream value system of democracy. To gain political respectability, the right has toned down both its militancy and racism in order to win more voters. The French New Right, for example, presents itself as an intellectual renewal, an ideological and cultural movement that seeks a moral revolution in order to protect the national identity. An example of the more programmatic strategy of the extreme right wing is the strategy of the ‘Nationaldemokratische Partei Deutschlands’ (NPD): its political programme has three pillars – the ‘battle for the streets’, the ‘battle for minds’ and the ‘battle for parliament’.17 This strategy has given rise to a new and insidious covert personal racial violence. While the method and presentation has changed, the fundamental message has not: cultural racism continues to be informed by a reactionary populism entrenched in a homogenous world view, ‘based on the notion that cultures and ethnicities are incompatible with each other and that cultural mixing should therefore be resisted’.18 Separation is due to the supposed superiority of European culture rather than biology. It is less a matter of biological inferiority of black cultures but one of cultural incompatibility – the ability of black people to be integrated into European societies. Le Pen’s ‘I prefer my daughters to my cousins, my cousins to my neighbours and my neighbours to strangers’ demonstrates this more insidious message of the New Right. Using common sense to justify exclusion helped the FN to win the voice of the ‘poor white’ man:19 Le Pen became a kind of hero for his tough stance on topics such as immigration, law and order and unemployment. The appeal to common sense makes racism more palatable to thousands of educated elites, even though the exclusionary vision remains intact. This combination of a respect for the democratic system and a programmatic rejection of social pluralism has proven successful. The innocent appeal to patriotism has led to electoral success (‘the battle for the parliament’) not only for the Front National (FN) in France but also Vlaams Blok in Belgium, the Fremskridt Partei (Progress Party) in Denmark, the Centrumdemokraten in the Netherlands and Forza Itialia in Italy.20 The rise of the New Right reached a peak in the European Union in 1984 when the success of Le Pen and 15 other extreme right MEPs in the European Parliament elections led to the creation of an extreme right group in the European Parliament. The creation of an extreme right wing coalition government under the FPO in Austria in 2000, and Le Pen’s success during the French presidential elections of 2002,21 serve to

17 18 19 20 21

Bundesamt für Verfassungsschutz (October 2000: 15–18). Betz (2003: 77). Harris (1990: 77). Fekete & Webber (1994). ‘Le Pen vote shocks Europe’, 22 April 2002. Available on line at: http://news.bbc.co.uk/1/hi/ world/europe/1942929.stm. Accessed 1 June 2005.

Understanding racial violence 29 indicate the continued potency of the New Right strategy, a strategy emulated by the BNP in Britain.22 As racial violence therefore no longer only stems from bad civil society, the struggle against racism ‘has to concern itself with something more comprehensive than merely combating extremist expressions, opinions and organizations. The values, the belief systems, the histories and the institutions of mainstream society have to be critically scrutinized.’23 A broad understanding of racial violence facilitates this deeper scrutiny of mainstream society. The purpose of this chapter is to conduct this critical – albeit limited – scrutiny of the manifestations of overt and covert personal and institutional racial violence in Britain and Germany. Illustrative rather than exhaustive examples of each will be given. As will be seen, both countries have been confronted with these different types of racial violence at different times. In subsequent chapters, I will discuss the legal response. Overt racial violence Personal Overt personal racial violence includes beatings, muggings, arson and murder. The website of the Institute for Race Relations (IRR) is full of stories of such racial violence.24 Overt racial violence in the past most regularly involved fascists, skinheads and in England, teddyboys. Various locations in England are remembered as flashpoints of this racial violence. The country was stunned when racial riots, which most Britons thought confined to southern USA, tore through Nottingham and Notting Hill Gate in London in 1958. While the victims were well aware of the tensions, most Britons were taken by surprise. This was also the case when post-reunification racial violence spread throughout Germany in the 1990s. The pogroms in Nottingham and Notting Hill in 1958 occurred within days of one another. The violence in Nottingham was apparently sparked by a black man talking to a white woman; in Notting Hill it began when a group of white men, incensed at her interracial marriage, attacked a white Swedish woman25 whose husband was from the Caribbean: They had seen her the night before, arguing with her Jamaican husband Raymond outside Latimer Road tube station near Notting Hill, and they had started throwing racial insults at him. She had enraged them by turning on them. When the youths saw her again, they followed her, throwing milk

22 23 24 25

Eatwell (2003). Westin (2003: 99). See http://www.irr.org.uk/. Morrison (1966).

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Making anti-racial discrimination law bottles and shouting, ‘Nigger lover! Kill her.’ Later that night, the ‘nigger hunting’ started and the area was ablaze.26

The violence in Nottingham lasted for 1 night. It was eclipsed by the 5 days of violence in Notting Hill Gate, during which mobs of angry white youth roamed the streets attacking any black person they chanced upon and breaking the windows of shops whose staff sold to black people. Interestingly, in both locations, black people were conspicuous by their absence. Recently released papers confirm that the majority of the mobs were white.27 As most black people dared not venture onto the streets, the majority of the violence took place between the white working-class rioters and the police who resorted to the use of firehoses to disperse them. Of the 108 charged with offences ranging from grievous bodily harm to affray, riot and possessing offensive weapons, 72 were white and 36 were black. Ultimately, only few were punished: five teddyboys were found guilty of raiding a black-owned cafe in Shepherd’s Bush, and causing ‘malicious damage’.28 Nine other white youths were given sentences of 4 years for ‘nigger hunting’. Such violence was less evident in Germany in the decades following the war, but re-emerged with a vengeance throughout the reunified country in the 1990s. The international community celebrated the reunification of East and West Germany in 1989. Reactions among the black, Jewish, Moslem and migrant communities in Germany were more reserved. In the first few days after 9 November 1989, it became clear that unification did not encompass the integration of black Germans. For some it was the reunification of a ‘Volk’ that was racially homogenous. A black German living in Berlin, was told to ‘go home’.29 More subtle forms of exclusion occurred: a reporter searching for West Berliners to interview during the celebrations failed to see the group of boisterous Turkish Berliners just behind him, looking expectantly at the camera.30 Black and migrant people remained invisible during the celebrations but quickly became visible as targets of physical racial violence in the period thereafter. Initially the stories of these attacks circulated only among the groups of victims themselves. The media took hardly any notice until the attacks took on the character of pogroms. It was these violent forms of exclusion, including arson attacks, which caught the attention of the world.31 In 1991 the number of recorded racial assaults jumped from 309 in 1990 to 1492.32

26 The Notting Hill Carnival was created as a symbol of resistance to the violence. Younge (2002). 27 Travis (2002). 28 ‘A Cry in the Streets’ http://www.time.com/time/magazine/article/0,9171,868795-2,00.html. Accessed 20 February 2008. 29 Ayim (2000: 90–91). 30 Geiger (1992: 273). 31 Ruddock (1993: 3). 32 Verfassungsschutzbericht (1994: 81).

Understanding racial violence 31 The chronicle of violence against those seen as foreign began almost immediately, and almost exclusively in the former East German (DDR) states. During the night following the day of German unity, right wing youth set alight a home for asylum seekers. Two teenagers were later imprisoned. Such homes became frequent targets: in July 1991 a home in Magdeburg was attacked by 50 skinheads; in August a home in Zittau. In September a housing block in Hoyerswerda was under attack by right wing extremists for several days. Similar attacks occurred in Westfalen, Sachsen, Thueringen and Brandenburg.33 To celebrate the anniversary of German unity, an organised programme of arson attacks were carried out by right wing extremists on asylum homes around Germany. The next year around 50 skinheads attacked a group of Africans in a disco in Eberswald, north of Berlin, killing one Angolan. The following year an asylum seeker from Mozambique died after he was thrown out of the window of a moving tram. In 1992 a Vietnamese guestworker was stabbed to death in Berlin by a member of the neo-Nazi Deustche Volksunion (DVU).34 The violence took a nastier turn in August of that year, when a mob of up to 400 rioters attacked accommodation housing Vietnamese guestworkers. The violence in Rostock-Lichtenhagen continued for 6 nights, initially with the approval of the town residents, who stood by and applauded the rioters. The police also observed the violence without intervening. The pogrom culminated with a building containing 150 Vietnamese being set alight.35 The violence caused outrage in many German cities. Several thousand Berliners immediately took to the streets in protest. Three Turkish residents died when their house in Mölln was set alight. Rather than condemnation, there was some expression of official sympathy: the Home Affairs Minister Heckelmann commented in response to the increasing attacks in Berlin, that the city had reached ‘die Grenze der Aufnahmefähigkeit’ – bursting point – of foreigners. Right wing extremist violence also increased in former West Germany. In Nordrhein-Westfalen violent xenophobic crime increased from 297 recorded acts in 1992 to 342 in 1993.36 In 1993, seven people died when a hotel in Stuttgart burnt to the ground.37 Xenophobia was ruled out as a motive, even though the residents were mainly non-German. Arson was, however, suspected. It was the arson attack on the home of a Turkish family in Solingen in June 1993 which shocked city residents. The family had been in Germany for more than 20 years and owned the property in which they lived. Four family members burnt to death in the house when it was set on fire. Another woman died when

33 Information Centre for the Study of Racism, ‘Chronik der Gewalt und des Rassismus im wiedervereinten Deutschland’, University of Marburg. Available online at http://www.dir-info.de/. Accessed March 2002. 34 Fekete & Webber (1994). 35 von Billerbeck (2002). 36 Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz). 37 ‘Feuer versperrte den Fluchtweg’, Kölner Stadt-Anzeiger, 17 March 1994.

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she jumped from a window with her son in her arms. The house was burnt to the ground. Although the city was not known to have a right wing scene, in the previous weeks individuals had been attacked and a Polish girl had been murdered.38 In total, between 1991 and 1993, 26 people – 16 of them foreigners – were killed, and 1783 people injured as a consequence of more than 4500 attacks by right wing extremists: 209 Jewish institutions were attacked, 112 Jewish cemeteries desecrated and 1281 homes for asylum seekers and foreigners set alight. It was clear that these were not isolated events.39 Given the targets, it was furthermore difficult to continually deny the role played by race. Between 1990 and 1992 the recruitment of the DVU and neo-Nazi organisations rose by up to 18% and 43% respectively. In a Spiegel survey of 1992, 37% of the German population expressed sympathy for right wing extremist tendencies due to the ‘problem with foreigners’.40 While the number of violent attacks had decreased by 1993 (328 in comparison with 448 the previous year), an increase in the brutality of attacks was recorded.41 The violent activities of right wing extremists continues into the 21st century. A more recent reminder of their traditional behaviour occurred in Britain in Oldham, Burnley and Bradford in the summer of 2001. The National Front has been credited with stoking violence in the region, feeding into continuing tensions arising from unemployment, poor housing and years of low financial investment. The German Commissioner for integration recently suggested that neo-Nazis were responsible for the racist arson attack on a house occupied by Turkish families in Ludwigshafen. Nine people died in the fire, including five children and three mothers under the age of 25, one of whom was pregnant.42 Xenophobia continues to be an acceptable part of public opinion in Germany. There is no shame associated with holding extremist views; they can be expressed with impunity at the workplace and the racial violence of neo-Nazi youth is dismissed as ‘normal for that age’.43

38 Information Centre for the Study of Racism, ‘Chronik der Gewalt und des Rassismus im wiedervereinten Deutschland’, University of Marburg. Available online at http://www.dir-info.de/. Accessed March 2002. 39 BT-Drs 14/3106 (5 April 2000: 3). 40 Backer (2000: 109). 41 For further detail on militant and non-militant right wing activities in Sachsen-Anhalt, see the annual reports of the Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz). 42 Smee (2008). 43 Merkl (2003: 40).

Understanding racial violence 33 Institutional Examples of overt institutional racial violence include historical systems such as colonialism and Nazism. Britain was perhaps the most successful colonial power. In Africa, for example, the Empire included Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Nigeria, Sierra Leone, South Africa, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe; in the Caribbean, Antigua, Barbados, Barbuda, Belize, Guyana, Jamaica, Trinidad and Tobago. While still a colonial power, Britain had signed up to the ideals encompassed in the United Nations Declaration on Human Rights in December 1948. Article 2 of the Declaration stated: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without any distinction of any kind, such as race, colour (emphasis in original), sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non self-governing or under any other limitation of sovereignty. However, the Declaration did not provide any machinery for enforcement, so the obligation was a moral one and not subject to investigation or challenge. The extent to which Article 2 was breached in the British colonies was clearly illustrated by a study carried out in 1948, when the Secretary of State for the Colonies requested all colonial governments to carry out a survey of the extent to which ‘legislation in their territories discriminated between different races, more especially between Europeans and non-Europeans’. The reason for the request was ‘the growing public interest in the question of discrimination in Colonial territories, and in particular the fact that racial discrimination was one of the points specifically included for study by the United Nations Commission on Human Rights, arising out of Article 1 (3) and 68 of the United Nations Charter’.44 Each territory was required to examine the laws sanctioning different treatment in the areas of the judicial and penal system, land laws, residence and movement, employment, economic activity, taxation, marriage, hotels, clubs, places of entertainment and public services. The results were collected and analysed in the Colonial Office and a short report was prepared summarising the conditions in the African territories. Although prepared for publication, when the results were collected there was an attempt to avoid this. For, despite highlighting in its introduction the fact that the principles governing all British colonial

44 PRO File Document CO 859/165/2. Letter to Governor Sir Edward Twining concerning a circular despatch on the subject of discriminatory legislation in the British African territories (8 January 1947).

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administrators were those laid down in the United Nations Declaration of Human Rights, and that all elements of the population of the territory ‘enjoyed human rights and fundamental freedoms without discrimination as to race, sex, language or religion’, the results indicated otherwise. There was, for example, the bar on African justices of the peace or the differential provisions for sentencing in Uganda under the Criminal Procedure Code of 1950. Under this Code, the Commissioner of Prisons was unable to pass a sentence of corporal punishment on non-African prisoners ‘except after trial before a magistrate of the first or second class’. These preliminary measures were not, however, necessary prior to passing such a sentence on African prisoners. The Governor of Uganda was asked whether he would agree to the repeal or modification of the offending Section 72(3) of the Prisons Ordinance 1944 as soon as possible. Law was also used to divide land use, housing and free movement. Racially restrictive convenants barring Asians and Africans from residence in the most fertile areas were common in southern and eastern Africa. Segregation was further embedded by restrictions on movement of Africans: until 1948, all Africans over the age of 16 were obliged to carry a ‘kipande’, an identity card with name, details, fingerprints, employers name and wage rate. Much like deserting slaves, a ‘runaway employee’ could be arrested and returned to his employer. After persistent insistence from the House of Commons, copies were eventually placed in the house library, although an official publication was avoided. In February 1951, the Colonial Secretary James Griffiths stated: ‘In view of the public interest which has been evinced in the question of racial discrimination, and in view of what has been said in Parliament I consider that I am committed to making public the results of the survey.’ The Survey of Different Treatment by Race in Laws of the British Tropical African Territories was finally published by the Colonial Office in July 1951. Hannah Arendt has discussed the link between National Socialism, racism and colonialism.45 Scholars have argued that National Socialism was a synthesis of the various forms of violence existing in the West, in particular that ‘the violence and crimes of Nazism emerged from certain common bases of Western culture’.46 The systematic dehumanization and murder of non-Aryans by the Nazis was an amalgamation of the practices developed during centuries of overt institutional racial violence in the colonies. The totalitarianism in Germany’s colonies was a ‘prelude’ to Nazi Germany: ‘Forced labour, torture, starvation, concentration camps, and genocide were means of imperial control, particularly in the face of African resistance and revolt’.47 Hitler often compared his territorial military conquests to colonial wars48 and drew inspiration for his lethal medical experimentation

45 46 47 48

Arendt (1976). Melber (1992: 42); Traverso (2003: 150). D’Alessio (2000). Traverso (2003: 70).

Understanding racial violence 35 from those conducted in the concentration camps imprisoning the Herero after their massacre and defeat in the war from 1904 to 1907. Furthermore, the anthropologists and geneticists who conducted these experiments later became leaders of health agencies and research institutes under the Third Reich.49 Much of the treatment meted out to Europe’s Jews had already been rehearsed elsewhere in the world. Very little has been written about the sufferings of black people in Germany, who were also victims of the Nazi genocide. Even a recent study that looked at the treatment of less well documented victims such as gypsies, the disabled, the ‘asocial’, lesbians, gays and sex workers made no mention of them.50 During World War II: [T]here were people of colour in every concentration camp, and even there they were segregated. Black soldiers, including African Americans were special targets, and POWs were executed. In one incident, on June 17 1940, African French colonial troops unsuccessfully fought German Panzer divisions near Lyons. The 212 Africans captured were simply lined up and shot.51 These victims are slowly being recognised: the first ‘Stolperstein’ for a black person has been placed outside the house of Mahjub bin Adam Mohamed, a Tanzanian who joined the German East Africa services at the age of 10 and emigrated to Berlin in 1929.52 Black people in Germany experienced racial violence before and after the Nazis. However, it was intensified under the Third Reich and even the elite Africans came to be ostracised.53 Like German Jews, Africans in Germany and black Germans were very patriotic. Yet unlike German Jews, the majority were not citizens and could only become so with great difficulty. Although many interacted regularly and positively with Germans, they were less accepted and integrated into German society than the German Jews: Jews had settled in almost every major city in Germany – some of the synagogues destroyed during Kristallnacht dated from the 14th century.54 Their social and economic marginalisation under the Nazis was both less sudden and less extreme than that experienced by the Jews. The Nuremburg Laws of 15 September 193555 entrenched in law a separation already a reality for most black people living in Germany. Many blacks were

49 50 51 52 53 54 55

Lusane (2002: 50–52). Pine (2007). D’Alessio (2000). Ledig (2007). Opitz et al (1992: 59). Gilbert (2006: 30–41). Reichsburgergesetz vom 15 September 1935; Gesetz zum Schutze des deutschen Blutes und der deutschen Ehre vom 15 September 1935 in Kaden and Nestler (1993).

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already pauperised ‘non-persons’, not seen as part of the ‘national community’.56 In contrast to the Jews, it was unnecessary to institutionalise racial violence against them – this was already the norm. For the Jews, the Nazis created a new form of anti-Semitism that went beyond ‘traditional’ anti-Judaism by being political, economic and social rather than purely religious.57 Thus for many black people in Germany, National Socialism represented a continuation of overt institutional racial violence familiar under colonialism. While Hitler passionately hated the Jews and saw them as enemies, he pitied black people: this meant that they could be tolerated and used rather than exterminated. As far as he was concerned, their innate inferiority, stupidity, political and economic insignificance made them relatively harmless, only to be feared for the permanent contamination their mixing with German women would invoke on ‘Aryan purity’. This could be prevented by means other than murder: Africans and black Germans were deported, segregated, and sterilised.58 Protection of the Volk continued even during defeat: during negotiations to end the war, one Nazi proposal demanded that no black soldiers be stationed in Allied-occupied Germany.59 This dismissive despotism towards black people led to a number of curious anomalies in their treatment by the Nazis. Their experience depended to some extent on their origin: those with German parentage – a ‘vested social and cultural interest in being accepted’60 – fared worse than those without. Although all black people were racial enemies per se, those who were foreign born and bred – Africans and African Americans – were less dangerous to the Nazi project. Thus while the Afro-Germans were socially abused as Rheinlandsbastarde, impoverished, slowly exterminated via sterilisation, and incarcerated in concentration camps, some Africans from the colonies could for a while maintain a ‘bourgeois’ existence as diplomats, shopkeepers and craftsmen and African Americans were embraced as educators, performers and entertainers.61 Within the limits of racial violence in general, under the Nazi rule, black foreigners enjoyed more liberty than black Germans: paradoxically, the more foreign a black person was, the ‘safer’ – as long as he stayed out of politics – some foreign black people (such as George Padmore) were arrested due to their communist and trade union activities.62 Ultimately, however, only a lucky few were spared brutality and death in concentration camps. The official attitude was further complicated by conflicts between the National Socialist priority of racial purity and ideological principles such as loyalty to the ‘Fatherland’ and motherhood. In some sections of German society, there

56 57 58 59 60 61 62

Pine (2007: 104). Traverso (2003: 134). Campt (2004: 50); Lusane (2002: 139). D’Alessio (2000). Lusane (2002: 109). Lusane (2002: 96). Lusane (2002: 87).

Understanding racial violence 37 was unease at mistreating Africans who had loyally fought for Germany during its wars. In addition, removing black German children from their families was seen as imposing a hardship on mothers that was incongruent with the glorified position they occupied in Nazi doctrine. Thus, apart from 1937–1942, when the bulk of sterilisations occurred, there was no specific overall and continuous policy towards black people.63 It was even possible for a black German to join the Hitler Jugend (Hitler Youth) movement.64 However, this was probably part of a political strategy to deflect international accusations of racial intolerance – black people were useful political tools in pursuit of such specific political goals or the furtherance of colonial ambitions. Although World War II brought about the conclusive defeat of National Socialism, black people in Germany continued to experience overt institutional racial violence. White mothers were bullied by the authorities into putting their black children into care homes, where they were subjected to Victorian brutality and prevented from fulfilling themselves professionally. In the home, when she misbehaved, Marshall was told ‘that is the nigger in you’ (‘das ist der Neger, der in dir steckt’). Not allowed to pursue her desired career to become a teacher, she was forced to train as a social worker, whereafter she struggled to find a job.65 She first saw another black person at the age of 39.66 Descendants of the first generation of colonial Germans also continued to experience racial violence.67 While these systems no longer exist, overt institutional racial violence still occurs in the 21st century, but is now viewed with embarrassment when it comes to light. For example, in 2005, the job agency for students at the Humboldt University in Berlin posted vacancies for a forthcoming exhibition. Included in the job criteria was the information that the employer, a private security firm, would not consider black applicants.68 The student agency, a quango, saw no need to challenge the discriminatory wishes of their client. When made aware of this, the leadership of the agency apologised and spoke with the individual concerned, who ‘deeply regretted’ his behaviour, which was contrary to the non-discriminatory stance of his employer. Further action was not taken. Black soldiers in the British armed forces have also been victims of racial violence by their colleagues and superiors. Mark Parchment, who joined the Royal Marines in 1988, was told that because he was black, his weapon would be a spear instead of a rifle and he would be referred to as ‘Baldingi.’ He had to clean his spear everyday, take it on manoeuvres and even to the cookhouse.

63 64 65 66 67 68

Lusane (2002: 98–101). Lusane (2002: 112). Hugel-Marshall (2001: 39, 48, 54). Hugel-Marshall (2001: 91). Opitz et al (1992) ‘Farbige Unerwünscht’, Frankfurter Rundschau, 3 August, 2005, p.4.

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The humiliation continued when he joined a commando unit in Scotland – a special initiation ceremony for ‘niggers’ consisted of a bucket of urine being tipped over him and having his genitals shaved. He went absent without leave for 5 years and, when caught, was dismissed on the grounds that ‘his services were no longer required’. Black soldiers in the Household Cavalry have fared no better: Richard Stokes resigned after sustained racial abuse and being sent hate mail; Mark Campbell was discharged – ostensibly on medical grounds – after having his bed soaked in urine, being called a ‘nigger’ and being told ‘there ain’t no black in the Union Jack’. In 1991 Stephen Anderson was awarded £500 for the years of racial abuse meted out by his fellow soldiers in the Devon and Dorset Regiment, who had punched him and called him a ‘nigger’.69 In 1997, Private Anthony Evans was awarded £8500 compensation by a court after enduring racial violence which included being forced by white soldiers to get into a bath filled with urine and cleaning fluid so that they could ‘scrub him white’.70 Efforts by the army in the ensuing 10 years to recruit more ethnic minorities into military service have had limited success71 perhaps due to the stubborn continuation of these and other practices. Covert racial violence Racial violence is covert when it remains hidden, either because the victim suffers in silence or the violence pretends to be something else: covert personal racial violence can parade as risk avoidance rather than racism. It refers to direct and indirect racially abusive treatment between colleagues, employees and consumers where the aggression is muted. The confrontations can be direct, as in the case of racial abuse and harassment, or indirect, as with procedures and rules. They can occur in public or private spaces, but wherever they occur, they are more surreptitious, invisible to the unenquiring mind and uninformed eye. It never involves open physical altercations. Unlike overt racial violence, which tends to be impersonal, the victim and the perpetrator may be known to each other. The covertness of this form of racial violence lies in the fact that it tends to be invisible, only becoming seen if and when a pattern is established. The most insidious type remains undocumented and at the level of anecdotes.72 Such covert racial violence is hard enough for those subject to them to identify, but impossible for those not subject to them to apprehend. Covert institutional racial violence highlights aggression hidden in procedures, for example school exclusions or recruitment and academic tenure procedures. As a corollary to the reduction of overt institutional racial violence, the occurrence

69 70 71 72

Fairhall (1997). Cairns (1997). Ishaq & Hussain (2002); Law (2002: 124–7). Ladson-Billings (1998: 16).

Understanding racial violence 39 of ‘quiet’ institutional violence has risen. A huge step forward was made in relation to recognition of this type of violence as a result of the racist murder of black Londoner Stephen Lawrence73 in 1993. The inefficient police response gave rise to a public inquiry and the MacPherson Report, which gave the official name of ‘institutional racism’ to covert institutional racial violence.74 Institutional racism is not a new idea: it was discussed in 1967 by two black activists, Stokely Carmichael and Charles Hamilton.75 However, recognition of this has not been replicated in other parts of Europe where racist attitudes continue to permeate society on both the individual and institutional level, covertly or overtly. The MacPherson Report defined it as: The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.76 Institutional racism was seen to be a part of the ‘ethos or culture’ of an organisation, which thrived as ‘a corrosive disease’ in the absence of recognition and action to address it. It was identified in relation to not only the Metropolitan Police but also other agencies dealing with housing and education.77 As will be seen later, there is evidence that this is indeed the case in the educational system and the health service. Personal Covert personal racial violence will parade as risk avoidance rather than racism. Take the fashion and leisure industries, for example, where business reasons are often given to justify racial violence. It is well known that racism is endemic in the world of modelling – agency managers refer to black models as ‘niggers’ and exclude them from opportunities.78 This has remained unchallenged save for a few high profile incidents, such as when the editor of Vogue America cancelled the front cover spot of top British model Naomi Campbell and featured a white blonde model instead. However, after complaining, Ms Campbell was rescheduled to appear on the cover of a subsequent edition.79

73 74 75 76 77 78 79

Cathcart (1999). MacPherson Report (1999). Carmichael & Hamilton (1967: 20–21). MacPherson Report (1999: para 6.34). MacPherson Report (1999: para 6.54). Law (2002: 128). Bradberry (1996).

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Covert racial violence often masquerades as a risk evaluation. Thus a shop assistant who refuses to open the door to an African American customer is making a choice based on risk rather than race,80 as are managers who refuse to hire black women because of their hairstyles: a student in Washington DC was told that the company ‘image’ policy of a restaurant chain meant that she could only be hired after she removed her ‘non-standard’ hair braids,81 a style very popular with black women all over the world. A similar issue arose in Germany. The Labour Court in Berlin had to consider the dismissal of a student from her job as a waitress at a top hotel in Berlin due to her ‘non-average European appearance’, in particular, her braided hair. The student of Burundian origin was sent by an agency as temporary help to the Hotel Adlon. On the first day, soon after being given reception duties, she was put to work in the kitchen. On the second day, she was also put to work in the kitchen, despite a stark shortage of serving staff. On the third day, the contract was terminated because of her hairstyle. The claim was presented as an injury to the expression of the personality and human dignity, but was ultimately dropped with no settlement being reached. Very rarely is race now explicitly given as the reason for refusal to serve. In 2004 a black Berliner entered a pub in the fashionable Berlin suburb of Kreuzberg. He attempted to order a beer, but was told that a private party was taking place that evening and asked to leave. Having confirmed with guests outside that this was not the case, he returned to the bar to complain about the treatment he had received. He was again told to leave. The police were called and rather than support him, the officer confirmed the right of the pub to decide who to serve. A complaint of racial discrimination was brought before the local court, who fined the female bartender 300 € even though the judge suspected she was acting on the instructions of the owner: many guests stated that foreigners were never served in the pub.82 Racial profiling is an emerging form of covert racial violence.83 Carl Josephs, a black driver from the Midlands, was stopped by police 34 times in 2 years, for no apparent reason. A complaint to the Independent Police Complaints Commission yielded the conclusion of no evidence of racial bias and a recommendation that police should monitor the ethnic identity of people subject to vehicle stops under the road traffic acts.84 Racial violence of this type, known as ‘driving while black’,85 is so common in the United States that in 1998 a Traffic Stops Statistics Study Act was presented to the Senate.86 The Act would require the US attorney

80 81 82 83 84 85 86

Williams (1997: 44–5). The policy was reversed after discussions with the press. Edney (2008). Gehrke & Neller (2006). Landis (2008). http://www.ipcc.gov.uk/news/pr200106_josephsnoracialbias.htm. Accessed 26 February, 2008. Harris (1997). Merida (1999: 26).

Understanding racial violence 41 general to conduct a study of stops by law enforcement agencies for alleged traffic violations and to report its findings to Congress after 2 years.87 Profiling does not only occur in relation to vehicle stops. In December 1992 an African American woman, Rosalind LeCraft was stopped by a police officer when disembarking from a train at Valladolid in Spain with her husband and son. He asked to see her identity card. No other passenger was stopped and when challenged, the officer replied that he was obliged to: [C]heck the identity of persons who ‘looked like her’. When the Applicant’s husband asked what the expression ‘like her’ signified, the police officer answered, ‘like her’, while pointing at the Applicant, adding that ‘many of them are illegal immigrants’. The officer further explained that, in carrying out the identity check, he was obeying an order of the Ministry of the Interior that called on National Police officers to conduct identity checks, in particular, of ‘persons of color’.88 After unsuccessfully pursuing this issue through the Spanish national courts for 9 years, a petition has now been submitted to the United Nations Human Rights Committee. A decision is awaited. The most insidious form of covert personal racial violence is the innocuous ‘microaggression’. Microagression refers to ‘subtle, stunning, often automatic, and nonverbal exchanges which are “put downs” of blacks by offenders’.89 Davis describes them as ‘automatic acts of disregard that stem from unconscious attitudes of white superiority and constitute a verification of black inferiority’,90 such as the confident assumption that a black woman academic ‘dressed for success’ sitting in the VIP lounge of a top hotel is a waitress.91 These subtle insults can also be conveyed non-verbally and visually: the depiction on television of dependent and subservient blacks, in contrast to whites who dispense knowledge, authority, goods and favours is another example of microagression.92 Many black Germans experienced microaggression in public – such as being spoken to in English or French93 – as well as within their circle of friends and family: Helga Emde refers

87 Ruffin (1999: 3–4). The original bill, H.R 118, was introduced by Congressman John Conyers and has been reintroduced many times, most recently in January 2007 by Representative Sheila Jackson-Lee as H.R. 258: Traffic Stops Along the Border Statistics Study Act of 2007. Available online at http://www.govtrack.us/congress/billtext.xpd?bill=h110-258. Accessed 22 February, 2008. 88 Rosalind Williams Lecraft v Spain, Communication submitted for consideration under the first optional protocol to the international convenant on civil and political rights, 11 September, 2006. 89 Solorzano et al (2000: 60). 90 Davis (1989: 1576). 91 Ladson-Billings (1998: 8). 92 Davis (1989: 1561). 93 Sephocle in Blackshire-Belay (1996: 14).

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to the ‘subtle abuses and hostilities’ she experienced from the friends and family of her white husband.94 Microaggression is common in educational institutions: indeed, for many children the school is the first place in which they encounter racial violence from both other children and their teachers. One very young black German told his mother in tears that he did not want to be ‘braun’ (brown) because at school the older children called him ‘Schokolade’ (chocolate). Another black German child won first prize by eating the most‚ ‘Mohrenkopf’ in a competition at a classmates birthday party. One young black German girl was told by her teacher ‘So wie du aussieht, da kann man ja kein Mathe koennen’ (‘Given the way you look of course you cannot count!’). The statement only came to light when the child started at a new school and enquired of her new teacher how one had to look in order to learn maths.95 A qualitative study, conducted with African Americans students at three majority white universities in the United States, provides some insight into the experience of microaggression in higher education. Within the classroom, microaggression was experienced as a form of invisibility and non-verbalised assumptions about capabilities, resulting in lowered expectations. One student did so well on a math test that he was accused of cheating and made to take the test again, whereupon he improved his performance.96 The students reported that certain environments on campus, such as the business school or engineering department, were experienced as uncomfortable and hostile. For example, on passing a white professor in the science department, the professor remarked ‘Oh, I should have locked the door. My purse is in there.’97 Students avoided using certain services as they were discouraged rather than encouraged to pursue their educational and vocational goals. While a single experience of microaggression may seem harmless, when aggregated, they are not. The accumulation of these mini-assaults can be described as the ‘substance of today’s racism’.98 The students who participated in the survey discussed how such continual everyday slights and intense scrutiny left them feeling tired, insecure and unsure of their abilities. Such experiences are the prelude to the creation of mono-racial spaces on educational campuses where black students give each other the nurture and support withheld from them elsewhere – self-preservation rather than self-segregation.99 These experiences of microaggression on campuses contradict assertions by opponents of affirmative action that the educational environment is neutral and colour blind. The ‘white tree’ in the school ground at Jena High is a further example of non-verbalised

94 95 96 97 98 99

Opitz et al (1992: 105). Massingue (2005: 31–42). Solorzano et al (2000: 66). Solorzano et al (2000: 68). Pierce (1974: 516). Solorzano et al (2000: 70).

Understanding racial violence 43 aggression in educational settings. The tree sparked the events that led to six African American teenagers in the small town of Jena, Louisiana, being charged with attempted murder and conspiracy, and eventual imprisonment.100 Institutional Institutional racial violence provides the context for microaggression to occur. Covert institutional racial violence, or institutional racism, arises in many guises and organisations. It differs from the personal variety because the violence is normalised in practices and procedures, which are uncritically followed, whether they concern financial institutions, exclusion from school, promotions at work or distribution of medication in hospitals. ‘Redlining’ in the financial industry is an example of covert institutional racial violence. Redlining is the practice whereby financial institutions demarcate neighbourhoods within which race plays a part in their decisions to either give loans for homes or the establishment of businesses. Law professor Patricia Williams experienced this when her estate agent discovered that she was African American and not white: both the deposit and interest rate on the house she planned to buy increased.101 A 2006 study by the National Community Reinvestment Coalition showed further evidence of racial bias in investment institutions. They identified a ‘race tax’: 55% of loans to African Americans, 40% of loans to Hispanics and 35% of loans to American Indians were of higher than usual cost, compared to just 23% for whites. Black and Hispanic testers who posed as borrowers were offered costlier, less attrative loans than whites even if their credit and employment status were more attractive.102 Secondary schools are also locations of covert institutional racial violence. In 1997 a report by the African Caribbean Network for Science and Technology revealed that in some cases, black boys were being denied secondary school places due to the fear by headteachers that they would have a negative impact on their ranking in the league tables. The study, conducted in 10 cities across local education authorities, revealed that those few schools which did collect ethnic data used them to aid their positioning in the school league tables.103 Such objectives also influence schools in their decisions to exclude black pupils: black pupils

100 Fears (2007); Gumbel (2007). 101 Williams (1997: 37–9). 102 National Community Reinvestment Coalition, ‘Testimony of John Taylor Before the Oversight and Investigations Subcommittee of the House Financial Services Committee Rooting Out Discrimination in Mortgage Lending: Using HMDA as a Tool for Fair Lending Enforcement’, 25 July 2007. Available online at http://www.house.gov/apps/list/hearing/financialsvcs_dem/ httaylor072507.pdf. Accessed 9 December 2008. See also Editorial, New York Times, 9 December 2008. Available online at http://www.nytimes.com/2008/12/09/opinion/09tue1. html?_r=1&ei=5070&emc=eta1. Accessed 9 December 2008. 103 William (1996).

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are three times more likely to be excluded than white pupils.104 Excluded pupils will do less well educationally, are more likely to be unemployed after school and more likely to drift into a life of petty crime: in 2003, half of the 400 young people in a young offender institution had been excluded from school. School exclusion has a cumulative effect: there are twice as many black men in prison as at university – black men are the least likely of any group to have a degree. The British government finally recognized the role of institutional racism in education in November 2006, following the identification by the Department for Education and Skills High Level Group on Race Equality of exclusions of black pupils as a priority area for action.105 The report noted, for example, that school staff had low expectations of black pupils and saw them as more threatening than white children who are ‘Goth’ and equally hostile to the academic environment. Covert institutional racial violence has also recently come to light in promotional procedures used in the educational field. Under the Race Relations (Amendment) Act 2000, all public bodies are required to carry out systematic ethnic monitoring and investigate discrepancies in outcomes. In relation to teachers, monitoring of the government performance-based pay rise exercise in 2000 gave rise to the question of discrimination against black and minority ethnic teachers in performance-related pay. The exercise allowed experienced teachers to apply for a £2000 pay rise and, if successful, move to a higher pay scale. Teachers had to complete a form indicating how they met eight professional standards. Judgements were then made by the headteacher as to whether a teacher met all the eight standards. These were verified by an external threshold assessor before the award was granted. Examination of figures on ethnic monitoring released by the Department for Education and Skills (DfES) for the second round of the process revealed that the rate of failure among Bangladeshi, Black African and Chinese teachers was more than twice the average. The National Union of Teachers (NUT) had pressed the DfES to release these figures because non-whites were disproportionately represented in their case workload of appeals. John Bangs, NUT Head of Education, said: ‘These figures are a very deep cause for concern. Our black members feel that they have been discriminated against. There is a duty to investigate racism whether direct or indirect.’ Should the DfES implement its plan to abandon external checks on the heads’ threshold decisions, this will make it harder in future to track and prevent discrimination. Institutional racism has also been identified in the delivery of healthcare services. In 2005, the Department of Health published a report based on the inquiry into the death of Rocky Bennett, who died of asphyxia in 1998 after being

104 Parsons (2008). 105 Parsons et al (2006). Available online at http://www.dfes.gov.uk/exclusions/uploads/RR616. pdf. Accessed May 2007.

Understanding racial violence 45 restrained for almost 30 minutes by five staff members while in a secure mental health unit. An inquest in 2001 ruled that his death had been aggravated by neglect and concluded, using the MacPherson definition, that there was ‘institutional racism in the mental health services’.106 According to the report: ‘Black men tend to be given higher doses of medication than whites and are five times more likely to be detained on locked wards. Black people and people of mixed race are at least three times more likely to be admitted to hospital for mental disorders than whites. They are also far more likely to be referred to mental health services by the police, courts or social services – and to be diagnosed as psychotic and restrained or secluded while in hospital.’ The panel also found that insufficient attention had been paid to Bennett’s cultural, social and religious needs prior to his death and noted with concern the lack of diversity in the workforce caring for him – despite having many black patients, no attempts had been made to hire staff from minority ethnic groups. The report recommended cultural awareness and diversity training for junior and senior managers and clinical staff. The subsequent death of Azrar Ayub in 2004 at a secure unit in Preston in circumstances giving rise to the same concerns suggest little action being taken, despite the government acceptance of the need for the type of training mentioned in the Bennett Report.

Conclusion The separation of discrimination from hatred has been an ‘enduring and fatal rationalisation’, suggesting that a prejudiced society is preferable to a violent society.107 This neat dichotomy may assist legislators, but it does not reflect the experience of racism, whereby the effects of racial discrimination can be as much a violation of the individual and in some cases have longer consequences, as racial hatred. Racism is an assault on both the mind and body. All forms of racial animus can be captured using a broad definition of racial violence that covers discrimination experienced not only as a physical violation but also as a violation of dignity. A broad conception of racial violence widens the impact of racial violence. All manifestations of racial violence have a detrimental impact and it is this detriment that law seeks to address and redress. However, it is not always straightforward to identify a detriment, especially where the racial violence itself is invisible. The marks and scars of overt personal and institutional racial violence might be clear to see but the same cannot be said of covert forms. The impact of covert racial violence goes beyond physical effects and can include psychological, social and material effects, such as mental

106 Department of Health (2005); (2006) ‘Mental health tsar resigns over “scandal” of black patients’, Independent on Sunday, 3 December, p.26. 107 Williams (1991: 61).

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stress, social exclusion and poverty. These may only become apparent after some time. The impact of accumulated microaggression has been described as ‘diminished mortality, augmented morbidity, and flattened confidence’. Solorzano’s research identified the despondency, self-doubt, frustration and isolation it aroused in African American students.108 Williams speaks of the ‘blizzard of rage’109 she felt at the humiliation of being denied entrance to Benetton. Hugel Marshall refers to the need to constantly be alert for the next insult and the permanent tension (‘permanente Anspannung’) which accompanied her daily life.110 It was only in 1974 that Reiprich stopped having nightmares of her schooldays under the Nazis.111 Grace Salvant felt ‘degraded’ by the policy of Ruby Tuesday in Washington, DC.112 The impact of microaggression on a small child cannot be described. In addition, there is a symbolic impact of racial violence, which has both visual and aural dimensions. Racial violence should not be understood as isolated physical and non-physical events, but as acts that attempt by intimidation to erase the public presence of racial minorities. This was the aim of the three nooses at Jena High School: their purpose was to silence the black school community and make them retreat into invisibility, so that they would not be seen, in particular near the ‘white tree’. This intimidation into invisibility is equally a silencing of their voices so that they would also not be heard. Together, this was both a denial of their otherness and a rejection of their right to be different.113 Furthermore, this invisibility and silencing was not limited to the black schoolchildren: it was a message to the complete black community of Jena. This is because acts of racial violence have a collective as well as an individual impact. Although the acts are meted out on individuals, ‘the violence is directed symbolically against the whole group by violating individual members of it’.114 Racist violence oppresses all those who share the same difference and in so doing creates a ‘community of suffering’.115 It says ‘you do not belong here’ to all those with this ‘otherness’. It has an ‘in terrorem’ effect, delivering a message of terror to all members of the victim’s group.116 It can be seen as a ‘metaphorical murder of people who are marginalized by mainstream society’ which ‘boils down to an exclusion that can be felt by the victim as complete annihilation, and understood

108 109 110 111 112 113 114 115 116

Solorzano et al (2000: 69). Williams (1991: 45). Hugel-Marshall (2001: 85). Opitz et al (1992: 62). Edney (2008). Lingis (1987: 18–19). Werbner (1997: 235). Werbner (1997: 242). Iganski (2001).

Understanding racial violence 47 by potential offenders as a call for bloodshed’.117 This annihilation remains in place unless it is publicly reversed by the state authorities. What has been the response of the British and German authorities to racial violence? This will be the focus of the next two chapters, where I will discuss their response to overt and covert racial violence

117 Prum et al (2007: 1).

3

The response to overt racial violence

Introduction The previous chapter demonstrated the rise of overt racial violence across Europe by anti-social movements. This racial violence has peaked at different times in Britain and Germany. After World War II, with the increasing presence of colour in the British population, it was of a more personal and overt nature. The targets of this violence were not only black citizens but also Jews: antiSemitism was a central tenet of groups such as the British Union of Fascists (BUF) led by Oswald Moseley. Such violence was largely absent from Germany following the defeat of the National Socialist system of overt institutional violence but reasserted itself with a vengeance following reunification in 1989. Since then, overt personal racial violence became a regular occurrence, filling the space created by the apathetic political response to the racial thinking gripping German society.1 Its target was all those who looked different, including black, Turkish, Chinese, Vietnamese, and once again Jewish, peoples. In this chapter, I will demonstrate where and explain why this personal and institutional overt racial violence was a catalyst for legal innovation. The response in Germany and Britain varied greatly: in Britain it has twice led directly to recognition and definition (1965 and 2000) but in Germany the direct response was political denial. This denial ultimately led, however, to legal definition in Germany. The chapter will begin with a discussion of the international response to overt racial violence, and then explain how such violence influenced domestic developments in Britain and Germany. In both Germany and Britain, the response was influenced by legal developments at the international and regional levels: the British legal response (the Race Relations Act 1965) was designed in the shadow of the creation of the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) at the UN and the German response by the European Union Race Directive 2000/43. There was intense resistance from Britain to the legal developments at the UN right up until the time it signed the ICERD. However, the British

1 Lowles & Silver (1998: 49).

Response to overt racial violence 49 approach changed dramatically in 1963. Overt racial violence was a key catalyst, in particular its move from the personal to the institutional: from being manifested on the streets to receiving credence and respectability in mainstream politics. This gave rise to the recognition of the need to create a new national law against racial discrimination. Germany also showed no great enthusiasm in relation to implementation of the Race Directive. Neither developments at the EU level, nor similar racial violence stirred the legislator in Germany. There was very little response and this focused more on repressing the victims than protecting them. Further action, taken half-heartedly primarily to deflect negative headlines in the international media, has, however, ultimately had the effect that Kohl sought to avoid: in 2005, Germany finally introduced an accessible law prohibiting racial discrimination.

The international response to overt racial violence after World War II The stance of the international community towards overt racial violence changed dramatically and conclusively after World War II. National Socialism made a continued tolerance of the ideology of biological superiority and inferiority impossible for many involved with the United Nations. The rejection of these ideas was the impetus for the development of legal instruments to develop a new international morality. Just over a year after the end of the war in Europe, on April 29 1946, the Economic and Social Council of the United Nations held the first meeting of its Commission on Human Rights (CHR). The objective of the CHR was to discover the basis for a fundamental declaration on human rights that would be acceptable to all current members of the United Nations and those that might subsequently seek admission into the international community.2 Two drafts for this declaration had already been presented, the first a draft ‘Declaration on Human Rights’3 from the Cuban Delegation to the General Assembly and the second a ‘Statement of Essential Human Rights’4 from the Panamanian delegation. Both drafts shared a number of common concerns, including the right to equal protection and equality before the law without distinction as to race.5 At its ninth meeting, the CHR agreed to recommend to the Economic and Social Council that the full Commission should draft an International Bill of Rights as soon as possible, to be circulated among United Nations’ governments for suggestions. The CHR created a subcommission on the prevention of discrimination and protection of minorities (SPDPM) which became the driving force behind much

2 3 4 5

UN E/HR/6 1 May 1946. UN E/HR/1 22 April 1946. UN E/HR/3 26 April 1946. The Cuban draft listed race, religion, colour, class or sex; the Panamanian mentioned race, religion, sex ‘or any other reason’.

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of the work at the UN on racial discrimination. In 1949 it took on the task of systematically studying the ‘main types of discrimination which impede the equal enjoyment by all of human rights and fundamental freedoms and the causes of such discrimination’.6 During its sixth session, the SPDPM adopted a resolution calling for the collection of ‘information on the legislative and judicial practices of various countries with regard to measures of the cessation of any advocacy of national, racial or religious hostility’.7 The study, completed in 1955, made use of texts of constitutions, statutes and administrative instruments and preliminary studies on legislative and judicial practice were prepared for 67 countries including the UK and Germany (both the FRG and the BRD).8 By January 1956, the year before the creation of the European Economic Community (EEC), the subcommission was preparing a draft resolution to undertake a study of discrimination in the field of employment and occupation.9 The delegation of (then) Czechoslovakia presented the SPDPM with a draft resolution on manifestations of racial and national hatred and religious and racial prejudice.10 The strongest support came from the newly independent countries in Africa and Asia, South America and eastern Europe, whose memory of such hatred and prejudice was the keenest. Adopted unanimously in the third committee, with just three abstentions,11 the resolution condemned all manifestations of racial and national hatred as violations of the UN Charter and the Declaration of Human Rights and called on the governments of all states to take action to prevent this revival.12 The SPDPM decided to keep this issue at the forefront of its agenda. The CHR unanimously adopted an amended version of this resolution in March 1961.13 It was subsequently adopted by the Economic and Social Council in the 16th session. The Council recommended that the General Assembly should, inter alia: [C]all upon the Governments of all States to take all necessary steps to rescind discriminatory laws which have the effect of creating and perpetuating racial prejudice and national and religious intolerance wherever they still existed,

6 UN E/EN.4/Sub.2/40/Rev.1 7 June 1949 ‘United Nations – Commission on Human Rights (Subcommission on preventing discrimination and the protection of minorities), The Main Types and Causes of Discrimination (Memorandum submitted by the Secretary General, New York. 7 UN E/CN.4/Sub.2/172, 9 November 1955. 8 UN E/CN.4/Sub.2/172, p.20. 9 E/CN.4/Sub.2/176/Rev.1 4 January 1956. The international instruments already adopted included ILO Convention No. 111 and Recommendation No. 111 on racial discrimination in employment and occupation (adopted on 25 June 1958). UN E/CN.4/Sub.2/234, 29 November 1963, 16th Session, Annex. 10 UN A/4615 Report of the Economic and Social Council, 6 December 1960–1961, 15th Session. 11 China, Ethiopia and the Union of South Africa. UN Document A/C3/SR999, p.85, paragraphs 4–8. 12 Appendix, UN A/C.3/L.848/Rev.2. 13 UN E/3456 Commission on Human Rights, 20 February 1961–17 March 1961, Report of the 17th Session, 14–17.

Response to overt racial violence 51 to adopt legislation if necessary for prohibiting such discrimination, and to take such legislative or other appropriate measures to combat such prejudice and intolerance.14 The seeds of the Declaration on the Elimination of All Forms of Racial Discrimination were sewn in this call. The resolution was again discussed in the General Assembly. Opening the general debate, the Israeli delegate noted the ‘strange paradox of an age in which man could release the vast energy of the atom but could not exorcise from the human heart the demons of hatred, envy and greed that led one group to exploit, ill treat or even wipe out another’. He recalled not only the Jewish victims of the Nazi regime, who comprised about half of the 12 million civilians who had been murdered, but also ‘the Slav peoples, to be exterminated or turned into slaves, and the Negroes who had been considered sub-human’ during the Nazi promotion of racial supremacy doctrines.15 The ensuing debate proved to be so controversial that eight meetings were devoted to the item instead of the allotted three.16 The controversy was also due to the other resolution under consideration: a convention on the elimination of racial discrimination. There was disagreement on whether the legal measures suggested in this document were appropriate: some delegations felt that a multilateral juridical instrument would be of undoubted value17 but others, including the UK18 (led by Clement Attlee) and France, did not see such measures as the way forward.19 Eventually, however, both resolutions were adopted unanimously: by 20 November 1963, the General Assembly had adopted Resolution 1904 (XVIII) proclaiming the United Nations Declaration on the Elimination of all Forms of Racial Discrimination and Resolution 1906 (XVIII) on the preparation of a draft International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The draft Declaration and Convention were to be prepared by the CHR20 for submission to the Assembly by, respectively, its 18th and 19th meetings.21 Proposals on the draft convention were submitted by (then) Czechoslovakia, to which the governments of Honduras, Madagascar, Nigeria, Trinidad and Tobago

14 Resolution 826 B (XXXII) UN A/4820 Report of the Economic and Social Council, 6 August 1960–4 August 1961, 16th Session, Supplement No. 3. 15 UN Document A/C.3/SR1165, p.156, paragraphs 8–9. 16 UN Document A/C.3/L980 Work Programme of the Third Committee, 28 September 1962, 17th Session. 17 For example Venuezuela (A/C.3/SR1165, para 45), Romania (A/C.3/SR1166, para 18) and Greece (UN Document A/C.3/SR1167, paragraph 35). 18 UN Document A/C.3/SR1165, paragraphs 37–42. 19 UN Document A/C.3/SR1167, paragraph 3–10. 20 UN Document A/PV/1187 7 December 1962, p.1044, paragraph 41. 21 UN A/5503 Report of the Economic and Social Council 4 August 1962–2 August 1963, 18th Session, Supplement No. 3, p.73.

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and the UK attached statements of support.22 Another joint proposal was submitted by the delegations of the US, UK and the USSR and Poland. The SPDPM devoted 21 of its 27 plenary meetings in January 1964 to the draft convention. Observers at the sessions included representatives of the specialised agencies as well as 37 non-governmental organisations.23 The draft Convention defined racial discrimination as ‘any distinction, exclusion, restriction or preference based on race, colour, national or ethnic origin which has the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’.24 State signatories to the convention were, for example, to be called on to remove racial discrimination from public life. Under Article 2.1(a) each state party was to undertake to ‘engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation’.25 Article 2.1(c) called for each state party to ‘take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists’. Article 4 required signatories to condemn all propaganda and organisations based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempted to justify or promote racial hatred and discrimination in any form. Signatories were also to immediately adopt legal measures to eradicate incitement to and acts of racial discrimination. Two broad camps emerged: on the one side were those who supported a convention that built on and further entrenched the principles in the declaration and, on the other, those who opposed the creation of any obligations going beyond these principles.26 The UK fell into the latter camp: a number of the proposed provisions were problematic: Article 2.1(a) for example, was seen as potentially troublesome because it would require the government to impose legal obligations that would affect the constitutional relations of central and local government and public authorities. Article 2.1(c) presented similar difficulties: again, legislation would be required if other means to end discrimination failed. The former group prevailed and the text of the ICERD submitted by the SPDPM contained far reaching provisions: Article 4 criminalised the promotion of and incitement to racial hatred; Article 5 protected the right to employment and to join trade unions and furthermore Article 6 provided for the establishment

22 UN A/C.3/L.1010; Note by Secretary General E/CN.4/Sub.2/234 29 November 1963, 16th Session. 23 UN E/CN.4/873 11 February 1964, Report of the 16th Session, pp.6–8. 24 Draft United Nations Convention on the Elimination of Racial Discrimination. PRO Document HO 376/3. 25 International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195. Entered into force 4 January 1969. 26 See UN E/CN.4/Sub.2/SR.407–427.

Response to overt racial violence 53 of independent tribunals and the provision of reparation for damages. An annex created a ‘Good Offices and Conciliation Committee’ to oversee implementation. This became the Committee on the Elimination of Racial Discrimination (CERD), the first body created by the UN to monitor and review actions by states to fulfil their obligations under a specific human rights agreement.27 The ICERD was unanimously adopted by the General Assembly28 and opened for signature on 21 December 1965. By 1969 a total of 27 states had ratified it, bringing it into force. Both the UK and Germany were among these initial signatories. The convention has since been ratified by 128 states: it is the oldest and most widely ratified United Nations human rights convention.29

The national response to overt racial violence The response to overt racial violence in Great Britain The concept of discrimination did not exist in English law prior to 1965. It was seen as a radical departure from established legal tradition to incorporate it. Under the common law, before the making of the first Race Relations Act 1965, people could discriminate against others on the grounds of colour, race, nationality or ethnicity to their hearts content. This ‘unbridled capacity to discriminate’ or treat people differently was the ‘mischief and defect for which the common law did not provide’.30 A few cases concerning racial discrimination had been successful before the courts,31 but even the most creative adjudication could not develop the common law to provide an appropriate remedy for the most common forms of discrimination arising in the areas of accommodation or employment.32 It was to remedy this situation that certain acts of discrimination were made unlawful. The development of the ICERD was not the first time that the British government had discussed race and law. In 1951, MP George Sorensen had proposed a ‘colour bar bill’, which, although unsuccessful, had prompted the Foreign Office

27 Similar committees to monitor implementation and effectiveness have been established under the International Covenant on Human Rights (the Human Rights Committee), the Convention on the Elimination of Discrimination Against Women (CEDAW), the Convention Against Torture, the Convention on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child. 28 UN Resolution 2106 (XX) A/5921 16 June 1965, p.41. 29 United Nations High Commissioner for Human Rights: http://www.unhcr.ch/html/menu6/2/fs12. htm. 30 Lord Simon of Glaisdale, Applin v Race Relations Board [1974] All ER 73. 31 Scala Ballroom (Wolverhampton) Ltd v Ratcliffe [1958] 1 WLR 1057; [1958] 3 All E.R. 220; 102 SJ 758; Constantine v. Imperial Hotels Ltd. [1944] 1 K.B. 693 (Lester and Bindman, Chapter 1) 32 Lester & Bindman (1972: 25).

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to review its obligations under international agreements which it had signed.33 In the 10 years from 1956 to 1966, Lord Fenner Brockway also presented colour bar bills to the British Parliament. Brockway, who through his Congress of Peoples against Imperialism34 was also closely involved with independence movements in the colonies and pan-Africanists in the UK, made nine separate attempts to introduce legislation making racial discrimination a criminal offence in public places, hotels, common lodging houses, public houses, entertainment restaurants and dance halls. Punishment for this crime was a maximum fine of £25 or, where applicable, withdrawal of licences or registration.35 The Brockway Bill sought to address the impact of racial violence in Britain on relationships with the colonies.36 His original measure included employment in firms with more than 50 employees and promotion, but this provision was later withdrawn37 due to trade union opposition.38 Private residences were also excluded: Brockway regarded that it went ‘beyond the sphere of legislation . . . to say that persons should not have the right to decide who should enter their own homes as lodgers’.39 Legislation was justified and necessary only in public spheres, particularly those dependent on licences from public authorities, such as hotels, cafes and restaurants, dance and concert halls, leasing and employment. His bills were consistently rejected as the wrong way to tackle the problem.40 None ever reached a second reading. The government, aside from a general reluctance not to introduce the concept of racial discrimination into English law, was particularly anxious not to tread on the common law right of employers to hire as they saw fit, save for a few exceptions protecting ex-servicemen and disabled persons.41 This also led to caution in relation to the new UN Convention. It was agreed across these departments that legislation on racial discrimination should be avoided. The UK delegate was advised to be careful not to commit the government in any way to eventual ratification of a convention because: 1. It is uncertain whether we shall be able to accede to such an instrument; judging from the extreme language which has already been used in the debates

33 Letter dated 4 January 1951 from the Foreign Office in reply to a query from Miss E. J. Emery of the Commonwealth Relations Committee pertaining to Sorenson’s Colour Bar Bill. PRO Document FO 371/88835. 34 Goldsworthy (1971: 257–8). 35 Abbott (1971: 239). 36 Hansard, 1955–56, Vol. 554, 11–22 June: 249/50. 37 Brockway (1967: 81–2, footnote). 38 Abbott (1971: 239). 39 Hansard, 1955–56, Vol. 554, 11–22 June: 248. 40 Hansard, 1956–57, Vols 569: 1425–1438 & Vol 570: 1602–1608. 41 PRO File LAB 8/3070, Letter 14.4.65

Response to overt racial violence 55 on the declaration the convention is liable to contain certain unacceptable provisions; and 2. we have reservations about the effectiveness of legislation as a means of eliminating racial discrimination.42 In addition, the government sought to protect its status as a colonial power by preventing the removal of ‘the distinction between racial discrimination and colonialism’.43 Yet, within a year there was both recognition and definition: in 1965 a national law was passed prohibiting racial discrimination in public places. A key catalyst for this reversal was personal and institutional overt racial violence at the national level. On the streets of Britain, hate speech was being preached from soap boxes at Speakers’ Corner in Hyde Park and at right wing meetings in Brixton, Bethnal Green, Earls Court and Trafalgar Square, the last resulting in a high profile court case, Jordan v Burgoyne.44 On 1 July 1962 a public meeting of 5000 people took place in Trafalgar Square. Confrontation was expected: the speakers’ platform was divided from the crowd by a line of police. A large group standing near the speakers’ platform contained many Jews, supporters of left wing organisations such as the Campaign for Nuclear Disarmament and communists who intended to prevent the meeting. During a speech Colin Jordan, leader of the National Socialist Movement45 made inflammatory statements, claiming that ‘Hitler was right’ and that Jews were a ‘poisonous maggot feeding off a body in an advanced state of decay’.46 A riot ensued as the crowd surged towards the platform. The police arrested Jordan and he was charged with using insulting words whereby a breach of the peace was likely to be occasioned, contrary to Section 5 of the Public Order Act 1936. The prosecution was successful and Jordan was convicted and sentenced to 2 months in prison.47 A similar meeting held later that same month in Trafalgar Square organised by Oswald Mosley’s48 Union Movement also ended in violence and 56 arrests. This racial violence by anti-social movements was largely unchallenged by the Conservative administration. On the contrary, xenophobic sentiments seemed to find official sanction: Conservative MP Cyril Osbourne, who had made

42 PRO File LAB 13/1936, Note from the Foreign Office on the Draft Declaration Against All Forms of Racial Discrimination, dated 23 September 1963. 43 PRO File LAB 13/1936, Note from the Foreign Office on the Draft Declaration Against All Forms of Racial Discrimination, dated 23 September 1963. 44 Jordan v Burgoyne [1963] 2 All ER 225; [1963] 2 QB 744; [1963] 2 WLR 1045. 45 The National Socialist Movement was formed when Jordan was expelled from the British National Party. The BNP was created in 1960 following an amalgamation of the National Labour Party and the White Defence League (Bean 1995: 141). 46 Bean (1995: 157). 47 Jordan then went on to win on appeal. 48 Sir Oswald Mosley was at one point seen as a potential prime minister for the Labour Party. Due to frustration with the economic policies he formed the British Union of Fascists in 1931, making him a ‘left fascist’. Weiss (1967: 79).

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black immigration into a major public issue, was knighted in the Queen’s Birthday Honours of 1961.49 In addition, draft plans were laid out for the introduction of entry controls. The immediate legal response of the Conservative administration to the racial violence was therefore to tighten immigration controls rather than tackle the violence itself: it passed the first Commonwealth Immigration Act in 1962. This racial violence on the streets became institutional when it penetrated mainstream politics. The first indication was the electoral success of the British National Party (BNP) in the Southall council elections in 1963. This emboldened mainstream politicians to adopt the rhetoric of the extreme right. The Labour MP for Southall, George Pargiter, called for a total stop on immigration to Southall. Members of the Conservative Party went even further, openly calling for black people to be kept out of Britain. Then in 1964, during the Smethwick by-elections Peter Griffiths, a hitherto unknown Tory candidate, fought the election on an openly racist manifesto, promising to end immigration and repatriate colonial citizens. The logo which came to be associated with his electoral campaign was ‘If you want a nigger as a neighbour, vote Liberal or Labour.’50 By parading racism as nationalism he appealed to those who agreed with Colin Jordan but neither appreciated his fascist paramilitarism nor identified with his disrespect for democracy. Griffiths’ election campaign therefore provided much needed political respectability for racism. Voters could support his racist message and the liberal democratic system at the same time.51 Labour lost the seat at Smethwick.52 Although Griffiths’ success was short lived, the tenor of his electoral victory served as a wake-up call to the Labour opposition. A related incident served to keep the alarm bells ringing. The Labour candidate whom Griffiths defeated, Patrick Gordon-Walker, was a senior figure within the Labour Party and the Foreign Secretary designate. Gordon-Walker’s returns were abysmal, yet it was crucial to find a seat for him in parliament. Eventually a presumably safe seat was ‘found’ by removing the highly popular longstanding MP for Leyton, Reginald Sorenson, to the House of Lords. This made a by-election possible, which it was expected that Gordon-Walker would win. Unfortunately, he didn’t: his meetings were heckled by the BNP and many resulted in violence between left and right wing supporters. Many Labour supporters defected: the existing Labour majority of 8000 went to the conservative candidate Ronald Buxton. These two incidents – Griffiths’ victory and Patrick Gordon-Walker’s double

49 Schwarz (2003: 283). 50 Griffiths (1966); Prem (1966: 94). 51 Just over 10 years later Margaret Thatcher repeated this strategy with more far reaching consequences when she fished for racist votes in her 1979 pre-election speech. Her anti-immigration tirade successfully won the estimated 20,000 votes that the National Front had been nurturing over that decade, effectively drawing the racism of the right wing into the mainstream political debating arena. Harris (1990: 35). 52 Fryer (1984: 382).

Response to overt racial violence 57 defeat – startled many people, especially the liberal political wing within the Labour Party. Taken together they convinced the Home Secretary, Frank Soskice, that something had to be done about racial animus.53 A promise54 subsequently appeared in Labour’s 1964 general election manifesto, The New Britain, that a Labour government would legislate against racial discrimination and incitement in public places, and give special help to local authorities in areas where Commonwealth citizens had settled.55 Harold Wilson stated: ‘If a Labour government came to power and Mr Fenner Brockway’s Bill had not by then reached the statute-book, Labour would take the Bill over, with whatever minor amendment that may be necessary, and turn it into a Government measure and legislate it.’56 This undertaking was strengthened in a ‘law reform’ speech to the Society of Labour Lawyers a few months later, where Wilson ‘pledged to introduce legislation against racial incitement and discrimination’. Labour managed to win the general election in October that year with a bare majority of four. The new government’s proposals were laid out in the Queen’s Speech, delivered on 3 November. It was stated that the government ‘will take action against racial discrimination and promote full integration into the community of immigrants who have come here from the Commonwealth’. The Home Secretary made further statements during the debate on the Expiring Laws Continuance Bill where he said that ‘an essential measure is legislation to prevent discrimination against coloured persons in public places. It is our intention to introduce that legislation’ and ‘If we can find the necessary definitions – they are extremely difficult – we would add to that legislation against incitement.’57 These pledges did not remove the hesitancy and uncertainty about the radical path along which English law was being taken. There was a definite regret on the part of the Home Secretary Frank Soskice that the day had come for special laws to be passed to protect people on the grounds of their race or colour: We have hitherto never thought it necessary in our legislation to embody special protection for individuals on the ground of their race, colour and so on. To have to do so is in a sense a confession of weakness and is to be regretted. The real reason for doing so is the presence of a substantial number

53 Bean (1995: 171–4). 54 Rose suggests that the policy was more a hurried response to Conservative proposals than the result of lengthy deliberations on the topic. Rose (1969: 224). 55 ‘Race Relations: Working Party Report’, Labour Party (July 1967: 8). 56 PRO File HO 376/3. Study group on Commonwealth Immigrants Racial Discrimination in Public Places and Incitement. Memorandum concerning the draft Bill prepared by the Committee on Racial Discrimination of the Society of Labour Lawyers. 57 Hansard, 1964–65, Vol. 702, 16–27 November: 287–8.

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Making anti-racial discrimination law of coloured immigrants and the need to make certain that they are fully integrated into the community.58

In the same memo, Soskice proposed a ‘package deal’ which formally linked immigration control to integration measures. The measures were designed, first, to tighten immigration and, second, ‘to integrate the coloured immigrants in a genuine sense into the community as first and not second class citizens’. A new bill would contain administrative measures to strengthen the existing immigration rules and give the Home Secretary additional powers to curb evasion of these controls. In addition, this new bill included a provision prohibiting ‘what may be loosely described as discrimination against persons on the ground of their colour and perhaps race or origin in public places’.59 The ‘package’ also contained a further bill to amend the Public Order Act 1936 by prohibiting racial incitement. When presented to the house in the November debate on the Expiring Laws Continuance Bill, it received broad acceptance as a legal way to deal with an urgent social problem. As a result of the link with extreme right wing racial violence, there was little intention in 1964 to draft a broad reaching bill which would tackle discrimination in one of the worst areas: employment. The concern was limited to public spaces and thus the reach of the legislation was of ‘the narrowest scope possible’, confined to discrimination in public places such as hotels, restaurants and public dance halls. There was no intention for it to cover employment practices by any employer, public or private or by employment agencies’.60 Soskice had concluded that legislation against some forms of overt discrimination would be of limited practical value – not only would it ‘involve unjustifiable limitations on the rights of occupiers and freedom of contract and would prejudice the preservation of order in places of public entertainment or refreshment’ but it furthermore ‘could not be very effective because it is easy to practice but difficult to prove covert discrimination’.61 It was also thought that the prohibition would not cover race but only colour. This idea was dropped for a number of reasons, perhaps not least of which was the concern of conveying a negative impression of the British attitude towards racial discrimination to other nations: I have given careful consideration to the scope of the proposed new offence. While discrimination, in contrast with incitement, is in practice confined largely to colour, there are difficulties about so confining the offence. Briefly, these are the need to protect such communities as the Cypriots and Maltese, who could not be regarded as coloured although liable to

58 59 60 61

PRO File HO 376/68, Memo by the Home Secretary, 6 January 1965. PRO File HO 376/68, Memo by the Home Secretary, 6 January 1965. PRO File LAB 13/1936, Memo by the Home Secretary, 6 January 1965. PRO File HO 376/68, Memo from the Home Secretary, 25 November 1964.

Response to overt racial violence 59 discriminatory practices in certain areas; the practice followed by certain publicans and restauranters of admitting say Africans while excluding Pakistanis; the practice in some areas under which coloured people seek to exclude white people; and the content of measures designed to eliminate racial discrimination at present undergoing examination in the United Nations. For these reasons I have come to the conclusion that the provisions on discrimination cannot be confined to the single issue of colour but should conform to those on incitement by taking account also of race.62 Agreement was finally reached towards the end of 1965. The government had also decided to sign the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) on 22 September, just a few weeks before passage of the Race Relations Bill,63 although it was generally agreed that ratification should await the outcome of deliberations arising from the first annual report of the Race Relations Board and the PEP report.64 The arguments for signature and ratification were strong: the elimination of racial discrimination had become a major preoccupation of the United Nations – given the continuing situations in South Africa and Rhodesia – and ratification was highly recommended in order to maintain the reputation the UK had striven to acquire in the United Nations.65 A carefully worded statement was prepared explaining the UK’s decision to sign as a ‘natural consequence’ of internal developments: I wish to announce that, as the British Foreign Secretary has already informed the Assembly, Her Majesty’s Government have decided that the United Kingdom should sign the International Convention on the Elimination of All Forms of Racial Discrimination and this will be done at an early opportunity. This decision is an indication of the importance attached by my Government to the elimination of one of the most dangerous evils present in the contemporary world situation – the deprivation of human rights because of race, colour, descent or national or ethnic origin. Internationally and domestically we regard the promotion of racial equality as a task of the highest priority. My country approaches this problem with the special experience derived from our efforts to maintain racial harmony within our own borders . . . Our decision to sign the Convention on Racial Discrimination is a natural consequence of those policies.66

62 63 64 65

PRO File HO 376/68, Memo from the Home Secretary, 25 November 1964. PRO LAB 13/2421. PRO: T227/2534. PRO: LAB 13/2421 report of the Human Rights Working Group on the Ability of the UK to accept ICERD. 66 PRO: LAB 13/2421.

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The Race Relations Act 1965 (RRA 1965) On 8 November 1965 the first Race Relations Act passed into English law.67 The Act was more a statement of policy than a substantial prohibition. It was essentially a symbolic measure, which sought to secure the peace in public places rather than tackle covert racial violence. This is perhaps not surprising given its origins – but for the confrontation on the streets and at the polling booths with the extreme right wing, the Race Relations Act 1965 would not have come into being. Discrimination was defined in Section 1(3) as the refusal or neglect to afford a person ‘access to the place in question, or any facilities or services available there, in the like manner and on the like terms in and on which such access, facilities or services are available to other members of the public resorting thereto’. It made behaviour unlawful which discriminated on the grounds of colour, race or ethnic or national origins against persons seeking access to facilities or services68 in any place of public resort, including hotels, restaurants, cafes, pubs, theatres, cinemas, dance halls, sports grounds, swimming pools and other places of public entertainment or recreation. This also included public transport.69 Racially restrictive covenants, which had often been challenged before the courts,70 were prohibited by Section 5. The troublesome area of employment was not covered by the Act. The Public Order Act 1936 was used to deal with racial incitement. In addition to making incitement to racial discrimination a new public order offence in Section 6, Section 7 of the new Race Relations Act 1965 introduced an amendment to extend the scope of the Public Order Act 1936 to include printed materials and signs. The need to demonstrate intent was, however, maintained.71 Enforcement of the provisions was paternalistic, disempowering individuals: no course of action was possible without the support of the Attorney General in England and Wales and the Lord Advocate in Scotland. His consent was required for both prosecutions under Section 6 and for the institution of civil proceedings for an injunction in relation to complaints of discrimination.72 Of the 15 prosecutions initiated under the incitement provisions, successful convictions were rare. In Thorne the action failed due to a legal technicality – the consent of the Attorney General had not been secured. The conviction secured in Britton was quashed due to the interpretation applied to the meaning of ‘distribution’. Only in Malik was

67 68 69 70

Race Relations Act 1965, c. 73. RRA 1965, s 1. RRA 1965, s 2. Meres Will Trusts, Re [1957] WL 17747; Hill v Royal College of Surgeons [1965] 3 WLR 391; [1965] 2 All ER 888; [1965] 109 SJ 577. Lester & Bindman (1972: 65–72). 71 PRO File HO 376/68 Memo, January 1965; RRA 1965 s.6 (7). 72 s 1 (4) RRA 1965. Hepple (1970: 150, 162–7).

Response to overt racial violence 61 the prosecution successful, meaning that the only person convicted under these provisions was a black activist.73 As a tort, the RRA 65 was based on the allocation of fault and dependent on the identification of a perpetrator. The legal construction of racial discrimination was built upon what one person – the ‘perpetrator’ – did to another – the ‘victim’ – rather than the objective conditions (unemployment, lack of housing etc.) endured by those suffering from racial discrimination.74 In order to bring a complaint, the victim therefore had to know that s/he was being discriminated against and who was responsible for this. This then had to be proven. Conciliation was prioritised in the enforcement of the discrimination provisions. A complaint had to be made in the first place to one of the conciliation committees established by the Race Relations Board created in Section 2 RRA 65. It was only on receipt of a complaint that the committees could investigate. In the absence of a prima facie case of discrimination, the complaint was dismissed. Where it was felt that discrimination was likely to have occurred, the committee was under a duty to secure a settlement, at minimum a written assurance against further discrimination. Out of 80 complaints of discrimination, 75 were settled by conciliation under the RRA 1965. The remaining five had to be referred by the conciliation committee, first back to the Race Relations Board, who in turn would refer it to the Advocate General.75 In order to justify court proceedings, the Advocate General had to be sure that there was a ‘course of conduct’ at issue which was likely to continue – a single event of discrimination was not enough. The difficulties of proving this effectively prevented any cases from being brought under the provision prohibiting racial discrimination in public places under the RRA 1965. There was one situation that came very close, but it was dropped due to unsatisfactory evidence. A number of complaints received by the Race Relations Board concerned alleged discrimination in pubs. In 1967, the Race Relations Board was called on to mediate in a case concerning discrimination contrary to Section 1 RRA 65 at the Mechanics Arms of Albert Street in Nottingham. The discrimination was said to date from 14 January 1967 to 15 September 1967. The main plaintiffs were two Caribbean men. Others were involved as evidence was sought for a prosecution. It was subsequently decided not to proceed because although the facts of the case were strong – the plaintiffs had been refused service and one of them had been called a ‘black nigger’ – the evidence of this available for presentation in court to achieve a successful prosecution was neither overwhelming nor satisfactory – service was being obtained, albeit grudgingly, and conflicting

73 Thorne v British Broadcasting Corporation [1967] 2 All ER 1225; R v Britton [1967] 2 QB 51; [1967] 1 All ER 486; R v Malik [1968] 1 All ER 582; [1968] 1 WLR 353. MacDonald (1977: 138). Hepple (1970: 148–50). 74 Freeman (1978). 75 Hepple (1970: 164–6).

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versions of the events were given by the witnesses.76 It could not be proven that there was continuing discrimination and that this discrimination was on the grounds of race or colour rather than bad behaviour. The incident continued with a further attempt to collect evidence in March 1968, when three Antiguan men unconnected with the previous attempts were refused service in the smoking room of the Mechanics Arms. On going into the smoking room, they were ignored and eventually told by the landlady to go into the ‘other bar’. The men stood their ground and were eventually served. Counsel felt that: ‘If it could be proven that they were told to go into the Public Bar, despite the fact that none of them had ever been to the Mechanics Arms before, were properly dressed and sober the Court could indeed conclude that discrimination had taken place and this discrimination was racial’. Following a further complaint to the board, statements were taken and sent to the Advocate General.77 The absence of a clear cut case meant there were no actions for racial discrimination until the Race Relations Act 1968. Legal definition of ‘institutional racism’ Legislators responded again to personal and institutional overt racial violence in 2000, when the murder of black teenager Stephen Lawrence was the trigger for legal recognition of ‘institutional racism’. While this was not a new concept, its definition marked a new phase in British anti-racial discrimination law. On 22 April 1993 a black teenager was knifed to death by a gang of white racists. Stephen Lawrence, an A-level student, bled to death close to a bus stop where he waited for a bus to take him home. Five white youths were arrested by the police and charged for the murder but in July 1993 the Crown Prosecution Service (CPS) dropped the charges against them for lack of evidence. Crucial details had been lost due to the police failure to gather forensic evidence from the scene of the crime and follow early leads to make arrests. Due largely to the persistence of the family and their legal team, in December 1993, an inquest into Stephen’s death began. It was unusual for two reasons. First, it was held before a jury – the family had requested this in the hope, among other things, of stimulating public interest and anger. Second, it was immediately adjourned – the barrister acting for the Lawrences, Michael Mansfield QC, requested an immediate adjournment in order to allow new information to be explored with a view to use in a private prosecution,78 which indeed became

76 PRO File TS 58/904, Instructions to Counsel 7–10. 77 AG v Clifford – Further Opinion, given by R.G Freeman, March 1968. PRO File TS 58/904, Instructions to Counsel 7–10. 78 Cathcart (1999: 192).

Response to overt racial violence 63 necessary when the CPS decided that the evidence was insufficient to pursue a conviction of Stephen’s killers.79 Frustrated by the Metropolitan Police and CPS, the Lawrence family decided to risk a private prosecution against four of the youths. The committal proceedings in 1995 included use of material gathered by the police, such as a video shot on secret surveillance cameras set up by the police, showing the boys using racist language and simulating a knife atack.80 Contrary to the CPS, David Cooper ultimately decided that there was enough evidence to put three of the boys on trial for the murder. The trial began on 17 April 1996 – it collapsed 8 days later on April 25 when the presiding judge, Justice Curtis, ruled that the evidence of Duwayne Brooks was unreliable and excluded it.81 The trial ended with the three boys being found not guilty for the murder of Stephen Lawrence. They could never be tried again for this murder. However, proceedings continued when the inquest that had been adjourned in 1993 finally took place in February 1997. The five suspects were summoned to appear: when they did appear they refused to speak. All invoked the right to silence, refusing to answer any questions, including to confirm their name. It was a strategy that was to set in motion a media campaign that ended with an amendment to the Race Relations Act 1976. Following the jury declaration that Stephen Lawrence had been killed ‘in a completely unprovoked racist attack by five white youths’ the story became front page news in the daily press. The story also generated international attention: even Nelson Mandela intervened to request that the government pursue the matter. The newly elected Labour government of 1997 was responsive to this request: Home Secretary Jack Straw quickly commissioned Sir William MacPherson to lead an enquiry ‘into matters arising from the death of Stephen Lawrence on 22 April 1993 to date, in order particularly to identify the lessons to be learned for the investigation and prosecution of racially motivated crimes’.82 The MacPherson Report defined the phrase ‘institutional racism’: a collective failure of the police as an organisation to serve black people. Just before Home Secretary Jack Straw announced the findings of the inquiry to Parliament, Prime Minister Tony Blair stated that ‘the test of our sincerity as law makers is not how well we can express sympathy with the Lawrence family but how we act to make sure this kind of thing never happens in our country again’. The Labour government took action to ensure this by extending the Race

79 The CPS instead pursued a case against Duwayne Brooks, who was with Stephen when he was killed and called the police to the scene. The case was thrown out of court in December 1994 by Judge Tilling. Brooks then sued the police: Brooks v Commissioner of Police of the Metropolis [2002] EWCA Civ 407. 80 Cathcart (1999: 230–41). 81 Cathcart (1999: 269). 82 Cathcart (1999: 351–7).

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Relations Act 1976 to cover racial discrimination by the police force and public authorities. The Race Relations (Amendment) Act 2000 Two new sections were introduced to the RRA 1976. A new Section19b made it ‘unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination’. This prohibition covers any person whose functions includes activities of a public nature but excludes MPs, members of the national defences, Secret Service, Secret Intelligence Service and government communications, judiciary and immigration authorities. In addition, the existing Section 71 of the Race Relations Act 1976 was replaced with a new text placing a general statutory duty on the police and other public authorities specified in Schedule 1A83 (over 43,000 bodies) to have ‘due regard to the need (a) to eliminate unlawful racial discrimination and (b) to promote equality of opportunity and good race relations between persons of different racial groups’84 while carrying out their functions. This far reaching section placed a positive duty on central government and local authorities, the police force and police authorities, health authorities and educational institutions to take account of racial equality in their daily activities of service provision and policy making. Enforcement was to be via judicial review.85 To further entrench the idea of racial inclusion into institutions, the Race Relations Act 1976 (Statutory Duties) Order 200186 required listed public authorities to develop and publish a ‘race equality scheme’ (RES), laying out their arrangements for ‘assessing and consulting on the likely impact of proposed policies on the promotion of race equality; and monitoring its policies for any adverse impact on the promotion of race equality’.87 These organisations are required to identify functions, existing policies, and proposed policies relevant to the Section 71(1) duty and outline their arrangements for consultation and assessment of the likely impact of proposed policies on the promotion of race equality; monitoring policies for adverse impact on the promotion of race equality; publication of the results of consultation and assessment; enabling public access to information and services provided; and training staff to fulfil the duties

83 RRA 2000, Schedule 1A lists the bodies subject to this duty. They include government ministers (excluding the security and intelligences services), the Scottish Administration and the Welsh National Assembly, the armed forces, the National Health Service in England, Wales and Scotland, local government, educational and housing bodies and the police. This list was extended by the Race Relations Act 1976 (General Statutory Duty) Order 2003 (Statutory Instrument 2003, No. 3007). 84 RRA 2000 s 2 (1) (a) (b). 85 Section 71 was first used in R (on the application of Diana Elias) v Secretary of State for the Defence and CRE (intervenor) [2005] IRLR 788. 86 Statutory Instrument (SI) 2003, No. 3006. 87 SI 2003, No. 3006, s 2 (b) (i–ii).

Response to overt racial violence 65 imposed by S 71(1) and the order.88 The RES was reviewed in May 2007 and will be reviewed every 3 years thereafter. Organisations are also required to monitor the existing workforce by racial group and applications by racial group. Firms of at least 150 FT employees are in addition required to monitor trained personnel by racial group; negative performance appraisals by racial group; grievance and disciplinary procedures by racial group; terminations of employment. The results of this activity are to be published annually.89 The recognition of this institutional racism has resulted in the introduction of a new era of legal protection from racial violence in Britain. Germany, by contrast, has resisted the use of strong laws to tackle racial discrimination. The response to overt racial violence in Germany As shown in Chapter 1, Africans and black Germans were increasingly fired from their jobs and unable to work during the Nazi period. Military defeat was the end of Germany’s extended project of racial violence. The year 1945 became ‘Stunde Null’ – a new beginning. There was a broad unspoken consensus around two issues: first, that there were no more Nazis and, second, there was no more racial violence. Both were wrong. Former Nazis went on to serve in the new administration, enabling a resurgence of German militarism and indoctrination of the young90 which deeply concerned many delegations to the UN. In 1960, based on the recommendation of the SPDPM, the CHR passed a resolution91 condemning these manifestations as violations of the principles embodied in the Universal Declaration of Human Rights, ‘of the human rights of the groups against which they were directed and as a threat to the human rights and fundamental freedoms of all persons’.92 Likewise, racial violence continued, albeit less overtly than before. Nonetheless, following the division of Germany, the new Bundesdeutschland (Federal Republic of Germany) began its life based on the assumption that equality already existed and needed only be maintained. In order to mark this new beginning, a brand new constitution was instituted in 1949. Protection against discrimination was indeed embodied in Article 3. In stark contrast to Britain, there was much formal protection from racial discrimination in German law: the prohibition of discrimination on the grounds of race entrenched in the German constitution (das Grundgesetz)93 was given a more ‘concrete’ form in

88 SI 2003, No. 3006, s 2 (a) & (b). 89 SI 2003, No. 3006, s 4 (a) & (b). 90 Many ex-Nazis and Nazi supporters occupied top posts in the federal and Land governments, and there were over 1000 Hitlerite judges. UN Document A/C3/SR 986th Meeting, 11 October 1960, p.23, paragraph 26. 91 Resolution 6 (XVI) of 16 March 1960. 92 UN A/4415 Reports of the Economic and Social Council 1 August 1959–5 August 1960, 15th Session, Supplement No 3, p.64. 93 Article 3 (3) GG.

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provisions of the civil code (das Bürgerliche Gesetzbuch),94 the Works Council Act (Betriebsverfassungsgesetz)95 and employment regulations for the civil service (das Bundespersonalvertretungsgesetz).96 Legal prohibition of racial discrimination can also be found in the codes covering competition law,97 the Criminal Code (Strafgesetzbuch, or StGB)98 and insurance law (the Insurance Provision Act, or Versicherungsaufsichtsgesetz).99 I focus later on the provisions in the constitutional code, civil law and labour law. Post-World War II legal regulation of racism Article 3 of the German Constitution (GG)100 provides a threefold guarantee of equal treatment before the law. The first paragraph contains a general statement, the Gleichheitssatz, which is used to prevent the arbitrary creation of laws either depriving individuals of universal rights guaranteed to all, or privileging individuals by giving them special rights not available to all. It sets a standard of ‘normal equality’ which encourages state authorities to treat all in the same way.101 The second paragraph contains a more specific statement of equality between men and women, the Gleichberechtigungsgrundsatz, which forbids the state from creating laws which disadvantage either men or women simply because of their sex. This paragraph has received further specification in Paragraphs 611a and b of the civil code.102 The third section, the Differenzierungsverbot, builds on this prohibition.103 Article 3(3) GG mentions race, providing that: ‘No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith or religious or political opinions. No person shall be disfavoured because of disability.’104 Although Article 3(3) GG can be used to tackle discrimination on the basis of colour,105 this has rarely been the case. In fact, in contrast to paragraphs I and II, use of paragraph III in the courts is minimal. It has been invoked in only few cases coming before the Constitutional Court106 and the lower courts. In 2001 the article formed the basis of a case in Schleswig Holstein

94 95 96 97 98 99 100 101 102 103 104 105 106

Articles 138, 242, 826 BGB. Article 75 BetrVG. Articles 67, 105 BPersVG. Article 26 (2) GWB. Articles 130, 130a, 185 StGB. Article 81e VAG. BGBl. P 1. On changes to its construction, see Baer (1999); Gusy (1982); Jarass (1997: 39); Krugmann (1998); Wendt (1988). BGBl. Part I, 24.6.1994, p.1406. Maunz Dürig (2001, Art 3 (3), Rn 17). Translation taken from Basic Law for the Federal Republic of Germany, Press and Information Office of the Federal Government, 1998. Maunz Dürig (2001, Art. 3(3), Rn 21). BVerfGE 3, 225, 240 (BVerwGE 22, 69ff ); BverfGE 8, 38; BVerfGE 23, 98.

Response to overt racial violence 67 concerning selection processes used by the state legal administration;107 in 2001 a court in Berlin considered whether a rule which set a different standard for non-Germans was a breach of Article 3(3) GG.108 While Article 3 is the most frequently cited right in the jurisprudence of the German Constitutional Court109 and it has given definitions of ‘Abstammung’, ‘Heimat’ and ‘Herkunft’,110 as yet no judgement has been given defining ‘Rasse’. Although in theory racial discrimination by a private landlord in relation to the selection of tenants or in relation to the provision of goods and supplies,111 access to clubs or the use of discriminatory vacancies in Germany by private employers112 is already unconstitutional under Article 3(3) GG, the dearth of case law on it means that its potential remains unknown. Furthermore, all three paragraphs apply only to the actions of public authorities. It is widely held that German constitutional rights have no direct bearing on relations between citizens in their private sphere, but are mainly civil rights of the citizens against the state. Civil servants can, for example, be lawfully dismissed for telling a joke concerning the Holocaust.113 However, some argue that Article 3(3) GG should have direct or indirect effect on the relations between private (non-state) actors:114 in the absence of explicit provisions against racial discrimination, the courts have an obligation to apply the ‘objective value’ of Article 3(3) GG to civil law norms.115 The German Civil Code (BGB)116 contains various provisions that act as specifications of the constitutional guarantees. No provision mentions racial discrimination explicitly or is targeted directly to its eradication thus prior to the AGG, the BGB offered little legal protection against racial discrimination in the labour market. For example, the general contract clauses found in Paragraphs 138117 and 242 BGB118 encourage commercial practice in accordance with prevailing norms, social customs and moral values between the parties. The contents of

107 108 109 110

111 112 113 114 115 116 117

118

SchlHA 2001, 26 January, 242–244, OLGR Schleswig 2001, 381–384. KG Berlin 3. S für Bussgeldsachen, 25.06.2001. Baer (1999: 249). ‘Abstammung’ refers to the natural biological relationship of a person to her/his ancestors, ‘Heimat’ refers to the spatial relationship, and ‘Herkunft’ to a social status. See BverfGE 5, 17 [22]; 9, 124 [128] Maunz Dürig (2001, Art 3 (1), Rn 512). Ausländerbeauftragte (1994, 10–13). Mahlmann (2002: 10). Roettgen (2003: 47–9). Rädler (1997: 50). RGBl. P. 195. BGBl. Part I, 29.7.1976, p1406. The Constitutional Court has interpreted this article as providing a bridge between the constitution and private law, making the values of the constitution active in relations between private individuals. BVerfGE 7, 206; 24, 251. In the Lüth Decision (BVerfGE 7, 198, 204f), the Court went so far to say that every provision of private law must per se be compatible with the constitutional system of values, and be interpreted in its spirit. Palandt (2001, Article 138, Rn 14).

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a contract need not be criminal in order to be ‘sittenwidrig’ (contrary to accepted common customs) – a contract that discriminates on the basis of race, origin or nationality can also be a breach.119 As a result an ethical minimum exists in the private sphere that regulates commercial relations between business partners as well as personal relations between a parent and child.120 The primary focus is, however, contractual good practice. These provisions do not apply to precontractual behaviour.121 Thus a refusal to employ an applicant due to gender, religion or skin colour, nationality or origin could not be challenged at all using these articles, as they apply only where contractual relations exist. They were not seen as specific enough to protect women in the labour market hence the creation of Paragraphs 611a and 611b, contract clauses covering gender discrimination and private employment. Paragraph 611b created a specific precontractual prohibition. Protection against racial discrimination for those in employment is provided by the Works Council Act (BetrVG),122 the ‘Magna Carta’ of German labour law.123 Signed in 1952, it offers collective protection by, for example, providing for the formation of works councils in private sector companies with five or more permanent employees over 18 and codetermination rights (Mitbestimmung) encompassing welfare issues, organisation of the workplace, work schedules, working environment and economic matters. Paragraph 75 BetrVG124 states that both employers and the works council must ensure that differential treatment of employees due to their race, religion, nationality, origin, political or trade union activities or beliefs or their gender is prohibited. Furthermore, both employers and the works council are to protect and promote the free development of the personality of all employees, supporting employee independence and initiatives.125 These provisions place an obligation on both the employer and the works council not only to ensure that employees are treated in accordance with the constitution, but also to prevent any differential treatment on the grounds mentioned. An agreement which breaches this article is void.126 A wide range of practices are covered including racist jokes, making offending comments in training materials or in internal magazines, dress codes (rules

119 Palandt (2001, Art 138, Rn 17). Differential treatment of taxi drivers because of their nationality was judged to be ‘sittenwidrig’ in the sense of Article 242 BGB. It was a ‘disadvantage without an objective reason’ and thus discrimination. OLG Düsseldorf 14. Zivilsenat, 28.05.99, ZIP 1999, 1357–1360. 120 Staudinger (1980, Article 138, Rn 29). 121 Staudinger (2001, Article 138, Rn 17). 122 BGBl I S 681. 123 Richardi (2002, Article 75, Rn 1). 124 BGBl. Part I, 25.9.2001, p.2518. 125 These provisions are repeated in Article 67 of The Civil Service Relations Code (BpersVGBGBl. Part I, p693). 126 BAG 8.6.99, DB 99, 2218, 2219.

Response to overt racial violence 69 on wearing of a veil or a turban),127 as well as recruitment, allocation of duties, working conditions (pay and benefits) and dismissal. A recent decision lay down that the right to free expression does not extend to the right to make statements which are intended to exclude or humiliate other persons or groups at the workplace.128 According to a recent interpretation, this provision does not only protect active employees. Richardi describes it as a ‘concretisation’ of Article 3 (2) and (3) GG with regard to the employee/employer relationship. Taken as such, it covers both current and former employees where a relationship with the firm continues to exist (such as in retirement) or is to be initiated.129 Mahlmann, however, argues that Article 75 does not apply to discrimination in recruitment, only to discriminatory treatment of employees.130 However, while an individual employee who breaches Article 75 can be fired, it does not provide individual employees with an independent route to complain in the face of a breach by either the employer or the works council or another employee. The act does not give rise to any direct obligations between the employees themselves and the protection it offers cannot be individually enforced: the employee is dependent on the willingness of the works council or the employer to take up the issue. Individuals have no independent course of action for complaints against racial discrimination. As with Paragraph 611a BGB, it also gives no rise to a claim for employment.131 The reformed BVerfG attempted to strengthen the hand of the works council in relation to unlawful discrimination: works councils can now prevent the employment of persons who may create unrest in the plant, and can demand the dismissal of employees who do.132 It is paradoxical that German law contains far more provisions prohibiting racial discrimination but provides much weaker protection against racial violence. The existence of the principle of non-racial discrimination in Art 3 (3) GG meant that this was not a new legal concept for German law as it was in Britain. The provisions predate international instruments yet there was debate, however, as to whether the constitutional concepts were as strong as those in international law. When the Federal Republic signed ILO Convention 111 in 1959, there were calls for stronger government action on racial discrimination. However, the governing CDU/CSU federal coalition rejected any need for new measures.133 In 1971, the ruling conservative administration decided that the protection provided by Article 3 of the Constitution and the other provisions mentioned earlier sufficed.134

127 see Mahlmann (2003) on the recent case concerning the constitutional right of a Muslim teacher to wear her veil in the classroom. 128 BAG 1.7.99, DB 99 2216 = AuR 00, 72. 129 Richardi (2002, Art 75, Rn 7). 130 Mahlmann (2002). 131 Däubler et al (2002, Article 75, Rn 7–42). 132 BVerfG 99 (2)(6). 133 BT-Drs 1370 (10 November 1959). 134 BT-Drs 2106.

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Legislative action in order to fulfil the obligations of ICERD was also rejected:135 attempts by the SPD to use the 1971 International Year Against Racism as an opportunity to strengthen the legal framework were also blocked using the argument that Article 3 GG was strong enough to prevent racial discrimination136 although the weakness of existing private law meant that pub landlords, hoteliers, cinema owners and house owners could lawfully refuse service or tenancy because of a person’s race or skin colour.137 The SPD also highlighted that insurance firms were instructing their representatives not to sign contracts with owners of foreign vehicles, unless they had been resident in Germany for at least 3 years.138 Post-reunification violence While England was planning the third reform of the Race Relations Act, the German government continued to deny the need for additional legal measures to be introduced in order for the Federal Republic to meet the international standard of the ICERD. The models provided by England and France failed to change that impression. It was within this context of denial that overt racial violence began its post-war ascendancy in Germany. It focused on the issue of asylum:139 in the 1970s and 1980s, the question of asylum became highly politicised. The socialist government failed to challenge the issue convincingly and the conservatives used this hesitation to their electoral advantage. In 1982, a general election year, just prior to a parliamentary debate on migration policy,140 the CDU/CSU issued a statement outlining a migration policy which promoted repatriation, restriction and prioritised reduction in numbers.141 Kohl described the violence and intolerance in Germany as a reasonable response by a despairing people.142 His administration dismissed the chants of ‘Ausländer raus’ (‘Foreigners out’) as the actions of a xenophobic minority, differentiating xenophobes from those who had ‘reservations concerning foreigners’.143 While the former were extremists, the latter were reasonable citizens who had understandable concerns about the tendencies of foreigners to live in ghettos, their inability to speak German, their lack of qualifications, their cultural practices, their imputed criminality and abuse of the right to asylum.144 As in

135 136 137 138 139 140 141 142 143 144

West Germany signed the ICERD in 1969. BT WP 6/111 (Friday 26 March 1971). Conradi, Bundestag WP 6/ 157 (9 December 1971): 9047 B. Bundestag WP 6/ 152 (12 November 1971); WP 6/157 (9 December 1971): 9047 B. Patterns of political engagement in Germany shifted from group allegiance to issue prioritisation. Backer (2000: 89–95). Bundestag WP 9/ 83 (4 February 1982): 4888. BT Drs 9/1288. Bundestag WP 9/ 111 (9 September 1982): 6772. BT-Drs 10/232, 25 September 1986. BT-Drs 10/5888, 25 July 1986.

Response to overt racial violence 71 Smethwick, this xenophobia resonated with voters: Kohl won the election for the CDU/CSU. The stigmatisation of foreigners created the social and political context in which extreme right wing violence was legitimate in the public mind. It is therefore not surprising that such violence increased after reunification. The reappearance of rampant nationalism in the 1990s under the CDU influenced political discussions on all ‘others’: black Germans, migrant workers, asylum seekers and refugees (who were increasingly used as cheap labour after the stop on immigration) merged into an undifferentiated group of ‘undesireables’145 and all became targets for violence. In the face of the extremist violence at Hoyerswerda, Rostock and, above all, Solingen, a parliamentary consensus was found not to provide protection for these groups, but to appease the majority. As in Britain in the early 1960s, attention fell on laws concerning entry and citizenship. The CDU, supported by the SPD under Lafontaine and Schröder, agreed to curtail the right to asylum in Article 16 of the Constitution, which gave a guarantee that the politically persecuted would be given asylum in Germany. This guarantee was curtailed: the politically persecuted continued to be granted a right to asylum, but this right was removed from those who arrived in Germany via a safe third country, in essence the majority of applicants. In addition, the procedure for processing applications was made shorter for those from countries deemed to be free from political persecution. Additionally, in response to the murder at Solingen, a change was made to the new citizenship law passed in 1991. It removed some of the powers given to communal offices – these could no longer grant citizenship but only give a right to remain.146 In addition, the government established an action programme to combat violence and aggression: the budget for this programme was € 10 million from 1992 to 1994. This was reduced to € 5 million from 1995 to 1996.147 However, perhaps because the victims of the racial violence had no status or voting power, there were no corollary integration measures. Integration actually suffered a setback when Liselotte Funke, the Commissioner for Foreign Affairs resigned. This role had been created on a temporary basis – despite CDU opposition – in 1979 by the SPD-led Ministry for Labour148 to overcome problems of coordination between states and federal government levels.149

145 146 147 148

Rex (1996: 53). Layton-Henry & Wilpert (1994). Schneider (1997: 103). BT-Drs 8/2490. In 1980 the official title changed to the ‘Beauftragter der Bundesregierung für die Integration der ausländische Arbeitnehmer und ihrer Familienangehörigen’, commonly known today as the ‘Ausländerbeauftragte’. The Commissioner for Foreign Affairs is now responsible for the coordination of issues relating to the integration of migrant communities. In some states the commissioner is now known as the ‘Integrations Beauftragte’ (Commissioner for Integration). 149 BT-Plenarprotokol 9/140: 8839B. Two such ‘special commissioners’ were created within the Ministry of Labour. The second post was a representative for the disabled.

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The role had no statutory basis:150 it was not foreseen that the work would become a central task of government. When the coordination role proved successful the mandate was continued by the CDU when it came to power in 1982.151 The crisis was triggered by a combination of German reunification in 1989, the subsequent swelling of the migrant population by the arrival of the ‘Aussiedler’, the failure to develop a clear strategy with regard to the composition of the immigration population and right wing violence. Following the rejection of recommendations to equip the office with the resources necessary to deal with all this Funke resigned suddenly in July 1991. Consequently at the height of right wing racist violence, there was no Commissioner for Foreign Affairs, meaning that the key political institution working with foreigners disappeared. Although overt racial violence in Germany did not lead directly to a national legal response, the post-1989 extremist violence in Germany resulted directly in changes at the European level, as a result of which Germany created the ADG in 2005. The resurgence of violent xenophobia in a newly reunited Germany did not escape the attention of the international media. In England, for example, the Labour Party reported on the number of violent attacks in Germany.152 The newly reunited nation did not need publicity that rekindled memories of its national socialist past. The negative reports worldwide were embarrassing both for the country and for Chancellor Kohl as an individual. In addition, internal pressure was building. The German trade union umbrella organisation, for example, took up the issue, devoting a whole edition of its journal to the theme.153 The PDS,154 perhaps because much of the violence occurred in the former East Germany or perhaps because the issue provided a good means for gaining political profile, began to draw parliamentary attention to racial violence. This was done through a series of questions requesting statistical information on the number of foreigners attacked each month. Between 1992 and 1994 PDS MP Ulla Jelpke placed 32 questions asking for details of how many persons had been injured or killed, arrested and tried as a result of ‘ausländerfeindlichkeit’.155 The response was not, as in England in 1965, to take action at the national level but to manipulate the appearance of the problem. Kohl sought to deflect attention away from Germany. The solution his administration came upon was to reduce the emphasis on Germany by enlarging the scope of the problem: it was to be

150 151 152 153 154

This was suggested unsuccessfully in 1988. BT-Drs 11/3562, Question 16. BT-Drs 9/2441. Ruddock (1993: 3). Gewerkschaftliche Monatsheft (1993). Reunification not only had an effect on the social climate, but also changed the party political landscape. From 1990, the former Communist Party of East Germany entered the Bundestag as the Party of Democratic Socialists (PDS). 155 BT-Drs: 12/2441; 12/2440; 12/2439; 12/2674; 12/3079; 12/3078; 12/3283; 12/3731; 12/3732; 12/3882; 12/4046; 12/4113; 12/4253; 12/4443; 12/4656; 12/4380; 12/5203; 12/5388; 12/5527; 12/5892; 12/6089; 12/6350; 12/6810; 12/6830; 12/7100; 12/7222; 12/7470; 12/7971; 12/8228; 12/8394; 12/8488; 12/8549.

Response to overt racial violence 73 generalised into a crisis threatening Europe and exported. There was no better forum for this than the newly created European Union, at this time especially eager to prove its relevance to the lives of its newly constituted citizens.156 Together with the then French Premier, François Mitterand, he suggested to the EU decision-making body, the Council of Ministers, that it establish its own Committee to examine racism and xenophobia in the Union. In this way he sought to illustrate that racism and xenophobia were a general menace in Europe rather than a specific German ill. His claims seemed to be borne out by press reports: a full page spread in the London Independent newspaper in January 1994 listed the chronicle of racist violence and murders in Western Europe, whereby Germany came out by far the worst.157 Shocking stories were reported, such as the death in the supposedly tolerant Netherlands of a 9-year old girl who drowned in a shallow lake in Rotterdam after her dinghy capsized, in the presence of 200 people. Nobody moved to help her, and their indifference was captured on video camera along with the racist comments to the effect that she was probably ‘only’ an ‘illegal immigrant’. Kohl was successful. The Council of Ministers of the European Union decided to establish a committee to investigate racial discrimination in the Union and what could be done about it. The Kahn Commission came into being in 1994. No further legislative action was taken in Germany. As far as Kohl was concerned there was no need to do any more: the incidents were isolated acts and the victims of no long-term social or political significance. It is unlikely that Kohl envisaged the impact that the Kahn Commission would have on European Union and thus German law. The Kahn Commission and the creation of Article 13 Treaty of Rome Since the creation of a far right grouping in the European Parliament in 1985, activists had pressed for Community action against racial violence. In 1985, the Evrigenis Committee was the first European Community institution to study the issue of racial discrimination. This recognition by the European parliament gave an informal institutional profile. The Evrigenis Report158 was the first of many studies. Its purpose was overtly political – to draw public attention to the parties which formed the Euro-right and the social context in which they were based and to develop a European response.159 This and subsequent parliamentary studies160 had little impact on the creation of a legal response to racial violence in EU law but they set the foundation for a new EU policy on race.

156 The Treaty of Maastricht creating the European Union and European citizens (Articles 17–21) came into force in 1993. 157 Doyle (1994). 158 European Parliament (1985). 159 Harris (1990: 144–7). 160 European Parliament (1991); European Parliament (1993).

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The Kahn Commission had two key advantages over these early activists: first, it was called into being by the Council of Ministers, the central legislative body of the EU; and, second, it was created within a new moral and political context, at a time when the priorities of European integration were being redefined to emphasise social rather than economic concerns. Kohl and Mitterand approached the Council of Ministers when the European Community was reconstituting itself as a European Union with more relevance to the lives of its peoples. In addition to structural changes, the creation of the EU also introduced a new focus – European Union citizenship was introduced and new values proclaimed that went beyond creation of a single market. These new values shifted its ethics from market values to social values and in particular human rights, as seen in the new Article 7 TEU. The Kahn Commission was established as a non-Community body161 to examine among other things: [A] more precise definition of what constitutes a racist or xenophobic act, leading on to a detailed examination of the scope for further approximating the laws and practices of the Member States [and] an improvement in the collection of data and statistics on racism and xenophobia.162 The Commission concluded that racism and xenophobia had become commonplace in a number of member states of the EU, not only in day-to-day disputes but also in the pronouncements of extremist organisations and within political parties. Racist and xenophobic organisations were confidently networking across the borders of Europe. The main victims were those citizens and non-citizens of a different race, colour, creed, national or ethnic origin. The Commission was agreed that the efforts of the member states, while necessary, were not enough. It condemned racism and xenophobia as the breach not of civil rights, but of a human right independent of citizenship status. Racism was a threat to solidarity and thus a danger to an ever closer union between the peoples of Europe. It damaged the very heart of the EU. The ability of Europe to react to this was made dependent on ‘its commitment to a practical approach to human rights and the concerted introduction of specific measures to implement that approach’. In its report, the Kahn Commission argued for the development of a comprehensive plan which would integrate multiple activities to combat racism, xenophobia and intolerance. A general principle of non-discrimination – covering not only race and ethnicity, but also other grounds of discrimination such as religion and

161 In 1995 the European Parliament demanded the transfer of the mandate of the Kahn Commission from the European Union Pillar 3 on Justice and Home Affairs to Pillar 1 (the European Community) to allow for better parliamentary oversight. ‘Cooperation between the Council of Europe and the European Union’, CM (96)41, p.17. 162 Annex III attached to the Presidency Conclusions, European Council in Corfu, 24–25 June 1994.

Response to overt racial violence 75 sexual orientation – was to be established as a basic principle of Community law. The principle would be a matter of full EC competence for which the European Court of Justice would have oversight. An explicit treaty amendment was seen as the ‘clearest expression of a real intent of the European Union to combat and not merely protest against the rising tide of racism and xenophobia’. This amendment would allow the Council of Ministers to pass secondary legislation by qualified majority rather than unanimity, create powers for the Commission to enforce such instruments and common instruments to prohibit discrimination in employment. At the Council Summit in December 1994 the guidelines contained in the Kahn Commission interim report were approved,163 but the response to its final report was lukewarm. The Council of Ministers sought repeatedly to shelf the report: at the Cannes Summit in June 1995, it merely encouraged the Commission to continue – in ‘close co-operation with the Council of Europe’164 – its feasibility studies for a European monitoring centre on racism and xenophobia, which would set up a network of national research, databases, a documentation centre and an information service. This was repeated at the Madrid Summit in December 1995.165 The Council at Florence again endorsed the monitoring centre and merely mandated the Kahn Commission to continue its work.166 The Report was most warmly received by the European Commission and the Council Reflection Group.167 The Council Reflection Group was chaired by Spanish Foreign Minister Westendorp. Westendorp proposed a joint action against racism and xenophobia in response to the Kahn Report, but this was blocked by the UK on the grounds that race relations were a matter for each nation to deal with in their own particular way.168 The Council Reflection Group also supported the recommendation for a treaty amendment.169 Perhaps spurred by a 1997 poll which indicated a worrying level of negative attitudes towards black and migrant people

163 The Kahn Commission actually proposed a treaty amendment almost identical to the Starting Point. 164 Representatives of the European Commission against Racism and Intolerance (ECRI) participated in meetings of the Kahn Commission held in Brussels on 29 September, 20 October and 17 November 1995. CM (96)41, p.16. 165 Presidency Conclusions, European Summit at Madrid, 15–16 December 1995, Paragraph 6 (see also Annex IV). 166 Florence European Council, 21 and 22 June 1996. 167 Mandated at the Corfu European Council to survey, clarify and systematise the main issues to be considered by the IGC. 168 ‘Angry Santer says “End the arguments” as document reveals No, No, No Britain’, The European, 12–18 December 1996, No. 344, p.1. 169 At a parliamentary press meeting Westendorp informed MEPs that a great majority of the Reflection Group members favoured a clear reference in the Treaty in the form of an article against racism. European Parliament Session News Press Release, 25 October 1995.

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(almost 33% of Europeans considered themselves to be ‘very’ or ‘quite’ racist),170 the final report of the Reflection Group contained the recommendation that the Treaty be amended to cover racial discrimination. The report made it clear, however, that there was no support within the member states for a directly effective provision that could be invoked before national courts of law.171 By the time the Presidency of the EU was passed to Ireland, there was widespread support for a Treaty amendment to strengthen the hand of the Community with regard to human rights and racism.172 By June 1996 the IGC was considering a ‘proposal for an amendment to the Treaty making specific provision for Community powers in the sphere of combatting racism and xenophobia’.173 Agreement was finally reached in June 1997 at Amsterdam. Article 13 of the Treaty of Amsterdam provided that the Council: [A]cting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.174 Two directives were subsequently introduced in 2000. Council Directive 2000/43 (the ‘Race Directive’)175 implemented the principle of equal treatment between persons irrespective of racial or ethnic origin. Council Directive 2000/78 (the ‘Framework Directive’)176 establishes a general framework for equal treatment irrespective of religion, belief, disability, age or sexual orientation only in regard to employment and occupation. Germany was immediately obliged, together with all the EU member states to transpose these provisions into national law. Thus although extreme right wing confrontation did not in the short term impact the evolution of race equality law in Germany it has done so in the longer term. By deflecting international attention away from Germany, the Kohl administration effectively exported the need to take action against racial discrimination and contributed to the strengthening of a European profile for racial discrimination. But for his high profile intervention in the Council of Ministers, Article 13 TEC may never have come into being. It is unlikely that when Kohl went to the Council of Ministers he ever envisaged that racial discrimination would become a competence for the Union in 1997, or that in 2000 a Race Equality Directive

170 A further poll in 2000 showed that confusion and insecurity with the presence of ethnic minorities persisted. For example, in 2000, more people agreed with the statements that the presence of people from minority groups was a cause of insecurity, and that people from minority groups enrich the national cultural life than in 1997. SORA (2000: 53). 171 Flynn (1999). 172 Centre for European Studies (1996). 173 25 June 1996 Member of the European Parliament Inigo de Vigo , OJ C 356/95/59, 60. 174 Article 13, Treaty of the European Community, as amended by the 1997 Amsterdam Treaty. 175 RD 2000/43 OJ [2000] L 180/22. 176 FD 2000/78 OJ [2000] L 303/16.

Response to overt racial violence 77 would be passed – the CDU party line in 1994 was that an anti-racial discrimination law was not in the state interest.177 However, paradoxically, due to the EU Race Directive, Germany had to do that which it had sought to avoid: strengthen the legal protection against racial violence. It did so in 2005: a general antidiscrimination law (‘Antidiskriminierungsgesetz’ or ADG) was created. It marks the beginning of a new phase of racial equality in Germany. The Anti-Discrimination Law (Antidiskriminierungsgesetz/ADG) 2005 Pressure from the EU has finally delivered a stronger legal response to overt racial violence in Germany. As laid down by Article 249 of the Treaty of Rome, EU member states were obliged, in accordance with their national traditions,178 to bring domestic law in line with the Race Directive by December 2003. Few member states met this deadline.179 It was only in May 2003 that the German Federal Ministry for Families, Elders, Women and Youth created a cross-ministry project group to work on the transposition.180 There were no immediate consequences to this but in December 2004 the Commission began infringement proceedings whereby actions of non-compliance against Austria, Finland, Luxembourg, Greece,181 and Germany were referred to the ECJ.182 In 2005 the ECJ ruled that Germany,183 Austria, Finland and Luxembourg had breached EU law by failing to comply with the Race Directive.184 That same year, a new anti-discrimination law was passed in Germany: it prohibited discrimination on the grounds of race, ethnic origin, sex, religion and belief, age, sexual orientation and disability in the fields of work and occupation, social protection and advantages, education and the provision of goods and services.185 Under the new German law, discrimination on the grounds mentioned is prohibited only in relation to ‘Massengeschäfte’ such as hotels and large commercial ventures. In this field, the genuine occupational qualification allows discrimination where it is objectively justified. This limitation was introduced so as not to

177 ‘Ein Antirassismus- bzw. Antidiskriminierungsgesetz richtet sich gegen die Staatsinteressen’ MP Steinbach-Hermann (CDU), Bundestag, 13 January 1994. 178 See the Race Directive, Recital 16. 179 See the transposition reports at: http://www.europa.eu.int/comm/employment_social/fundamental_ rights/legis/msleglnracequal_en.htm. Accessed 30 June 2004. 180 See http://www.bmfsfj.de/Politikbereiche/gleichstellung,did=12350.html. Accessed 28 June 2004. 181 The action against Greece was discontinued as Greece had in the intervening period adopted a law transposing Directive 2000/43 (Act 3304/05, published in the Greek Government Gazette of 27 January 2005). 182 See http://ec.europa.eu/employment_social/fundamental_rights/pdf/arct/prinfringe947_en.pdf. Accessed 27 September 2007. 183 See press release at: http://www.stop-discrimination.info/fileadmin/pdfs/Nationale_Inhalte/ Germany/Pressemitteilungen/EUGH_DE.pdf. Accessed 11 June 2005. 184 See European Commission Press Releases IP/04/1512 of 20 December 2004, IP/05/502 of 28 April 2005 and IP/05/543 of 4 May 2005. 185 Article 2.1 ADG.

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encroach on the individual’s freedom of contract. As a result, many private transactions are excluded: businesses such as banks and accommodation agencies can continue to discriminate with impunity in relation to who they offer credit and housing. The narrow material scope of the act is akin to the first Race Relations Act in Britain in 1965. Its provisions demonstrate a similar weak understanding of the existence and effect of covert racial violence in individuals’ lives and on collective wellbeing. In relation to enforcement, a specific body to deal with employee complaints was not created, even though the establishment of an independent agency was set out in the directives. This role was instead added to the duties of the existing (most probably human resources) personnel in organisations. While this may indeed reduce bureaucracy, it is unlikely that aggrieved employees will feel comfortable approaching human resources or that these persons will be best placed to assist victims of covert racial violence. In addition, for the next 4 years, a new government anti-discrimination office (‘Antidiskriminierungsstelle’) will exist in the Ministry for Family, the Elderly, Women and Youth. This office will deal with all of the listed grounds of discrimination. It is to act as an independent institution to which victims can turn for help with discrimination claims for support, information and advice. It can also conciliate and mediate claims or give advice on where further assistance can be obtained. In addition, it will conduct studies and present reports to parliament containing recommendations on action to ameliorate and reduce discrimination. It will also offer support to NGOs and local offices giving advice on discrimination. There is an option to provide a mediation service to deal with discrimination, but the establishment of such offices has been left to the discretion of the states. The long overdue legal response in Germany is underwhelming. It is unlikely that such arrangements meet the requirements of the directives. The protection is patchy and enforcement negligible. The issue has been incorporated in a way that racial violence remains a peripheral topic and the victims marginalised. Although its scope is much wider, the legal response in Germany in 2005 is only marginally more robust than the British response in 1965.

Conclusion Overt institutional racial violence was effective in placing race on the international political and legislative agenda. This was explicitly the case within the international community meeting at the UN. Yet while the overt racial violence during World War II galvanised the international community into action to tackle this social ill, change at the national level was slower. However, overt racial violence was twice the trigger for recognition and definition in Britain: in 1965 and then much later on, in 2000. In Britain therefore, the violence of extremist anti-social movements was twice the catalyst for legal action. Overt racial violence did not stimulate a direct legal response in Germany, but was indirectly a catalyst for legal definition. This may be due to the very different starting

Response to overt racial violence 79 points: Germany had a number of legal provisions prohibiting racial discrimination but had not used them, whereas Britain had none. Its strategy to prevent a domestic legal response eventually backfired, when the EU itself gained a competence to prohibit racial discrimination. Extreme right wing violence at the national level therefore had a direct impact on the creation of Article 13 TEC, which introduced a long absent prohibition on the grounds of race and ethnicity into the Treaty of Rome. This chapter therefore demonstrates that ‘bad’ civil society acts influence the legislative agenda. In the following chapter, I will demonstrate how ‘good’ civil society also does this, in particular by making covert racial violence visible to the legislator.

4

The response to covert racial violence

Introduction Covert racial violence is subtle, often parading as risk rather than racism. It includes abuse and harassment, or the application of procedures and rules. Microaggression is often silently borne by the victim, regardless of their age: the younger the victim is, the less likely that they will be able to articulate the hurt experienced. The invisibility of covert racial violence is problematic. It is argued that law is overwhelmingly ocularcentric – ‘law consistently privileges sight in the formulation of substantive, evidential and procedural rules alike’.1 For example, in courts of law visual evidence is given preference over hearsay. It may be that the legal system has incorporated a western cultural belief that sight is more objective than, for example, sound or smell. Therefore before formulating a response, lawmakers must first recognise covert racial violence. They must also appreciate that as it has a different character, tackling such violence requires a different type of law. The question is: how are lawmakers to gain this critical insight? Both the violence and its impact remain hidden unless action is taken to make them visible. One key method for making covert racial violence visible has been the creation of evidence via qualitative investigations. As noted by Berry, the production of information is a form of social action. Qualitative social investigations have historically played a crucial role in determining the legal response to covert racial violence in Britain. For example, covert racial violence in employment was only recognised and specifically prohibited by law in 1968 when evidence was produced by a national investigation into race relations. The PEP study is an example of the type of in-depth study required to reveal hidden racial animosity. This national study used face-to-face interviews and situation tests to provide hard proof of the extent to which individuals and organizations across the country were influenced by colour, and was instrumental in moving ministers and legislators from denial to further definition. The Race Relations Acts of 1968 and

1 Bently & Flynn (1996).

Response to covert racial violence 81 1976 were based on this study. In Britain, research affected both the recognition and definition of direct and indirect discrimination. By contrast, intensive study into covert racial violence, or any topic concerning race, is almost absent in Germany. Unlike in Britain, no organisation or parliamentary committee has ever investigated the causes and manifestations of covert racial violence. Although in the immediate post-war period, a few anthropological studies were conducted on black German children, there has been negligible government endeavour in this direction since. An unfortunate consequence of this is that very little is known about covert racial violence and how it impacts on the living and working conditions of black Germans. More is known about the lives of migrant workers due to studies conducted by the Commissioner for Foreign Affairs but even here, there is no clear evidence that this information informs lawmaking. It is primarily due to pressure emanating from European Union law that protection from covert racial violence has finally been legally embedded in German law. Yet, as with the British Race Relations Act of 1965, implementation of the Race Directive has not been guided by information on the issues with which the law is designed to deal. In this chapter, I will provide some concrete examples of covert racial violence in employment in Britain. I will then discuss the initial government response to this and show how qualitative data was instrumental in changing it. This will be compared to Germany, where the situation is almost the reverse: there are very few studies on racial violence in employment and only half-hearted government attempts to tackle this. In Chapters 5 and 6, I will try to explain why this is so by examining the official attitude towards social integration, and how this affects issues such as the collection of ethnic data and the political integration of black and minority issues.

Covert racial violence in employment in Britain Prior to the introduction of the Race Relations Act of 1965, the concept of racial discrimination did not exist in English law although racial violence was present in many practices. One of the most manifestly racist areas was employment. There were a number of administrative practices pursued by the government itself which treated persons differentially according to colour. For example, at least one government department (possibly the National Assistance Board)2 refused to consider otherwise qualified black citizens for subclerical, clerical and executive posts. Black applicants applying for jobs as typists were only considered if they were unlikely to seek promotion to clerical work.3 Covert racial violence was also rife in the private sector, condoned and

2 PRO File LAB 13/2421, Minutes of the Steering Committee on International Organisations 3.2.66 3 PRO File LAB 13/1936, Letter 4.1.1965.

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perpetuated by staff in the employment exchanges who regularly accepted discriminatory vacancies.4 Discriminatory vacancies Discriminatory vacancies were work opportunities that had a discriminatory condition attached. When informing the employment exchange of a vacancy, the employer, in either the public or private sector, would specify, for example, that no black or Jewish applicants should be sent. The justifications given by employers for such conditions varied and those that were seen as valid included a desire to maintain a balance between white and black workers; the attitudes of other workers, for example a refusal to work with black people; trade union attitudes; the fact that persons of the class discriminated against had been employed in the past and were found unsuitable; that the work required a high degree of skill or specialist knowledge which the employer believes that members of a particular race are unlikely to possess; belief that a particular job is not suitable for a ‘coloured’ person because, for example, it involved special relations with the public; a belief that different Commonwealth nationalities did not work well together; security grounds; language difficulty or lack of education; ‘unusual’ dress and appearance.5 That such requests were handled by the Ministry of Labour was controversial. In February 1964, the practice was explained to the United Nations official at the Foreign Office: Exchanges are instructed to endeavour to persuade employers to withdraw discriminatory conditions on their notified vacancies. If however, all efforts fail, they take normal action to fill the vacancies. We feel that by accepting the vacancies the exchange is able to maintain contact with the employer and endeavour to bring pressure on him to abandon his discriminatory practices. We know that many employers, who have started by refusing eg coloured workers, have later agreed to accept them. Moreover to refuse the help of the employment exchange to the employer in question would deny other unemployed workers on the register the opportunity of submission to his vacancies.6 This was defended as a ‘practical approach’ to the problem. The exchange did not tell qualified jobseekers in the category discriminated against that the vacancy existed unless they were able to remove the discriminatory condition. It was therefore guilty of ‘regularly withholding information about suitable jobs

4 PRO File LAB 13/1936. 5 PRO File LAB 8/3070. 6 PRO File LAB 13/2421, Letter 4.1.1965.

Response to covert racial violence 83 from particular groups of racially distinct registrants’.7 It was argued that an individual does not suffer in practice from not being told about the existence of a job which he has no prospects of getting. Clearly, however, this practice could not be published or be discussed before the United Nations Human Rights Commission.8 Employers had been submitting discriminatory vacancies for a long time. The first reference to these appeared in a Ministry of Labour circular (MLC 28/555) issued in June 1946. This circular was issued because of a particular case in which a vacancy saying ‘No Jews’ had been circulated within the department and also to some outside organisations. The circular prohibited the distribution of any vacancies marked ‘No Jews’ within the department or anywhere else. In November 1954 a further circular (MLC 28/732) was issued which stated that local offices were to try to persuade the employer to remove the discrimination but if this failed they were to accept the vacancy and treat it normally except that it was not to be displayed. This policy was instituted in LO Code 6, paragraph 695 which read: Discrimination against persons solely on the grounds of race, colour, sex or belief is contrary to the general policy of the Government. It has long been, and continues to be, the policy of the Department that no such discrimination should be practised by LOs in selecting registrants for submission to employment. Where, however, an employer exercises discrimination on these grounds and declines to withdraw his discrimination, it is nevertheless considered that it would not be inconsistent with the Department’s responsibility under the Employment and Training Act 1948 to assist him to obtain a worker who satisfies his requirements.9 It was not seen as practical to either refuse these vacancies or to stop indicating the employers’ preferences. The employment exchanges felt that a continued failure to send the ‘wrong’ type of people would ultimately have driven business away: If no mention of the employer’s stipulation were made on the order card we should lay ourselves open to criticism from the worker who might incur trouble and expense in going after a job for which the LO [local office] had already been told he was unacceptable, and from the employer who would think the LO hopelessly inefficient … If the LO were to refuse to circulate a vacancy involving discrimination it would only be providing an incomplete service to the employer by restricting particulars of his vacancy to one exchange area. If the vacancy is to be handled at all the proper course seems

7 PRO File LAB 13/2421, Letter 4.1.1965. 8 PRO File LAB 13/1936, January 1965. 9 PRO File LAB 13/1936, Minutes of the Regional Controllers Conference, December 1963.

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Making anti-racial discrimination law to be for the LO to make every effort to fill it, including circulation when the circumstances so require, and in that case it would be necessary for the circulated order to refer to the fact of discrimination.10

Three modifications were proposed: that the local office should attempt to remove the discriminatory condition before circulating a vacancy; that an exchange manager should submit the case to regional office (RO) for consideration if the employer was showing ‘unreasonable’ discrimination; that a way other than writing ‘No —’ should be found to indicate discriminatory preferences of employers. It was agreed that discrimination should be indicated using symbols: 696/A – coloured workers; 696/B – Indians; 696/C – Pakistanis; 696/D – West Indians; 696/E – Jews; 696/F – Irish; 696/MW – married women; 696 – Others.11 This policy continued until 1967, although the symbols were simplified to just ‘MLC 28/835’ to make the meaning less transparent.12 Such practices clearly fell foul of both the UN Declaration and the ICERD. They were, however, lawful in Britain: the Race Relations Act 1965 applied to public places only and consequently the Race Relations Board was unable to deal with around 70% of the complaints received because they concerned employment. There was substantial opposition, for example within the Ministry of Labour and the trade union movement, to an expansion of the Race Relations Act to cover this area. The expansion of the scope of the RRA to employment was primarily the result of focused investigation. A weakness of the Race Relations Act 1965 was the absence of any real knowledge on which to construct it. Although it was known that racial discrimination occurred, especially in the areas of housing and employment, there had been no systematic study into the problem to make its parameters visible. It was therefore based on inadequate information.13 This information was only created in the late 1960s by two major national research projects on racial discrimination in Britain: the Rose Report which began in 1964 and the PEP study which was conducted around the same time. The findings of the Rose Report were published too late to be influential on the RRA 1968 but the PEP study was effective in establishing legal recognition for covert racial violence. There are three reasons for this: first, it was commissioned by a statutory body which gave the issue an important public profile; second, it was conducted by an independent research organisation, which gave the results credibility; and, third, the methodology – information gathering was active rather than passive: the researchers used primary research

10 PRO File LAB 13/1936, Minutes of the Regional Controllers Conference, December 1963. 11 PRO File LAB 13/1936, Minutes of the Regional Controllers Conference. 12 PRO File LAB 3/3358, November 1967. It was stressed that no other markings should be used and that ‘where order cards carry other markings they should be rewritten in accordance with this paragraph and the originals destroyed’. 13 Street (1977: 299).

Response to covert racial violence 85 methods such as situation tests and interviews, which meant that the victims were directly involved in the process of making covert racial violence visible. Exposing covert personal racial violence: the PEP study on racial discrimination in Britain The PEP study was commissioned in 1966 by the National Committee for Commonwealth Immigrants (NCCI), a body appointed by the prime minister in September 1965 to ‘advise the government on matters relating to the integration of Commonwealth immigrants’,14 and the Race Relations Board (RRB) established by Section 2 of the Race Relations Act 1965. It was financed by a grant from the Joseph Rowntree Trust and an independent research institute, Political and Economic Planning (PEP), was contracted to undertake the work. The PEP study focused on the living and working conditions of Britain’s black population. It focused on racial violence in Britain – its objective was to measure the extent of discrimination in fields not covered by the Race Relations Act 1965 – employment, housing, insurance and credit facilities. Three different approaches were used in the PEP study to collect details. First, approximately 1000 black and migrant workers in different English towns with larger than average black residents took part in face-to-face interviews conducted using questionnaires. Male heads of households were interviewed to discuss experiences of discrimination. These interviews revealed that there was in fact a huge underestimation by black people themselves of the extent of covert racial violence. Second, interviews carried out among decision makers in industry (employers, trade union officials, staff at employment exchanges), housing (estate agents, local government officials) and commercial services (bank managers, officers of insurance companies) revealed the blanket, absolute nature of covert racial violence. For example, an employer would attach the same characteristics to all black and migrant people, regardless of origin or class, or the position applied for. Consequently the educated professional was treated in exactly the same way as a person with only few qualifications. The study reported that: There was no less discrimination against the West Indian when he was applying for accommodation in a professional, educated role, as a hospital registrar, than when he was applying as a bus conductor. Indeed the only difference appeared to be that in his professional role he tended to be treated with more hostility than in his working class role.15 Third, a series of situation tests were conducted in which three applicants – first a black citizen, then a white immigrant of Hungarian origin, and finally a

14 Daniel (1968: 12); Hepple (1970). 15 Daniel (1968: 163).

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white Englishman – would apply for a job or accommodation that seemed to be available to all. The results from these tests were perhaps the most unexpected. It was found, for example, that with regard to housing, ‘when applications were made for private letting or purchase, the West Indian was discriminated against on two-thirds of the occasions when the Englishman received a positive response; the “white alien” was also discriminated against, but on many fewer occasions’.16 The incidence of covert racial violence was to some extent reduced due to selfcensorship: rather than be a victim of this a black person would not apply for particular jobs or accommodation. The situation tests demonstrated clearly the stigma attached to any skin colour which was not white. It illustrated that colour rather than foreignness lay at the root of discrimination. The comparison of the incidence of discrimination by the Hungarian tester and the West Indian highlighted this: in both professional and manual working roles the Hungarian experienced minimal discrimination compared to the latter. The surveyors concluded that the major component in discrimination – whether in employment, housing or the provision of services – was colour: ‘It is moreover impossible to escape the conclusion that the more different a person is in his physical characteristics, in his features, in the texture of his hair and in the colour of his skin, the more discrimination he will face.’17 The PEP survey revealed the extent of covert racial violence which was until then largely hidden. The revelation that the incidence of discriminatory practices was far more common than previously imagined influenced and affected the decision making of those in positions of power. Most alarming to decision makers was the finding that, with regards to employment, those black and migrant citizens with the highest English qualifications experienced the most discrimination. This waste of talent was damaging not only to the individual but also to the national economy: skilled engineers were forced to work as garbage collectors, trained teachers as bus conductors, bright school leavers as messenger boys. Just as overt racial violence was a blight on public order, covert racial violence was a drain on valuable national economic resources. This had both present and future implications. The PEP report was a powerful weapon in the cause for further legal reform. It presented the dynamics of covert racial violence in such stark terms that failure by government to respond to its findings would have sent a negative message on its policy towards racial discrimination. Shortly after these findings were publicised, Roy Jenkins announced his intention to introduce an amendment to extend the provisions of the Race Relations Act 1965. In a memorable speech,18

16 Daniel (1968: 13). 17 Daniel (1968: 209). 18 Speech to the Commonwealth Institute to the Voluntary Liaison Committee on 23 May 1966.

Response to covert racial violence 87 he outlined his interpretation of the problem and his vision for a new generation of black Britons: From here forward we are beginning to deal, so far as employment is concerned, with the children of these first generation immigrants. Many were born in this country, many more wholly educated here. They are not so much Asians or West Indians as coloured Britons, dressing and speaking much as we do, and looking for the same opportunities as the rest of us . . . If we allow their expectations to be disappointed we shall be both wasting scarce skills and talents and building up vast trouble for ourselves in the future. In the next decade this to my mind will become the real core of the problem.19 Jenkins favoured ‘positive action’ as a means to tackle the prejudice in society and integrate the growing population of black Britons. It was the social implications of racial discrimination with which he was more concerned. He identified the problem to be dealt with as ‘community prejudice’: Of course there are some who have legitimate individual grievances against an immigrant, first as white men can have against white men, or black men against black men against black men. But this is not the root of the problem. The root is community prejudice, and it is that with which, whether it springs from fear or inadequacy or less reputable motives, we have to deal . . . this is not a problem which solves itself without positive action. In particular, he emphasised discrimination in employment. The PEP report showed that the behaviour of employers in particular needed to be regulated. He proposed that the Race Relations Act be amended to include this area, as well as an extension of the definition of public places; the inclusion of estate agents and private letting agencies, as well as local authorities when acting as housing authorities; and the inclusion of insurance and credit facilities and building societies. The Street Report and the Drake and Ennals Report A further investigation was required before the findings of the PEP study could be implemented: the PEP research may have identified the problems and future dangers, but it did not put forward detailed recommendations as to how the government could apply the evidence it provided. A technical study was designed to determine how these changes could be effectively given legal form in an amended Race Relations Act. The NCCI and the Race Relations Board

19 PRO File T227/2535, Race Relations Legislation: visit to the United States and Canada, 27 June to 8 July 1967, 13 July 1967. Also reprinted in Field & Haikin (1971: 87).

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established a legal panel – comprising Professor Street, Geoffrey Howe and Geoffrey Bindman – which went to North America to ‘assess the effectiveness of anti-discrimination laws in other countries, and to recommend the type of law which would be appropriate’ if the British government decided to legislate.20 The subsequent Street Report was published in 1967.21 It also played an important part of the scenario in building up a case for legislation. It made a number of concrete proposals, based on observation of the mechanisms used to enforce the Civil Rights Act in America, covering the scope of the antiracial discrimination prohibition, the form of the prohibition, procedures and institutions. In relation to the scope of the act, the Street team observed that changes in recruitment policies in the USA opened up a large number of jobs to members of minority groups ‘which without legislation would probably not have been available’.22 Dramatic changes were seen: the number of African Americans employed as salaried managers and officials increased by 164%; clerical workers by 111%. The Street team concluded that this reflected ‘a gradually changing climate of opinion in the US, in which legislation has clearly played a part’.23 Their report recommended that employers, trade unions, employers associations, employment agencies and employees be subject to legal regulation with regards to ‘recruitment, dismissal, conditions of service, training and promotion of employees and the provision of facilities for them’. This would include government employment exchanges. Some categories were exempt, for example where the employment concerned private relationships as within small units of employment or where it was seen to be ‘a reasonable condition of employment that a person be of a particular race or colour’.24 Another key recommendation concerned enforcement. The arrangements for conciliation and settlement in the RRA 1968 were not functioning well: there were problems securing a satisfactory settlement when racial discrimination was apparent, and ensuring adequate enforcement when conciliation had not been achieved. In order to rectify this, Street recommended the establishment of a US-style human rights’ commission – a hybrid modelled on the regulatory agency – which combined functions of education, persuasion, conciliation and, in the last instance, coercion. These hybrid regulatory agencies, essentially administrative bodies, also exercised judicial powers which were subject to oversight of the ordinary courts.25 The Street Report urged the government to ‘anticipate the problems that the Americans are now facing and must get on our statute book adequate legislation backed by the right administrative machinery to make sure that Bradford and towns like it do not have to face in the near future what

20 21 22 23 24 25

Lester & Bindman (1972: 98). Street et al (1967). Street Report (1967: 35). Street Report (1967: 37). Street Report (1967: 77). Street Report (1967: 96).

Response to covert racial violence 89 American towns are now facing – the sudden violent outburst of a frustrated minority group which is moving more and more towards separatism.’26 The conflict between the Department of Employment, which favoured voluntary regulation of racial discrimination, and the Home Office, which did not, is visible in the suggestions arising from the report written by Howard Drake27 and David Ennals,28 who also visited the USA and Canada to talk with federal- and state-level officials in Washington and New York. They also spoke with representatives of human rights commissions and agencies.29 The Ennals and Drake Report made a number of suggestions, which included ways to empower employers in implementation of more comprehensive legislation. For example, they suggested that the Trade Union Congress (TUC) and Confederation of Business Industry (CBI) should be involved with the administration of any legislation designed to prevent discrimination in employment, and that both organisations be strongly represented on a reconstituted Race Relations Board (RRB). However, they also favoured a stronger Race Relations Board with independent powers which would be able to seek an injunction in the courts on its own initiative rather than having to pass the issue on to the Attorney General.30 The Drake/ Ennals Report was less comprehensive than the Street Report, but due to a change in government, it had more of an impact on the eventual structure of the Race Relations Act 1968. The Race Relations Act 1968 (RRA 1968) The results of the PEP study on racial discrimination in Britain were widely accepted as a reliable indication of the actual extent of covert racial violence in Britain. The results were used as evidence of the need to amend and extend the Race Relations Act 1965. These and the proposals contained in the Street Report

26 Paragraph 18, p.5. 27 Department of Employment and Productivity. 28 Minister of State for Health and Social Security and later Under-Secretary of State for the Home Department responsible for steering the Race Relations Bill through the House of Commons. 29 PRO Document T227/2535 Report of 13 July 1967 ‘Race Relations Legislation: visit to the United States and Canada, 27 June to 8 July 1967’. Washington: Mr Ed Sylvester, Department of Labour, Office of Federal Contract Compliance; Mr Harry C. Mcpherson Jr, Special Counsel to the President; Mr David L. Norman, Department of Justice, Civil Rights Division; Mr Shulman, Chairman, Equal Employment Opportunities Commission; Commissioner Jackson, EEOC; Mr Segal, EEOC; Mr Stanley Ruttenburg, Manpower Administrator Department of Labour; Mr William Taylor, Staff Director, US Commission on Civil rights; Mr Slaiman, Director, Civil Rights Division, AFL/CIO; Mr Roger Wilkins, Director, Community Relations Service. New York: Mr Oscar Cohen, AntiDefamation League; Mr William H. Booth, Chairman, New York City; Commission on Human Rights; Mr Edward Rutledge, Director, National Committee Against Discrimination in housing. Buffalo: Mr Sedita, Mayor; Mr Roberts, Senior Deputy Corporation Counsel; Deputy Police Commissioner Blair; Mr Norman Goldfarb, National Labour Relations Board and Co-Chairman of Citizens Council on Human Rights; Rev. Milton Williams, Branch President, NAACP. 30 Paragraph 13, p.4.

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were warmly welcomed by Home Secretary Roy Jenkins, who declared his intention to make use of them in a new race relations bill. He was, however, unable to do so: as the bill made its way through parliament, he was replaced in the Home Office by the more cautious James Callaghan.31 A number of the critical recommendations made in the Street Report were therefore not introduced in the Race Relations Act 1968. The Race Relations Act 1968 came into force on 26 November 1968. It was significant because Part I extended, as recommended by the Street team, the prohibition of discrimination on the grounds of colour, race, ethnic or national origin to the fields of employment, trade unions, employers and trade organisations; housing accommodation, business and other premises and advertisements and notices.32 Discrimination in these areas also became ‘unlawful’. The prohibition on the discriminatory provision of goods, facilities and services and employment were to be restricted to firms with more than 25 employees for the first 2 years, and to those with more than 10 employees in the following 2 years.33 Education was omitted: it continued to be lawful to allocate school places using colour, race, ethnic or national origin as a decisive factor until the Race Relations Act 1976.34 Part II of the RRA 1968 dealt with enforcement. Individuals were not empowered to bring independent actions but Section 19 transferred the power to institute legal proceedings from the Advocate General to the Race Relations Board (RRB). However, the board was prevented from dealing immediately with complaints relating to covert racial violence in employment by Schedule 2. Employment issues were to be dealt with in the first instance by industrial machinery, and only where this did not exist, or its process failed to resolve matters, could the RRB step in. However, before doing so the board had to obtain approval from the Secretary of State for Employment and Productivity.35 Where the board did inherit an issue from the industrial machinery, it was compelled to begin the investigation afresh.36 This was some way short of the autonomous regulatory commission suggested in the Street Report but empowered employers in the way promoted by Drake and Ennals. Because of this rather lengthy and convoluted procedure, even under the RRA 1968, there were few cases concerning covert racial violence in employment.

31 McKie (2005: 10). 32 RRA 1968, ss 1(3–6). 33 RRA 1968, ss 8(1)(a–b). Section 8(7) however excluded the application of the employment provisions to employment wholly or mainly outside of Great Britain, wholly on a British ship or aircraft outside Great Britain and wholly or mainly on a ship or aircraft outside Great Britain other than a British ship or aircraft. 34 Race Relations Act 1976 Part III, s.17–19. 35 RRA 1968, Schedule 2(2)–(8). 36 RRA 1968, Schedule 2. The Board was, however, given powers to initiate its own enquiries without a complaint being made under Schedule 3(3). On finding an infringement, it could do no more than seek a settlement and a written assurance that the offensive act would not be repeated. Following breach of this assurance, they could institute proceedings under Sections 19 or 20.

Response to covert racial violence 91 The ineffectiveness of these changes was soon made visible by further investigative surveys conducted in the 1970s, which showed that covert racial violence was actually increasing. A PEP study in 1974 covering 300 large factories concluded that 50% of these factories practised some form of covert racial violence and only 8% had taken steps to ensure that this did not occur. The same report also found that black workers made twice as many applications as white workers before they found a job and that when given a job they were given non-skilled manual work or put on the night shift. It illustrated the lack of progress since the 1960s: job levels were substantially lower for the black and migrant communities, earnings levels were lower and there were an alarming proportion of young West Indians unemployed and homeless, living in destitution.37 A 1975 report by the House of Commons Select Committee on Employment quoted trade unionists as saying that they ‘did not want any blacks in their shop’.38 Exposing covert institutional racial violence (‘indirect’ discrimination) Later studies made something else visible. They illustrated that the nature of covert racial violence had changed: it now arose from inaction on the part of employers rather than a deliberate intention to discriminate. The research identified a new type of problem that the law did not address: ‘discrimination which is indirect, latent or concealed’.39 Tackling this required a different emphasis in the legal response: the legal definition of overt racial violence (direct discrimination) would have to be broadened to encompass discrimination which was covert and unintentional or ‘indirect’40 discrimination. This became the priority for Roy Jenkins when he returned to the post of Home Secretary under a new Labour administration in 1974. He was determined to complete that which he had been unable to finish in 1968. Jenkins decided that the best way of persuading parliament to enact stronger race legislation was by first introducing separate legislation on sex equality, for which there was much greater political support. The Labour White Paper proposing legislation to make discrimination on the grounds of sex in employment and training unlawful in Great Britain was published in September 1974. It was largely similar to the Race Relations Act 1968: drafters were instructed to follow it, where applicable, unless there was compelling reason not to.41 However, in addition it contained the suggestion for a permanent regulatory commission (the Equal Opportunities Commission) to identify discrimination on the grounds of

37 38 39 40 41

Hansard, 1976, Vol. 127, 27 February–4 March: 1579. Hansard, 1976, Vol. 127, 27 February–4 March: 1617. Hansard, 1976, Vol. 127, 27 February–4 March: 1662. Lustgarten (1980: 4). PRO File LAB 8/3574, Letter from the Solicitor’s Office, Department of Employment to F A Bennion, Office of the Parliamentary Counsel, dated 22 January 1974.

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sex and take remedial action.42 At that stage, it did not contain any indication that the traditional role of intent in discrimination was to be expanded. This first appeared following a fact-finding visit by Jenkins to Washington in January 1975. During this visit, Jenkins met with members of the Civil Rights Division in the Department of Justice, where he discussed the idea of framing legislation so that it would deal with discriminatory outcomes rather than intentions. Jenkins was informed that the emphasis of the American enforcement procedure no longer focused on proving discriminatory intent. The main goal of non-discrimination law was to change established patterns, in for example, employment, so that in future more African Americans or more women would be recruited, trained or promoted.43 This change in priorities of the law was instigated by two things: investigations by the Equal Employment Opportunities Commission (EEOC) and a landmark decision of the Supreme Court of the United States.44 The EEOC had created a test which made covert racial violence visible. It focused on an established recruitment practice to demand formal qualifications for hiring and promotion. This included the popular seemingly innocuous practice of using aptitude and ability tests as part of a selection and promotion process. In many cases, the standards set by these tests surpassed that necessary for the job. There were data showing that the removal of superfluous aptitude tests could be significant – representation of African Americans in the Federal Communications Commission jumped from 3% to 11% in a few years. Thus in 1970 the EEOC issued detailed guidelines on employee selection procedures, which specifically advised employers against the use of these tests unless they possessed data demonstrating that the test ‘is predicative of or significantly correlated with important elements of work behaviour’ relevant to the job at issue. The Supreme Court acknowledged and applied these EEOC guidelines in the case of Griggs v Duke Power Company in 1971.45 Duke Power Company used tests during the recruitment procedure, a result of which was that the disproportionate number of black applicants who failed this test were unable to do better paid jobs. The Supreme Court found that the test was arbitrary: it bore no relation to the job thus it was unnecessary as an evaluation of an applicant’s suitability to do the job. In their ruling, the justices expounded a concept of discrimination which considered the adverse effects of a practice rather than the intention behind the practice: they ruled that the test acted as a mechanism which, while not

42 PRO File LAB 8/3546, Legal Restrictions on the Employment of Women. 43 PRO File LAB 8/3595, Report on the Home Secretary’s visit to Washington, 15 January 1975. 44 Griggs v Duke Power Co., 401 US 424. See also Parham v. Southwestern Bell Tel Co 433 F.2d 481 (8th Circuit 1970); Gregory v Litton Systems, 472 F.2d 631 9th Cir. 1972. 45 PRO File LAB 8/3595, ‘American Experience in Enforcing Civil Rights Laws‘, William L Taylor (Director of the Center for National Policy Review at the School of Law, Catholic University on 14 September 1974 to the Annual Conference of the RRB at York.

Response to covert racial violence 93 necessarily discriminatory in intent was discriminatory in its operation. It resulted in reduced quality of treatment to the black workers and was therefore indirectly discriminatory. If unjustifiable, it was also unlawful. This idea of ‘indirect discrimination’ as a concept in anti-discrimination law was the main piece of new thinking to emerge from Jenkins’ visit to Washington.46 In a letter to Michael Foot MP, Jenkins wrote of his conclusion that ‘many of the pervasive and significant examples of sex discrimination arise less as the result of conscious prejudice than as the result of traditional practices which have a discriminatory impact upon women and which cannot be reasonably justified as a matter of “business” necessity’. For example, the reservation of jobs to those having periods of continuous employment would have a discriminatory impact on many women irrespective of the employer’s intentions. Jenkins therefore suggested that the Sex Discrimination Bill ‘make it unlawful to maintain and operate such practices unless they are shown to be justifiable as being reasonably related to the requirements of the particular job or the needs of the particular business’. He proposed including into the bill a provision ‘to deal with practices which are discriminatory in their operation or effect in situations covered by the bill’ and which were not related to business requirements. As the main objective of such a provision would be to eliminate such practices, remedies were to be sought via the Equal Opportunities Commission rather than through individual litigation.47 His proposals were accepted48 and indirect discrimination became prohibited in Article 1(1)(b) of the SDA 1975. The Race Relations Act 1976 Having won the arguments for gender, the concept of indirect discrimination could hardly be refused for use in race legislation. It became enshrined in Article 1(1)(b) of the Race Relations Act 1976. Racial discrimination was given a broader definition, being both a direct act of less favourable treatment49 and beyond this an act, which though not less favourable, put a disproportionate number of individuals from a particular group at a disadvantage for apparently arbitrary reasons. In the absence of a defence this now constituted ‘unjustifiable indirect discrimination’.50 The concept found use in a number of important cases: in Mandla v Lee the Court held that a school uniform ‘no turban’ requirement was indirect discrimination because Sikhs were less able to comply with it than

46 PRO File LAB 8/3595, Letter from Mark Harris to Mrs Kent, 27 January 1975. 47 PRO File LAB 8/3595, Letter from Roy Jenkins to Michael Foot, 4 February 1975. 48 PRO File LAB 8/3595, letters from the Treasury Chambers (letter to Jenkins 12.2.75), the Lord Advocate Chambers (12.2.75), the Department of Education and Science (11.2.75), the Royal Courts of Justice (11.2.75), the Department of Prices and Consumer Protection (11.2.75), and the Department of Employment (10.2.75). 49 RRA 1976, s 1(1)(a). 50 RRA 1976, s 1(1)(b).

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others; in Hussain51 the company was found to have indirectly discriminated against its Muslim employees because they were the only ones who celebrated Eid Mubarak and consequently were detrimentally affected by the application of the condition banning holidays in May, June and July. In addition, the Race Relations Act 1976 incorporated recommendations of the Street Report. In addition to the existing exceptions,52 the idea of a ‘genuine occupational qualification’ was introduced to allow discrimination where ‘being of a particular racial group’ is required in relation to a dramatic performance, works of art, authentic dining experiences and the provision of personal welfare services.53 It also introduced individual enforcement via industrial tribunals and courts:54 Section 54 created industrial tribunals enjoying semijudicial powers to enforce the employment provisions of the act. This was combined with a mechanism for conciliation.55 Furthermore, Part VII created a strong enforcement agency, the Commission for Racial Equality (CRE)56 which combined the functions of the Race Relations Board created in 1965 and the Community Relations Council established in 1968. Its duties included giving advice, seeking conciliation, arranging for representation or any other form of assistance considered appropriate. The CRE could also support complainants,57 conduct formal investigations,58 subpoena documents59 and persons and issue codes giving practical guidance on the elimination of racial discrimination in employment. It could also issue a ‘non-discrimination notice’ if during a formal investigation it was satisfied that an unlawful discriminatory act or other discriminatory practices was being or had been committed.60 These powers were supported by the courts. They have largely been inherited by the Equality and Human Rights Commission established by the Single Equality Act 2006 (SEA 2006). The importance of research and investigation for recognition and response to covert racial violence is not difficult to see. Griggs was explicitly

51 J H Walker Ltd v Hussain and others [1996] ICR 291, [1996] IRLR 11. 52 For workers wholly or mainly employed abroad RRA 1976 s. 8; seamen recruited overseas RRA 1976 s. 9; employment in private households RRA 1976 s. 22; in charities RRA 1976 s. 34. 53 RRA 1976, part II, s. 5. 54 Lustgarten (1980: 194–9). 55 RRA 1976, s. 55. 56 RRA 1976 Part VII. 57 According to Section 66, the CRE may grant assistance if the case raises an important point of principle or is unusually complex. See McColgan (2000: 252). 58 The scope of the CRE to conduct formal investigations was severely curtailed by the Prestige Decision, where the House of Lords ruled that the CRE must have a reasonable belief that there has been a breach of the Race Relations Act before commencing a formal investigation. Re Prestige Group plc [1984] IRLR 166; ICR 473; [1984] 1 WLR 335, HL. McColgan (2000: 296–303); McCrudden (1987). 59 RRA 1976 s. 50(6) makes interference – alteration, suppression, concealment or destruction – with a document requested by the CRE an offence punishable on summary conviction to a fine of up to £400. 60 RRA 1976 s. 58.

Response to covert racial violence 95 quoted during discussion of indirect discrimination when the bill was in standing committee phase.61 These investigations deepened recognition of covert racial violence and guided the legal definition. The information was used to redesign law to prohibit those covert practices which looked neutral but were discriminatory in their effect. This could include length of service rules or recruitment tests which operated to disqualify black applicants at a higher rate than white applicants but had no significant relation to job performance. But for these investigations covert racial violence would not have been made visible and the legal response refined. Their absence in Germany has hampered understanding of and a strong legal response to racial violence.

Covert racial violence in employment in Germany Hostility towards black workers was not limited to Nazi Germany: Africans were subject to such long before Hitler came to power. Oguntoye found evidence that white Germans sought to force Africans and black Germans from their jobs. For example, Cameroonian Manfred Priso who arrived in Germany in 1907, was subject to a campaign by his union, the ‘Deutschnationale Handlungsgehilfenverband’, which demanded that Priso’s employer fire him simply because he was black.62 As discussed in Chapter 1, during the Nazi period employment became impossible for most black Germans. The one area where work could be found was entertainment: there were plenty of roles available in Hitler’s propaganda films promoting Aryan supremacy and black inferiority. A rare academic study in the 1980s identified similar hostility towards ‘guest workers’: Beginning in the Spring of 1971 a clear and open hostility towards foreign workers developed. During this period hardly anyone spoke up for the foreign co-workers. When in early Summer about 50 foreign workers were literally from one day to the next ‘expelled’ to another plant, there was no indignation of any sort. Just the opposite reaction – visible relief – characterized the comments in response to this action, which the work’s council had approved.63 Workers from overseas were seen as expendable and thus often the first to be fired, although many accepted severance pay rather than take this risk.64 Studies of individual plants concluded that management acquiesced in bullying of migrant workers because the foreign workers were weak – they enjoyed neither social nor legal security. The fear of being expelled resulted in vulnerability to unjust and discriminatory treatment by supervisors, colleagues, officials and neighbours. Discrimination was practised with impunity as a result of private dependency

61 62 63 64

Lustgarten (1980: 5). Oguntoye (1997: 61). Dohse (1982: 59). Dohse (1982: 57).

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relationships, reinforced by state policies – the ‘state apparatus was a part of the general discriminatory coalition but not the guiding centre of the discrimination process’.65 There was no action taken by the authorities to protect either the black or the migrant workers. The official policy towards black Germans after 1945 was that no special protection was required: the children were to be treated in the same way as white Germans even if employers refused to hire them.66 Likewise migrant workers were offered no protection: the Ministry of Labour, which by default was responsible for migrant labour and later became responsible for questions of integration took no interest. Reliance of the German economy on foreign labour was not seen as a reason to make long-term plans for the residence and integration of guest workers. The population of migrant workers was seen as a temporary characteristic of German society despite their importance to the economy. From the late 1960s, social services, cultural and welfare needs were taken care of at the local level via church-run welfare organisations such as Caritas or the Diakonisches Werk.67 There was, however, intense interest in the black German children for a short time after World War II. They were a highly studied group because they were seen as a specific social problem. In the 1950s, numerous surveys were conducted on the black German children in the French and American occupation zones: Baden, Bavaria, Hesse, Rheinland-Pfalz, Baden-Würettemberg and WürttembergHohenzollern. These studies were conducted by anthropologists pursuing social policy objectives through a eugenicist lens, such as Walter Kirchner and Rudolf Sieg, as well as religious organisations, such as the World Brotherhood, pursuing welfare goals from a Christian perspective. Anthropological and social research into the ‘Mischlingskinder’ Both Kirchner and Sieg sought to identify abnormalities in black German children and determine whether such deviations were mental or emotional. Kirchner worked with Hermann Muckermann, former director of eugenics at the Kaiser Wilhelm Institute for Applied Anthropology (KWI). Muckermann was the ‘greatest populariser’ of now discredited eugenicist ideas, such as the hypersexuality and subversive influence of Jews or the limited intellectual powers and cultural achievements of ‘Negros’.68 Kirchner’s work built on Muckermann. Both he and Sieg noted that the black German children were as healthy, intelligent and emotionally aware as white German children, but found developmental, physical

65 Dohse (1982: 66). 66 Franke (1959: 623). 67 By 1974 there was a network of around 550 centrally funded advice and welfare centres run by charitable organisations in the Federal Republic of Germany for foreign workers. Bundestag WP 7/ 116 (19 September 1974): 7823D. 68 Fehrenbach (2005: 81, 87–8).

Response to covert racial violence 97 and behavioural characteristics which they attributed to the ‘Negroid biological inheritance’ of the children.69 A different kind of investigation into race relations was a census survey of the black children who would be entering the public school system in 1952. It was conducted by the German office of World Brotherhood, an international Christian organization working to eliminate racial violence founded in 1950. The founder, Everett Clinchy was formerly the president of the America-based National Council of Christians and Jews (NCCJ), an interfaith initiative created to fight anti-Semitism and the Ku-Klux-Klan. World Brotherhood was one of the organisations which ‘played a prominent role in bringing the postwar race problem to the attention of German state officials, educators, social workers and the press’ by conducting research, holding conferences and sponsoring publications, such as Maxi, Unser Negerbub.70 The objective of the study in 1952 was to examine the extent to which the black children would experience racial prejudice. It was expected that they would experience discrimination for three reasons: first, because of their race and skin colour; second, because their parents were usually unmarried; and, third, they epitomised the German history of military defeat and foreign occupation. There were therefore at least three sources of prejudice: ‘racism, illegitimacy, national resentment towards the occupation’.71 In Germany, black skin indicated a triple sin: moral transgression or racial inferiority of the father, promiscuity of the mother and military defeat of the nation. It was widely believed that black children were both physically and spiritually inferior. World Brotherhood introduced social – as opposed to eugenicist – studies on race to Germany. This made the study pioneering for its time: it was conducted from the perspective of ‘community relations’ (‘Gruppenverständigung’).72 It used a passive methodology: surveys and questionnaires were sent to school authorities and youth workers. There was no interaction with the children themselves or their families. This was an important survey – the results were published in the periodical Bildung und Erziehung73 and were discussed internationally at the UN74 and nationally at a conference entitled ‘ “Mischlingkinder” and School’ held in Frankfurt in December 1953. The results gave a good picture of the location of black German children and an indication of the isolation in which they spent many of their formative years. In relation to schooling, the study found preventive measures taken by authorities to prepare teachers, parents and pupils ‘for this new problem of the co-education of white and coloured children’ meant that discrimination against

69 70 71 72 73 74

Fehrenbach (2005: 90). Fehrenbach (2005: 93). Ebeling (1954: 612–30). Ebeling (1954: 628). Ebeling (1954). Study of Discrimination in Education – Summary Information relating to the Federal Republic of Germany, November 1956, E/CN.4/ Sub.2/L.92/Add 81, English p.7.

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them was minimal. Despite the discovery of some prejudice against these children, the conclusion was that the prejudices had not ‘manifested themselves conspicuously (if at all) in discrimination against them as a group’. The playground aggressiveness reported by teachers secretly observing them was attributed to the parental advice to defend themselves.75 The conference passed a resolution which stated that the ‘problem of the coloured children of mixed blood in Germany must be regarded as part of a more general problem of international significance, namely the situation in law and practice of illegitimate children of troops and occupation forces of other nations. The United Nations should prepare a convention to be binding and to settle the problem at the international level.’76 It called for public authorities, organisations, schools, media, churches and individuals to work to remove prejudice from the social mind. It suggested that special training be given to those teaching the black children and also that the children themselves should give lectures so that white children can come into contact with the black population.77 Terms such as ‘Mulatten’, ‘Neger’ or ‘farbige Besatzungskinder’ were to be replaced with use of ‘farbige Mischlingskinder’. In addition, black role models were to be popularised via the translation of biographies of leading black teachers, artists and statesmen for children. Other ideas included the creation of a fund from private American and German donors and an agency (‘Zentralstelle’) where matters concerning the black children could be directed. This agency would also collect material, produce info leaflets, conciliate and mediate.78 The findings of the World Brotherhood were also discussed in the German parliament. Even after the war, a popular solution for black German children, who were still seen as a group difficult to assimilate, was deportation to southern America or North Africa ‘where they would look like everybody else’ or even America.79 However this was not seen as a ‘Christian response’ to children who have been ‘disadvantaged by nature’.80 The investigation did little to stimulate a legal response to covert racial violence: the consensus that the existing legal instruments provided sufficient protection continued,81 although the question was raised as to what would happen when these children left the safe environment of the school. A further conference was held in August 1959 to discuss this question. It was acknowledged that the black children would encounter problems of equal treatment, despite having the same level of qualifications as their white cohorts. A study focusing on the transition from school to work highlighted that employers were

75 Ebeling (1954). 76 Study of Discrimination in Education – Summary Information relating to the Federal Republic of Germany, November 1956, E/CN.4/ Sub.2/L.92/Add 81, English p.7. 77 Ebeling (1954: 629). 78 Ebeling (1954: 630). 79 Ebeling (1954: 617). 80 Baumeister (1952). 81 Bundestag WP 1/ 198 (12 March 1952): 8508.

Response to covert racial violence 99 rejecting black school leavers entering the labour market.82 Much of the blame was placed at the door of the older generation: they were the influential decision makers who refused black children jobs because ‘their workforce wouldn’t like it’. It was stressed that black and white Germans would interact not only in school but also in professional life as tradespersons and managers.83 There was little support for targeted action: Franke’s was a lone voice requesting better preparation for entry into the labour market and the encouragement of more tolerance in society.84 No legal response was made. In the meantime, a survey of foreign students concluded that discrimination because of skin colour was a regular occurrence: the darker the skin colour, the worse the discrimination. Black students reported experiences of racial discrimination: 42% of the students surveyed had been refused a room which they knew was available; 20% had been refused service in pubs; 14% had been subjected to verbal abuse on the streets, on public transport and in the student cafeteria.85 Aside from these localised and focused investigations, there has never been a comprehensive national study on racial discrimination in Germany.86 Details on the forms of covert racial violence, its individual impact and social effects are collected at neither state nor federal level.87 Federal social studies, such as the Microcensus, conducted between 1996 and 2004 to provide a general picture of the living and working conditions88 are not stratified by race or ethnicity. Black Germans therefore fall into a lacuna and covert racial violence remains hidden. More recently, the Commissioner for Foreign Affairs has begun to collect data on the migrant population in Germany. Yet there is little indication that this information influences or informs a legal response. Commissioner for Foreign Affairs (Ausländerbeauftragte) The recommendation made by the World Brotherhood for the creation of an agency was not acted on until almost three decades later, when two temporary89 ‘special commissioners’ were created within the SPD-led Ministry of Labour.90

82 83 84 85 86 87 88

Franke (1959: 623). Franke (1959: 623). Franke (1959: 624). Prodosh (1962: 239–40). Sieveking (1994: 259–67). Forum gegen Rassismus, Infobrief 2 (2002: 4). Gesetz zur Durchführung einer Repräsentativstatistik über die Bevölkerung und den Arbeitsmarkt sowie die Wohnsituation der Haushalte (Mikrozensusgesetz) of 17. Januar 1996 (BGBl. I p.34). 89 BT-Drs 8/2490. In 1980 the official title changed to the ‘Beauftragter der Bundesregierung für die Integration der ausländische Arbeitnehmer und ihrer Familienangehörigen’, commonly known today as the ‘Ausländerbeauftragte’. The Commissioner for Foreign Affairs is now responsible for the coordination of issues relating to the integration of migrant communities. In some states the Commissioner is now known as the ‘Integrations Beauftragte’ (Commissioner for Integration). 90 BT-Plenarprotokol 9/140: 8839B.

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One was a ‘Beauftragter der Bundesregierung für die Integration der ausländische Arbeitnehmer und ihrer Familienangehörigen’ (‘Government Commissioner for the integration of foreigners and their families’) and the second a Commissioner for the disabled. The Ausländerbeauftragte was primarily a coordinator, addressing problems arising between the state and federal level. The coordination role – albeit limited and without any real powers (its work had no significant influence or impact on policymaking) – proved successful and was continued by the CDU when they came to power in 1982.91 In 1990 the controversial new law for foreigners (AuslG)92 introduced by the CDU Home Secretary Wolfgang Schäuble gave the government discretionary powers to create a commissioner within the Ministry of Labour to deal specifically with questions of immigration and integration.93 The statutory commissioner was given a variety of objectives – promotion of the integration of long-term migrants, the development of peaceful relations between foreigners and Germans, the pursuit of equal treatment, public education94 – but like the first British Race Relations Board, few powers to actually achieve them. There was no right of information, merely a right to be informed of legislative or other initiatives in the field of immigration being considered by the government ‘at the earliest opportunity’. Any suggestions or recommendations made did not have to be reacted to or acted on. While the ministries were to support the commissioner in the fulfilment of her objectives, this was discretionary as no firm guidelines were given as to how or to what extent. In addition, the remit of the Ausländerbeauftragte extends only to public bodies. Where evidence shows that a public body has breached one of the objectives laid out in the law, the commissioner is empowered to write an opinion and ask questions which the body is obliged to answer. No timeframe was given for this process. No specific powers of enforcement were given. In particular, the public body was only obliged to release data on individuals where the complainant had approached the commissioner or permission of the complainant could be illustrated.95 As the title suggests, the work of the Ausländerbeauftragte covers only those without German nationality – migrant workers and their families: police often advise black Germans who have been the victim of a racist attack to contact the Ausländerbeauftragte, who cannot help them because they are German.96 The biannual reports written by the Ausländerbeauftragte contain detailed information on the living and working conditions of the migrant communities but say nothing about black Germans. Nonetheless, they contain important details on

91 BT-Drs 9/2441. 92 Gesetz über die Einreise und den Aufenthalt von Ausländern im Bundesgebiet (AusländergesetzAuslG) (Auszug) of 9.Juli 1990 (BGBl. I S. 1354). Entry into force 1 January 1991. 93 Article 91a AuslG. 94 Article 91b AuslG. 95 Article 91c AuslG. 96 Sephocle in Blackshire-Belay (1996: 14).

Response to covert racial violence 101 critical issues such as labour market access and progress. For example, the annual report for 2000 indicated that Germans of Turkish origin experience more difficulty finding training positions and jobs than white Germans in the same age group. As was discovered in Britain, the transfer from school to workplace is not without problems. The main areas of occupation tend to be those which white Germans see as too lowly, difficult or badly paid – industrial cleaning, hairdressing, and textiles.97 Studies show that equally qualified ethnic minority Germans are refused work as a result of their origin.98 The commissioner can also undertake her own investigations and these do sometimes cover colour. For example, a working group on discrimination was set up in 1991.99 Discrimination tests, such as those conducted by PEP in 1966, have been conducted by the Ausländerbeauftragte in Brandenburg, East Germany. Data was collected on the occurrence of racial discrimination in relation to access to discos. Between November 1999 and July 2000, three men – one black, two white – were secretly recorded on camera as they tried to gain entrance to different nightclubs in Brandenburg. The test illustrated that around one third of the discos involved practised a discriminatory door policy: while the non-Germans were refused entry under the pretext that the club was full, white Germans were allowed to enter.100 Some studies are also conducted by the Ministry for Women, Family and Youth. Comparison of educational outcomes for foreign youth and their German cohorts reveal a higher rate of poor education, a lower rate of access to training and higher numbers of unemployment. This applies also to young migrant German women, despite higher levels of achievement and motivation than both German men of migrant origin and German women and men of non-migrant origin.101 For example, 43% of migrant women between the ages of 20 and 30 do not receive any vocational training. Their unemployment rate stands at 37% while the average for all non-Germans is 17.3%. These women are predominantly employed in sectors where jobs are disappearing, salaries are low, conditions poor and access to benefits restricted, such as the laundry business, hairdressing or the textile industry.102Access to stable employment remains difficult. Only 37% work in white collar jobs, compared to almost 65% of German women.103 Such insights make an important contribution to understanding covert racial discrimination, but in the absence of a federal study the national picture remains patchy and hidden. As the Commissioner for Foreign Affairs has a somewhat ambiguous status it is also difficult to assess the impact of the research

97 98 99 100 101

Beauftragte der Bundesregierung für Ausländerfragen (2000). Nickel (1996: 26–31). Beauftragte der Bundesregierung für Ausländesfragen (2000: 11). Commissioner for Foreign Affairs in the State of Brandenburg (2001). Bundesministerium für Familie, Senioren, Frauen und Jugend (2000); Beauftragte der Bundesregierung für Ausländerfragen (2000). 102 Beauftragte der Bundesregierung für Ausländerfragen (2002: 317). 103 Bundesministerium für Familie, Senioren, Frauen und Jugend (2000).

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on the evolution of race equality law. This seems to be negligible. As will be seen later, in the many draft proposals put forward by the political factions for a civil prohibition of racial discrimination, only one from the Green Party contained a reference to studies into racial discrimination conducted by the Commissioner for Foreign Affairs. The legal response to covert racial violence in Germany There has been no direct legal response to investigations on race relations in Germany, but these may have instigated a slow change in the discourse. Beginning in the early 1980s, racism began to be linked to ethnic minorities and discrimination to race rather than gender.104 This new discourse was promoted by the Green Party, a coalition of grassroots organisations, which had entered the German Parliament following the elections of 1982.105 Together with their coalition partners, Bundnis 90 (B’90), they sought to introduce a new way of thinking and promoted the idea of a ‘multicultural society’.106 This coalition also pushed the government to pass stronger legislation against covert racial violence. In 1998, it presented a draft for a law prohibiting discrimination and providing protection to minorities.107 Even the SPD presented a draft law to strengthen Article 3 of the Constitution.108 These proposals were rejected by the Conservatives but demonstrated a broad parliamentary consensus that an anti-discrimination law was required to give a clear signal that whoever made members of minority groups into victims of discrimination and violence acted outside the social consensus.109 Soon after the SPD formed a government under Gerhard Schröder in late 1998, the German parliament confirmed its resolve to take legal measures to prevent ‘attacks on democracy and society as a whole’.110 In December 2001 a proposal for the introduction of a prohibition of racial discrimination into the civil code was produced by the Ministry of Justice (BMJ).111 Its goals, however, were limited: in the absence of detailed information making discrimination visible there was no reason for a radical change – the purpose of the new clause was simply to anchor the constitutional equality guarantee more firmly in ordinary law. Lack of clear information hampered the parliamentary vision by limiting the objectives for change: it was agreed that the central equality norm in Article 3 GG was adequate

104 BT-Drs 10/5, 5 May 1983. 105 BT-Drs 10/4 4 May 1983. 106 Bundnis 90/Die Grunen, Für eine offene Bundesrepublik, Bonn: Bundmis 90/ Die Grunen (1994: 1–2). 107 Entwurf eines Gesetzes zum Schutz vor Diskriminierung und zur Stärkung von Minderheiten (Antidiskriminierungs- und Minderheitenrechtsgesetz), BT-Drs 13/9706, 20.01.1998. 108 Entwurf eines Gesetzes zur Durchsetzung des Gleichbehandlungsgebotes des Artikels 3 Grundgesetz (Gleichbehandlungsgesetz), BT-Drs 13/10081, 09.03.1998. 109 BT-Plenarprotokoll 13/233, 30.04.98, Column 21406. 110 BT-Plenarprotokoll 14/162, 30.03.2001, Column 15802. 111 Gesetzes zur Verhinderung von Diskriminierungen im Zivilrecht, BMJ, 10.12.01.

Response to covert racial violence 103 but that it had not been operating effectively. The key problem was therefore activation rather than recognition: the provisions in civil law112 through which the constitutional protection of Article 3 GG was to inform ordinary private relations were difficult to enforce. The answer was therefore to improve the access to Article 3 via the civil law, thereby giving individuals an accessible legal remedy to seek redress in the face of discrimination. The government also intended to finally fulfil its historic obligations arising under the ICERD113 and CEDAW114 as well as more recent ones arising under the European Race Directive 2000/43 and the EU Framework Directive 2000/78. The result was a broad and shallow proposal, Article 319 BGB,115 which found little support outside parliament. The proposal met with widespread rejection from many quarters, including established interests in industry and religion. Many professional and industrial bodies saw the draft as too narrow and too weak in a number of key areas, such as the use of the term ‘race’, the placing of the burden of proof and the lack of any provision for an enforcement agency.116 As in Britain, the employers’ organisation – the Association of German Employers (BDA)117 – objected to any measures which threatened to limit the freedom of employers.118 The Evangelical Church (EKD) also complained loudly and persistently about the threat to its religious autonomy. Without hard facts to support their intentions, the government backed down. Although Article 319 was defeated, the trade union association (DGB) negotiated an amendment to the Works Council Act. A law of 2001 gave works councils a duty to promote measures to combat racism and xenophobia at work. In addition, the works council was given the right to veto the employment of an applicant known to be racist or xenophobic or the demand that a racist employee be removed from the plant. A new monitoring duty was also imposed on the employer in the form of regular reports to the works council on the integration of foreign workers.119 These changes slightly redistributed the power between management and the works councils: they oblige the works council to actively protect the work environment and they also force the employer to constantly monitor race relations at the workplace. However, the position of individuals remained largely unchanged. There is still little opportunity for individuals to

112 113 114 115 116

In particular Articles 138, 226, 242 und 826 BGB. BGBl. 1969 II S. 961. BGBl. 1985 II S. 648. Gesetzes zur Verhinderung von Diskriminierungen im Zivilrecht, BMJ, 10.12.01. DGB Abteilung für Arbeits- und Sozialrecht ‘Position der Deutschen Gewerkschaftsbundes zu Anforderungen an eine gesetzliche Umsetzung der Richtlinien zum Schutz vor Diskriminierung’, December 2002; Deutscher Juristinnenbund; Initiative Schwarzer Deutscher, Netz Gegen Rassismus. 117 Bundesvereinigung der Deutschen Arbeitgeberverbände. 118 Wolf (2001). 119 Forum gegen Rassismus/ Nationaler Runder Tisch (Arbeitsgruppe Gleichbehandlung/ Nichtdiskriminierung), Infobrief 2 (2002, 27).

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independently protect themselves form covert racial violence. Sadly, the new ADG barely changes this.

Conclusion A prerequisite for a strong legal response to covert racial violence is detailed research on race relations. Studies and tests make the invisible visible: gaining visibility of covert racial violence is crucial perquisite to the formulation of a legal response. As the work of the EEOC in the United States illustrates, studies are also important to identify changes in patterns of discrimination and an appropriate policy response. There were very few researchers working on the issue of race relations in the 1960s in Britain. No government department had conducted any research and there were scant records on the lives of black people.120 Much hard work had to be done to convince both government and the general public that covert racial violence existed and was a serious problem requiring the force of law. The PEP investigation in Britain and the Street research abroad were both important due to their impact on the public and policy: they stimulated discussion on the issue within society and brought new ideas which assisted in the design of public policy. There was clear interaction between race and sex legislation. Race and sex equality legislation built on each other: the Sex Discrimination Act 1975 (SDA 75) was modelled on the RRA 1968, yet the RRA 1976 was modelled on the Sex Discrimination Act 1975 (SDA 75).121 In the absence of these investigations or this legislative strategy, anti-racial discrimination law in Britain would not look as it does today. Investigation in Britain uncovered covert racial discrimination and affected both recognition and definition in the form of the scope of direct discrimination in the RRA 1968 and the definition of indirect discrimination in the RRA 1976. There is still a lack of such research and strategic intervention in Germany. As in Britain in the 1960s, there is little mileage in this issue. High-profile investigations such as the PEP study are yet to be seen. The information that does exist appears to have little impact on the legislature. There is little evidence to suggest that the work of the Ausländerbeauftragte influences the legislative response: although a statutory body, the Commissioner has no formal role in lawmaking. Its duties and powers do not compare to those of the regulatory commission such as the CRE or the EEOC. Commissioners have sought to expand this role to include participation in the creation of legislation, but the office has remained institutionally marginalised in spite of the introduction of a duty to provide yearly reports.122 Under Barbara John, the Ausländerbeauftragte became an important focal point for the interests of migrant groups, developing a profile as part ombudsman and a

120 Rose (1969: 757). 121 Lester (1997: 8). 122 Yearly reports were required from 1993 onwards.

Response to covert racial violence 105 central point for complaints and welfare office but there is no formal relationship with either side of industry or government ministries. In the absence of data it is hard to say whether the situation of black Germans is better or worse than other ethnic minority Germans. Their circumstances are likely to be very similar, albeit for different reasons: colour in the case of the former and foreignness in the case of the latter. Germany has been criticised for this by the EU Monitoring and Advocacy Programme (EUMAP), especially in relation to Roma and Sinti women and girls: in the absence of intelligence, there is no basis for the German government to create policies to address the racial violence which they face.123 Although well-endowed private foundations exist, none has stepped forward to fund such a study as did the Nuffield Foundation or the Joseph Rowntree Trust. The absence of recorded evidence of covert racial violence in Germany leaves a huge gap of knowledge on the living and working conditions of black and migrant workers, but says much about policy priorities. I will discuss this further in the next chapter.

123 Open Society Institute/EU Monitoring and Advocacy Programme (2004: 3).

5

Restoring voice and visibility1

Introduction Although both nations now have similar anti-racial discrimination laws, the response to racial violence has generally been faster and more robust in Britain than in Germany. Various German administrations withstood almost four decades of pressure at the international2 and parliamentary level.3 For example, in August 1993, the 43rd Meeting of the United Nations Committee on the Elimination of All Forms of Racial Discrimination (CERD) it was recommended that the German government meet its obligation under the ICERD by introducing concrete legal measures and that the responsible institutions seriously consider the drafting of an anti-racial discrimination law to tackle injustices in social life and send a clear signal that racial discrimination is unacceptable. How can this be explained? Why is it that even though the far right poses less of a threat in Britain than in other European countries,4 its legal response to racial violence was the strongest? Witte argues that ‘the way in which state authorities respond is relatively autonomous and independent of the violence itself. State responses stem from sources other than the racist violence itself, including historical, political, socio-economic and ideological processes and circumstances.’5 In other words, racial violence triggers but does not determine the nature of the official response: this is determined prior to policy and law. In this chapter, I suggest that the official response is initially determined by the level of ‘ethical responsibility’,6 the optics through which the ‘Other’ is viewed. These optics underlie and are manifested in law and policy. I argue that ethical responsibility can be recognised in, for example, development of immigration

1 Part of this chapter was first published in European Current Law, December 2007 (Sweet & Maxwell) and is reprinted here with their kind permission. 2 BT-Drs 7/2871 (2 December 1974). 3 BT-Drs 12/6245; BT-Drs 12/8659; BT-Drs 13/1405; BT-Drs 13/1466; BT-Drs 13/4802; BT-Drs 13/9706; BT-Drs 13/10081; BT-Drs 14/3106; BT-Drs 14/3516; BT-Drs 14/4067; BT-Drs 14/4145; BT-Drs 14/ 5456; BT-Drs 14/5695. 4 Roxburgh (2002: 221). 5 Witte (1996: 1). 6 Levinas (1987).

Restoring voice and visibility 107 policy and measures to promote integration. Integration policy, in turn, determines whether studies into race relations are seen as necessary. The different responses to racial violence in Britain and Germany can be explained by the diverging approach in these nations towards citizenship and integration. In Britain, colonial citizens were by the end of the 1960s officially accepted as black Britons;7 in Germany, children with a black or foreign parent are still officially seen as second generation immigrants. It can be argued that the requisite ‘notions of acquaintance and trust’ leading a polity to recognise some responsibility to ‘those proximate to them that they would not grant universally’ are absent in Germany.8 The continued treatment of black Germans and immigrants as foreigners pre-empts concerns of equal treatment and opportunities in favour of a focus on xenophobia, ‘Ausländerhass’ and right wing violence. The official opposition to right wing extremism also does not preclude the persistence of hostility to foreigners – the two can coexist.9 However, before these can be conducted, there must be an acceptance of ethnic data.

Ethical responsibility Ethical responsibility, according to Levinas, has less to do with duty and more to do with care. Ethics, as he uses the word, is ‘neither a code of rules nor the study of reasoning in how we ought to act’.10 Ethics is an optics, a lens through which one views the world, a way of seeing and relating to others. The optic of his ethics is one of compassion. Diamantides suggests that ‘the whole of Levinasian ethics can be read as a generalised commandment, “Be compassionate” in which compassion is not a promise to cure suffering but the actuality of the caress’.11 Thus compassion is an action, a praxis, a way of being which is only stimulated by the presence of the ‘Other’12 and can only exist when faced with the ‘Other’. Levinas contrasts the acceptance, or ‘facing’ of human alterity with the ‘silencing’ effect of violence. Racial violence represents an attempt to ‘silence’ or efface ‘Others’. It is a ‘turning away of face’,13 which denies otherness both its legitimate right to exist and its right to be different. The racist and xenophobic violence discussed in the previous chapters should be understood not just as physical onslaughts, but beyond this as acts which attempt to eliminate a public presence of black and migrant persons through intimidating them into silence and invisibility. As Werbner writes, such attacks on individuals transmit a collective message of exclusion.

7 8 9 10 11 12 13

For an up-to-date review, see the Runnymede Trust (2000: 8). Chalmers (2001: 198). Parekh (2001: 5). Davis (1996: 35). Diamantides (2006: 193). Manderson (2006: 55). Lingis (1987: 18–19).

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Reversal of the exclusion threatened by racial violence is determined by the ethics of the state and the choice it makes for or against compassion with the ‘Other’. This choice both informs human relationships and underlies systems and institutions. It is crystallised in the morality which ‘governs . . . the social interchanges between citizens in a society’: this ‘ethical norm of the interhuman’ inspires and directs the moral underpinnings of government, institutions, tribunals, prisons, schools, and committees.14 It is therefore the level of compassion with the Other which determines the nature of the official response to racial violence. In this chapter, I suggest that ethical responsibility, or the level of compassion, is manifested in integration policy, which in turn influences investment in the wellbeing of the subjugated groups. I begin with a brief discussion of the models of integration that have emerged in Europe in the post-World War II period. Of the models mentioned, the approach in Britain most closely follows multiculturalism, while Germany has historically pursued assimilation. Thereafter, I look at the role played by social investigation in integration of racial and ethnic minorities. Models of integration One manifestation of ethical responsibility is the approach towards integration. Integration can be defined as the extent to and conditions under which new entrants to the polity are included in the ‘right to full regard’. As Parekh says, the way in which outsiders are described ‘indicate the society’s view of the outsiders place in it’.15 Whereas in Britain, the majority of migrant workers from Africa, Asia and the Caribbean were citizens, and children born to them in Britain were also citizens, this was not the case in Germany where even today children born to non-German parents do not necessarily hold citizenship. Consequently, of the 7.2 million16 foreigners in Germany in 1999, almost two million were born there. The ways in which black and migrant workers are integrated into social and political life varies widely between the EU member states. Member states have generated different policies and organisational structures in relation to the integration of minority groups.17 Parekh summarises these models as procedural, assimilationist/bifurcationist, pluralist and ‘millet’.18 These models revolve around the attitude of the state to the existence of different values and cultures in the public domain and private sphere. They can be looked at as binaries, with the

14 15 16 17 18

Cohen (1986: 29–30). Parekh (2001: 3). 8.9% of the total population. Bericht der Ausländerbeauftragten (2000: 17). Favell (1998); Soysal (1994). Blackstone et al (1998).

Restoring voice and visibility 109 procedural–millet models forming one opposing pair, and the assimilationist/ bifurcationist–multicultural models forming another. According to the procedural model, the state is value blind. It stands neutral and aloof, neither preferring nor enforcing any one culture or way of life. Parekh dismisses this model as ‘logically incoherent’ – structures of state authority and binding laws are premised on a particular view of the ‘good life’ and therefore cannot be morally neutral. In addition, ‘since every law coerces those not sharing its underlying values, a morally non-coercive state is a fantasy’.19 Under the millet model, the state retains its aloofness, but is responsible for maintaining the autonomy of different groups and regulating their interaction. Parekh rejects this model for being rigid and isolationist – not only do cultures change, but individuals navigate between many different cultures, ‘constantly deciding how best to behave in any given context’.20 The assimilationist model is based on the belief that the stability and cohesion of a polity depends on the protection and perpetuation of commonalities: a common national culture, common values, ideals of excellence, moral beliefs, and social practices. The mutual attachments evolving from these shared factors form the bonds of solidarity key to national stability. The role of the state is therefore to preserve these commonalities by ‘flattening’ or merging difference into a homogenous whole. Parekh condemns this as an ‘incoherent doctrine’ for often it is not clear ‘what minorities are to be assimilated into’21 because the commonalities are more imagined than real.22 The bifurcationist model departs from this slightly: it tolerates diversity in the private realm, but insists on unified values, practices and institutions in the public realm. Pluralism can be accepted as long as it remains private. Under this approach to integration the public realm is elevated and enjoys more dignity, prestige and patronage. This undermines the private realm and causes it to be treated with less regard.23 In sharp contrast to this, the multicultural model of integration promotes the incorporation of diversity into public and political life. In a multicultural society, there is no ascription of universality to a majority way of life.24 Public life still revolves around shared norms, values and practices but these reflect the ethnic and cultural diversity present in society. Unity is based on the appreciation of many different cultures rather than one single culture. The pressures to assimilate are therefore replaced by an openness towards difference in both private and public life. Pluralism promotes dialogue and contributes to the creation of private and public realms rich in diversity.25 Touraine also stresses that ‘multiculturalism

19 20 21 22 23 24 25

Blackstone et al (1998: 6). Ballard (1994: 30–31). Blackstone et al (1998: 7). Anderson (1991). Blackstone et al (1998: 9). Touraine (2000: 194). Blackstone et al (1998: 10–11).

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is primarily an attempt at communication’.26 In a multicultural society individuals communicate and have equal rights, regardless of ethnicity. Touraine argues that this intercultural exchange makes multiculturalism incompatible with the idea of community.27 This is the key differentiating factor from a pluralistic society based on the millet model, where communities are bounded, inequality between ethnic groups is rife,28 and communication is non-existent. These starting points lead to different priorities: assimilation lays less emphasis on securing equal treatment and access to both resources and opportunities via law but stresses familiarity with the host language and culture. Since the 1970s these have been the basic requirements for immigrants hoping to settle in Germany. Britain has, on the contrary, taken a more pluralist approach with the emphasis being on the legal protection of difference as far as possible within the bounds of respect for a core set of democratic values. Simultaneously, however, this has been coupled with restrictions imposed on entry. While Britain and Germany are both multicultural, in that they are culturally diverse, they are not both multiculturalist:29 Germany has historically pursued repatriation and assimilation, with an emphasis on the ability of the different groups to be integrated. As demonstrated by the policies of the conservatives under Kohl, where integration is not seen as possible due to cultural incompatibility, repatriation is not excluded. There is little response to overt racial violence because the victims themselves are blamed for this – as Kohl said, the post-reunification violence arose from despair not bigotry. By contrast, Soskice acted to officially recognise the former colonial citizens as an integral part of British society. Likewise, a key assumption of the Race Relations Act 1968 was that black workers were ‘an integral part of the community’30 – Roy Jenkins was keen to move away from the flattening process of assimilation that informed integration policy in 1964.31 The level of belonging of black and minority ethnic Germans continues to be regulated by the assimilationist paradigm: it is possible only to be German or foreign. Consequently a PEP-like study is impossible: if integrated as German, colour and ethnicity cannot be seen; in order to be visible one must identify as foreign, a person not integrated in society. If not a permanent part of society, then the investment into race equality law is superfluous. This may explain why there has not been an in-depth official investigation in Germany. No organisation has been commissioned to examine the causes and manifestations of racial violence. The long-term implications of the changing patterns of migration in the mid-1970s were seen but not acted on; in the 1980s, the question was obfuscated

26 27 28 29 30 31

Touraine (2000: 186). Touraine (2000: 165). Rex (1996: 31). Parekh (2000: 6–7). MacDonald (1977). Rex (1996: 32).

Restoring voice and visibility 111 by the issue of asylum; and in the 1990s, the problem was exported to the EU. Successive governments have failed to look at the deeper issues behind racial violence – namely, that the social composition of Germany has changed permanently. This key acknowledgement was the necessary precursor to the in-depth national social investigation into Britain’s black population which set the scene for a change in law. Social investigation The model of integration determines the extent to which detailed knowledge on the composition of society is required. Investigations are a ‘practical intervention in society’32 and an investment in developing public understanding of the living and working conditions of black and minority communities. Social investigations are a way to reverse the collective exclusion of racial violence. They restore by giving visibility and voice: they create a public profile for those whom violence attempts to obliterate and affirm the presence of victimised groups. While violence annihilates, investigation stimulates inclusion. The act of investigation can be designed as both a criticism and reversal of subjugation. This can be seen in Britain, where changes to the social composition were recognised as permanent and stimulated questions on equality and stability. Research on the lives of black citizens not officially only armed legislators with powerful information, but also gave a public profile or ‘face’ to marginalised black citizens. However, where the victims are not officially viewed as full members of the polity, as in Germany, investigation into the circumstances of their lives will not be a priority. Such investment is a commitment that will only be made where those victimised as ‘Others’ are seen as an integral part of society. Prior to the 1960s, there was in England a distinct lack of academic interest in the issue of race. Rose observed that ‘there seemed to be no professional mileage in race relations in Britain’.33 It was only with the identification of a significant trend that racial discrimination became a topic for investigation. Following the Conservative Commonwealth Immigrants Act of 1962, the majority of new entrants were women. The likelihood was thereby increased that their children would be born in Britain and that they would stay permanently.34 This realisation, and its implications for British society, prompted the first major study into the black population: Everyone who has so far looked at the question of colour in the UK has emphasised that the situation is still fluid; coloured minorities we may be sure are with us for good but their relations with the native British have not

32 Giddens (1984: 340). 33 Banton (1998). 34 ‘£70,000 for study on racialism’, The Guardian, 27 September 1963.

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Making anti-racial discrimination law yet settled into rigid patterns … There is nothing quite like Harlem, but in certain Midland areas there are one or two schools where coloured children make up more than 30 per cent of the total. We can see the agony with which the United States is trying to break down hard racial patterns. Apart from the humiliation and bitterness it brings, we are told that segregation is a costly industrial handicap. Ought we not take a look at what is happening before it is too late?35

Such thinking led to a grant of £70,000 from the Nuffield Foundation36 to the Institute of Race Relations (IRR) to conduct the first ever nation-wide investigation into the colour problem in Britain. Motivated by the Carnegie Foundationsponsored report An American Dilemma, it was to be a ‘Myrdal for Britain’.37 The hope was that the investigation would prevent racial attitudes and trends from crystallising into the social segregation seen in the American south. It was guided by three convictions: first, that: [I]t is a cause of profound ill-health for a nation to include two kinds of citizen, one of whom is regarded and treated as inferior. Misery, resentment, and waste are the symptoms of the disease. Secondly, that social evils are extremely complex and are more likely to be improved if there is a body of accurate information available for those who frame policy and also a body of persons who make it their business to think about that information and interpret it. Thirdly, that ideas generated in the study by long thought will in time seep upward into the Cabinet offices as well as downward into the popular mind.38 The PEP study39 was therefore not the first large-scale study on race in Britain: the Rose Report on colour and citizenship was an in-depth examination of the lives of black people in Britain. It looked at immigration, the distribution and demography of the black population, housing and employment, health and welfare, policing and law enforcement, discrimination and legislation. It was conducted in order to ‘put into circulation information which might serve as the basis for policy-making’.40 However, it was to take 5 years and its results were published after the PEP Report and too late to be of use to Jenkins in 1968. Investigatory interventions operate at many levels: the level at which the study is commissioned; the level at which the information is gathered (the methods used); and the level of the dissemination of the information. The higher the

35 ‘Long look at colour question’, The Times, 27 September 1963. 36 The Nuffield Foundation was established in 1943. It aims to promote social wellbeing through research and practical experiments. 37 Rose (1969: preface). 38 Rose (1969: xxiii). 39 See Chapter 4. 40 Rose (1969: 755).

Restoring voice and visibility 113 status of the commissioners, the higher the profile of the study; the more active the methodology, the greater the involvement of those concerned; the wider the dissemination of the results, the greater the consciousness raising of the public and public debate. The Rose study comprised 19 major and 22 minor research projects. It put this original research material together with an analysis of census material and government policies to create a ‘map’ of race relations in Britain.41 The methodology of the Rose Report created a team of skilled researchers who continued to contribute to the understanding of race relations in Britain. An active methodology was also used by the investigators at PEP. The three different approaches taken all involved personal contact with black people themselves, providing a rare opportunity to discuss racial violence with both victims and perpetrators, revealing the extent and breadth of racial violence and the difference that colour made in everyday transactions. The studies that are conducted in Germany rely on secondary sources. The methodologies of the World Brotherhood and the reports of the German Commissioner for Foreign Affairs can both be compared to the Rose and PEP studies. The World Brotherhood collected details from school authorities and from teachers rather than the children and their families. The Ausländerbeauftragte does not conduct a public exercise of collecting data on racial discrimination: it recompiles information gathered by the federal ministries such as the National Statistical Office (Statisches Bundesamt) and the Ministry for Labour (Bundesanstalt für Arbeit). Collation rather than the collection of information clearly is not conducive to promoting the visibility of black Germans and migrant people – it cannot be described as a practical intervention to promote inclusion. Racial discrimination would be a fitting topic for a German ‘Enquête Commission’, a specific type of investigatory commission usually established to prepare a field of legislation. The Enquête Commission differs from usual parliamentary committees because they normally meet in public. It is composed of experts and parliamentarians who together formulate recommendations not only for the Bundestag but also for the public. It therefore performs a public relations function for the Bundestag, acting as a catalyst for an issue to enter the public forum.42 The Immigration Commission created to present proposals for the modernisation of Germany’s immigration and asylum laws is an example of such a commission. Despite the new equality law (ADG), it would be useful for an Enquête Commission to be formed to look specifically at the social and economic impact of everyday and extreme racial violence. Such a commission could follow the methodology used by the European parliament, which conducted a number of pan-European investigations into racial violence in the 1980s and 1990s. These European surveys were based on extensive

41 Rose (1969: 7). 42 Sontheimer & Bleek (2003: 295).

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fieldwork incorporating discussions with individuals and organisations. For example, the Evrigenis Inquiry focused on the increased activity of fascist groups and their impact on social stability.43 The inquiry invited contributions from institutions including the Council of Ministers and the Commission and the European Trade Union Confederation (ETUC) and non-governmental organisations, such as SOS Racisme, the Joint Council for the Welfare of Immigrants (JCWI) and Mouvement contre le racisme, l’antisemitisme et la xenophobie (MRAX). Further documentation was obtained from national and international bodies, such as national parliaments, the United Nations (Centre for Human Rights and Committee for the Elimination of All Forms of Racial Discrimination), the Council of Europe, the Court of Human Rights, and the International Labour Organisation (ILO). The subsequent Ford Inquiry sought to discover the impact of the Single European Act on the position of non-EC or ‘third country’ nationals.44 The committee gathered information during public consultations held in Brussels, Marseilles, Luxembourg and London. Individuals were able to speak for themselves rather than via organisational representatives.45 The outcome of this intensive primary research was a report full of important details in a countryby-country analysis of the current living and working conditions of black and migrant persons, and an equally detailed account of the activities of right wing extremists. Influence of investigations There is no guarantee that any data gathered will be used46 or always result in legal reform. Investigation alone does not guarantee that such interventions will have an impact. This depends on a number of factors, for example the status of those collecting the information and the status of those who plan to use the information. Giddens suggests that an impact is unlikely where the information is irrelevant or inaccurate and serves neither the purposes of its subjects nor its owners.47 This is likely if the investigation is merely a kneejerk governmental response to a crisis, designed to evade rather than to tackle and transform. However, if the information remains both current and relevant, and those who want to apply the new knowledge have the power and influence to do so, it can be used to challenge and provoke a reconstitution of policy paradigms.48 The importance of the status of those who collect the information can be seen by comparing the British Race Relations Board with the Council of Minister’s Kahn Commission. The Race Relations Board created in RRA 1965 was a weak

43 44 45 46 47 48

European Parliament (1985: 11). European Parliament (1991: 12). European Parliament (1991: 16). Feldman (1989: 10–12). Giddens (1984: 341–3). Davidson & White (1988).

Restoring voice and visibility 115 statutory body, mandated only to receive complaints and to settle these using conciliatory methods. It was given no powers to subpoena information or persons. However, the act obliged the local conciliation committees to submit periodical reports to the Race Relations Board.49 This necessitated that it compile data. It was this data that highlighted the ineffectiveness of the RRA 1965. Through recording complaints, the Board was able to show that it could not address the majority of problems brought before it because of the narrow scope of the Race Relations Act 1965. Of the complaints brought before it, 70% came from pubs,50 shops, hairdressing saloons, private hotels and holiday camps, all of which were outside the RRA 1965 definition of ‘public places’. However, the most glaring omission from the act was the whole sphere of employment: nearly half of the complaints with which it could not deal related to the labour market. The compilation of complaints illustrated that the remit of the RRA 1965 was too limited to be effective. The board used investigation as a ‘weapon of the weak’ to draw attention to the limitations of the RRA 1965 even if no action was taken to address it. Simply gathering data served a purpose in the long term. By contrast, the Kahn Commission of the European Council was a non-statutory body with a high-level profile. Due to its composition, it was able to prevent its report being shelved even when the creator of the Kahn Commission – the Council of Ministers – wanted to do so. The success of the Kahn Commission can be largely attributed to the status of the civil servants who sat on it, especially its well-connected chair, Jean Kahn of the European Section of the World Jewish Congress. Kahn was President of the French Human Rights Commission, a powerful body (similar to the British Commission for Racial Equality) funded by the prime minister and reporting directly to that office. All Ministers of the French government are members of the Human Rights Commission, and must submit reports to it, which are then published. Kahn was also President of the Jewish Youth Organisation. The Kahn Commission also consisted of delegates from the member states, and representatives from the European Parliament and the Council of Europe as observers. It was therefore harder to sideline the findings and recommendations of the Kahn Commission than those of the European parliament:51 when the council tried to stall progress of his work, Kahn was able to visit Kohl and Mitterrand personally. Both Jean Kahn and Roy Jenkins illustrate the role played by the status of those who want to use the information. Were it not for the commitment of Roy Jenkins to the PEP results, the combined opposition of the Ministry of Labour, the TUC and the CBI would have prevented their application. These groups fiercely opposed any reforms to the Race Relations Act of 1965 in particular its extension to the field of employment. The CBI refused to envisage any restrictions on

49 Section 2(4) Race Relations Act 1965. 50 An article in The Times (1 October 1967) noted that in its first 20 months of existence 134 complaints of discrimination had been received. 51 Due (1996: 2).

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the employer’s right to hire and fire at will. The TUC rejection of government intervention in labour relations had a long history. Due to fraught historical relations arising from the negative treatment of the trade unions in the courts, any attempt to use statutory machinery to deal with inequality was regarded with suspicion.52 In 1951 the Bridlington Resolution, calling for a mandate from the congress for the General Council to lobby the government for equal treatment for its Colonial employees was roundly rejected.53 This was seen as an area of ‘personal responsibility’ where each trade unionist was to promote the policy of non-discrimination.54 Voluntary measures on the shop floor were preferred: for example, the General Council asked unions to inform them of any friction between workers of different colour.55 The Ministry of Labour was against both the ICERD and the RRA. Its response to drafts of the ICERD was that the department would ‘need to follow developments closely’.56 The ICERD was seen to continue where the Convention of the International Labour Organisation on Racial Discrimination in Employment left off: The UN paper finishes the text of ILO Convention No. 111. We have not ratified this convention, nor do we intend to do so. We would want a reference in the brief to the undesireability of the UK member on the Sub-Commission associating himself with any resolution calling on, urging, requesting etc, member states to ratify this convention.57 By 1964 opinion within the government was polarised: the Home Office favoured race equality law while the Ministry of Labour led the strong opposition to this from other ministries and industry, including the trade union movement.58 All favoured a system whereby the whole process, including conciliation and enforcement, would be within the responsibility of industry and ‘give a place to the government through the natural channel of the Ministry of Labour’.59 The two sides of industry were, of course, aware of their important role: The General Council know that the main weight of carrying forward the process of integration will fall on the two sides of industry. On that they base their view that those who know industry best, the trade unions and the

52 53 54 55 56 57 58

Lester & Bindman (1972: 314–22). TUC Annual Report (1951: 469–72). TUC Annual Report (1960: 516). TUC Annual Report (1956: 433). PRO File LAB 13/1936 (18 December 1964). PRO File LAB 13/1936 (18 December 1964). By 1967, sections of the TUC were calling for the government to ratify the Convention (TUC Annual Report (1967: 584)). 59 TUC Annual Report (1967: 271).

Restoring voice and visibility 117 employers, should be the main partners in operating and establishing appropriate machinery as an extension of the machinery which already exists, which is voluntary in spirit and accepted on every hand as the main avenue of the settlement of grievances.60 The General Council remained unconvinced by the PEP study: in April 1967 it stated that the study gave no grounds for modification of the TUC position on racial discrimination.61 It also argued against the recommendations of the Street Report by asserting the uniqueness of the British situation: Some say there is resentment and there is a will to exclude such people from ordinary fair treatment which is so strong, so serious and so permanent that laws and penalties are required to overcome it. This attitude is surely borrowed from the United States experience, but here our situation is our own. We hope their remedies work, but they need not be our remedies.62 The Ministry of Labour sought to minimise the PEP findings, stating that: ‘Even if the survey produces clear evidence of the need for further action it does not follow that we could accept that legislative compulsion rather than other forms of conciliation should be adopted’.63 An extension of the bill to cover the employment relationship was seen as impractical and leading to all other types of social problem: To oblige an employer to engage or promote a particular individual would encroach upon the employers own civil rights and might not lead to a happy working relationship with the future employee. Controversy surrounding the public discussion of such problems would tend to foster division, jealousies and prejudices.64 Yet it reluctantly recognised the limitations of its own methods, for example in relation to the problem of racial discrimination in promotion highlighted by the PEP study: What more then needs to be done? There are points which our present arrangements scarcely touch. For instance, we have little influence on the promotion practices of employers and employers who intend to discriminate can always recruit workers without using the Exchanges. If the problem really became serious and widespread serious consideration would need to

60 61 62 63 64

TUC Annual Report (1967: 583). TUC Annual Report (1967: 269). TUC Annual Report (1967: 582–4). PRO File LAB 8/3070 (November 1966). PRO File LAB 8/3070 (November 1966).

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Making anti-racial discrimination law be given to the task of devising more powerful machinery for investigating complaints which are beyond the scope of the Employment Exchanges.65

The ministry also had little power over private employment agencies, which were not anxious to deal with black British school leavers. Certain industries, for example banks, were known to reject black applicants in favour of white ones.66 Attempts were however made to protect the traditional prerogatives of employers to hire and fire at whim: We must be careful in promoting the human rights of minorities not to attempt to interfere with the civil rights of individuals. This would be the position if an employer was legally required to employ or offer promotion to particular individuals by the edict of a tribunal.67 The package of evidence provided by the social investigations in both England and North America were difficult to deny, especially when put together with further reports from the NCCI showing that many firms openly operated a colour bar.68 In Parliament, this incontrovertible evidence of the long-term consequences of racial violence loosened the hold of traditional prerogatives of freedom: ‘To those who argue that this is an invasion of freedom, I say that freedom to discriminate racially is not one of the ingredients of a free society.’ For the black school leaver born in Notting Hill, ‘freedom is a mockery’.69 Speaking on behalf of the Home Office, Alex Lyon pointed out the permanence of the 1.75 million black people settled in the UK: ‘Our society is multi-racial.and multi-cultural for the rest of future history. These people who are here are our citizens and must be treated like any other citizen’.70 The priority was the creation of an environment where the ‘young black citizen growing up should have a feeling that this is his country – a country to which he can owe allegiance, a country for which he is prepared to fight if necessary and whose future he is prepared to build’.71 Such thinking, accompanied by the powerful data provided by the PEP survey, led to the radical extension of the Race Relations Act 1965.

Ethics of ethnic data The Rose and PEP surveys are exceptions in Europe. Most member states of the EU have not conducted similar research, neither is it widespread practice to keep

65 PRO File LAB 8/3070, Draft paper on Race Relations in Employment (23 September 1966). 66 PRO File LAB 8/3070, Minutes of the meeting of the Ministry of Labour Women Consultative Committee (1 November 1966). 67 PRO File LAB 8/3070 (December 1966). 68 Hepple (1970: 168). 69 Hansard, House of Commons Volume 127 (27 Feb–4 March 1976): 1613. 70 Hansard, House of Commons Volume 127 (27 Feb–4 March 1976): 1658. 71 Hansard, House of Commons Volume 127 (27 Feb–4 March 1976): 1608.

Restoring voice and visibility 119 records of people’s ethnic or racial groups.72 Investigation into racial violence raises the controversial question of the ethics of information stratified by race and ethnicity or ethnic data. The idea is still not politically acceptable in many countries.73 Neither France74 nor Germany, for example, records ethnic or racial group in its social data.75 In France, racial and ethnic minorities themselves are uncomfortable with the collection of ethnic data.76 Historical experience with totalitarian regimes, such as Nazism and the East German Secret Service, has made Germans – including ethnic minority groups themselves – very sensitive to the potential for misuse of ethnic data. This may explain the low support for widespread use of CCTV in Germany.77 Furthermore, it is widely believed to be unlawful to collect such information:78 the Census judgement of 1983 (‘Volkszählungsurteil’)79 protects the right of individuals to determine who holds information about them and the Federal Data Protection Act 2003 (BDSG) closely limits the collection and use of personal information.80 Britain began to tackle this question in the 1960s – in 1967 the Street Report stressed the need to ‘cease to be so coy about keeping the best possible records of coloured people in employment so that we have a reasonable picture of the progress which is – or is not – being made not only in engaging coloured workers, but also in their promotion, training, opportunities for apprenticeships and so on’.81 However, a question on race and ethnicity was introduced into the census only in the 1990s.82 This was because despite racist practices, there were strong doubts about the morality of officially categorising persons according to skin colour. It was argued that questions should not be asked on race because in principle all people are equal before the law: such questions would only serve to heighten racial tension by entrenching these fissures. At the same time, however, the Metropolitan Police was secretly collecting ethnic data.83 Nonetheless, the official line prevailed and as a result, data were for a long time collected only in relation to country of origin or birth. A second argument stressed, however, that the inequality of treatment existing as a result of racial discrimination could not be adequately eradicated from society unless and until it is quantified. Quantification is seen as a diagnostic exercise,

72 73 74 75 76 77 78 79 80 81 82 83

Niessen (2002). Simon (2007). Peer & Sabbagh (2008). Niessen (2002). Sabbagh (2008: fn 5). ‘Fear of crime makes UK most spied upon nation’, The Independent, Monday 26 February 2004, p.6. Kantara (1998). BVerfGE 65, 1 (15 December 1983). For German language commentaries see [1984] D.V.Bl. 128; [1984] N.D.V. 155; [1984] N.J.W. 419. s.4a(3) BDSG. Paragraph 7, p.2 Karn (1997). Bhat et al (1988: 24).

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on which targeted action is built.84 This approach is common in the USA, where the production of reliable ethnic data is accepted as an indispensable part of the process to eradicate entrenched racial injustices. A similar acknowledgement is also now evident in Britain and the EU85 but this was not always so. In the 1960s, the very idea of investigation into race relations, and in particular the systematic gathering of statistics differentiated by race, was as foreign to the English legal mind as the idea of legislating against racial discrimination. Ethnic data in Britain The question of collecting data on race was the subject of an inquiry conducted by the Home Office in 1964. The Home Office had been asked for details on how many black citizens were resident in Britain. However, in the absence of statistical information collected with this detail, no figures were available: We are quite often asked if we can say how many ‘coloured people’ are now living in the UK, and from time to time the possibility is mooted of keeping statistics on such subjects as the proportion of ‘coloured people’ among those committed to prison. We have always said – quite correctly – that we have no figures of the number of ‘coloured people’ in the country (as distinct from the number of those who have come here from certain countries) and have tended to go on to say that it would be wrong in principle for the Government to collect such statistics.86 Why it would be wrong was not explained, perhaps because this was such a clear question of common sense prevailing in Britain at the time. The British Embassy in Washington was asked to provide the Home Office with details on this and some other basic elements, such as how a ‘coloured’ person was defined: Could you let us know whether it is normal practice for the American government to collect other statistics such as the number of coloured children in particular schools, or the number of coloured people convicted of particular crimes. Has it been suggested in the course of the current discussions about Civil rights that the collection of such statistics is of itself discriminatory? We should also be interested to learn, without going into any detail, what kind of criterion is used to define a ‘coloured person’.87

84 85 86 87

Peach (1997: 1). Goulbourne (1998: 123). PRO File HO 376/3. Letter from Hyde to Miss Neville Jones (14 August 1964). PRO File HO 376/3. Letter from Hyde to Miss Neville Jones (14 August 1964).

Restoring voice and visibility 121 The information returned indicated that data on colour and ethnicity were widely collected by government departments, a practice welcomed by the African American community ‘as a means of highlighting the plight of the coloured population’.88 For example, the US Bureau of the Census both collected and published population information by colour and sometimes race. The bureau divided the population into ‘white’ and ‘non-white’. A ‘non-white’ was either 90% Negro, Japanese, Chinese, or American Indian. A ‘person born of a ‘white’ and ‘non-white’ parent was classified as a ‘non-white’. The US Department of Labor, also differentiated between ‘white’ and ‘non-white’ in its statistics on the labour market, probably on the same criteria. The Office of Education of the US Department of Health, Education and Welfare had ‘desegregated’ its statistics after the Brown89 decision. This was, however, subsequently seen as a mistake as the data collected no longer gave a full picture of the situation and problems of the various ethnic groups. Police records also noted colour and race, and crime statistics differentiated between ‘negroes and whites’, although due to suspicion that the public would prejudge the case if a ‘negro’ were involved, no US court provided any details on the race of those appearing before it until after verdict was given. The Bureau of Vital Statistics (equivalent of the British Registrar Generals Office) kept records of all births, deaths, marriages and divorces by colour. While the motor vehicle licensing department of the District of Columbia (Washington) dropped classifications ‘white’ and ‘non-white’ from its applications for driving licences, it had introduced photographs instead.90 The reaction in Britain was less positive. The black and migrant population had a concern similar to the Roma and Sinti in Germany: what would be done with these readily available data?91 There was a general feeling that statistics would not be used to the benefit of the black population but to their detriment.92 In addition, for some, ethnic data were rejected because it appeared to contradict the claim to inherent Britishness.93 These sensitivities to ethnic data meant that it was only in 199194 – after substantial debate – that a question on race and ethnicity was incorporated into the British national census. The question demonstrated that the assumed congruency between country of birth and colour was wrong: one-fifth of those born overseas were white. Country of birth was therefore unreliable as a proxy for race. Nonetheless questions of ethnic identity and colour remain sensitive, as demonstrated by the fierce debate sparked when it was proposed

88 PRO File HO 376/3. Letter from H F B Fane in the British Embassy in Washington, DC, to W. N. Hyde at the Home Office (14 September 1964). 89 Brown v Board of Education 347 U.S. 483 (1954); 349 U.S. 294 (1955). 90 For a history of racial classification in the USA, see Wright (1997). 91 Karn (1997: xvi). 92 Bhat et al (1988: 26). 93 Rees (1998: 8). 94 It had been envisaged to include a question on race in 1981, but this plan was abandoned as a result of political sensitivity.

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to add the new category of ‘mixed ethnic group’ to the census.95 However, it is accepted politically that there needs to be constant collection of ethnic data in order to ensure effective equality laws: the recent report published by the government on the equality bill highlights that: ‘We cannot tackle inequality if it is hidden. Transparency is essential to tackling discrimination.’96 Ethnic data in Germany It is unlikely that a question on colour or ethnicity could be asked in the German census. Inclusion of a question on ethnicity might not be understood and could lead to confusion. For reasons particular to its history, the separation of data by race or ethnicity is resolutely rejected. The collection of ethnic data from individuals in Germany is tightly controlled due to historical abuse of personal information by the National Socialists and the former East German Secret Service. Many groups discriminated against, such as the Roma and Sinti, continue to oppose any attempt to collect ethnic data. However, ethnic data have been collected in the past: censuses in the German colonies recorded racial data97 as did surveys after World War II in Germany on the black German children. It is widely believed that it is forbidden under German law for the state to collect individualised data recording details such as skin colour.98 While there are tight controls, it is debateable whether this amounts to an absolute prohibition. There are two sources for the control of the collection of ethnic data in Germany: the so-called Census judgement (‘Volkszählungsurteil’)99 and federal data protection law (Bundesdatenschutzgesetz 2003, BDSG). The ability of the state to collect and use personal data in the Federal Republic of Germany was curtailed by a ground-breaking decision of the Constitutional Court in 1983. In a decision known as the ‘Volkszählungurteil’, the Constitutional Court inferred the existence of a ‘20th’ basic right100 when it held that individuals enjoyed a fundamental right to ‘informationelle Selbstbestimmung,’ or the right to determine who holds what information about them. This right is not mentioned in the constitution, but was derived by the court from Articles 1(1) and 2(1) GG, which protect the inviolability of individual human dignity and the right to free development of the personality respectively. The court found it necessary to create such a right explicitly in order to protect individuals from losing control over their private details once these enter the public domain via, for example, a

95 Blackaby et al (1998); Rees (1998: 9). 96 The Equality Bill – Government response to the Consultation. Presented to Parliament by the Lord Privy Seal, Leader of the House of Commons and Minister for Women and Equality by command of Her Majesty. July 2008. Cm 7454, p.4. 97 O’Donnell (2005: 73). 98 Kantara (1998). 99 BVerfGE 65, 1. 100 Benda, DuD 1984, 86, 89; Hufen, JZ 1984, 1072, 1073; Simitis, NJW 1984, 398, 399.

Restoring voice and visibility 123 census survey. Worried by the loss of anonymity due to the centralisation of data collection and the increasing sophistication of data-processing techniques, the Constitutional Court rejected the idea of compulsory participation in a national census, even if this was intended to provide the government with a picture of social, political and economic trends. This followed on from an earlier decision, where the court had set out that preservation of anonymity was a prerequisite for participation in a census.101 By creating a right to control the use of personal data in the public domain, the court re-established the rights of the individual to protect their privacy. Individuals enjoy absolute autonomy, first, over the personal information which the state can request and, second, over how that information may be used. Only where it is in the overwhelming interest of the public to do so may this right be infringed and then only on the basis of another fundamental right (such, for example, as Article 5 (3) GG on the freedom of research). Any attempt by the state to collect individual data without fulfilling these conditions – apart from where the individual is informed that the details may be withheld but gives them anyway – is an infringement of this right.102 These conditions apply to both the state and private bodies such as medical insurers.103 There are limits to these strict conditions. First, they apply only to what are called ‘personalised’ data, i.e. details which allow specific individuals to be identified. They do not apply to anonymous data, such as statistics on the frequency and type of right wing violence. As there is little possibility that individuals can be identified from this, such data may be collected with or without permission. This may explain why there is a prevalence of intelligence on right wing activities in Germany yet much less on patterns of racial discrimination. Furthermore, this prohibition on the collection of individualised data also does not extend to non-Germans: this is why state authorities can keep a centralised register104 containing detailed personal information of foreigners, including, in some cases, fingerprints.105 New federal data protection law, agreed in January 2003,106 also limits the collection of ethnic data. This law was in part intended to transpose the EU Directive 95/46107 establishing rights for individuals and obligations on those who process data on individuals. The directive provides ‘for the protection of core principles when processing personal data defined as data relating to any

101 102 103 104 105 106 107

BVerfGE 27,1 (Mikrozensus). Klinger & Kunkel (1990: 87). Lang (1997: 22). Das Ausländerzentralregister. Hassemer & Starzacher (1995). Bundesdatenschutzgesetzes (BDSG) of 14 January 2003. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on ‘the protection of individuals with regard to the processing of personal data and on the free movement of such data’ (‘Richtlinie zum Schutz natürlicher Personen bei der Verarbeitung personenbezogener Daten und zum freien Datenverkehr’ (ABl. EG Nr. L 281, S. 31)).

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identified or identifiable individual’. Article 8 of the Directive strictly limits the processing of special classes of data concerning racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership and health or sex life. Exemptions to this general prohibition are permissible only where suitable safeguards can be guaranteed and the data subject has given express consent.108 The Bundesdatenschutzgesetz (BDSG) 2003 likewise seeks to protect the privacy of the individual in relation to the gathering, processing and usage of personal data, primarily by public bodies at federal and state level but also by private bodies in so far as they are involved in data processing.109 Details on race, ethnicity, political orientation, religious or philosophical convictions, trade union membership, health status or sexual activities are ‘special categories’ of personal data.110 Permission to collect, process or use these special forms of data must be acquired separately.111 However, political or philosophical organisations, religious movements or trade unions may collect, process or use data falling into the special category where this is necessary for their activities. This is limited to the personal details of their members or others with whom the organisation is in regular contact. These data may not be passed on to others outside the organisation arbitrarily, but only with the express permission of the individual(s) concerned, as laid out under Article 4a(3).112 The BDSG 2003 does not appear to prohibit the collection of ethnic data per se, but it does set out clear limits on how and where these data may come into being. Clubs, organisations and charities are not prevented from conducting ethnic monitoring for their own purposes or disseminating this information with the permission of the individuals concerned. In addition, some states do record the ethnicity of Roma and Sinti in relation to criminal investigations.113 Medical research shows that studies in Germany using personalised and anonymous data within the limits of the law are possible.114 There is no reason why an ethnicity question could not be inserted into the census – the Volkszählungurteil does not prevent individuals from being asked for this detail, but rather lays out that they cannot be forced to provide it. Ways of collecting ethnic data which are within the law need to be identified, as it is now widely recognised – in particular at the European level – that the absence of ethnic data hampers the realisation of racial equality.

108 109 110 111 112 113

Directive 95/46/EC, Article 8. BDSG 1 Paragraph, s.1(1) – (3). BDSG s. 3 (9). BDSG s. 4a (3). BDSG s. 28 (9). Council of Europe (2000) ‘State Report (Germany) on the Framework Convention’. Available at http://www.humanrights.coe.int/minorities/Eng/FrameworkConvention/StateReports/2000/ germany/Art4.html. Accessed 10 October 2007. 114 Hamm & Möller (1999: 97).

Restoring voice and visibility 125 Ethnic data in the European Union The EU has stressed a preference for multiculturalism and its policy of inclusion promotes ‘the positive benefits of diversity in a multicultural society’.115 It intended to include a clause calling for member states to produce statistics in the Race Directive. This was dropped as a result of French opposition.116 The importance of investigation and ethnic data in the campaign for racial equality has recently been underlined by the European Union, within the framework of the programme of action to combat racism.117 Part of this programme provides for the development of comparable statistical information on the scale of discrimination in the Community. Acknowledging the importance of intelligence in shaping anti-discrimination policies and legislation, the European Commission launched a debate on the methods of collecting information on racial discrimination, given the various limitations and protection surrounding the collection of personal data.118 The European Commission identified at least three reasons for gathering ethnic data, which can be summarised as visibility, evaluation and education. As mentioned earlier, investigation restores the visibility of subjugated parts of the population. This is both a political and a practical intervention. The information also helps to ‘shape better designed and targeted anti-discrimination policies and legislation’ – ethnic data promotes greater public consensus on the extent and impact of discrimination. The creation of indicators as to whether discrimination is improving or worsening provides objective, reliable – and perhaps most important for the EU – comparable data which can inform public opinion and on which law and policy can be formed. Ethnic data also play an important public education function. The development of a comprehensive picture of discrimination, which incorporates several areas of economic activity (such as employment, education, social services, industry) paints a powerful portrait of the combined impact of discrimination in economic life. This ‘multi-point examination of discrimination’ serves a double function. It not only helps to build a broad support base for anti-discrimination enforcement activities, but also guides policymakers and legislators as to where intervention is necessary and where a holistic approach can be taken. Finally, ethnic data provides a long-term guide for legislators and policymakers. Anti-racial discrimination law needs to have goals and these goals need to be revisited, reviewed and where necessary revised. Longitudinal studies conducted

115 COM (2004/ 379: 2). 116 Simon (2007: 52). 117 File A13/007/2001, ‘Community Action Programme to combat discrimination 2001–2006 Discussion Paper: Launch of a debate on the collection of data to measure the extent and the impact of discrimination.’ 118 ‘Study on Data Collection to measure the extent and impact of discrimination in Europe’, Final Report 1.12.2004. Available at https://eventsi.congreszon.fi/ei/cm.esp?id=161&pageid=_1EH0 UM4FZ#_Toc90004736. Accessed 5 April 2005.

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at regular intervals produce a dynamic and reliable profile of racism and trends in discrimination. Monitoring is necessary in order for law and policy to remain targeted and effective. As the Supreme Court stated in Grutter,119 we should not expect that the same tools used today will be needed in 25 years. The periodic review using data therefore acts as an evaluation of anti-discrimination measures. It also allows achievements and new objectives to be identified. In the early days of its action plan on racial equality, ethnic monitoring was highlighted by the European Commission as essential to the effective enforcement of a race equality strategy.120 The Commission attempted to make progress on this question by asking its Programme Committee to approve a number of lines of action including a Eurobarometer survey on the perceptions of discrimination in the member states in a wide range of areas, including employment, education, access to goods and services. It also recommended a study in conjunction with the Commission statistical agency – ESTAT – on how to improve the use of existing instruments to collect data on discrimination. With regard to the European Racism and Xenophobia Information Network (RAXEN) at the EUMC, priorities focused on statistical, descriptive, analytical information in five areas: the employment sector, demographic situation, racial violence, education and legislation. However, as the EUMC has mutated into the Fundamental Rights Agency121 the focus on ethnic data has diminished. They are only mentioned on the final page of the Commission Report for 2006, where the Commission notes that ‘the scarcity of ethnic data in most Member States might hinder proper monitoring of the application of Community legislation’ but states that it is for ‘the Member States to decide whether or not ethnic data should be collected to produce statistics for combating discrimination, provided that the safeguards set out in the Data Protection Directive are respected’.122 The wisdom of leaving such an important and controversial issue to the discretion of the member states is questionable.

Conclusion In this chapter, I have argued that ethical responsibility is the foundation of integration policy and this has an influence on investigation into racial violence. The perception of ‘outsiders’ also informs the kind of measures imagined to facilitate integration. A primary reason for investigation into the living and working conditions of Britain’s black population was the acknowledgement of a new demographic context. The failure to recognise the long-term changes in society underlies the failure to recognise or ‘face’ the silenced social groups and

119 120 121 122

Grutter v Bollinger et al No. 02-241, 539 US (23 June 2003). Reuter et al (2004). CEC (2004a). CEC (2006: 9).

Restoring voice and visibility 127 explains the absence of a national study on racial discrimination in Germany. I illustrated how in Britain this recognition informed integration policy and the need to conduct investigations that were specifically used to stimulate the creation of a new race equality policy paradigm123 and defeat political opposition to a stronger legal response to racial violence. Traditional legal principles that stood in the way of the creation of a modern inclusive society were modified in order to facilitate the required changes. One outcome of the early acceptance of black Britons is that more is known about the living and working conditions of African, Asian and Caribbean people in Britain than in any other country in Europe. The absence of studies into racial discrimination in Germany suggests a denial of the multiracial and multiethnic character of modern German society. The absence of investigations can be interpreted as a continuation of violence, the effective perpetuation of ‘silencing’. Germany continues to prefer assimilation, a policy in which annihilation is inherent. Assimilation does not require a polity to redefine itself in the light of newcomers; rather the newcomers are required to redefine themselves. New information is, therefore, unnecessary. The few investigations conducted in Germany were not designed to change policy but rather to help with ‘clarification, understanding and improvement within the context of policy [i.e. assimilation] already determined’.124 Active research can be a political and practical intervention. Such investigations are a practical intervention not only for policymakers and legislators in relation to defining racial violence, but also for restoring audibility and visibility of black and migrant communities. Investigation can be interpreted as a demonstration of support and concern for those under attack. The allocation of resources indicates a commitment to undoing the silencing imposed on a subordinated group by officially extending a hand from the public purse. This creation of a public profile can be a strong official message to the perpetrators of racial violence and the public in general that black and minority ethnic persons both belong to and are valued in their difference as an integral part of society. The extent to which investigation acted as a public message of support for black and migrant communities can be discerned in both the manner in which information is gathered and in the dissemination of the results. Investigation as a practical intervention with an intention to influence policy and law differs from that created solely for information: first, it focuses on building or expanding frames of references as a route to influencing policy and lawmaking; second, the method of gathering intelligence is active rather than passive; and, third, these studies address not only decision makers but also the public in general. Passive intelligence gathering can give the mere appearance of intervention but may merely be a public relations exercise. Thus a decision to use a nongovernmental agency to conduct a nation-wide survey may be part of a strategy

123 Davidson & White (1988). 124 Goulbourne (1998: 143).

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to generate or activate public discussion as a precursor to the introduction of a new policy paradigm or law. Investigations are important not only because they promote visibility, but also because they help to overcome strong political opposition to race equality law. Studies conducted by weak institutions may not have any direct bearing on the formulation of law, but it can be argued that such reports affect the context within which decisions are made. It is usually difficult to find direct evidence of research affecting law.125 The PEP study is a rare example of a clear relationship between such investigations and the legal response to racial violence. The PEP study highlighted systematic discrimination through interviewing employers to understand their attitudes and behaviour and through interviews with black and migrant persons to understand the experiences of the victims themselves. The progress made on racial equality in Britain and the United States demonstrates the importance of ethnic data in formulating an effective legal response to racial violence. Equally, however, German history is an important reminder that the motivation behind the collection of ethnic data is critical to public acceptance of this. The reason for collecting such information must remain clear not only to policymakers but also to the citizens whose identities and lives are enumerated in the data. Careful consideration needs to be given to the method used both to collect and disseminate the data. Each of these phases can be used to restore visibility, as well as educate the general public and evaluate policy. If organised sensitively, the collection of information can itself become an integral part of a plan to promote racial equality. It is both foolhardy and futile to regulate a phenomenon that is not understood. The concerns about their creation and use in Germany should be neither ignored nor allowed to hinder necessary action. It is not possible to gain a detailed idea of the level and pattern of racial discrimination and thus a clear picture of why and where legislation is needed and what it needs to do. It is overwhelmingly in the public interest to collect this information. The long-term objective of an integrated society is more likely to be reached by developing ways of collecting ethnic data which do not offend data protection laws rather than not collecting data at all. The danger of abuse can be reduced if the enumerated groups themselves are empowered by the research. In the next chapter, I will discuss the inclusion and reception of marginalised groups and their concerns in the political mainstream and how this also affects the legal response to racial violence.

125 Goulbourne (1998: 136–7).

6

Civil society and the ‘political opportunity structure’

Introduction In Chapter 5, I used the idea of ethical responsibility – the level of compassion with the ‘Other’ to explain why the responses to racial violence differed in Britain and Germany. In this chapter, I will attempt to further explain these different responses by looking at the role of pro-reform social organisations and the organisation of the polity. In Britain, small organisations were able to work with the government to develop a legal response to racial violence but this was not the case in Germany. Key to this difference is the idea of the ‘structure of political opportunity’,1 which I will discuss at the outset prior to outlining the consequences of this for social action to influence legislation.

The political opportunity structure The political opportunity structure was a concept developed by post-behavioural scholars of collective action to systematically explore the relevance of the external environment on the emergence, development and impact of groups active in civil society. The environment was highlighted as an important determinant of the success of collective action. It was argued that ‘movement development, tactics and impact are profoundly affected by a shifting constellation of factors exogenous to the movement itself ’.2 The emergence of the idea that external factors may influence social action arose from dissatisfaction with the theory of resource mobilisation,3 which had replaced Olsen’s behaviouralist approach to understanding collective action. McCarthy and Zald argued that the dominant factor in explaining collective action was the level of resources available to the group: the more resources available, the more success was likely. While welcomed, this alternative model was also seen as deficient primarily because, McAdam4 argued, it could not be applied

1 2 3 4

McAdam (1982: 37). Meyer & Staggenborg (1996: 1633). McCarthy & Zald (1973). McAdam (1982: 21); McAdam (1983).

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generally but was primarily relevant to established public interest groups rather than smaller, excluded social movements. As an alternative, McAdam proposed a model focusing on the political process. He began from an understanding that ‘wealth and power are concentrated in America in the hands of a few groups, thus depriving most people of any real influence over the major decisions that affect their lives’. He then, however, adopted a Marxist viewpoint which saw this constellation of power as constructed rather than inevitable.5 Movements, McAdam argued, develop in response to these opportunities provided by the ‘ongoing process of interaction between movement groups and the larger sociopolitical environment they seek to change’.6 This alignment of groups within the larger environment was called the ‘structure of political opportunities available to insurgent groups’.7 He argued that this structure of opportunities determines the amount of political leverage enjoyed by a group. Together with the level of internal group organisation, this was seen as a key factor for successful social action. There were both stable and more malleable aspects of the political opportunity structure. Elements such as political discourse and elite alignment were more flexible while stable elements, such as traditions and institutions, limited the possibilities for action and change.8 Opportunities for political participation and transformation differ according to whether the political system is more or less accessible and to which social groups. Although this model has likewise been criticised for having vaguely defined component factors,9 the idea of an external structure within which social action takes place is useful to explain the varying fortunes of social action in relation to the evolution of anti-racial discrimination law. The traditions informing the political opportunity structures in Britain and Germany are different. The political opportunity structure in Britain can be described as ‘pluralist’, whilst that in Germany can be called ‘corporatist’. Both corporatism and pluralism attempt to explain the relationship between the state and civil society. Opportunities for political participation and transformation differ according to whether the political system is more or less accessible and to which social groups.10 Key differences between these types of polities are in openness and access, consultation and negotiation and the importance of consensus. If we bear these differences in mind, we can understand why pro-reform social movements had a different impact in Britain and Germany. In general, ad hoc groups have more freedom to operate in pluralism; the stability

5 6 7 8 9 10

McAdam (1982: 37). McAdam (1982: 40). McAdam (1982: 40) Meyer & Staggenborg (1996: 1634). Koopmans (1999). Bobacka (2001: 22).

Civil society and the ‘political opportunity structure’ 131 valued under corporatism does not allow for easy entry and exit from political participation. Pluralism Pluralism is largely taken to signify a polity where the relationship between the state and civil society is informal and ad hoc. While theories of elitism argue that political power is held in the hands of a few,11 pluralist theory asserts the idea that power is dispersed among the numerous associations active in civil society. Dahl, for example, argued that political power was distributed among many competing interest groups, all of which had equal potential to influence the state.12 These groups, however, do not have a formal role in the creation and implementation of policy.13 There is no established relationship with the state. They are understood to arise spontaneously in response to new issues or to challenge established groups.14 These groups are disposable: they can disappear as quickly as they appear. In contrast to corporatism, conflict and competition drives pluralism. Openness and ease of access are therefore key characteristics of political pluralism, as access drives competition. Entry costs to participation are low – opportunities are relatively unencumbered by rules on the constitution of organisations or their breadth of representation. Proactivism is also encouraged. Although legislative initiative, i.e. the power to allocate revenue to legislation, remains with the executive, in pluralism ideas for legislation, or parts of it, are drawn from a broad field.15 Lobbyists both compete with and complement the work of parliamentarians and ministers. Parliament in Britain has been described as the ‘cockpit’ for the daily battles between the lobbyists,16 where both MPs and peers represent outside interests.17 This linkage, which provides important channels of access for persuaders is perhaps peculiar to the English system. It is not seen in corporatist systems. It provides an opportunity for ad hoc groups, to work with government on legal reform. This is demonstrated by the lobbyists in Britain who adopted a proactive strategy, using their professional skills to draft proposals which were then presented to the governing decision makers. The lobbyists had no long-term plans for the groups within which they worked – they were ‘disposable’ designed to disappear once the purpose had been achieved. The short-termism of organisations active on racial equality issues has changed: since its establishment, the CRE has

11 12 13 14 15 16 17

Mills (1956). Dahl (1958). Wilson (1990: 69). Wilson (1990: 68). Zander (1999: 3). Finer (1966: 48). Goldsworthy (1971: 257–8).

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supported the creation of a wide range of organisations18 that now compete to influence government policy on race relations, as illustrated by the recent consultation process undertaken by the Department of Trade and Industry prior to the implementation of the EU Race Directive.19 A different type of pluralism is visible in the European Union. Although there were hopes for a corporatist European Community, ‘the Community always looked much more “pluralist” than corporatist: more organizationally fragmented; less hierarchically integrated; more internally competitive; and with a lot less control vested in peak associations over their affiliates, or in associations over their members’.20 As a policymaking arena it has been described as ‘chaotic’ with ‘colliding interests pushing their vision of politics in multiple and poorly coordinated arenas’.21 There are a huge number of groups engaged in lobbying the institutions in Brussels, cooperating and competing not just with each other, but also with the member states and European institutions to influence policy and lawmaking. As in Britain, the majority of these interactions are informal. There is a much higher degree of political competition on EU policy dossiers than in the national arenas. Organisations lobbying in Brussels enjoy a surfeit of access points at which decision making may potentially be influenced. This peculiarity is, however, also a disadvantage: whilst access is open lobbyists seeking to influence the evolution of a race equality law do not necessarily have the capacity to follow the convoluted route of EU decision making and so take full advantage of this openness. Decision making is dispersed among multiple institutions. While according to the treaty, the council is the chief legislative body of the Union, and formally makes all final decisions, negotiations occur elsewhere.22 The Council has its own institutional hierarchy which includes the Committee of Permanent Representatives, ad hoc working groups composed of national attaches and working groups comprising national technical experts.23 In addition, the Council is not a sole executive, but shares these powers with the Commission, and to a varying extent the Parliament24 and sometimes delegates its lawmaking powers to committees or to national authorities25 – the Council has been described as a ‘chameleon’ operating in many different ways.26 Consequently, it is

18 Article 44 of the RRA 1976 gave the CRE an important role in stimulating a network of anti-racial discrimination organisations by allowing it to provide financial and other support to organisations concerned with the promotion of equality of opportunity. 19 See Annex of the Consultation Documents for the names of organisations that participated in the process. 20 Streeck (1991). 21 Chalmers (2001: 196). 22 Van Schendelen (1995). 23 Hayes-Renshaw & Wallace (1995). 24 Matila & Lane (2001). 25 Franchino (2001). 26 Wallace (2002).

Civil society and the ‘political opportunity structure’ 133 not always evident at the EU level whom to lobby: as it is not explicitly clear when decisions are being made, it is equally difficult to know when a particular institution should be lobbied. Corporatism Corporatism was developed primarily due to dissatisfaction with pluralism as the predominant explanation of the relationship between the state and civil society. Corporatism suggested a ‘different institutional configuration in the relationship between specialised interest associations and the political process but also a different way of conceptualising the role and importance of the state’.27 According to Schmitter, corporatism shares some similar elements with pluralism, but differs in relation to restrictions on interest representation: Corporatism can be defined as a system of interest representation in which the constituent units are organised into a limited number of singular, compulsory, non-competitive, hierarchically ordered and functionally differentiated categories, recognised or licensed (if not created) by the state and granted a deliberate representational monopoly within their respective categories in exchange for observing certain controls on their selection of leaders and articulation of demands and supports.28 This definition has been redeveloped by Lehmbruch, who found the focus on inputs limiting and developed a more dynamic definition encompassing the role of large interest groups in policy implementation.29 However, Cox30 argued that pluralism and corporatism should not be seen as ‘competing explanatory perspectives, but alternative concepts for describing real differences in the political form of the state in terms of the scope, range and openness of political representation and participation’.31 Following Cox, corporatism can be described as more characterised by closure and consensus, with the prevailing logic more one of exchange and compromise rather than competition. Division is seen as a sign of weakness rather than strength.32 Explicit competitive lobbying of the type found under pluralism is discouraged.33 It is held that in a well-functioning democracy elected representatives respond to the whole rather than a specific part with the resources to

27 28 29 30 31 32 33

Schmitter & Lehmbruch (1979: 4). Schmitter (1979: 13). Lehmbruch (1979: 150). Cox (1988: 31). Cox (1988: 40). Sontheimer & Bleek (2003: 184). Rüthers (1996).

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promote its interests.34 Access to political participation is therefore limited to representational organisations and organisational form is important. Corporatism organises interests rather than allowing them to emerge spontaneously. Interests are fragmented into sectors – interest associations, such as trade unions, or churches, exercise representational monopolies, which are incorporated into government activity. These interest associations ‘attain a quasi-legal status and a prescriptive right to speak for their segments of the population’. These organisations are not junior external partners, as in pluralism, but have a more equal status and enjoy a more stable relationship with the state. In return for this privilege, interests accept governmental limitations on their autonomy in relation to their leaders and the scope and intensity of demands they make on the state.35 Managerialism features highly under this system. The managerial definition of politics endows an appropriately qualified elite with special authority – high significance is attached to ‘government by specialists’.36 The political system is held together by this ‘combination of technocratic professionalism, shared among all major players regardless of divergent specific interests and a web of dense and durable, bi-, tri-, and multilateral bargaining relationships, involving public and private bodies alike’ which contributes to order and stability.37 This type of relationship is visible in Germany, where the process of lawmaking is subject to the traditions of decentralised and hierarchical political organisation. The labour of lawmaking in Germany takes place within very strictly and clearly defined parameters. While the Bundestag alone can pass legislation, legislative initiative comes primarily from the government and its ministries38 which play a central role in both the drafting and implementation of legislation.39 It is within the ministries that the search for consensus and alternatives begins40 and it is here that lobbyists must seek to exert influence before decisions have been made.41 The drafting of legislative proposals is undertaken by a civil servant, acting on instructions from the relevant minister. It is this civil servant who may take up contact with interest groups as well as other ministries in order to design the draft. The ministries rather than parliamentarians are therefore the main focus of lobbying. Certain ministries are ‘captured’ by particular interests who may be able to be influential due to ministerial proximity.42 Together with trade

34 35 36 37 38 39 40 41

Burstein (1999: 85). Archer (1995: 85). Cox & O’Sullivan (1988: 23). Streeck (1991). Sontheimer & Bleek (2003: 279). Böhret (1981: 59). Rudzio (1991: 257). Interest groups responding to a survey stated that the most important contact partners are the federal ministries, followed by the media, other interest groups, and parliamentary committees (Thurich 2000: 26). 42 Böhret (1981: 57).

Civil society and the ‘political opportunity structure’ 135 unions outside the DGB, corporate interests will find favour with a CDU/CSU administration. The DGB and its members will find a more sympathetic ear under a socialist democratic (SPD) government. The rise of social rights based parties such as the Greens, combined with the drive to ‘de-bureaucratise’ political participation has opened up the legislative process to new social movements in the grassroots sector: Amnesty International, for example, worked closely with Green Foreign Minister Joshka Fischer.43 The most prominent actors in the public arena are the political factions in the parliament and the government.44 However, the ministries dominate the preparation of legislation. There is no legal obligation on ministers or their civil servants to consult45 thus participation by non-governmental actors during the crucial early stages when opinions are being shaped depends on the personal political network of the relevant minister and ministry. The initiative for change rests within this primarily invitation-based domain. The preference for consensus means that initiative circulates slowly. Due to rules on form and the preference for consensus, access is limited. This is in contrast to lobbying under pluralism, where competition is a given and government does not determine the content of law based on a logic of cooperation. Parliament has limited influence during the initial drafting phase. Once a draft is presented, a parliamentary committee will conduct a detailed examination of the political, legal and social implications.46 Parliamentary committees may draw on expertise from any of the 1700 interest groups registered with the Bundestag, more – it is suspected – to support their own conclusions than to discover alternatives.47 Within such a structure, it is not possible for ad hoc groups to engage proactively, as seen in Britain and the EU. Although they may know whom to lobby, unless invited their suggestions will not be welcomed. Longstanding organisations, which perform a representational function, enjoy a formal role in lawmaking. It is therefore not surprising that an organisation such as the EKD could block the proposal for an anti-racial discrimination law in order to protect its own prerogatives.

Impact of group action on the legal response to racial violence under corporatism and pluralism As discussed by Berry, there are different forms of group action.48 The choice of a form of action can depend on the type of group and the type of issue: an ad hoc group with a small, heterogonous public support may avoid open protest while an established group with a large homogenous support base may be willing to use

43 44 45 46 47 48

Bethusy-Huc (1996: 16). BpB (1991: 61), Rudzio (1991) See Geschäftsordnung des Deutsche Bundestags (GO BT). Sartorius (2001). Gusy (1985: 297). Thurich (2000: 26). Berry (1977: 267–70).

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more confrontational tactics. Publicity can be a double-edged sword in relation to such an issue thus groups active in this area ‘with little public support will endeavour to keep things quiet’.49 Other strategies of dealing with both legislators and public opinion must be determined. Activists and reformers are more likely to lobby via private discussions and direct contact including personal visits or letters, phone calls or informal contact and indirect approaches utilising friends within the system or contacting assistants of decision makers and mid-level civil servants.50 To be successful, however, quiet lobbying requires access to the mainstream political system. The public salience of anti-racial discrimination law in Britain and Germany can indeed be described as small, heterogonous and divided. Although there have been individual acts of courage comparable to those that spawned the civil rights movement in the USA, such as the 1963 boycott led by Paul Stevens against a Bristol bus company which refused to employ blacks,51 neither country has had a central organization which could provide the sustainable, legitimate leadership and committed following provided by the African American churches. Also, the struggle for racial equality in America was as old as the country itself, while in Europe the issue has been seen as relatively new. These factors may explain why there has never been a civil rights movement in Britain or Germany on the scale of the movement in the USA: in Britain this role was taken on by small, ad hoc groups prior to the creation of the fairly powerful Commission for Racial Equality and in Germany it has primarily been the task of the Commissioner for Foreign Affairs. Ad hoc groups An ad hoc organisation can be defined as ‘a temporary arrangement of persons interested in accomplishing a common purpose’ who may attend a ‘series of informal meetings at which interested participants listen, discuss and possibly agree to act in concert’.52 A distinguishing feature of ad hoc groups is that they are created for a particular purpose and may disband once that purpose has been achieved. They may not have any formal officers and often do not keep a record of meetings. Due to their sporadic nature, they lack a stable and sustainable support base and consequently tend to be more reliant on influential supporters and patrons. Researchers have found that groups highly reliant on patrons tend to use ‘insider’ tactics such as lobbying, litigation and electioneering more than ‘outsider’ strategies such as protest.53 This may explain why confrontation rarely featured in the actions of some of the ad hoc groups involved in campaigns for a legal response to racial violence in Britain. Most campaigns focused on

49 50 51 52 53

Baumgartner & Leech (1998: 147). Pedler & Van Schendelen (1994: 15). Verkaik (2005). Hall (1969: 140–4). Baumgartner & Leech (1998: 173–4).

Civil society and the ‘political opportunity structure’ 137 lobbying in the form of direct presentations to government. This was possible because under pluralism in Britain, ad hoc groups enjoy relative ease of access to legislators. One of the groups able to transform the construction of the Race Relations Act 1965 was the group who put forward the proposal for the ‘Citizen’s Council’. This group was so temporary that its members did not even give it a name. The absence of a formal name indicates that the group was not designed to outlive that purpose: it was created for the sole purpose of influencing race equality legislation. In the documentation they are referred to as ‘a group of friends’.54 This group included a number of academics and legal experts including Nicholas Deakin, Bernard Donoughue, Jeffrey Jowell, Ian MacDonald, Jim Rose, Roger Warren Evans, Michael Zander and Anthony Lester. All were based around Lincoln’s Inn Fields, and were interested in anti-racial discrimination law. Four of them – Lester, Zander, Deakin and Rose (the ‘Lester Group’) – were members of the Martin Committee established by the Labour Party to consider options for legislation against racial discrimination.55 The focus of this group was the enforcement mechanisms within the proposed legislation. Their intention was to design a low key institution that could be useful in implementing the new law. Although ad hoc in nature, the group was well informed, well resourced and well connected and thus able to be influential. Their proposal for a ‘Citizen’s Council’ became the blueprint for the Race Relations Board created by the Race Relations Act of 1965. The Citizen’s Council was modelled on institutions in North America and Canada. The council was to be a body within the government responsible for overseeing implementation of the new law and applying quiet non-legal remedies to matters of unequal treatment: The body which we propose is a watchdog which would not be able to give an effective remedy to individual complainants, but would make recommendations over a wide field. We recognise that to be effective such a body would require powers of subpoena, but we assume that it would not be politically possible to obtain the necessary statute to confer such powers.56 It was to be a low-key body which could, in the absence of public support for the proposed bill, support the objectives of the bill without drawing widely publicised attention to racial discrimination. Its main tool was to be conciliation rather than litigation. Due to the sensitivity of the issue within the public, it was recommended that the ‘minimum should be done which is compatible with reducing inequality of treatment’, as to ‘go beyond this principle would be to risk a reaction worse than the original problem’.57

54 55 56 57

Lester (1997). Heineman (1972: 114). PRO File HO 376/3, Letter from Anthony Lester to Sir Frank Soskice, 3 November 1964. PRO File HO 376/3, Citizens Council Memorandum.

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This proposal for a ‘Citizen’s Council’ appealed to Home Secretary Frank Soskice. Although initially conceived as a non-statutory body, this was changed in the final proposal.58 The Citizen’s Council was to act as an ‘authoritative source of information’ with powers to investigate racial inequality, negotiate for the removal of unequal treatment, collect and publish information and educate public opinion. The status of such a body and its effectiveness would be enhanced by statutory authority. It was to consist of up to 15 members, appointed by the home secretary after consultation with ministers concerned. Instead of law, its principal weapon was to be education and publicity. The Citizen’s Council eventually became the Race Relations Board established under Section 2 of the Race Relations Act 1965. Some members of this group were involved in the formation of the Campaign Against Racial Discrimination (CARD), a small and more overtly political organisation established in late 1964. CARD began life as a debating group formed as a result of the anxieties generated by the Smethwick by-election. However, following the visit by Dr Martin Luther King to London en route to receiving the Nobel Prize, its objectives were broadened to incorporate more long-term goals. It was therefore intended to be a permanent body. Its immediate concern was also to influence the government in relation to the 1964 anti-racial discrimination bill.59 With the support of leading members of the main black groups, it hoped to spearhead a multiracial civil rights campaign.60 The creation of CARD has been described as ‘the first substantial post-war attempt of black and white activists to intervene in the national British politics on the “race” question’.61 It was a well-constituted group:62 members included influential persons such as Marian Glean, a campaigner, and Dr David Pitt, a GP who had run as a Labour candidate in Hampstead. Pitt, saw CARD as an opportunity to ‘unite coloured people on an anti-colonialist footing’63 and became its first Chair. Its multiracial composition was a radical departure from the more usual cultural or welfare organisations created to serve the needs of specific ethnic groups. While these covertly tackled political issues by concentrating on conciliation, cultural exchange, individual welfare work and educational work, CARD overtly focused on political concerns.64 Organisations such as the West Indian Standing Conference, the Indian Workers’ Association and the National Federation of Pakistani Organisations were affiliated with CARD. Despite the ad hoc nature of its formation and its relatively new appearance, CARD was able to interact with holders of public office – it had contacts with ‘more government officials, MPs and public bodies than any other race-related

58 59 60 61 62 63 64

PRO File HO 376/3, Letter to Frank Soskice, 14 November 1964. Shukra (1998: 21). Lester (1997: 3). Shukra (1998: 19). For a full list, see Heineman (1972: 233–4). Rose (1969: 508). Hill & Issacharoff (1971: 15).

Civil society and the ‘political opportunity structure’ 139 group in Britain’.65 CARD members also worked together with the National Committee for Commonwealth Immigrants (NCCI), which gave it a more direct route to lobby decision makers. The organisation, however, ultimately failed in its attempt to be a long-term broad civil rights movement of the type seen in the USA. Internal division and ambitious goals brought it to a premature end66 and its proposal for an enforcement body was unequivocally rejected by the Lord Chancellor. It suggested a ‘Commission Against Racial Discrimination’, which would be a permanent, independent body of experts in the field acting as a longterm resource to the government and general public, able to take a coordinated approach to its work unhindered by political changes. It was only in 1976 that a body with these functions was created. CARD argued for the creation of an alternative dispute resolution mechanism outside the courts which would rely on education and private conciliation, and, only in the last resort, on compulsory enforcement, to reduce racial discrimination.67 It proposed a statutory commission to administer and enforce the law against discrimination and keep the public informed of the problems of discrimination. The proposed commission would investigate, conciliate and in the last resort, rule on a number of types of discrimination not covered by the bill, including employment and housing. Members of the proposed commission were to be representatives of the highest possible calibre from government, trade unions, employers associations, social welfare organisations, the legal profession, minority groups and specialised areas of race relations. It was to have headquarters in London and a regional presence. The procedure of the commission empowered individuals. It allowed any person aggrieved on grounds of an alleged unlawful discriminatory practice or any person acting on their behalf (including the Attorney General or a private body interested in equality of treatment), to initiate a complaint to the commission. The complaint would be investigated by members of the commission’s conciliation staff, who would make an informal investigation and would attempt, by mediation, persuasion, and conciliation, to achieve compliance with the law. This process would be entirely private. Any settlement obtained would be drawn up in writing and signed, and would thereafter have the same effect as an order. Failing mediation, the commission would have the power to hold a formal enquiry with powers to subpoena witnesses and documents, and authority to take evidence on oath. Formal enquiry would take the form of a hearing before three commissioners. The commission might either dismiss the complaint, or make an appropriate order (including compensation or injunctive relief to the individual complainant). The commission could register its order in the county court as an order of that court. In the event of non-compliance with its order, the commission

65 Shukra (1998: 21–2). 66 For details on the development and demise of CARD, see Heineman (1972). 67 PRO LAB 8/3070, CARD Proposals for legislation.

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could bring proceedings in the county court to enforce it. The county court would have the power to enforce the order by injunction. Appeal on a point of law would lie from the county court to the Court of Appeal. It was also envisaged that the commission would have power to conduct surveys on the nature and extent of discrimination.68 The CARD proposal did not introduce new institutional machinery into the English legal system: there were over 2000 independent tribunals in the UK, such as the national insurance and industrial injuries local tribunals or the land tribunals, which had the power to subpoena witnesses and/or take evidence on oath. The principle of conciliation prior to formal investigation was used in the Factory Acts machinery. Nonetheless, the Lord Chancellor unequivocally rejected the idea, arguing that there was no precedent in Britain of a ‘non-judicial body determining the civil rights of private individuals inter se according to no fixed legal principles and with a power to enforce its decisions’.69 Where mediation before enforcement proceedings was a possibility, it was argued that such mediators did not simultaneously posses powers of enforcement – the combination of conciliation and judicial functions was ‘incompatible with a fair hearing and trial, and the suggestion that the county court should be used to enforce the orders of such a body is wholly unacceptable’.70 The Lord Chancellor also objected to the issues which the commission was being established to deal with: for a commission to tell an employer who to employ or who should be given accommodation would infringe on liberties and a commission with powers to make and enforce orders would be ineffective unless victims of discrimination were given civil rights in the field of employment, then still absent in English law and seen as too radical a departure from the common law. Although this proposal was rejected, the idea of a powerful commission did not disappear: by 1968, it was more palatable and in 1976 such a body was entrenched with the creation of the Commission for Racial Equality in Part VII of the Race Relations Act 1976. The ‘group of friends’ and CARD were single issue, ad hoc groups attempting to influence official action in relation to racial discrimination. The success with which they did this was differential, but they all were able to find public officials willing to discuss with them, listen to them and in some cases adopt their ideas. Such access is not seen in corporatist Germany. However, to some extent this is also a legal constraint: according to the GGO71, groups which are not represented throughout Germany are not to be consulted.72 In Germany, there are therefore two reasons why it is difficult for ad hoc groups to gain access to legislators.

68 69 70 71 72

PRO File LAB 8/3070, CARD Proposals for Legislation. PRO File LAB 8/3070, Letter 13 April 1965. PRO File LAB 8/3070, Letter 13 April 1965. Gemeinsame Geschäftsordnung der Bundesministerien (GGO III). BpB (1996: 38).

Civil society and the ‘political opportunity structure’ 141 Established groups The GGO is integral to the ‘political opportunity structure’ in Germany. This rule may promote efficiency in consultation but it effectively excludes small, ad hoc organisations from participation in law and policymaking. It has a particularly negative impact on the direct participation of groups organised by and for the black and migrant communities, as their resources rarely stretch to the maintenance of a federal network. There are only two minority groups officially recognised in Germany: the Sorbes of Ober- and Niederlausitz and the Danes of Schleswig-Holstein. Each of these groups contains about 5000 people sharing a common language and culture. As official minorities, they have a right to parliamentary representation and a voice in the German political process. The Danes, have founded a party, the Sudschleswiger Wahlerverband (SSW) to represent and defend their interests. Despite being approximately 300,000 in number, there is no such representation for black Germans.73 Permanent organisations such as the Initiative Schwarze Deutsche (Black German Initiative) or Afro-Deutsche Frauen (Black German Women) have no official status. These voices are not heard in political debates unless they travel via an established body, such as the Commissioner for Foreign Affairs, which is likely to dilute them. Alternatively, in order to participate, these groups can form a coalition. A number of groups joined together to form the Anti-Racism Forum, which was established as an ad hoc group to oversee the implementation of projects during the European Year Against Racism. However, it outlived this original purpose and became a permanent body offering a space for dialogue between the government and non-governmental organisations active in the field of anti-racial discrimination. With the establishment of the European Monitoring Centre in 1997, it became the ‘National Round Table’ drawing together representatives from around 50 nongovernmental organisations. A special working group was established to monitor the implementation of both Article 13 Directives (2000/43 and 2000/78). The aims of this round table include raising public awareness, promotion of equal treatment and discussion of legal questions.74 Yet such coalitions wield less influence than established groups. As explained earlier, the most leverage in the German polity is wielded by groups which represent a particular sectoral interest, such as business representatives, the trade unions or the churches. These are established groups with formal structures and procedures, long-term support and a strong public presence. In contrast to an ad hoc group, established organisations may take up many issues and are present in a number of different fields. An example of an established interest group in Germany is the Evangelical Church (EKD). This is a longstanding organisation with an equally longstanding strong public presence. It is active

73 Sephocle (1996: 13). 74 The Forum has its own newsletter available at http://www.bmfsfj.de/Politikbereiche/Gleichstellung/ eu-richtlinien,did=12154,render=renderPrint,bereich=.html. Accessed 11 June 2005.

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in many fields and was not specifically created to lobby in relation to racial discrimination. The influence of the churches in Germany is particularly interesting. Although not an interest group per se, the large church organisations such as the Evangelical Church (EKD) often act as one. The traditional churches in Germany play a significant role in structuring public life (through educational policies, culture policies, youth care and social policy),75 and often behave as interest groups by clearly trying to influence political decisions. There are both historical and legal reasons for the role of the churches in Germany in lawmaking. A legal reason is found in the German Constitution: Article 140 of the Constitution gives religious organisations a protected position.76 The federal Government also collects the tax which guarantees the church its financial independence. Because of this, the church is not an ordinary interest group: it has been compared to the political charities.77 Historically, Hitler despised and persecuted both churches during the Third Reich: National Socialism and Christianity were deemed ‘irreconcilable’. Churches were closed, and the clergy persecuted and murdered. By 1938, the last remaining channel for interaction between church and society – religious education in schools – was removed.78 This exclusion of the church from public life may have been its saving grace – after World War II they appeared to be the only surviving institutions not thoroughly tainted by Nazism. Because of this, both German society and the allied forces gave the churches an important role in the rebuilding of the country. The EKD constitution contained a provision giving the organization a mandate to undertake political activities in the public interest.79 In the post-World War II national stabilisation and social orientation, the churches took on a new public profile, with more political responsibility and activity. The new confidence and sense of purpose also manifested itself in the establishment of a number of academies, organisations and Arbeitsgemeinschaften.80 One question with which the church became very involved was the division of Germany: a divided nation also meant a divided church. The position of the traditional churches in politics has grown, although this level of influence is not shared by either Muslim or Jewish religions. The influence of the EKD on lawmaking is clearly illustrated by the failure of the proposal for a law prohibiting racial discrimination. The major concern of the EKD was the potential loss of the right to restrict the use of church-run facilities, such as nurseries or retirement homes, to adherents of the faith. Under the proposed law, this would become unlawful. Following interventions including a personal audience with Chancellor Gerhard Schröder, the SPD

75 Wittkämper (1996: 24). 76 Some state constitutions offer the same protection, for example Article 41 of the Rheinland-Pfalz constitution, or Article 142–150 of the Bavarian Constitution. 77 See Triesch & Ockenfels (1995: 168). 78 Bracher et al (1992). 79 Mahlmann (1985). 80 Kleßman (1986).

Civil society and the ‘political opportunity structure’ 143 agreed to treat religion differently. When the civil prohibition designed to implement the EU Race Directive therefore failed, the SPD blamed the established churches’ determination to maintain their traditional prerogatives.81 However, it must be noted that the draft submitted by the Ministry of Justice in 2001 was also opposed by other interest groups, such as industry. Within business, there was concern with the short-term implications new laws may have on recruitment practices and recruitment criteria. The proposal for organisational support to be made available to potential victims was condemned as opening the gates to a flood of nonsense claims. The administrative procedures, in particular the arrangements for the burden of proof were decried as placing an unacceptable obligation on employers to keep and maintain documentation justifying their decisions. The main trade union associations, the German Trade Union Congress (DGB) and IG Metall (IGM), were, by way of contrast, less critical. Like the British Trade Union Congress (TUC), the DGB initially did not favour the introduction of new legal measures:82 Dieter Schulze argued that the existing instruments, such as the Works Council Act offered ample protection. As discussed earlier, however, these provide only limited protection. This is also the case for the additional voluntary measures – the development of plant- or firm-specific non-discrimination agreements between the works council and management – promoted to complement the existing legal norms.83 The position changed under Michael Sommer. In a speech to trade unionists, he stressed that further legal regulation is needed beyond the prohibition in Article 75 of the Works Council Act, the Civil Code and the constitution in order to promote equal treatment in all parts of society.84 However, the preference is for voluntary self-regulation: the trade union leadership has encouraged its members to introduce measures without waiting for the government to tell them to do so. Thus the last few years have seen the appearance of voluntary agreements85 between the unions and company/plant management outlining a commitment to prohibit discrimination on the grounds of ethnicity, religion and sexual orientation.86 These agreements are not legally binding and it is not clear who enforces or monitors them.

81 82 83 84

Gaserow and Meng (2002); Monath (2002). Jahresbericht der DGB (1982–1985: 467). DGB Vorstand (1998: 22). Michael Sommer, ‘Eröffnungsrede bei der Tagung “Diskrimierungsfreie Arbeitswelt – Anforderungen an die gesetzliche Umsetzung der EU-Richtlinien” ’, 21 March, 2003, Berlin. 85 ‘Betriebsvereinbarungen’. 86 Firms which have passed such agreements include Adam Opel Ag, Aventis, Deutsche Bahn, Ford, Thyssen Krupp and Volkswagen AG. Deutsche Gewerksschaftbund (DGB) Referat Migration, Migrationspolitische Handreichungen: Diskriminierung am Arbeitsplatz – Aktiv werden für Gleichbehandlung’, Düsseldorf: DGB.

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Conclusion In order to explain why ad hoc and established groups can exert transformative power, I used the idea of a political opportunity structure. Political opportunity structures are ‘comprised of specific configurations of resources, institutional arrangements and historical precedents for social mobilisation’.87 The political opportunity structure determines the space and channels within which groups seeking to influence law and policy must operate. Comparison of the political opportunity structure shows how external elements can influence the impact of social action. The openness of pluralist systems encourages and rewards proactive lobbying while in corporatist systems such as Germany, the search for consensus gives privileged actors a strong voice to veto. I argued that a key reason for the different transformative power of lobbying was not just the nature of the organizations and the resources available to them, but the structure of political opportunities prevailing in the country. Pluralist systems are more flexible in the type and number of organisations which can participate in the making of law and policy. They are more conducive to political opportunism than corporatist polities. Corporatist systems such as Germany are more cautious as to who may influence decision making. While the pluralist system stresses conflict and conflict resolution through bargaining, the elite system of corporatism stresses conflict reduction between privileged parties in a ‘much more restricted, centralised and stable arena’.88 This may explain the more proactive approach seen in competitive arenas and the more reactive approach to lawmaking seen under corporatist polities such as Germany. Ad hoc groups such as the group which suggested the Citizen’s Council could lobby successfully even though located outside of government, being non-representative and informal. The use of direct contact and a proactive strategy designed to influence the shape of legislation enabled their lobbying to be successful. They were, however, supported from the inside by sympathetic ministers. Similar organisations in the consensus-driven corporatist German political structure are hardly able to make themselves heard by decision makers. Functional interest representation in policymaking is a central element of corporatist systems.89 While lobbying is intended as a channel for participation in systems based on open competition, participation in the corporatist view is incorporated via the recognition of a limited number of interest groups. Trade unions, sectoral industrial bodies, the established church organisations and professional agencies enjoy this privilege automatically. While the political opportunity structure can determine success, the type group and issue being tackled can determine the form of action used. Newer issues may be more controversial than older ones and have less public salience, in terms of

87 Kitschelt (1986: 58). 88 Lowi (1963). 89 Reale (2003).

Civil society and the ‘political opportunity structure’ 145 visibility, and the size and composition of the public whose interest and sympathy they arouse. While some publics are homogenous and small, others are heterogenous, large and divided.90 These ‘policy circumstances’ are an additional factor that can affect the form of action chosen. There is less confrontation used in relation to campaigning for race equality law but more ‘quiet’ lobbying and indirect presentations through investigation and other forms of research. In Britain, reform activists lobbied within informal ad hoc groupings where persons sharing an interest in achieving a common goal agreed to cooperate in order to achieve that goal. The Citizen’s Council can be identified as such a group due to its dissolution once the purpose had been achieved. CARD was an early attempt to create a more political and enduring civil rights type organisation to be active in British politics, however it met with an early demise. Such groups are unlikely to have been influential in the German context. Organisations run by black and migrant groups do not enjoy access to the political process. There are striking differences in the organisation of the black and migrant community in Germany and Britain: over 85% of immigrants’ organisations in Germany are based on the migrant’s country of origin, compared to just over 18% in Britain. There are very few race-based organisations in Germany, compared to more than one-third of ethnic minority organisations in Britain.91 Integration in mainstream political structures was not a priority for the German Conservative administration.92 By contrast, in Britain, the creation of organisational links enabling community concerns to be voiced to parliament has since the 1960s been part of the state integration strategy.93 However, the black community in Germany remains ‘unimagined’,94 lacking not only visibility but also political voice. The refusal to officially recognise that Germany is a multicultural society has created a political blind spot, where black Germans are neither visible nor audible.

90 91 92 93 94

Olsen & Mezey (1991: 17). Parekh (2001: 3–4). Schneider (1997: 112). Shukra (1998: 21). Lusane (2002: 30).

7

The impact of race in the news on race and law

Introduction The purpose of this chapter is to examine the impact of a further exogenous factor: the media. What influence does race in the news have on race and the law? Do stories told by the media affect recognition and definition? The media plays a role in making racial – especially covert – violence visible but does this visibility lead to legal action? Given that race has been a ‘newsworthy topic of particular interest in Britain, Western Europe and the USA for over two hundred and fifty years’, and that ‘the news media have, over this time, been a key site for the representation of ideas about racialised groups, providing a mass of speculation, commentary and information’1 does media attention to racial violence hinder or help the evolution of anti-racial discrimination law in Britain and Germany? In this chapter, I present examples of where the media have transmitted the concerns of black people in a way that affects recognition and definition. The civil rights movement was such a media issue, i.e. it was carried to the majority of the American population via the news media. In the British context, the case of Stephen Lawrence was likewise a media issue – it ‘became a mediatised public crisis’.2 These examples demonstrate the powerful role the media can play. They illustrate that when they want to, decision makers in the media can use newspaper columns and television programmes to direct public opinion and the legislative agenda. A similar mediatised crisis occurred in Germany in 2005, when an ‘African village’ was planned to be held in the Augsburg Zoo. This was the highest profile issue in Germany dealing with race rather than immigration and asylum. However, it did not evoke similar outcome. Before presenting these examples in detail, I begin with a general discussion of the relationship between media and society and race in the news in Britain and Germany.

1 Law (2002: 11). 2 Cottle (2004: 2).

Impact of race in the news on race and law 147

The media and race It has been argued that media output affects society, policy and politics in various ways: first, it ‘can attract and direct attention to problems, solutions or people in ways which can favour those with power and correlatively divert attention from rival individuals or groups. Second, the mass media can confer status and confirm legitimacy. Third, in some circumstances, the media can be a channel for persuasion and mobilisation. Fourth, the mass media can help to bring certain kinds of public into being and maintain them. Fifth, the media are a vehicle for offering psychic rewards and gratifications’.3 The relationship between media and society is complex. The media do not simply relate facts but constantly select and prioritize information, ‘engaging in an active, patterned remaking performed by mirrors in a fun house’.4 For many people, the media – especially news programmes – are a key source of information,5 arguably making it the most powerful influence on public opinion.6 Research has shown that the media can influence society and public affairs: it has an agenda-setting power that guides public consciousness. In their empirical survey of the 1968 US presidential elections, McCombs and Shaw7 demonstrated the existence of a ‘definite correspondence between the degree of concern expressed by citizens across several issue areas and the amount of news coverage granted those topics in the media’.8 More specifically, media coverage and portrayal of ethnic minorities affects public opinion. Mackuen and Coombs found that in America during the 1960s and 70s, ‘the public’s orientation to the racial question was largely determined by their vicarious experience through the media’.9 Bearing in mind the racial segregation in American society and geographical focus of the civil rights campaigns, they concluded that the public stance could not be explained by either personal knowledge or environmental impact.10 This research does not prove that the public is passive, but that there is an element of public consciousness that is more or less media driven, depending on the individual ‘informational environment’11 – individual motivation and status, proximity to the issue and the variety of sources of information.12 The study of race in the news is also complex. One of the first major critical studies on the news presentation of race was undertaken by UNESCO in 1974.

3 4 5 6 7 8 9 10 11 12

McQuail (1984: 50). Gitlin (1984: 244). Alia & Bull (2005: 18). Gordon & Rosenberg (1989: 1). McCombs & Shaw (1972). MacKuen & Lane Coombs (1981: 22). MacKuen & Lane Coombs (1981: 70). MacKuen & Lane Coombs (1981: 83). MacKuen & Lane Coombs (1981: 26). Galanis (1987: 70); MacKuen and Lane Coombs (1981: 135); Wilson & Gutierrez (1995: 56).

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In September 1967 experts meeting in Paris to discuss race and racial prejudice agreed a statement, which included a provision that: The media of mass communication are increasingly important in promoting knowledge and understanding, but their exact potentiality is not fully known . . . Because the mass media reach vast numbers of people at different educational and social levels, their role in encouraging or combating race prejudice can be crucial.13 Unesco fully accepted the influence of the media in stereotyping and legitimisation: We now know that the media may associate certain types of behaviour with certain groups. They may confer approval or disapproval on both persons and values; they may select issues, define problems, legitimise behaviour, label persons, places and things, draw up the agenda and structure the whole debate in any given area.14 In order to understand the media role in race relations, Unesco commissioned a series of studies on the role of newspapers in a multicultural society. The first of these was entitled Race as News.15 This study included an empirical survey on the role of the British press in race relations. There was substantial coverage on race in both the quality newspapers (The Times and The Guardian) and the tabloids (Daily Express and Daily Mirror) but the news focused on a small range of topics, in particular immigration. Legislation, when mentioned at all, was most often linked to immigration.16 The authors concluded that the increase in news about black people was not good news. In fact, between 1963 and 1970, race appeared in the British press in ever more negative terms, predominantly about immigration, in particular the numbers of black people in the country and keeping them out.17 The presentation of black people as ordinary members of society was ‘increasingly overshadowed by a news perspective in which they are presented as a problem’.18 They summised that ‘over the years anything about race and colour that could be discussed in terms of immigration, of numbers, of the relations between white and black – particularly hostility between the groups – or of discrimination has increasingly come to be regarded as more newsworthy than material that requires a different frame of reference’.19

13 Unesco Statement on Race and Racial Prejudice in Current Anthropology, Vol. 9, No. 4 (October, 1968), pp.270–272. 14 UNESCO (1974: 14). 15 UNESCO (1974). 16 UNESCO (1974: 128, 147). 17 UNESCO (1974: 139). 18 UNESCO (1974: 159). 19 UNESCO (1974: 138).

Impact of race in the news on race and law 149 Many of the themes of this initial study – negativity, and the structure of news reporting or ‘newsworthiness’ – were picked up by the subsequent UNESCO project in 1977, Ethnicity and the Media. Like Race as News, the research illustrated that in general ‘newsworthiness’ required minority or non-elite groups in any country to ‘engage in “negative” behaviour’ before they are noticed by the media or given the opportunity to present their point of view. Some groups remained left out in the cold while others are invited inside.20 This definition of newsworthiness was attributed to the whiteness of the media: the researchers concluded that the ‘major news media are staffed by white personnel and serve a mainly white audience, and consequently the “public” which dictates newsorthy events will be a white public’. The day-to-day concerns of the black population only become newsworthy events when they impinged on whites: The condition of the coloured immigrant is not in itself a matter of high interest to the white majority. Their interest is focused on the situations which are perceived as threats or as problems. Violent or sensational activity which might threaten the lives of the white majority was therefore a prerequisite for the lives of minorities to be relevant to them.21 The research identified regularities in the news production process which resulted in serious distortions; a ‘sameness of presentation’ featuring a lack of variety, a limited range of interpretation and explanation, an emphasis on individual events and negative aspects as well as an absence of background details. The central problem was not prejudiced journalists, but the ‘structure of access’, which ran counter to the interests of black people. Changes were not only required at the level of personnel but more fundamentally ‘in organisation, structure and the whole media system before we have the changes in professional values and practices and in the treatment of race-related material within the appropriate historical and social contexts’.22 In the intervening decades, this fundamental change has not happened. Writing almost 20 years later, Ionie Benjamin stated that: By and large the mainstream media, in the past and still today, largely exclude Blacks from their decision making processes. So all one gets is the journalist who from time to time prints a story affecting the Black community, which is, more often than not, about crime or immigration . . . if its entertainment or sport, it will fit into the stereotypical editorial pattern.23

20 21 22 23

UNESCO (1977: 11). UNESCO (1977: 12–13). UNESCO (1977: 17). Benjamin (1995: 6).

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In 2005 Alia and Bull lamented that the British newsroom remains ‘hideously white’ with newspaper staff unreflective of the communities on which they report – although ‘some newspapers serve communities with ethnic minority populations of 10–40%’, these areas are covered mainly by white reporters ‘with little understanding of the cultures and religions of the communities they are reporting’.24 Unsurprisingly, there has been little change in the content. Husbands and Downing conclude that black people continue to appear in ‘repetitive and limiting news scenarios’.25 In particular, they argue that: Coverage of the African continent virtually entirely in terms of wars, coup d’etats, famines, AIDS and other diseases, corruption, all arguably has an immensely powerful framing role in defining people of African descent in White-majority nations, whatever the contents of an individual news story about them. The same can be said of framing Arabs as Muslim fanatics and terrorists bent on a second Jewish Holocaust. Covering people of colour in Britain as immigrant (‘even unto the third and fourth generation’), or Mexican Americans, the largest Latino grouping in the USA, as immigrants, frames them as not belonging, as not being integral to the nation, as not being stakeholders in the common good.26 Through this constant linkage of black people to ‘narratives of crime and victimisation’ the news constructs all persons of colour as a ‘source of disruption’.27 This culture of repetitive and limiting scenarios is repeated in other parts of the media and the world.28 It is no less true of the German press, although the topic is less studied and research tends to focus on ‘Ausländer’, or foreigners, in general. The focus on foreigners excludes consideration of black Germans despite the widespread use of negative racial stereotypes throughout the media.29 A 1986 study by the Centre for Turkish Studies30 analysed the representation of foreigners (persons from the United States, Italy, Spain, Greece and, of course, Turkey) in the daily, quality and tabloid press and considered the possible social effects of this. The study concluded that foreigners were overwhelmingly presented as visitors, sportspersons or artists (40.4%), foreign labour (18.8%) or asylum seekers (11.9%). The themes of crime and justice dominated stories in the quality and tabloid press.31 Foreigners were represented as ‘good’ when they were either in their home country, or only temporarily in Germany, artists

24 25 26 27 28 29 30 31

Alia & Bull (2005: 10). Downing & Husband (2005: 26). Alia & Bull (2005: 36). Entman & Rojecki (2001: 67). Entman & Rojecki (2001: xi). Lorbeer & Wild (1991). Merter et al (1986). Merter et al (1986: 2).

Impact of race in the news on race and law 151 or sportspersons; and, conversely, foreigners were ‘bad’ when they sought work or asylum in Germany.32 In the tabloid press, Turkish workers were especially regularly associated with crime and were twice as likely to be spoken of badly by Germans as workers from other nations.33 The researchers concluded that such negative representation in the press set the scene for xenophobia in society. The negative press coverage left a general sense that foreigners in Germany disturbed social stability, which in the long term provided a moral justification for discrimination against them.34 As most Germans had little interaction with foreigners, they had no opportunity to complement media representation with personal experience. A study of the press representation of the pogroms on asylum homes in the early 1990s35 found that, in most cases, the press reports turned the perpetrators into victims. The stories were stripped of their racist context, which silenced the victims and justified the violence of perpetrators as reasonable frustration.36 The media were in general found to actively construct a racist discourse rather than the opposite. A concrete example of this was the press coverage of the pogrom in Rostock: reports reduced it to a civil protest by the unemployed and blamed the victims themselves for the violence. There were no interviews with any victims.37 The newspapers undermined the racist origins of the violence by representing it as the inevitable result of too many foreigners, unemployment, feelings of worthlessness and lack of hope.38 An examination of newspapers in Stuttgart concluded that politicians and lawyers dominated reports and that stories focused on legal issues, such as the implications of proposed constitutional changes.39

The value of media coverage It is not only how persons and population groups are portrayed, in news coverage as elsewhere, but whether events regarding certain groups are considered newsworthy and so covered at all.40 Media coverage is valuable for both its influence on the public and politics. Press (mis)representations matter enormously because they can influence both the public mood and the official political response. In majoritarian democracies, such as Britain and Germany, the public are the primary concern of legislators.41

32 33 34 35 36 37 38 39 40 41

Merter et al (1986: 4). Merter et al (1986: 5). Merter et al (1986: 112). Autonome a.f.r.i.k.a-gruppe (1994). Autonome a.f.r.i.k.a-gruppe (1994: 15). Autonome a.f.r.i.k.a-gruppe (1994: 25). Autonome a.f.r.i.k.a-gruppe (1994: 60). Autonome a.f.r.i.k.a-gruppe (1994: 46). Goldberg (1989). Druckman (2001).

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If framing determines how the public will respond to an issue, this means that the media can to some extent influence legislators: Gaining publicity in large news media is also a good way for associations to gain access to the sites of political power and public policy formation. More than any other type of public space, the large media organisations have replaced political parties as the best link between politicians and the people. In a typical day more than one million people will read the New York Times, Los Angeles Times and USA Today . . . To the extent that an association can get its issues onto ABC News or into the New York Times, it is more likely to get those issues onto the agenda of congressional debate.42 Media representations can likewise affect the official ‘range of possible means considered for resolving conflicts’43 and hence go some way to determine legislative responses: The media affect public policies in a variety of ways. They may be a major factor in creating problems that then require public policy solutions. Or they may, through publicity, engender governmental action that might not have taken place otherwise. Alternatively, by mobilising hostile public or interest group opinions, they may force a halt to ongoing or projected policies.44 A hostile media can therefore discourage government action or simply make it harder: unsympathetic coverage can turn a public against minority claims just as the reverse can have the opposite effect. For example, the Orangeburg Massacre, where white state police fired on a group of 100 black students at South Carolina State College in Orangeburg, was initially described by the Associated Press as ‘a heavy exchange of gunfire’ even though the students were unarmed – three of them died and 28 people were wounded. The low level of public empathy for the students has been attributed to the media presentation of this event as a battle between two equally powerful forces.45 Likewise, the description of events in Jena as a ‘melee with white pupils’46 apportions equal blame to the black and white boys by misrepresenting the overt racial violence which triggered them, and pre-empts public sympathy with the young black boys. Press reporting of race matters can therefore manipulate ‘popular’ fears and suspicions, and create a climate of opinion where racist activity becomes normalised and encouraged.47 Or, as will be shown later, it can do just the opposite.

42 43 44 45 46 47

Jacobs (2000: 25–6). UNESCO (1977: 11). Graber (1984: 251). Arango (2008: 7). Doyle (2008: 30). Gordon & Rosenberg (1989: 68–9).

Impact of race in the news on race and law 153 The US Civil Rights Movement There is no doubt that the civil rights campaigns of the 1960s and 1970s would have had a different outcome in the absence of media coverage. The movement succeeded because journalists and photographers wrote about it, took pictures of it and captured its sounds: landmark moments, such as the ‘Battle of Little Rock’48 were only such because the media were there to crystallise them in the public mind. According to John Lewis: ‘If it hadn’t been for the media – the print media and the television – the civil rights movement would have been like a bird without wings, a choir without a song’.49 Television was ‘an indispensable force’ for the movement: the broadcast of the famous March on Washington in 1963 provided an international audience of millions: ABC, NBC and CBS set up almost 50 cameras on the event, Telstar provided live coverage to eastern Europe and television networks in West Germany, France and Japan sent crews to cover it.50 This coverage brought the plight of African Americans to the ‘indifferent white millions, for whom integration or segregation was of scant personal concern’.51 The scenes of violence in Selma and Alabama, for example, illustrated the breakdown of local authority and the rise of rampant injustice. Martin Luther King was apparently aware of the importance of these images – during one event, when a Life magazine reporter stopped taking pictures to defend some children, King reportedly said to him: ‘I’m not being cold-blooded, but it is so much more important for you to take a picture of us getting beaten up than for you to be another person joining the fray’.52 The white journalists served as eyewitnesses whom white readers would believe and their reports liberated the public from reliance on the official version of events. The question arises as to why the media covered these issues at all? As Larson points out, in the 1960s, the media did not become civil rights crusaders.53 Newspapers acted in line with their existing values of newsworthiness. The support of the media was neither complete nor consistent.54 Much of the press remained indifferent towards African Americans, many stories promoted stereotypes and conflicts continued to be covered superficially. The television news stories were told mainly from a white perspective and the narrative frame was not always sympathetic.55 However, this does not negate the role of the media in changing the public mind and the legislative agenda. As Roberts and Klibanoff show, it was not the coverage of individual marches, freedom rides, demonstrations, sit-ins and

48 49 50 51 52 53 54 55

Doyle (2007: 26–7). Roberts & Klibanoff (2006: 407). Roberts & Klibanoff (2006: 346–7). Roberts & Klibanoff (2006: 348–9). Roberts & Klibanoff (2006: 383). Greco Larson (2006: 162). Greco Larson (2006: 156). Greco Larson (2006: 157–9).

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confrontations but the incremental effect of these scenes of violence and abuse by white authorities in the newspaper headlines and television news – such as the fire hoses and attack dogs used on children in Birmingham, Alabama, or the horses and clubs used by the authorities at the Selma March – that challenged and changed public perceptions and made the Civil Rights Act possible in June 1964. Similar media exposure of failing white authority was the catalyst for the amendment to Britain’s Race Relations Act in 2000. The murder of Stephen Lawrence As in the USA, newspaper coverage of this event brought the plight of black Britons nationally to the ‘indifferent white millions’, for whom racial violence in Britain was of scant personal concern.56 The story focused on injustice: it triggered a huge public outcry and by the time this died down, the Metropolitan Police had been branded as ‘institutionally racist’ and the Race Relations Act of 1976 had been altered to impose radical new duties on the police and other public authorities. None of this would have happened if, ironically, the Daily Mail had not labelled the five white youths who killed Stephen Lawrence ‘murderers’. The Daily Mail was the least sympathetic of the British tabloid newspapers to Britain’s black population. Media critics argued that this tabloid in particular ‘focused almost exclusively on negative social issues’, primarily immigration and crime, doing little to improve race relations.57 The Daily Mail used more hostile and aggressive language and featured more outrageous storylines than other tabloids such as the Sun and the Daily Express.58 Cartoons were also used to stereotype and degrade black communities and their cultures.59 In addition, no national paper was friendlier to the police.60 So it was a great surprise when, in 1997, the Daily Mail appeared to redirect its hostility to the five white youths accused of killing Stephen Lawrence. Unlike other tabloids, the paper profiled the case and actively supported the Justice for Stephen Lawrence Campaign. Although all the media acknowledged the role of racism in the case and decried the response of the police, the action by the Daily Mail accelerated media coverage of both the murder and the campaign.61 In doing so, it primed the public to acknowledge ‘institutional racism’ and gave the government an opportunity to amend the Race Relations Act 1976. There was initially very little public interest in the tragedy of Stephen Lawrence – other murders in the same area of London during this period had likewise been ignored.62 Outside of the black press, the case attracted very little

56 57 58 59 60 61 62

Roberts & Klibanoff (2006: 348–9). Benjamin (1995: 6). Gordon & Rosenberg (1989: 8). Gordon & Rosenberg (1989: 37). Cathcart (1999: 285). Law (2002: 116–17). Hewitt (2005: 48–55).

Impact of race in the news on race and law 155 media attention.63 It was the behaviour of the white boys when summoned to appear at the inquest in 1997 that changed this. One by one, they invoked the right to silence in the dock, refusing to answer any questions which might be self-incriminating, including questions on their identity. It was this flippant smugness that garnered general public sympathy with the Lawrence family but, more specifically, ignited the anger of Paul Dacre, editor of the Daily Mail. Although he knew Neville Lawrence personally, the major motivation for Dacre was reportedly ‘a “white-on-white” matter – white youths versus white justice’: Dacre was personally appalled by the behaviour of the five and on consulting his newsdesk he found his suspicions about them confirmed . . . they were, to use a Mail word, ‘scum’. Dacre felt that these people should not be allowed to get away with murder and they should not be allowed to get away with holding two fingers up to British justice. From there it was merely a matter of how to achieve the effect he wanted, and whether it would be legal.64 On 12 February 1997, the Daily Mail, along with the quality broadsheets, carried stories on the degeneration of the inquest into a ‘mockery of the legal system’.65 On 13 February 1997, the jury declared that Stephen Lawrence had been killed ‘in a completely unprovoked racist attack by five white youths’. On 14 February 1997, the verdict was front page news. The most dramatic headline was in the Daily Mail – its front page carried photos of the five youths under the headline ‘Murderers’. The paper accused them of killing Stephen Lawrence and told them to sue for libel if this were untrue.66 The youths did not sue. The paper also ran a story highlighting the Lawrence’s fight for justice and the murders of other black males. An editorial comment entitled ‘A tragic failure of British justice’ explained the seriousness of the paper’s public condemnation of the five men as murderers, who had not been convicted as such in court.67 Over the ensuing period, the story appeared on all of the media – radio, terrestrial and satellite television – but none covered it to the same sustained extent as the Daily Mail. It gave the most attention, space and coverage, demonstrating a ‘clear commitment to using press power in the pursuit of racial justice’.68 Its radical change did not go unnoticed. The headline made the paper the topic of discussion – it was discussed on the Radio 4 Today Programme; praised by left and right: Paul Foot declared it excellent as did Darcus Howe;69 then Prime Minister John Major praised its unequivocal stance; and an article in the Independent commented that the paper had emerged as ‘a sudden champion of downtrodden

63 64 65 66 67 68 69

Law (2002: 122). Cathcart (1999: 288). Law (2002: 117). Daily Mail, 14 February 1997. Reprinted in Cathcart (1999). Law (2002: 120). Law (2002: 121). Cathcart (1999: 286).

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minorities’.70 Its intervention was described as the ‘biggest sea change in media coverage of race’.71 Without its media campaign, it is unlikely that the government would have conducted the public inquiry which led to the amendment of the Race Relations Act to prohibit ‘institutional racism’. The MacPherson Inquiry The Lawrence’s first request for a public inquiry into the Metropolitan Police in 1993 was turned down. However, subsequent events – the results of the inquest and the media attention – made a continued refusal harder to justify. A general election in 1997 returned a Labour government more sympathetic to the Lawrence’s request than the former Conservative administration. On 24 March 1998, after a series of adjournments,72 Sir William MacPherson began his 6-month long examination. During the enquiry, it became clear that the officers involved had denied the racial motivation of the murder73 and that this had influenced the investigation: there had been no exploration into the racist backgrounds of the suspects. Both junior and senior officers demonstrated a poor understanding of racism. Questioning by Michael Mansfield: [B]rought out many signs of unreconstructed attitudes to race among police officers. Steven Grove’s flounderings on the word ‘coloured’ were not the only example; a dozen police officers were in the habit of using the term, while one could see no problem with calling someone a Negro. There were instances, too, of officers who seemed to have given little or no thought to issues of race.74 Although the enquiry did not find any deliberate acts of racism on the part of the police, it found that ‘mere incompetence’ alone could not ‘account for the whole catalogue of failures, mistakes, misjudgements, and lack of direction and control which bedevilled the Stephen Lawrence investigation’.75 The responses of the officers illustrated a deficit in their race awareness. It was this serious deficit deep inside the Metropolitan Police, which the MacPherson Report summed up in the phrase ‘institutional racism’: a collective failure of the police as an organisation to serve black people. This was not a new concept: in 1967 two black activists, Stokely Carmichael and Charles V. Hamilton stated that institutional racism: [O]riginates in the operation of established and respected forces in the society. It relies on the active and pervasive operation of anti-black attitudes

70 71 72 73 74 75

Law (2002: 119). Law (2002: 122). Cathcart (1999: 311–15). Cathcart (1999: 351–7). Cathcart (1999: 355). MacPherson (1999: paragraph 6.44).

Impact of race in the news on race and law 157 and practices. A sense of superior group position prevails: whites are ‘better’ than blacks and therefore blacks should be subordinated to whites. This is a racist attitude and it permeates society on both the individual and institutional level, covertly or overtly.76 Evidence on institutional racism in the police from members of the Black Police Association and academics such as Dr Benjamin Bowling, stressed that institutional racism focused not on unconscious but uncritical77 acts of individuals – a failure ‘to consider the consequences of his or her actions for people from ethnic minorities’ – and on the ‘net effect’78 of systematic treatment differentiated by race. Evidence from the BPA highlighted the all engulfing nature of stereotypes perpetuated in the overwhelmingly white ‘canteen culture’ within the police force, and the negative impact of this occupational culture on the black community: The occupational culture within the police service, given the fact that the majority of police officers are white, tends to be the white experience, the white beliefs, the white values. Given the fact that these predominantly white officers only meet members of the black community in confrontational situations, they tend to stereotype black people in general. This can lead to all sorts of negative views and assumptions about black people . . . We are all consumed by this occupational culture.79 It was stressed that differential treatment of black people lay within the police organisation itself rather than the individuals representing it – it was ‘institutionalised’ in the way in which the police force operated.80 What was required of the police was an occupational culture ‘sensitive not just to the experience of the majority but to minority experience also. In short, an enhanced standard of police professionalism to meet the requirements of a multi-ethnic society’.81 Drawing on this evidence, MacPherson defined institutional racism as: The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.82

76 77 78 79 80 81 82

Carmichael & Hamilton (1967: 20–21). MacPherson (1999: paragraph 6.33). MacPherson (1999: paragraph 6.28). MacPherson (1999: paragraph 6.28). MacPherson (1999: paragraph 6.32). MacPherson (1999: paragraph 6.32). MacPherson (1999: paragraph 6.34).

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This was not limited to the police service but was also present in other agencies, such as housing and education. The report went on to say that if ‘racism is to be eradicated there must be specific and co-ordinated action both within the agencies themselves and by society at large, particularly through the educational system, from pre-primary school upwards and onwards’.83 It called for government to respond to its findings.84 The government did so, as discussed in Chapter 3, with an amendment to the Race Relations Act 1976 to entrench a legal definition of institutional racism. The ‘African village’ in Augsburg Zoo A similar mediatised issue arose in Germany in 2005 but with very different consequences. In June 2005, the Augsburg Zoo, with the support of the City of Augsburg and a private company, planned to host an ‘African village’. For 3 days, from 9 to 12 June, while looking at animals in cages, visitors would simultaneously be able to observe, explore and interact with African culture. According to Director Barbara Jantschke, the zoo was a suitable venue for an exhibition of African culture, crafts, wares and music: food from Ghana, stories from Gambia, music from the Ivory Coast, exhibitions on development projects in Togo. In addition, representatives of the tourism industry were to participate: space had been reserved for Conti-Reisen, a group organizing package tours. The organizers at the zoo described the event as an opportunity to promote tolerance and understanding between Africa, a continent, and Germany, a country. At any other location, such an event would not give rise to controversy. The venue, however, was its undoing. The combination of the location in a zoo, together with the stereotyping of Africa as an underdeveloped, non-urbanised country with a ubiquitous village and the focus on tourism, caused outcry. The event was denounced both internationally and nationally as a 21st-century ‘Volkerschauen’ or human zoo. The protests were led by the black German community. The subsequent international outrage, while not preventing the planned event from going ahead, nonetheless placed the topic of racism in Germany at the forefront of media attention in a way not seen before: it was discussed in most of the national daily newspapers, including the Sueddeutschezeitung (SZ), Die Welt, Frankfurter Rundschau (FR), Die Tageszeitung, Der Tagesspiegel, Der Spiegel and on television in Germany (WDR, ZDF and 3Sat) and abroad (BBC). Although short lived, it became the most widely covered press story in Germany on racism. When a debate scheduled to be held at the zoo on the opening day, 9 June, was cancelled, the protesters planned a demonstration instead. It was poorly attended, but journalists from print and television media were present to record it. The displaying of people of colour in zoos and circuses has a long history in Germany and other parts of the world. It is doubtful whether any European

83 MacPherson (1999: paragraph 6.54). 84 MacPherson (1999: paragraph 6.63).

Impact of race in the news on race and law 159 culture has ever been displayed in this degrading way: venues such as galleries and museums are usually seen as more appropriate. Native Americans as well as persons from Africa were displayed as curiosities and freaks in cages alongside animals at fairs, markets, exhibitions, circuses and in zoos. The most well-known promoter of such events in Germany was the director of the Hamburg Zoo, Carl Hagenbeck. Between 1874 and 1932, he organised 60 human zoos. Thousands were attracted to the zoo to see his human exhibits. Human zoos also took place in Augsburg between 1898 and 1911. The Nazis used this format as propaganda to gain support for their colonial ambitions. Despite this history, the Director of the Augsburg Zoo, the Lord Mayor of Augsburg and the local commissioner for integration failed to see the problem with the reproduction of this offensive platform. They refused to reconsider or cancel the event,85 even when invited to do so by people – such as Nobel Prize winner Nadine Gordimer – from around the world. It was only from a press release just before the event that the black German community became aware of the event at all. A black German organisation, ISD, immediately wrote a protest letter to Jantschke, highlighting the colonial parallels of the event, its connotations in the present and called for it to be cancelled. Multiple concerns were outlined, including the portrayal of Africans in Germany, the invisibility of black Germans, their lack of voice and public presence, the continued presentation of Africa as an exotic rural idyll and the impact of all of these on children. Jantschke and her co-organisers failed to engage with the socio-political arguments of the protesters. They reduced the debate to a simple comparison with the human zoo, which they dismissed as ‘ridiculous’: they intended to exhibit products not people and the Augsburg Zoo was ‘exactly the right place’ to capture the exoticism of Africa. They declined to cancel the event. The protest began when ISD circulated this correspondence between its members and Jantschke. Jantschke’s dismissive reply stimulated even more criticism. Other organisations working to combat racism and xenophobia in Germany, such as the AfroDeutsche Frauen, the Organisation of Bi-national Families, and organisations based in Austria as well as academics from the United States immediately outlined their concerns: a deluge of protest emails was sent to the city officials and the zoo. Even academic anthropological associations – the European Association of Anthropologists and the Royal Anthropological Institute, voiced their concerns.86 Most correspondence voiced strong feelings that the event resurrected racist traditions connected with the German colonial period. Objections were raised about the degradation of African culture and diversity by the suggestion that the continent comprised only villages and furthermore that all villages, regardless of whether in east, west, north or south, were identical. The letters expressed anger that the event reduced Africa to an exotic wilderness, devoid of cities, motorways

85 Kulke (2005). 86 Glick Schiller et al (2005: 6).

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and universities. The event was unequivocally condemned as contributing to the perpetuation of stereotypes and prejudices and an affront to the dignity of black people in Germany. It was a surprise that the German press took up this issue, displaying a level of interest not seen before in relation to black Germans. There is very little coverage of black Germans in the German media. They are as invisible from the public eye as they are in politics. Their concerns rarely gain any, let alone widespread, attention with press coverage focusing mainly on ‘guest workers’, criminality and legal control of immigration. In addition, the interests of the black German community find little resonance with the German public: they are generally dismissed as oversensitive rather than taken seriously. This was also the final conclusion of some parts of the media. Sections of the press clearly understood and supported the protesters but not in a sustained way – no single paper triumphed the cause. The Süddeutsche Zeitung described the suggestion to locate a festival of African culture in a zoo as a ‘verheerende’ terrible idea. Jantschke’s reply to the initial concerns was described as ‘pampig’ (bad-tempered). The piece sympathised with the position of the protesters and sharply criticised the zoo and city leaders for adopting the role of the misunderstood victim instead of capitalising on the opportunity for dialogue. It was noted that 75% of the exhibitors were white.87 The Frankfurter Rundschau was very clear that racism was involved and asked only of what type: conscious or not.88 The Tagesspiegel criticised the ‘African village’ as being similar to a human zoo. A piece by Deutsche Welle, featuring an interview with a member of ISD, Eleanor Wiedenroth-Coulibaly, questioned the use of this colonial format for what it described as a ‘festival’ and highlighted the willingness of the protesters to engage in a discussion with their offer to hold a workshop during the event.89 The Spiegel was initially ambivalent but eventually dismissed the protest as ‘nonsense’.90 Before the event opened, a story appeared focusing on how confused the organisers were by the outcry and how misunderstood they felt. When Spiegel reporter Henryk Broder visited the ‘African village’, he decided that the uproar was overblown and concluded that ‘the only thing that provoked the hard feelings was the connection between the words “Africa” and “zoo” and this shows how close “political correctness” is to hysteria’. He illustrated the latent hostility to minority concerns when he went on to wonder whether the pending staging of Strauss’ operetta ‘Gypsy Baron’ would result in an outcry of racism or cruelty to animals.

87 Zekri (2005). 88 (2005)‚ ‘Bewusster oder unbewusster Rassismus? Proteste gegen “African Village” im Zoo’, Frankfurter Rundschau. 89 Deutsche Welle (2005). 90 Broder (2005); Hawley (2005).

Impact of race in the news on race and law 161 Die Welt, by contrast, was sceptical from the outset. In a piece91 written in early June, its reporter noted with surprise that such protests could arise ‘allein wegen’ ( just because of ) the choice of location. Although they were quoted, the protesters were portrayed as hard extremists and their position thus marginalised. Even the Berlin taz, a young, left leaning daily paper, lost sight of the real issues. It concluded that the furore was an example of stupidity and ignorance on both sides and marvelled at how quickly the arrogance of the critics had reached the same level as the ignorance of the event organisers (‘wie schnell die Arroganz der Kritiker die Ignoranz der Veranstalter eingeholt hat’). It described the event as nothing more than a flea market and encouraged readers to visit.92 The British press that covered the event was non-committal. Stories in the Daily Telegraph93 and on the BBC94 news pages represented both sides of the argument equally and left readers to make up their own mind. The location of the stories illustrates the ambivalence: it was put in the Europe section of the Telegraph and the Africa section of the BBC. This coverage had no legislative impact. The organisers remained adamant throughout that the event would go ahead, and go ahead it did. On 1 June, the Lord Mayor of Augsburg, Dr Paul Wengert, who was also the chair of the body supervising the Augsburg Zoo, issued a press statement, clarifying the position of the city. Like Jantschke, he roundly rejected any similarities of the event to a human zoo. He claimed that the event was an opportunity to develop solidarity with the suffering of Africa, a goal supported by Africans living in Augsburg and ‘örtliche engagierte Institutionen’. These claims were found to be spurious. First, the event was primarily intended to raise funds for the zoo, which was struggling financially after Augsburg Council reduced its contributions: each exhibitor was charged between € 400 to € 700 for space at the event. Second, many of the ‘Africans’ participating in the event as exhibitors were, in fact, German: many had German citizenship, were resident in Germany and spoke fluent German. They rented space at such events around the country to make a living. Third, only one local organisation was involved, the Togoverein, which it is claimed had been co-opted by the organisers to boost the humanitarian credentials of the event.95 Many African asylum seekers in Augsburg had apparently been too afraid to speak openly against the event.96 While the words of the protesters were given space, they were always printed alongside the official position. It is argued that the official position was most reported and, therefore, influenced the public perception that the event was not racist. The most concrete response was a press release by the federal and

91 92 93 94 95 96

Kulke (2005). Schallenberg (2005). Pancevski (2005). ‘Row over German zoo’s Africa show.’ Glick Schiller et al (2005: 7–11). Glick Schiller et al (2005: 16).

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Bavarian councils for foreign affairs denouncing the decision to go ahead with the ‘African village’ in spite of the national and international outcry, and calling for a debate on the German colonial history.97 Yet this did not prevent the director of the Osnabruck Zoo, Dr Everts, from deciding in August 2005 to hold a similar ‘African village’ to raise funds.

Conclusion In 1968, the Kerner Commission concluded that the news media had ‘too long basked in a white world, looking out of it, if at all, with white men’s eyes and a white perspective’.98 In 2008, content continues to be guided by the same concepts of newsworthiness, which remains determined by the predominantly white newsrooms and the predominantly white reading public.99 Invisibility of race is no longer the major problem but visibility remains premised on negative rather than positive stories. This bias is also problematic because ‘racial representations help to mold public opinion, then hold it in place and set the agenda for public discourse on the race issue in the media and in the society at large’.100 Racist bias in the media can leave its imprint in law. The representation of race in the media is complex not only due to the the ‘chameleon-like character of racism, which is subject to variation and change across contexts and times’101 but also because media news presents images of both racism and anti-racism. Despite the complexity of this relationship, observation of the civil rights movement in the United States, the Stephen Lawrence case in Britain and the Augsburg Zoo crisis in Germany demonstrate that the media do have a power to attract attention to problems, confer or withhold status and legitimacy, and mobilize both the public and politicians.102 In particular, the case of Stephen Lawrence ‘demonstrates that not all media must always and necessarily reproduce unthinking stereotypes or rehearse the same conflict-driven news agendas. . . . The media became actively caught up within the transformative energies that they themselves had actively performed and helped to unleash.’103 It is unlikely that the media intended such outcomes as arose. Yet their interventions in recording and broadcasting racial inequality and racist violence primed the public for the emerging discourse of legal equality. The value of the high media coverage in print and on television was the strong images it portrayed of violent injustice. Given the deep patterns of racial segregation in the USA,

97 98 99 100 101 102 103

Glick Schiller et al (2005: 42). Kerner Commission Report, p.389. Alia & Bull (2005); Benjamin (1995). Hacker (1997: 71–75). Dates & Barlow (1990: 5). Law (2002: 15). McQuail (1984: 50). Cottle (2004: 26)

Impact of race in the news on race and law 163 these texts and images were of heightened importance.104 This is also true in Britain, and as relevant to the role of the media in the campaign for justice for Stephen Lawrence. Vigilant media can be instrumental in promoting change of public attitudes and policy priorities. Even though many European societies are multicultural, the majority of whites have very little personal contact with black and minority ethnic people. The press has an important role to play in filling that gap.105 Editors must learn to value minority perspectives as strengths to enhance the appeal of a newspaper and its coverage.106 The media can act as a mechanism for social control and social integration107 – just as it has been used to pioneer environmental awareness, it can also pioneer racial equality. Sensationalist stories on race in the media will frighten the white majority and lead to calls for tighter restrictions on immigration. Alternatively, media coverage might sensitise the majority to the problems of everyday racism experienced by black citizens and set the scene for radical changes to policy and law in favour of integration.

104 105 106 107

Entman & Rojecki (2001: 146). Johnson et al (1971: 702). Kotz (1979: 28). Galanis (1987: 49).

8

Anti-racial discrimination law in the European Union

Introduction Dubois was right: but the problem of colour was not limited to the twentieth century, it has continued into the twenty-first. Racial animus continues to be a serious and intractable problem affecting the lives of every one of Europe’s 450 million citizens. It has become ‘more complex and contested, gone jet-age global, consumer-friendly, media marketed and online, but race (and its non-identical twin, ethnicity) has lost none of its power to draw its borders, legislate its citizens and police its Others, through violence: symbolic or all too often, embodied. Racial and ethnic difference remains definitive of our times.’1 In particular, racial violence is increasingly more covert. Until 1997 there was no protection against any form of racial violence in EU law. The legal system created by the Treaty of Rome, the foundational document of the European Economic Community (EEC), did not include a prohibition of racial discrimination. It has been argued that this was because the key objective of the EEC was to relieve western Europe of the severe economic distress left in the wake of World War II. The six founder members (France, Germany, Italy, Belgium, Luxembourg and the Netherlands): [H]ad a small and weak industrial structure, an almost primitive agricultural system, a low standard of living, widespread protectionism, subordination of politics to economic power, insufficient social security and no employment protection. Backwardness and destruction of varying degrees were common and for the people of vast regions the only hope was emigration.2 Economic reconstruction ignored the question of racial integration, although black people were a growing presence in at least two of the founder member states when the Treaty of Rome was signed: France had a large community of

1 Alexander & Alleyne (2002: 541). 2 Padoa-Schioppa (2004: 25).

Anti-racial discrimination law in the European Union 165 Algerians and Germany a growing community of black Germans.3 The concern with discrimination was limited to those forms capable of distorting the functioning of the common market: gender and nationality.4 Racial equality was not on the agenda. Focused attention within the Community first fell on racism in the 1970s, triggered by the after-effects of the 1973 oil crisis on migration policy within the member states. However, without a legal reference to race in the treaty, the Community had no competence to take binding action.5 In the absence of a legal basis, the Community could only take ‘soft law’ initiatives concerning migration.6 Only much later did it introduce soft measures on racism, such as the declaration on racism in the workplace, council resolutions on racism in education and employment7 and the joint action8 coordinating national provisions in criminal law for the punishment of racial hatred.9 Also in 1997, a centre to monitor racism and xenophobia10 was established to act as a clearing house for the collection, recording and analysis of information and data. In 1997 a major change occurred when member states – including Germany – agreed the introduction of a broad anti-discrimination clause to the Treaty of Rome. At the intergovernmental conference of heads of state and government in Amsterdam, it was agreed to amend the Treaty of Rome to include a wider prohibition of discrimination. Article 13 of the Treaty of Rome provides that the Council, ‘acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’.11 This made racial discrimination an area of competence for the European Union. Since then, racial discrimination in employment and other spheres have been formally prohibited by the Race Directive 2000/43. Given that the nation state has traditionally reserved for itself the right to decide how to treat or mistreat its racial and ethnic minorities, how did the EU

3 For further details see Fryer (1984); Lester & Bindmann (1972); Solomos (1988). For a historical overview of Germany’s colonial past see Opitz et al (1992). 4 Curtin & Geurts (1996: 155). 5 A condition of legality for action by the Community is the presence of a legal base, i.e. a treaty provision (article 253 EC Treaty). 6 Bell (2002: 55–9). 7 See Commission of the European Communities (1997). 8 Joint Action of 15 July 1996 adopted by the Council on the basis of Article K3 of the Treaty on European Union, concerning action to combat racism and xenophobia (96/443/JHA) OJ L 185/5, 24.7.96 9 Such as public incitement to discrimination, violence or racial hatred based on colour, race, religion or national or ethnic origin; public dissemination of racist literature and participation in the activities groups or associations which involve discrimination, violence, racial ethnic or religious hatred. 10 Council Regulation establishing a European Monitoring Centre for Racism and Xenophobia COM (96) 615, 27.11.96. 11 Article 13 TEC as amended by the 1997 Amsterdam Treaty. Foster (2004).

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achieve this competence, especially given the substantial resistance to such from countries such as Germany? Was social action equally effective in a non-state polity? As already shown, this was in part an unintended effect of Kohl’s strategy to deflect international attention from racial violence in Germany. Yet, as I will show after discussing the current content of EU anti-racial discrimination law, extreme right wing confrontation, investigation and lobbying within the EU were equally relevant to this evolution beyond the nation state.

The content of EU anti-racial discrimination law Although the Article 13 prohibition is less equivocal than its counterparts in Articles 12 and 141 TEC,12 this discretion to act was quickly translated into a binding legal commitment. In 1999 the Commission proposed an action programme and two directives to activate Article 13 TEC within the Community.13 The action programme, adopted by Council Decision 2000/750,14 focused on educational, evaluation and monitoring, awareness raising, capacity building and networking activities,15 intended to support and complement action taken by the member states to combat discrimination. The emphasis fell on transnational cooperation and the dissemination of good practice, capacity building in civil society and raising awareness.16 Key areas of operation included public administrations, such as the police and judicial systems, the media, political, social and economic institutions and equal access to services and goods.17 The EQUAL initiative launched in April 2000, which brought together the objectives of Article 13, the employment strategy and the ESF, is an example of a programme activity.18 Most significantly, two new directives were introduced: Council Directive 2000/43 (the ‘Race Directive’)19 implemented the principle of equal treatment between persons irrespective of racial or ethnic origin while Council Directive 2000/78 (the ‘Framework Directive’)20 established a general framework for equal treatment irrespective of religion, belief, disability, age or sexual orientation only in regard to employment and occupation.

12 Flynn (1999). 13 Proposal for a Council Decision establishing a Community Action Programme to combat discrimination 2001–2006. COM (1999) 567 Final, OJ 2000 C 116/16. 14 CD 2000/750 OJ [2000] L 303/23. 15 CD 2000/750 OJ [2000] L 303/23, Article 2. 16 CD 2000/750, Article 3. 17 CD 2000/750, Annex (I). 18 Communication from the Commission to the Member States establishing the guidelines for the Community Initiative EQUAL concerning transnational co-operation to promote new means of combatting all forms of discrimination and inequalities in connection with the labour market, C (2000) 853, Brussels, 14 April 2000. 19 RD 2000/43 OJ [2000] L 180/22. 20 FD 2000/78 OJ [2000] L 303/16.

Anti-racial discrimination law in the European Union 167 The Race Directive It promotes a mainstreaming of the principle of racial equality throughout all spheres of daily life and thus applies to both the public and private sectors, regardless of the size of the organisation. Beyond employment, it covers social protection; social advantages; education; and access to and supply of public goods and services.21 The Race Directive strives to combat ‘discrimination on the grounds of racial and ethnic origin’.22 A definition of these terms is not given, primarily due to insistence of the French at the drafting stage.23 The preamble mentions only that theories ‘which attempt to determine the existence of separate human races’ are rejected.24 The only explicit statement on the personal scope is the exclusion of nationality – it is made clear that the directive does not cover different treatment on this basis.25 This question was the cause of much debate within the Council – many member states were keen to protect their restrictions on non-EU immigration from the charge of being indirectly discriminatory under the directive.26 The Race Directive covers both direct and indirect discrimination. These are in line with the definition provided in Directive 76/207/EEC on equal treatment between men and women.* Direct discrimination is taken to occur ‘where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin’.27 ‘Treatment’ can include a distinction, exclusion, restriction, preference or an omission. As this concept was not clarified in the directive, it is now left open to the ECJ to do so during litigation. Indirect discrimination under the directive occurs where ‘an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’.28 This wording, drawn from ECJ case law in relation to nationality discrimination, obviates the need to rely on statistical proof of disparate impact found, for example, in the Race Relations Act 1976.29

21 22 23 24 25 26 27 *

RD 2000/43 Article 3. It also goes beyond the scope of EU gender equality law. RD 2000/43, Article 1. Chalmers (2001: 211). RD 2000/43, Preamble, paragraph 6. RD 2000/43, Article 3(2). Bell (2002: 76–7). RD 2000/43, Article 2 (2)(a). Directive 76/207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ L39, 14.02.76 p.40). 28 RD 2000/43, Art 2(2)(b). 29 Hepple (2004: 20).

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Harassment is understood as ‘unwanted conduct related to racial or ethnic origin . . . with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading or humiliating or offensive environment’.30 The definition in the Directive has two components – unwanted conduct which violates a person’s dignity and creates a hostile environment – member states are free to provide for a definition in accordance with the national laws and practice, as long as this does not reduce the level of existing protection. However, the directive does not state whether employers are to be held liable for harassment which they did not initiate. Critical protection from victimisation as a result of either making a complaint or supporting proceedings is also given in Article 9, as is ‘an instruction to discriminate against persons on grounds of racial or ethnic origin’.31 The material scope of the Race Directive went further than law in this area in most of the member states. It prohibits discrimination on grounds of racial and ethnic origin with regard to conditions for access to employment, selfemployment and occupation including promotion; access to vocational training; employment and working conditions including dismissals and pay; membership of employees or employers or other professional organisations. As the directive seeks to promote a mainstreaming of the principle of equality throughout all spheres of daily life, the meanings given to these terms are broad. For example, ‘occupations’ covers workers in addition to employees and the self-employed. Likewise ‘pay’ includes all types of remuneration and fringe benefit such as performance-related pay, group insurance (e.g. private healthcare insurance provided as part of an employment package) and occupational pensions. ‘Access to employment’ covers employment agencies – and bodies which award licences or qualifications needed to carry out a particular job (e.g. the Public Carriage Office which licenses taxi drivers in London). Similarly ‘vocational training’ covers not only in-house training provided by an employer, but also courses or studies which provide training for jobs or professions – including most university degrees and many other further and higher education courses (for example, teacher training courses).32 Unlike legislation in the UK and Germany, the scope of the Directive applies to both the public and private sectors, regardless of the size of the organisation – it provided no exception for employment within private households33 or small firms. Beyond employment, the material scope encompasses social protection; social advantages; education; and access to and supply of public goods and services.34 The Directive does allow member states to provide that differences in treatment based on a characteristic related to a particular racial or ethnic origin

30 31 32 33 34

RD 2000/43 Article 2(3). RD 2000/43, Article 2(4). RD 2000/43, notes. RRA 1976 s 4(3). RD 2000/43 Article 3. It also goes beyond the scope of EU gender equality law.

Anti-racial discrimination law in the European Union 169 can be justified: where ‘by reason of the nature of the particular occupational activities concerned or the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement’ that shall not be discriminatory, ‘provided that the objective is legitimate and the requirement is proportionate’.35 In such cases, this will not be considered unlawful discrimination. Positive action is also provided for in Article 6, which recognises that member states may have adopted or intend to adopt ‘specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin’. The right of member states to undertake positive action targeted to improve the conditions of specific groups36 was thereby protected. The enforcement provisions of the directive promote the provision of support for victims by independent organisations. Article 13 obliges member states to ‘designate a body or bodies for the promotion of equal treatment’. These bodies are to be competent to provide ‘independent assistance to victims of discrimination’ in pursuing complaints, conduct independent surveys, publish independent reports and make recommendations on issues relating to discrimination.37 However, they do not have a right to start independent investigations.38 The member states are also obliged to ensure that associations, organisations and other legal entities involved in the pursuit of racial equality ‘may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure’ laid out to enforce the directive.39 The Directive also introduced a significant shift in the burden of proof, which goes beyond that existing in British and German law. As soon as a complainant had established facts ‘from which it may be presumed that there has been direct or indirect discrimination’, the burden of proof shifted to the respondent to ‘prove that there had been no breach of the principle of equal treatment’.40

The role of social action in the evolution of Article 13 and the EU Race Directive These developments occurred to a large extent as a result of social action. Investigation and lobbying both influenced policy recognition but it is widely agreed that extreme right wing confrontation ultimately secured legal definition in the form of the Race Directive. As we saw earlier, it was confrontation within Germany that resulted in the formation of the Kahn Commission, which paved the way for Article 13. However, although Article 13 secured recognition and gave the EU a competence to act in this area, it did not amount to a commitment

35 36 37 38 39 40

RD 2000/43 Article 4. RD 2000/43 Article 6. RD 2000/43 Article 13(2). Bell (2002: 78). RD 2000/43 Article 7(2). RD 2000/43 Article 8.

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to act. The extreme right wing in Austria transformed the passive acknowledgement of Article 13 into a political desire to create a legally binding Directive prohibiting racial discrimination. Investigations by the European Parliament In 1993, at the height of right wing violence in Germany, Helmut Kohl brought his domestic problem to the attention of the Council of Ministers of the European Union. However, the interest of the Council of Ministers came almost a decade after the first European Parliament (EP) enquiry into the spread of racism and xenophobia within the European Community. The European Parliament was the first European Community institution to be challenged by the presence of directly elected representatives of the extreme right wing in its chamber. One result of the first direct elections in 1979 was an increase in the presence of representatives of right wing groups in the European Parliament. Italy’s Movimento Soziale Italiano (MSI), for example, secured 5.4% of the vote.41 This trend continued following the second direct elections in 1984. The Front National (FN) secured 11% of the vote in France, and 10 seats in the Strasbourg Parliament using a mandate dominated by immigration; the Fremskridtpartiet won 3.5% in Denmark. The Belgian right wing Vlaams Blok held on to 1.3% of the vote. The result was that a new parliamentary grouping, the Euro Right, was created in the European Parliament.42 The European Parliament was therefore made acutely aware of the extremist tendencies gripping parts of Europe. However, its weak institutional position within the Community meant that it could do little by itself but had to move the Commission to prompt the Council of Ministers to take legislative action. A response to the new right wing grouping was required, but there was uncertainty as to what this should be. An initial idea was to prevent the 16 extreme right members of the European Parliament (MEPs) from forming a group or to change the rules, but it was realised that this would itself be undemocratic. There were symbolic protests, such as the carrying of white roses on the day the grouping was formed and declarations never to sit at the same table with Le Pen. There were also ideas to prevent the right wing MEPs from accessing the Parliamentary privileges available to them. This was, however, dropped in favour of the establishment of a committee of enquiry.43

41 European Parliament (the Evrigenis Report ) (1985: 44). 42 In the 1994 elections for the European Parliament, fascist parties secured 10 million votes, creating a body of 32 MEPs openly promoting a racist and fascist agenda. 43 Harris (1990: 144–7).

Anti-racial discrimination law in the European Union 171 The Evrigenis Committee Report into Racism and Xenophobia44 The Evrigenis Committee Inquiry was undertaken to uncover the social malaise behind the growing levels of xenophobia within the member states. Its purpose was overtly political – to draw public attention to the parties which formed the Euro-right and the social context in which they were based and to develop a European response.45 The Committee was subjected to a formal challenge as to the legality of its scope and mandate from Le Pen, then chairman of the Group of the European Right. In a correspondence to the president of the EP, he requested that the issue be referred to the ECJ for a ruling that ‘no Committee of Inquiry can be set up, whose aims do not clearly form part of the activities of the three European Communities’.46 Technically Le Pen was correct: the Community had no legal competence in this area. On 1 April 1985 the Group of the European Right lodged an application with the ECJ seeking an order setting aside the decision creating the Committee.47 Fortunately, the Court of Justice declared the action inadmissible.48 The first meeting of the Committee took place the following month. The group of 15 MEPs were given a total of 7 months to prepare and present a report on the spread and activities of fascist, racialist and related groups within Europe, both inside and outside the Community; the relationship between the growth of fascism and racism and economic and social conditions; the machinery already used by member states’ governments to respond to these organisations; and ways of combating them. Information was gathered at public meetings and hearings conducted in Brussels, and via written submissions. Representations were received from institutions such as the Council of Ministers and the Commission, the European Trade Union Confederation (ETUC) and a number of representatives from non-governmental organisations, for example, SOS Racisme, the Joint Council for the Welfare of Immigrants (JCWI) and Mouvement contre le racisme, l’antisemitisme et la xenophobie (MRAX). Further documentation was obtained from a variety of national and international bodies, such as, national parliaments, the United Nations (Centre for Human Rights and Committee for the Elimination of All Forms of Racial Discrimination), the Council of Europe, the Court of Human Rights, and the ILO. The Committee gathered details from each member state, creating a panCommunity profile on racism and xenophobia which had not before existed. The resulting report provided an in-depth analysis of the phenomena of fascism and racism and their ideological and social roots. It focused primarily on visible and

44 Committee of Enquiry into the Rise of Fascism and Racism in Europe (The Evrigenis Report), PE 97.547, 1985. 45 Harris (1990: 144–7). 46 The Evrigenis Report (1985: 10). 47 The Evrigenis Report (1985: 11). 48 Report drawn up on behalf of the Committee of Inquiry into Racism and Xenophobia (1991: 11).

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organised extremist activities in the member states. It concluded that the crux of the issue lay in the idea of the ‘closed society’. The report argued that the root cause of the emerging racist tendencies was the friction generated by mass economic and social transformation: large-scale population transfers, labour market restructuring and changing social frameworks. Europe, it suggested, was undergoing a ‘cultural shock’ which the traditional legal and social apparatus of closed societies were not equipped to deal with. It identified the same demographic change which had occurred in Britain: the passage of ‘migrant’ communities into ‘minority’ communities. This was one key reason for the crisis of cultural identity, which the youth especially seemed to be experiencing – and recognised the need for a ‘new policy regulating relations between communities . . . both strengthening the legal norms of democratic exchange . . . and creating new instruments needed to cope with the various implications of inter-communal relations’. The Evrigenis Report urged the Community to adopt ‘a more global approach to certain phenomena, which until now they have considered only fragmentarily’ and stated unequivocally the need for the ‘answers to these challenges to be drawn from the idea of human rights and fundamental freedoms’.49 Numerous recommendations were made, including the call to use of Article 308 TEC (ex 235)50 and a revision of the Treaties. However, the weak institutional position of the Parliament within the Community meant that most of the committees’ recommendations were ignored – no instruments were created, and there was no Treaty revision. Nonetheless, the Evrigenis enquiry did have some impact. First, as a result of its fieldwork it brought anti-racial discrimination groups into contact with each other which were until then largely unaware of each others existence. Second, and perhaps most importantly, it secured institutional recognition of racial discrimination within the Community institutions. A normative standard, albeit weak and with no attached commitments, was created when the Parliament, Council and Commission issued a Joint Declaration against Racism and Xenophobia. In the declaration, the signatories recognised the existence and growth of xenophobia in the Community and vigourously condemned such forms of intolerance and hostility against persons of different racial, religious, cultural, social or national background. The institutions and the member states also resolved to ‘protect the individuality and dignity of every member of society and to reject any form of segregation of foreigners’. They also stressed the importance of ‘adequate and objective information’ to make all citizens aware of the dangers of racism and xenophobia.51

49 The Evrigenis Report (1985: 95). 50 Known as the ‘residual clause’ Article 308 (ex 235) gives the Community, acting unanimously, open ended powers to introduce legislation necessary to attain a Community objective, where this has not been explicitly provided for in other Treaty provisions. 51 Joint Declaration by the European Parliament, the Council and the Commission against racism and xenophobia. OJ C 158, 25.6.1986.

Anti-racial discrimination law in the European Union 173 On the same day that the Declaration was signed, the European parliament adopted a resolution approving it and assumed a watchdog role over the adherence to the commitments laid down in it.52 By 1989, the heads of government of all member states were meeting in Strasbourg at a symposium on ‘Europe against Racism’.53 The Presidents of all political groups of the European Parliament also attended and statements were made that showed agreement on the need for action to be taken given the upsurge of racially motivated incidents.54 Despite these agreements, the member states did not act beyond symbolic politics, in spite of the increasing catalogue of racial discrimination and popularity of the right wing.55 The Ford Report Though of no binding force and of limited leverage itself, the inter-institutional 1986 declaration provided the justification for a further parliamentary study: the Ford Committee of Inquiry established in 1991 set itself the task of a full evaluation of implementation of the Declaration.56 A second objective was an examination of the impact of further European integration under the Single European Act (SEA) on Community-wide race relations. The Single European Act had been agreed in 1986 as a measure to re-energise the flagging project of creating the single European market. Its main objective was to free the internal market from barriers to trade existing between the Community member states. The internal market was defined as ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured’.57 As in 1957 the implications of the removal of internal borders on the position of non-EC, primarily black, nationals had not been taken into account in 1986. The impact of further economic integration on the already strained social integration had not been examined. There were good reasons for establishing a separate framework to look at the measures contained within the Single European Act and compare them with the principles enshrined in the joint declaration of 1986.58 In addition, the first survey into racism and xenophobia in Europe, the results of which were published in July 1989, laid out in graphic terms the state

52 It focused its attention on fields where concrete expression could be given to the intentions of the signatories, such as Community and national legislation on the right to asylum, identity checks and the social rights of black and migrant workers. 53 Except Belgium, Greece and the Netherlands. The Ford Report (1991: 111). 54 Committee of Inquiry on Racism and Xenophobia – Report on the findings of the inquiry. Rapporteur: Mr Glyn Ford. Luxembourg: OOPEC (The Ford Report) (1991: 111). 55 Fekete & Webber (1994). 56 The Ford Report (1991: 14). 57 Craig & de Burca (2003: 19–21). 58 The Ford Report (1991: 12).

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of race relations across the EU.59 One-third of survey respondents believed that there were too many people of another race or nationality in their country and were in favour of action at the European level in relation to non-nationals settled in another member state. The survey concluded by calling on the European institutions to develop measures to integrate racial, religious and ethnic minorities. The report arising from the Ford Inquiry contained up-to-date information on the activities of right wing extremists in all of the member states. It also gave a review of action taken by the European Community since the signing of the Declaration in 1986. It found that of the 40 recommendations made by the Evrigenis Report, few had been fully implemented and none had resulted in significant changes. Nonetheless, it acknowledged that this was not due to inactivity at the Commission,60 which had undertaken a number of activities since 1986, including conducting a comparative study on legal protection in the member states against racial discrimination, organising a seminar on migrant women in employment, establishing a youth exchange programme, and allocating funds for running information campaigns. The Council of Ministers was seen as the problem: voting procedures led to long delays in the agreement of measures, by which time they were either watered down or simply abandoned.61 Likewise, the recommendations made by the Evrigenis Report to the member states was found to have fallen on ‘deaf ears’ with the result that racism and xenophobia had increased in several of them. In particular, the impact of the Declaration was found to have been disappointing: the Council had signed it as a ‘Declaration in principle’ rather than a basis for action and the heads of state rejected any idea that they bore any responsibility for enforcing the contents of the Declaration.62 The Ford study was likewise unsuccessful in persuading the legislative agenda setters to act. It did, however, secure support for the establishment of a European-wide agency specialising in issues of race, discrimination and migration, as proposed by the Evrigenis Report. The Evrigenis Report had recommended the establishment of an ‘intercommunity’ or ‘migrants’ forum under the auspices of the European Community. This was to be a voluntary coordinating body for organisations opposed to racism, organisations working in the field of migration, trade unions and professional bodies. The Commission eventually

59 European Commission (1989), ‘Survey: racism, xenophobia and intolerance in Europe’, Brussels: DG Information, Communication, Culture. This was in fact a recommendation of the Evrigenis Committee. During 2 days in October and Novemebr 1988 an identical list of questions was submitted to a sample poll of the adult population (aged 15 and over) in the Community member states. This poll illustrated the varying attitudes towards ‘Others’ among persons of different age groups. 60 The Ford Report (1991: 97). 61 For example, the Commission Proposal for a Council Resolution on the fight against racism and xenophobia (COM (88) 318 Final), OJ 88/C 214/12, 16.8.88. 62 The Ford Report (1991: 98–103).

Anti-racial discrimination law in the European Union 175 set up such a body, although it deviated from that envisaged by the Evrigenis Report.63 However, the creation of the Migrants’ Forum was another step closer to recognition: the body received funding from the Community, and the existence of a budget line seemed to indirectly demonstrate recognition of a Community competence in the field of race,64 even if calls for formal legislative action continued to be rejected. The Piccoli Report The Civil Liberties and Internal Affairs Committee produced a third report on right wing extremism and the rise of racism and xenophobia in 1993.65 The inquiry was conducted just 1 year after the creation of the European Union. The Piccoli Report therefore emphasised Article 6 TEU and stressed the responsibility this placed on the Union and the member states to fight against racism and xenophobia in defence of these rights. In the light of these new goals, it again condemned the Community for the lack of response to the recommendations in the two previous reports.66 A new set of recommendations were made in an attempt to bring the actions of the Community in line with the explicitly stated objectives of the EU. These included the need for member states to harmonise their legislation in order to combat more effectively racism and antidemocratic political extremism; a Community competence in aspects of racism and xenophobia; and the creation of a working group, and a Commissioner with particular responsibility for race-related issues. Educational measures, such as school teaching and vocational training, were also proposed. Specific calls were made for the Commission to be given a tight timeframe for submitting proposals.67 The Piccoli Report also suggested that the Committee on Civil Liberties and Internal Affairs be given responsibility for monitoring progress in the development of racism.68 It proposed that the Commission designate 1994 ‘European Racial Harmony Year’. Motions were presented calling not only for a thematic year of action, but also the institution of an anti-racism day and the organisation of a ‘Conference on Hatred’. Finally, it was considered essential that the Council of Ministers agree ‘a Directive under Article 235 for the introduction of national legislation designed to combat racism, xenophobia and anti-Semitism on the basis

63 The Ford Report (1991: 105). 64 The Piccoli Report (1993: 12). 65 ‘Report of the Civil Liberties and Internal Affairs Committee on the Resurgence of racism and xenophobia in Europe and the danger of right wing extremist violence’, Rapporteur: Mr Cesare De Piccoli, 1 April 1993. 66 The Piccoli Report (1993: 11). 67 The Commission was called on to ‘submit before the end of 1993’ a 4-year action programme on racial discrimination and a proposal for a new Eurobarometer survey. Piccoli (1993: 7). 68 The Committee was eventually given a constant monitoring brief by the parliament.

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of the most stringent measures existing in the Member States.’69 The Commission was called on to submit proposals in this regard.70 Again, the call to action was ignored. In the 1994 European Parliament elections, fascist parties secured 10 million votes and 32 MEPs openly promoting a racist agenda sat at Strasbourg. In November 1995 the Parliament once more issued a resolution calling on the Commission to submit a proposal for an anti-discrimination directive as an act of urgency.71 Although the EP continued to raise the matter within the Community, its weak institutional position meant it could not formally place the issue of racial injustice onto the Community political or legislative agenda. It had no authority to declare racial discrimination a competence of the EU. Only the Commission could make such proposals and place them before the Council of Ministers. As we will see in the next section, the Commission slowly became aware of the urgency of this issue for European integration. The conclusions of the Kahn Commission were instrumental in this. Lobbying The balance of institutional power within the EU is such that an amendment to the Treaty of Rome cannot take place without the support of the Commission. Thus it was only with the formal support of this institution that race became an active area of concern for the Community. It is unclear to what extent lobbying, rather than the interests of European integration changed the position of the Commission. It was perhaps a combination of consistent lobbying from outside of the Community, the change in personnel at the Commission, and the growing interest of the European Union in human rights that moved the Commission from its initial rejection of a competence for the Community in the area of race. A key lobbying body was the Starting Line Group. The Starting Line Group EU-wide investigation by the European Parliament created the conditions for pan-EU lobbying. The fieldwork of the committees mentioned earlier was as important as the resulting information gathered. The enquiries provided not only a focal point for action but also established the foundations for the creation of a European network of social actors concerned with the achievement of racial equality. To a large extent these groups only learnt of each others existence due to the fieldwork of the EP committees, which brought together a wide range of

69 The Piccoli Report (1993: 7). 70 Resolution of the European Parliament on the resurgence of racism and xenophobia in Europe and the danger of right wing extremist violence, 21 April 1993, OJ C 150/ 127, 31.5.1993. 71 Resolution of the European Parliament on racism, xenophobia and anti-Semitism, OJ C 308/140, 20.11.95.

Anti-racial discrimination law in the European Union 177 actors scattered across Europe with similar objectives. The European Parliament studies therefore nudged into existence a loose but broad network of anti-racial discrimination organisations located within the member states of the EU. These bodies not only lobbied the EU, but also their member states. Some lobbying took the form of the presentation of proposals for the Commission to place before the Council of Ministers. One organisation which presented a proposal was the Starting Line Group (SLG), an umbrella organisation created in 1991. The Starting Line Group had a single purpose: to lobby at both the European and national level for the creation of a European anti-racial discrimination directive. It was not, however, created by individuals, but by organisations in different member states. These included statutory bodies at the national level such as the Commission for Racial Equality in Britain and the Dutch National Bureau Against Racism in the Netherlands, and at the European level the Churches Commission for Migrants in Europe. These core groups were later joined by other authoritative national bodies such as the Commissioner for Foreign Affairs in Berlin and the Belgian Centre for Equal Opportunities and Against Racism.72 Although the Starting Line Group was an ad hoc organisation, its constituent members were not. The status of these organisations gave the SLG two important assets. First, it had experience and authority at the national and regional level in dealing with racial discrimination which could be transferred to the European Union. Second, it had longevity in the promotion of racial equality and protection of migrants rights – these were not bodies whose funding would suddenly disappear, as is often the case with organisations active in the black voluntary sector. This core were soon joined by other authoritative organisations with similar goals, such as Caritas Europe, the European Jewish Information Centre and the European Anti-Poverty Network.73 These bodies shared a common concern in issues of migration and racial discrimination and an interest in promoting a European approach to them. This common concern was the glue which held the Starting Line Group together. This glue was vital, because the SLG was an ad hoc grouping, an informal pan-EU network,74 with no office or officers, driven by the convictions of its members and functioning via the organisational support and resources they brought with them. This network did not grow around an institutional need for information but around clear convictions and concise ideas of the membership: first, that the ‘lack of united and effective action against racism and discrimination resulted in a serious and worrying destabilisation of the process taking place in the Member States of the European Union’;75 second, that the variation in levels of protection

72 Chopin (1999: 111). 73 Chopin (1999). 74 This network has been formalised as the European Network Against Racism (ENAR) which consists of about 400 organisations in all 15 member states. 75 ENAR (1999).

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against racial discrimination in the member states was problematic; and, third, the clear conviction that in order to address this problem, action was required at the European level. There was also agreement within the SLG that the preferred tool was a binding legal instrument supported by enforceable sanctions. All these elements meant that the SLG was able to bring together a wide number of established groups under a single European level umbrella focusing solely on the creation of anti-racial discrimination legislation in the EU. It was a well-connected and well-informed body. The goal of the Starting Line Group was to ‘remedy an obvious defect in the original Treaty of Rome’ and complete the equality framework.76 Grounding the need for action in the proper functioning of the internal market,77 the draft directive was based on Article 308 (ex 235) TEC. Citing the determinations, resolves, requests and convictions laid down in various documents since the Single European Act, the SLG called on the European Council to protect security, promote peace and maintain standards in the member states by adopting a directive to promote equal treatment and prohibit racial discrimination. The SLG argued that racial discrimination was a corollary of gender discrimination and thus for the same reasons could be the subject of a Directive. It proposed a draft council directive concerning the elimination of racial discrimination, which was modelled on Directive 76/207/EEC on the principle of equal treatment for women and men. These basic rights were to be protected for everyone within a jurisdiction since ‘many people suffering the most severely from racial/ethnic discrimination are third country nationals’.78 Not surprisingly, given the calls in its own studies for a treaty provision prohibiting racial discrimination, the draft found support within the European parliament.79 However, the Commission did not support the idea and decided not to place the draft directive before the Council of Ministers. It used the same argument as Le Pen in 1985: that since the Treaty of Rome did not mention race, combating racism could not be an objective of the Community. There was no basis in the treaty of Rome for action at the Community level. Without fulfilment of this condition of legality, any action would be invalid.80 As far as the Commission was concerned, there could be no legislative action on racial discrimination until a legal basis for such existed in the Treaty. Nothing could be done without a treaty amendment.

76 Chopin (1999: 2). 77 This point was also supported by the UK’s Law Society and Bar Council in its submission to the UK government. ‘The Union Divided: Race Discrimination and Third Country Nationals in the European Union’, Justice, Human Rights and the 1996-97 Intergovernmental Conference, 1997. 78 Starting Line, A Proposal for A Draft Council Directive concerning the elimination of racial discrimination (April 1993, 4). 79 PE 117.105 December 1993; PE 184.353/43 October 1994. 80 Case C-300/89 Commission v Council [1991] ECR I-2867, paragraph 10 and Case C-426/93 Germany v Council [1995] ECR I-3723, paragraph 29.

Anti-racial discrimination law in the European Union 179 The introduction of a prohibition of race to the Treaty of Rome was not a simple matter. Treaty amendments can only take place after negotiations between all the member states and require unanimous agreement. These negotiations can only take place at an IGC: the next IGC was planned for 1997. On the basis of this response from the Commission, the Starting Line became the Starting Point: focus shifted to securing a clear mention in the treaty prohibiting discrimination on the grounds of race, religion, nationality and national origin upon which the directive could then be based. The draft legislative proposal, although rejected, remained an important instrument for this new objective. It not only focused attention but also became an important symbol for racial equality in the EU.81 A new era for the Commission began in 1994, when Jacques Santer became its President. With the new President came a new attitude: Santer responded to requests for a single commissioner82 by allocating responsibility for issues concerning racial equality in the EU to a Directorate General. Racism and xenophobia were placed under the remit of a new commissioner, Padraig Flynn, in DG-V by now known as Employment, Industrial Relations and Social Affairs.83 By December 1995, after the release of the Kahn Report,84 the Commission was actively supporting the case for a treaty amendment.85 It conducted its own study and issued a communication on racism, xenophobia and anti-Semitism which displayed none of the earlier reticence towards this issue but stated that ‘the defence of human rights and fundamental freedoms, core values of the European project, cannot be separated from the rejection of racism. Indeed, the struggle against racism is a constituent part of the European identity.’86 Consequently, the Commission noted, while the treaties may not have a ‘specific’ reference to action against racism, an implied competence in the area existed via the general obligations contained in Article 6 TEU and Article 12 (ex 6) TEC. At the same time it was argued that the Community already had the necessary powers to act in this area: in 1990 the Council had passed a resolution on the fight against racism and xenophobia;87 in 1993 and 1994 the Community had co-funded about 100 projects which either directly or indirectly targeted racism, anti-Semitism and xenophobia;88 in 1995 the Council had passed a second resolution on racism

81 It was mentioned, for example, in the Resolution of the European Parliament on racism and xenophobia (OJ C 3432/19, 20.12.1993) and the ‘Churches Charter for Racial Justice in Europe’, published by The Churches Commission for Racial Justice, 1996. 82 The European Labour Parliamentary Party Ethnic Minorities Working Group (established in 1985) was very active in calling for this. 83 European Commission (1995), ‘Communication from the Commission on racism, xenophobia and anti-semitism’ (COM (95) 653 Final, 13.12.1995), p.6. 84 COM (96)41 Final, p.17. 85 JUSTICE (1997: 17). 86 COM (95) 653 Final, p.4 87 Council Resolution on the fight against racism and xenophobia , OJ C157/1, 1990. 88 Written question E-2097/94 to the Commission, 6 October 1994 (C 81/7, 3.4.95).

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and xenophobia in the field of employment.89 A budget line90 therefore already existed, and as all expenditure arose from the authority of the Treaties, a competence also existed. In contrast to its response two years previously, the Commission gave unequivocal support to a Treaty amendment. It declared its commitment to press for specific powers to combat racial discrimination to be included in the treaty. In its submission to the Reflection Group, the Commission91 again emphasised this as part of the development of citzens rights: Although the task of building Europe is centred on democracy and human rights, citzens of the Union have at this stage no fundamental text which they can invoke as a summary of their rights and duties. The Commission thinks this gap should be filled, more especially since such an instrument would constitute a powerful means of promoting equal opportunities and combatting racism and xenophobia. In its Medium Term Social Action Programme, it stated the intention to draw up a communication presenting an action plan against racism, including a proposal to designate 1997 as European Year Against Racism. It also undertook to publish an updated study of existing legal provisions to combat discrimination within the member states.92 Together with its communication, the Commission issued a proposal for a Council Decision designating 1997 European Year Against Racism (EYAR). This was supported both by the Economic and Social Committee (ECOSOC)93 and the Committee of the Regions (COR).94 That year also saw the launch of the European Employment Strategy, which introduced low-key labour market initiatives to combat racial discrimination.95 There was therefore strong support for Article 13 by the time of the IGC in Amsterdam. Article 13 gave the Community a discretionary competence to act, but did not require it to do so: the desire to activate it was created by further confrontation with the extreme right wing.

89 Council Resolution on racism and xenophobia in the field of employment and social affairs, OJ C296/13, 1995. 90 B3-4110 Social Protection and Freedom of Movement. 91 Commission Report for the Reflection Group, Brussels, 1995. 92 DG-V, European Commission Social Europe 1/95 – medium term social action programme 1995–97, Luxembourg: Office for Official Publications of the European Commission (1995: 25). 93 OJ C 204, 15.7.96. 94 Committee of the Regions, 156/96 Final. 95 This spending was justified under the European Social Fund, one of the Community structural funds devoted to development in employment and human resources.

Anti-racial discrimination law in the European Union 181 Confrontation with the extreme right wing In the first decade after the Treaty of Maastricht, as the EU attempted to construct an identity based on fundamental freedoms and respect for human rights, member state electorates seemed to be saying the opposite, increasingly giving their voice to xenophobic and racist politics. Germany was not the only European country where the right wing experienced electoral success in the 1990s. For example, Vlaams Blok, the Flemish nationalist party promoting an amnesty for Nazi collaborators, won 25% of the vote in Antwerp in 1991. The growing influence of Le Pen’s Front National in France96 and its pernicious programme of ‘national preference’97 added to the sense that overt racial violence was gaining a firm foothold within the European community. A story in The Observer recorded the success of Le Pen and his party in Lyon98 and the trial of the National Front mayor of Vitrolles, who had apparently in an interview with a German daily newspaper, the Berliner Zeitung, made anti-immigrant statements and spoke against racial equality.99 Surveys were published on the rise of racism and the growth of fascist parties in Europe.100 The confrontation of the values to which the EU aspired with the preferences of national electorates came to a head in 2000. In 2000, Jorg Haider led the Freedom Party (FPÖ) to a surprising national electoral success in Austria on the basis of a programme that promoted aggressively discriminatory immigration policies and praised the practices of the National Socialists in Germany before and during World War II. On more than one occasion, Haider had publicly acknowledged Austrian SS veterans as honourable men.101 He had also made statements to the press that Austria was in danger of being invaded by foreigners. FPÖ elections posters said ‘Stop this invasion of foreigners’, ‘Stop this abuse of asylum!’ Their election leaflets in Vienna stated that only under the SPÖ could ‘black African asylum-seekers [be] allowed to ply their drug trade undisturbed, with their designer suits and mobile phones’. The FPÖ had become the third largest party on this mandate of panGerman nationalism, anti-immigration and a denial of Austria’s National Socialist past. Its 1992 12-point ‘Austria First Petition’ promoted a tightening of Austria’s refugee laws, identity cards for foreigners and quotas on the number of foreign children allowed in school classrooms. In January 1993 the party won 20% of the vote in Graz, Austria’s second largest city.102 In 1998 the FPÖ secured six seats in the European Parliament. Following the national elections in January 2000,

96 The FN control four French towns: Orange, Toulon, Marignan and Vitrolle. In the presidential elections of 2002, Le Pen won second place as the national choice for President. See Webster (2002), A New French Revolution. 28 April 2002 at http://observer.guardian.co.uk/europe/ story/0,11363,706637,00.html [accessed 13 June 2005]. 97 Roxburgh (2002). 98 Kemp (1997). 99 Vitrolles (1997); Webster (1997). 100 Younge (1998). 101 Documentation Archives of the Austrian Resistance. Online at http://www.doew.at/. 102 Fekete & Webber (1994).

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the Freedom Party was invited to form a coalition government with the conservative People’s Party. This also meant that members of the FPÖ would partake in decision making in the EU Council of Ministers. Haider symbolised all that the EU did not want to be, indeed all that the European Economic Community had in 1957 been designed to eradicate. It resulted immediately in strong protest and criticism within the EU institutions and within all member states of the EU, including Austria itself. About 15,000 protesters opposed to the coalition took to the streets of Vienna, carrying antiracist banners, converging on headquarters of the FPÖ. Lionel Jospin of France described the FPÖ as a ‘xenophobic, far-right group’, while Massimo D’Alema of Italy stated that ‘Europe has certain criteria and values that unite us.’ The German Chancellor, Gerhard Schröder, denounced the FPÖ. The German Foreign Minister, Joschka Fischer, accused the Freedom Party and its leader, Jörg Haider, of racism. A response was even made from the financial world: the Dutch bank ABN Amro retracted its financial support programmes.103 In an unprecedented measure, bilateral political contacts were broken by all 14 member states with the Austrian government. Austria became a state non grata – no Austrian minister was received in London, Washington, Paris or Berlin, and no EU or US ministers visited Vienna.104 Austrian ambassadors would only be received at a technical level. There was to be no ‘business as usual in the bilateral relations with a Government integrating the FPÖ’. The United States joined the uproar, recalling its ambassador to Washington, as did Israel.105 Within the EU, the European Parliament held an emergency debate where its members expressed their horror at the prospect of a government including elements of the FPÖ. The Commission, although noting that Austria’s relations with the EU were not yet affected, vowed to punish any violation of individual or minority rights. On 31 January the Portuguese Presidency led the 13 other European Heads of State in an official condemnation of Austria. In a novel action, they issued a statement outlining various sanctions against Austria. However, the warnings and threats could not prevent the formation of a democratically elected coalition. On 3 February the envisaged coalition government was formed. In a palace encircled by thousands of jeering protesters hurling abuse – and eggs and paint – at police, a grim-faced Austrian President Klestil swore into office the far right Freedom Party of Jörg Haider.106 The FPÖ received six of the ten full senior ministerial posts, including finance, defence, justice and social affairs. In a joint declaration, the two party leaders vowed to uphold democratic principles and respect for human rights. Unconsoled by such declarations, in the

103 Bantekas (2000) ‘Austria, the European Union and Article 2(7) of the UN Charter’, ASIL Insight. Available at http://www.asil.org/insights/insigh40.htm. Accessed 15 July 2002. 104 Evans & Lockwood (2000). 105 Helm (2000a). 106 Helm (2000b).

Anti-racial discrimination law in the European Union 183 evening of 3 February the Portuguese Prime Minister announced that the sanctions would take effect. A strong collective EU response was sought, in order to make it clear to the peoples of Europe that the EU rejected such political values. One such symbol was the imposition of sanctions on Austria. These were mainly of a diplomatic nature and included the freeze on bilateral relations, boycotts of school trips, cultural exchanges and military exercises. They ultimately had little impact on business and tourism in Austria. Their purpose was to convey to the Austrian civil society the message that the attitude of the Freedom Party was openly against the common constitutional traditions of the Union. This move was criticised as being narrow minded,107 and backfired to some extent for two reasons. First, Haider was able to use them to boost his support base within the Austrian public. Second, an unexpected reaction occurred in Denmark, where the sanctions were interpreted by a large part of the population as bullying on the part of the Union of a similarly small state. They were lifted in September 2000 following the report of the ‘three wise men’.108 The existence of this threat to fundamental values of the EU, nestling within the heart of Europe, coupled with the goal of creating an area of ‘freedom, security and justice’ provided the political environment that sustained will to activate the freshly symbolic Article 13. A further symbol of the Union’s stance became the creation of a programme to counter racism at the Community level. As a consequence, the Commission submitted an action plan against racism and two Community Directives, the Race Directive and the Employment Directive, were agreed in an astoundingly short space of time. It is widely agreed that but for the success of Jorg Haider in Austria, these Directives may never have been passed.

Implementation of the Directives and beyond The Race Directive has been described as ‘the most wide-sweeping equal opportunities legislation in the Community’s history’.109 Yet its impact has been diminished by slow and faulty implementation. As laid down by the Treaty of Rome,110 the then 25 member states were obliged, in accordance with their national traditions,111 to incorporate measures achieving the ends envisaged by the Race Directive within their legal orders by 19 July 2003.112 This deadline was to prove

107 108 109 110 111 112

Merlingen et al (2001). Ménendez (2000). Chalmers (2001: 193). Article 249 TEC. RD 2000/43, preamble, paragraph 16. RD 2000/43, Article 16. This deadline did not apply to the 10 member states which acceded to the EU on 1 May 2004.

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challenging – many of the member states failed to meet it.113 There were no immediate consequences to this. The Commission waited until December 2003, when the deadline fell for transposition of the Framework Directive 2000/78. As a number of member states had indicated an intention to transpose both instruments together, the Commission allowed this extra time.114 Patience eventually gave way to enforcement proceedings under Article 226 TEC. In answer to a question from MEP de Rossa (PSE), the then head of DG-V Anna Diamantopolou informed the European Parliament that the Commission began infringement procedures in December 2004. Following the mandatory 4 months of communication, cases of non-compliance against Austria, Finland, Luxembourg, Greece, and Germany were referred to the ECJ.115 In 2005 the ECJ ruled that Germany,116 Austria, Finland and Luxembourg had breached EU law by failing to comply with the directive.117 Further action was taken in June 2007. The Commission continued infringement proceedings against a further 14 member states who had failed to implement the directive correctly.118 A ‘reasoned opinion’ in the shape of a formal request to fully implement Directive 2000/43 was sent to the Czech Republic, Estonia, France, Greece, Ireland, Italy, Latvia, Poland, Portugal, Slovenia, Slovakia, Spain, Sweden and the United Kingdom. These member states had two months to respond, failing which the Commission may take them before the European Court of Justice and request the imposition of a fine on the country concerned. These infringement actions are to be welcomed. The rights created by the Race Directive not only form part of the acquis communitaire, but are also fundamental human rights pivotal to the values and objectives of the European Union. As stated by Vladimír Špidla, the current EU Commissioner for Employment, Social Affairs and Equal Opportunities, black and ethnic minority European Union citizens, who are also the peoples of Europe, continue to encounter ‘discrimination in jobs, schools, shops, housing and healthcare because of the colour of their skin’. The Race Directive plays an important role in challenging these and other types of discriminatory treatment, such as racial profiling.119 In the absence

113 See the transposition reports at: http://www.europa.eu.int/comm/employment_social/fundamental_rights/legis/msleglnracequal_en.htm. Accessed 30 June 2004. 114 Interview with Adam Tyson, Berlin 2003. 115 http://ec.europa.eu/employment_social/fundamental_rights/pdf/arct/prinfringe947_en.pdf. Accessed 27 September 2007. 116 See press release at http://www.stop-discrimination.info/fileadmin/pdfs/Nationale_Inhalte/ Germany/Pressemitteilungen/EUGH_DE.pdf. Accessed 11 June 2005. 117 European Commission Press Releases IP/04/1512, 20 December 2004; IP/05/502, 28 April 2005; IP/05/543, 4 May 2005. 118 ‘Commission acts to close gaps in race equality rules’ IP/07/928, Brussels, 27 June 2007. Available online at: http://ec.europa.eu/employment_social/fundamental_rights/pdf/news/ ip07_928_en.pdf. Accessed 27 September 2007. 119 The United Nations Human Rights Committee is currently considering a case of racial profiling in Spain. Rosalind Williams LeCraft v Spain. No reference has yet been made under the

Anti-racial discrimination law in the European Union 185 of full implementation, legal protection against racial violence will remain an omission in many member states. As he pointed out, firm action is all the more necessary given that 2007 was proclaimed European Year of Equal Opportunities for All.120 What can the future be for race equality law in the EU, given the reluctance at the national level to provide this protection? While the Commission has been vigilant and should maintain the pressure for full and proper implementation, what else can be done? Although cases are trickling through to the ECJ,121 the task is too large to be left to the accident of litigation alone. In order to fully secure the promise of racial equality throughout the EU, I suggest three priorities for action, which can be supported, but not pioneered by the ECJ. These can be summarised as strategic litigation, excavation and dialogue. As I will explain later, any further action should be set within the context of an ‘area of freedom, security and justice’. An area of ‘freedom, security and justice’ The incremental creation of an area of freedom, security and justice was a new objective laid out for the European Union in the Treaty of Amsterdam. Title IV of the EC Treaty gave the Community competence to adopt measures relating to border controls, asylum, immigration and other policies – such as measures to prevent and combat crime. The Council was obliged to introduce measures in this area within the next 5 years.122 By 2004, a series of measures had been introduced, including Directives on citizenship, long-term residency, and family reunion.123 A ‘common European asylum system’ had been created which incorporated Directives on asylum procedures, reception conditions and acquisition of refugee status.124 Also, common rules were established for border controls, visa

120

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Race Directive to the ECJ. Complaint available at http://www.womenslinkworldwide.org/pdf/ sp_proj_accion_complaint.pdf. Accessed 1 October 2007. For an update see COM(2006) 643 Final/2, 15.12.2006, Communication from the Commission to the Council and the European Parliament: The application of Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Online at http://ec.europa.eu/employment_social/fundamental_rights/pdf/legisln/ racerepco_en.pdf. Accessed 27 September 2007. Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, 10 July 2008. Treaty establishing the European Community, Articles 61–63. Directive 2004/38 [2004] OJ L 158/77; Directive 2003/86 [2003] OJ L 215/12; Directive 2003/109 [2003] OJ L 16/44. Directive 2005/85 [2005] OJ L 326/13; Directive 2003/9 [2003] OJ L 31/18; Directive 2004/83 [2004] OJ L 304/12.

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applications and irregular migration.125 Establishment of this objective also includes policies covering racism and xenophobia.126 While the official position is that realisation of freedom, security and justice is based on democracy and respect for fundamental rights,127 in the ten years since the appearance of this policy area, it has become clear that the emphasis falls primarily on security, with freedom and justice being secondary.128 There is more ‘security’ in the form of increased cooperation in the fields of policing and criminal justice, and less freedom and justice – democracy is undermined due to the intransparency of intergovernmentalism, and justice is precluded because the ECJ still has limited oversight over Pillar Three.129 Strategic litigation: the role of the ECJ There is some ambiguity on the role of the ECJ vis measures concerning racism and xenophobia taken in relation to an area of freedom, security and justice. On the one hand, the ECJ has limited oversight over measures falling under Title IV: Article 68 requires only national courts or tribunals of last instance to refer questions of interpretation in this area to the ECJ.130 Currently, therefore, its jurisdiction over immigration and asylum law is restricted.131 On the other, the situation in relation to racism is less clear: the ECJ has full jurisdiction over the Race Directive and measures concerning the principle of racial and ethnic equality, but what is the role of the ECJ in relation to measures concerning racism and xenophobia under Title IV? It would be a very unhappy anomaly if the ECJ were able to review acts of the member states concerning racism but not those of the EU itself. At the time of writing, only one case has come before the ECJ concerning the interpretation of the Race Directive. In the case of Feryn, a question was sent to the ECJ by a Belgian court asking whether a statement that persons of a particular racial group would not be hired amounted to discrimination contrary to the Race Directive. Mr Feryn, a director of a firm specialising in residential door fitting, stated in a newspaper interview that he would not hire persons of Moroccan origin as fitters because his customers did not want them in their homes. He repeated

125 Regulation 2007/2004 [2004] OJ L 349/1; Decision 2004/512/EC [2004] OJ L 213/5; Framework Decision 2002/629/JHA [2002] OJ L 203/1. 126 ‘Strengthening the European Union as an Area of Freedom, Security and Justice’. Online at http://ec.europa.eu/justice_home/fsj/intro/fsj_intro_en.htm. Accessed 4 December 2008. 127 ‘European integration in this area is based on a rigorous concept of the protection of fundamental rights, and the Commission has always been at pains to ensure balance between the freedom, security and justice aspects. In addition, the Union must guarantee a high level of security so that the freedoms can be exercised to the full.’ COM(2004) 401 final ‘Area of Freedom, Security and Justice: Assessment of the Tampere programme and future orientations’, p.4 128 Douglas-Scott (2007); Kostakopoulou (2000); Lindahl (2004). 129 Baldaccini et al (2007). 130 Article 68 TEC. 131 Peers (2007: 85–108).

Anti-racial discrimination law in the European Union 187 this on a television interview. A Belgian equal rights organisation, the Centre for Equal Opportunities and Opposition to Racism (CGKR), brought proceedings against Mr Feryn to force his firm to end its discriminatory recruitment policy. In the Labour Court, however, the public statements of Mr Feryn were not seen to constitute actual discrimination: as the firm had not refused to recruit an applicant due to ethnicity, the statements merely indicated potential discrimination. This decision was appealed to the Labour Court in Brussels, which sent a request for a preliminary ruling to the ECJ. The key question concerned the definition of direct discrimination under the Race Directive: did the statements made by Mr Feryn constitute direct discrimination under Article 2(1) of the Directive? According to Advocate General Maduro, the answer was clearly affirmative: It seems to me that an interpretation that would limit the scope of the Directive to cases of identifiable complainants who have applied for a particular job would risk undermining the effectiveness of the principle of equal treatment in the employment sector. In any recruitment process, the greatest ‘selection’ takes place between those who apply, and those who do not. Nobody can reasonably be expected to apply for a position if they know in advance that, because of their racial or ethnic origin, they stand no chance of being hired. Therefore, a public statement from an employer that persons of a certain racial or ethnic origin need not apply has an effect that is anything but hypothetical. To ignore that as an act of discrimination would be to ignore the social reality that such statements are bound to have a humiliating and demoralising impact on persons of that origin who want to participate in the labour market and, in particular, on those who would have been interested in working for the employer at issue.132 The court, noting that the directive covers selection criteria and recruitment conditions, affirmed this opinion: such statements would be ‘likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market’.133 They give rise to a presumption of a racially discriminatory policy contrary to the Race Directive: an employer who makes such statements must then prove that this is not so. Although a short decision, given by a chamber of three judges, this case may be a small but important first step on the road to securing racial equality in the labour market in a number of member states. That Mr Feryn felt comfortable to express his biased recruitment policy on national television suggests a widespread acceptance of this practice and reasoning in Belgium. Who is to say that firms in other countries do not do the same? It is perhaps fortunate that Mr Feryn did speak publicly, for

132 Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, Opinion by AG Maduro, 12 March 2008, Paragraph 15. 133 Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, 10 July 2008, Paragraph 28.

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it gave the ECJ a chance to expressly state that such practices were contrary to EU law. It is questionable whether the ECJ will be able to adopt a role similar to the US Supreme Court in relation to enforcing protection from racial discrimination across the sphere of issues mentioned in the Directive throughout the European Union. Nonetheless, the role of the ECJ is pivotal: were it not for the strategic intervention by the US Supreme Court in the 1950s, America would not have made the progress seen in its race relations.134 Strategic litigation using Articles 230 and 234 as well as Article 226, could likewise be undertaken before the ECJ. Excavation There is much else that can be done, however, in addition to strategic litigation. Education is also a key area for action. As mentioned at the begininng of this book, the majority of EU citizens know more about African Americans than their black and ethnic minority compatriots. This is partly because of the dearth of research in this area,135 but also due to the continued assumption that people of colour are de facto immigrants rather than citizens: ‘the word “immigrant” has come to be used as though it meant “black”, even though most immigrants, in the true sense of the word, are white’.136 This is an idea perpetrated by the mass media, in particular, newspapers and easily believed due to widespread lack of knowledge on the history of black people in Europe. The consequence is that all racial minorities are approached as outsiders, whether or not they are. A key shift in perspective is therefore required: an educational campaign needs to be mounted which challenges this erroneous view and reverses it so that black people are approached as EU citizens until proven otherwise. Such is an integral part of creating an area of freedom justice and security for all rather than some. To an extent this work has already begun: historians in Germany are exploring the archives for data on the lives of black Germans and biographies are being written but this work needs to be more expansive, both in terms of the number of people conducting it and the number of countries in which it is conducted. In addition, a movement has begun looking at the ‘darker legacies’ of Europe137 – these darker aspects of European history are limited neither to war nor to Europe.138 This historical project should be expanded to take the atrocities of colonialism and slavery in Europe into account. Such knowledge will not only further enrich European studies, but make black European citizens integral to the history of Europe. This will pave the way for black Europeans to be visible in the present and future of Europe in roles other than that of the eternal immigrant. Financial support should be provided for this work of excavation.

134 135 136 137 138

Robinson & Bonnie (2009). Alexander & Alleyne (2002: 548). Dummett (1977: 19). Joerges & Ghaleigh (2003). Lyons (2008).

Anti-racial discrimination law in the European Union 189 Dialogue A corollary of excavation is the establishment of new lines of dialogue. This may be more difficult in some member states than others, but it is necessary in all. A model for this could be the ‘One America’ initiative established by former President Bill Clinton in 2000.139 The purpose of the initiative was to generate a constructive national discussion on diversity and democracy in an attempt to better understand the history and future of race in America and identify stategies for positive action. The project ran for one year, and was guided by a small multiracial and multiethnic advisory board of seven. Dialogue was undertaken at various levels, from grassroots’ level within local communities to corporate boardrooms and the cabinets of the White House.140 It is impossible to say for sure, but such initiatives may have played a role in paving the way for Barack Obama to be elected the first African American President of the United States. At present, the idea of a black head of state or government in any European country, or even an EU institution,141 belongs strictly to the realm of fantasy. A more recent example is the ‘Difficult Dialogues’142 initiative launched by the Ford Foundation in 2005. Difficult Dialogues provides support for universities and colleges that actively want to make their campus environments more inclusive. Higher educational institutions were encouraged to develop new teaching units, staff seminars, support programmes, faculty roundtables, training initiatives and other types of project that would provide an opportunity for reflection, discussion and debate upon controversial issues between students and faculty. Such a venture could also be useful in Europe – further and higher educational institutions are key locations to promote knowledge and understanding of an issue which ultimately affects everybody. Such events could be developed into ‘equality brands’ which would provide a symbol around which to mobilise and organise.

Conclusion Right wing values initially came into direct confrontation with the idea of an open Europe in the European Parliament. This institution was unable to affect the legislative agenda directly. There is no clear evidence to illustrate that its studies had a similar impact to the PEP studies in England in 1968. But these studies were probably indirectly important because they kept the issue of racial discrimination on the European agenda and served to inform not only parliamentarians but also academics, the media and the general public of the continuing situation.

139 http://clinton2.nara.gov/Initiatives/OneAmerica/america.html. Accessed 5 December 2008. 140 See Annexes in the final report One America in the 21st Century at http://clinton2.nara.gov/ Initiatives/OneAmerica/PIR.pdf. Accessed 5 December 2008. 141 Solanke (2009). 142 See http://www.difficultdialogues.org/about.php or http://www.fordfound.org/impact/fordreports/ publicsquare/difficult_dialogs. Accessed 4 December 2008.

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In addition, perhaps it was not only due to personal charisma and persuasiveness that Kohl and Mitterand were able to convince the Council, but also because much of the educational work had already been done by the European Parliament. It may be more accurate to say that this educational work was relevant in creating a discourse within which a legal measure was not unimaginable rather than the legal measure itself. Aside from providing detailed documentation on the state of race relations in the European Union member states, the EP committees of enquiry played another important role in making an anti-racial discrimination law possible. The fieldwork undertaken by the committees of enquiry brought a large number of small non-governmental organisations in contact with each other. Consequently, a nascent movement was already in place when groups such as the Starting Line Group (SLG) prepared to lobby the Commission in the early 1990s for a Treaty amendment. The transformative power of this lobbying is difficult to assess – was the Commission about to change its stance anyway due to the new focus of integration on a social Europe? The Commission itself has acknowledged the role of organisations in civil society and the European parliament in driving discussions on discrimination forwards.143 The impact of confrontation is clearer to see in relation to the EU Race Directive. There is broad agreement that events at the ballot box in Austria, where a dissillusioned population voted the far right Freedom Party led by Jorg Haider into government,144 created the legislative commitment within the Council of Ministers to activate Article 13 TEC. The European Union has taken on a gargantuan task in seeking to promote the principle of racial equality throughout the EU: many of the member states have no or limited recognition that racial violence of all forms requires a strong lead from government and that legal definition may be required to tackle it. In order to change this scenario, the EU needs to pursue a broad educational programme along the lines mentioned above together with the pursuit of full and proper implementation. As in the One America initiative, the educational programme needs to encompass every level, from the citizen to the cabinets of the ECJ and the Commission itself.

143 COM (2004: 5). 144 De Burca (2001: 127).

9

Conclusion

The transatlantic slave trade brought black people to England in the sixteenth century. Arrival of black people in Europe in the twentieth century and establishment as European citizens has been driven by colonial occupation, military campaigns and economics. Yet participation in defence and restoration of European prosperity has not delivered acceptance and equality but paradoxically establishment has been accompanied by ever more hostility. Black people are seen as the proverbial stranger, both in appearance and behaviour. Colour determines the possibility of incorporation and the conditions of that incorporation. Black German children were always construed as a problem, whether born in Germany or its colonies. The cost of their care was always raised as a policy issue rather than the quality of the care given to them. The preference was for their removal from German society: in Namibia, the suggestion was that they be given over to the local Baster population1 and in Germany that they be sent to America for adoption by African American families. Racial violence is therefore not a new phenomenon. In Chapter 2, I suggested a broad definition of racial violence and developed the idea of a matrix drawing on ideas used in the field of peace studies. This created four broad categories: overt institutional racism and overt personal racism; covert institutional racism and covert personal racism. I provided examples of the types of behaviour that might fall into these categories. As I pointed out, there are many advantages to such a broad conception of racial violence. First, this restores the harm of all forms of racial animus, regardless of physical interaction or not: racial discrimination in education or employment is no less violent even if it does not involve aggression. Second, this wider definition also highlighted which forms of racism remain virulent: even if the overt racial violence of the past may be less evident, covert racial violence remains an insidious problem. Many forms have been legally recognised and defined, but more subtle forms have appeared, such as microaggression and ‘second generation’2 discrimination: patterns of interaction among groups arising from ‘ingroup favoritism, outgroup aversion, and stereotyping’

1 O’Donnell (2005: 70–72). 2 Sturm (2001: 465).

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which over time exclude minority groups.3 Third, this matrix of racial violence also expands the scope of those who are recognised as perpetrators: while the victims may be constantly visible due to their skin colour, the perpetrators are by no means the booted skinheads associated with fascist parties. As I discussed, the New Right no longer presents itself in this way – they are more likely to be suited than booted. Beyond this, bad civil society is not the only source of racial violence: ordinary citizens can perpetuate racism everyday in the form of microaggression and micro-inequities. The combined effect of these subtle indignities can be as damaging as a single extremist act. Compared to the dynamic attitude towards racial violence at the international level, as demonstrated by the declarations against racial violence and in particular the ICERD, the response at the national level in Europe can best be described as reluctant and sluggish. Although Britain responded faster than Germany, it was no keener than Germany to introduce such changes. Ironically, prior to 1960 Germany had more significant legal protection from racial discrimination than Britain but due to a certain amount of complacency this situation was reversed thereafter. The study demonstrated the role of context by looking at the approach to demographic changes and social integration, the political opportunity structure and the portrayal of race in the media. All these exogenous factors can influence social action and its impact on legislators. Recognition of long-term demographic changes led the British legislature to introduce race relations laws to secure integration; denial of similar population trends in Germany obfuscated the need for such laws. A year before the introduction of the EU Race Directive, 69% of Germans in a survey rejected the idea that Germany is an‚ ‘Einwanderungsland’.4 The status of the victims may explain why overt racial violence acted as a direct trigger for the introduction of protection in Britain but was only indirectly a catalyst in Germany. Covert racial violence was likewise a direct catalyst in Britain, but had no impact at all in Germany. It is fair to say that in the absence of a legal lead from the European Union, Germany – and many other EU member states – would probably not have a firm civil prohibition against racial discrimination within their legal codes. In the absence of such protection, it is unlikely that black European Union citizens would enjoy their right to freedom of movement. The EU would become a fortress not only for those outside but also for those outsiders within. There are indeed fears that European integration has had a negative impact on the quality of living and working conditions of black and migrant people in Europe. Those residents from the former colonies who have not been able to adopt national citizenship, and are therefore not EU citizens5 – increasingly seen as the fundamental status6

3 Mehri & Eardley (2008). Online at http://www.acslaw.org/files/Mehri%20FINAL.pdf. Accessed 9 December 2008. 4 Esser et al (2002: 59). 5 Articles 17-21 Treaty on European Union. 6 C-184/99 Grzelczyk v CPAS [2001] ECR I-6193.

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of the EU polity – do not enjoy the same freedom of movement and associated rights open to white citizens.7 In the absence of the Race Directive, the situation of these ‘third country nationals’ (TCNs) and their integration would continue to be regulated solely by national law.8 The recently agreed directives on TCNs,9 go a little way to improve the rights of non-EU citizens.10 It is impossible to regulate that which cannot be seen. Demographic transparency in relation to race and ethnicity remains a controversial issue in many member states: while population data are collected, they are not stratified by race or ethnicity. There is a reluctance on both the side of the state and the groups concerned. However, the absence of this information creates a dissonance between public policy and social reality: as policy workers themselves accept, ‘one way to avoid examining the issue is by not knowing. And you can avoid knowing by not collecting relevant statistics. This is often accomplished by saying that it could lead to racism and/or discrimination if we gather relevant information’.11 Transparency is a prerequisite for an effective campaign against racial violence. I demonstrated how this was achieved in Britain, prior to the introduction of a race/ethnicity question in the national census, with the use of large-scale social surveys. At their best, such investigations to understand racial violence are designed to reverse annihilation by restoring voice and visibility. The extent to which this is achieved depends on three factors: the objective of the investigation; the status of the body commissioning and/or conducting the investigation; and the methodology by which the information is collected. The goals of the investigation can be descriptive or demonstrative: the investigation can be conducted merely to produce a social profile or alternatively to produce evidence for use by legislators to inform legal and policy change. The person or type of body commissioning or conducting the investigation raises the profile of the issue in public and political spheres. The investigation can be led by a government minister or statutory body, a parliamentary committee, an academic research group or a non-governmental organisation. This can also make a difference to whether and how the information is used. Equally important and related to the first factor is the way in which the information is collected: data collection can be active or passive. Passive data collection relies on the collation of material from secondary sources; active data collection involves interaction with those whose life stories are being recorded. This makes both the exercise and its results more meaningful. The former will satisfy where the aims of investigation are descriptive; the latter is necessary

7 Johal & Winstone (1992: 15). 8 Barnard (2004: 432). An exception to this is the situation of Turkish workers who are governed by the Ankara Agreement signed in 1963, which together with Protocols 1/70 and 1/80 regulates free movement for Turkish workers within the EU. 9 Directive 2003/86 EC of 22 September 2003 on the right to family reunification for third country nationals and Directive 2003/109 on long-term residency status for those who are not EU citizens. 10 Gubbay (1999). 11 Simon (2007: 66).

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in order to challenge annihilation which is the consequence of racial violence. Ultimately, the stronger the authority of the body commissioning or conducting the study, the more active the research methodology, the more likely it is that the results will be influential. Demographic transparency may become less controversial if statistics are resocialised, so that the emphasis shifts from the ‘collection of statistics for black people to the collection of statistics by black people’.12 Resistance is likey to be reduced if the results of research are presented to those concerned before general publication. Investigation and the collation of information is one of the strongest tools used by civil society. However, as I discussed in Chapter 5, the influence of social action on legal policy is not only determined by the actors concerned and their actions but also the access to decision makers that they enjoy. Group power is contextual: it depends partly on the internal resources (such as finances) that groups have at their disposal, partly on the influence they can wield due to prominent members, but also on the context within which they work. Social movement theorists have called this context the ‘political opportunity structure’.13 Political opportunity structures are ‘comprised of specific configurations of resources, institutional arrangements and historical precedents for social mobilisation’.14 They determine the space and channels within which organisations seeking to influence legislative action must operate and explain the relative power of groups in civil society. The structure of political opportunity is an important factor when considering the role of social action in the legal response to racial violence, for it determines how civil society interacts with political decision makers. The political opportunity structures in Britain and Germany are very different. While both countries have mature legislative democracies, they offer access to civil society on very different terms. In Britain, single issue, ad hoc groups enjoy an access to legislatures not enjoyed by similar organisations in Germany, where established organisations exert the most influence. In order to characterise the differences in the political opportunity structures more fully, I used two basic political models: pluralism and corporatism. Access in these systems of democratic organisation differ depending on whether the state places more value on a multiplicity of group participation or stable functional representation. The openness of pluralist systems encourages proactive lobbying while in corporatist systems, the search for consensus gives privileged actors a strong voice to veto. As I explained, the pluralist political structure in Britain is more conducive to interaction with non-governmental bodies than the German corporatist culture. It can be argued, on the one hand, that the aim of lobbying activity is to ensure that certain views and interests make a contribution to any solution adopted.15 On the other hand, it has been argued that much of the efforts of lobby groups

12 13 14 15

Bhat et al (1988: 26). McAdam (1982: 37). Kitschelt (1986: 58). Pedler (2002: 1).

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has ‘little direct connection with efforts to influence policy decisions as such’16 but rather to provide information either to politicians or to the public in general, or to monitor events.17 In this study, direct lobbying primarily influenced the definition of racial discrimination but not always positively. Although none of the Brockway Bills ever reached a second reading, these proposals were important for definition: once a decision to act was taken, his bill was used as a blueprint for the Race Relations Act 1965.18 Lobbying also influenced the shape of the enforcement mechanisms in the Race Relations Act 1965, when the Citizens’ Council proposal for a statutory enforcement body was accepted. In Germany, lobbying from the Evangelical Church (EKD) was the decisive factor preventing the introduction of a prohibition against racial discrimination in civil law. Lobbying can therefore work either in favour of legislation or against it. This demonstrates an important aspect of the power of collective action: power is both the ability to constrain action, as well as to get things done; power is sometimes displayed by omission.19 The media have power to affect social and legislative action. They not only attract attention but can confer legitimacy. This is especially important for an issue such as racial discrimination. The case of Stephen Lawrence demonstrated how the media ‘can help to bring certain kinds of publics into being and maintain them’.20 Using this and the US Civil Rights Movement, I argued that the media matter, especially in relation to an issue as sensitive as racial violence. In general, there exists a ‘strong empirical connection between news media and public sphere discussions’.21 In particular, the press ‘plays a crucial role in establishing an arena for negotiation between the host and immigrant populations’.22 By developing public awareness, the press can determine the content of private conversations, generating mass consciousness of and a consensus on racial violence. Thus as a ‘major opinion former, acting both on policy makers and upon those for whom policy is made and practiced, a racist press plays a very significant role in maintaining, strengthening and justifying racism at all levels of society, providing cover for racist activity, especially racist violence’.23 Where racial violence is presented in relation to racial injustice, the mediatised crisis can contribute to the evolution of race equality law. Newspaper coverage can move public opinion in a way that temporarily alters the political opportunity structure and makes the creation of laws to tackle racial violence possible.

16 Salisbury et al (1992: 147). 17 Greenwood & Aspinall (1998: 202). 18 PRO File HO 376/3, Study group on Commonwealth Immigrants Racial Discrimination in Public Places and Incitement. Memorandum concerning the draft Bill prepared by the Committee on Racial Discrimination of the Society of Labour Lawyers. 19 Giddens (1984: 173–9). 20 McQuail (1984: 50). 21 Jacobs (2000: 24). 22 UNESCO (1977: 13). 23 Gordon & Rosenberg (1989: 68–9).

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For example, media coverage of Bull Connor’s use of water and dogs on civil rights activists in the USA stoked national public condemnation and in so doing created a context for political and legal intervention in the form of the Civil Rights Act of 1965. Similarly, the front page coverage of the Steven Lawrence murder in the British daily newspaper the Daily Mail unleashed widespread sympathy in Middle England for his bereaved family and provided a political context within which New Labour could amend the Race Relations Act 1976.24 The Daily Mail was a very unlikely pioneer of stronger racial equality laws but it mainstreamed racial injustice by making it headline, everyday news. It played a role in shifting protection against racial violence from an individual-fault based retrospective approach to a proactive collective duty. When stressing injustice rather than crime or immigration, the media make a positive contribution to society, moving public opinion to create a legislative opportunity for vigilant and willing politicians. Visual representations are used to powerful effect at these moments. This type of media intervention does not have to be permanent in order to be influential. The Daily Mail did not embark on a ‘road to Damsacus’ conversion – during the media backlash which followed the public inquiry and publication of the MacPherson Report it rejoined the tabloid fray – those hostile to the report received great encouragment from its media pages.25 The media can act as pioneers.26 In Germany, daily quality papers such as the Süddeutsche Zeitung and the Frankfurter Allgemeine Zeitung lead public opinion. They set agendas and frame issues – journalists on many other papers turn to them for guidance on how to frame issues and issues covered in them are often picked up and pursued further by other papers.27 Alia and Bull describe the media as an ‘independent arbiter of political relations’,28 which simultaneously have their own biases: due to the nature of the editing process, financial, staff and space constraints, communication organisations – newspapers, radio, television and electronic media ‘are driven by their particular editorial policies and perspectives.29 These policies, perspectives and biases which make publicity a double-edged sword in relation to an issue such as racial violence: there is no gurantee of a sympathetic presentation of the issues that will garner public and political support. A polity uses law to protect those values in considers invaluable. After much undue delay, the principle of racial equality has finally been entrenched in EU law. The last decade has therefore seen progress in the formalisation of protection against racial discrimination in many member states of the European Union.

24 25 26 27 28 29

Law (2002: 116–17). Parekh (2000: 113). Law (2002: 136). Esser et al (2002: 45). Alia & Bull (2005: 74). Alia & Bull (2005: 18).

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This would not have happened without action at the European level but the job is far from done. While there may be agreement on the value of the principle of racial equality, this is hard to realise at the everyday political level. It is unlikely that Germany was the only country which did not see a need for stronger laws in this area and it is not the only member state which has found it challenging to implement the new EU laws. This difficulty highlights the contextual nature of rules – rules are not only a bundle of concepts and technical instructions, but are also a confluence of culture, history and politics: they are ‘largely ephemeral and inevitably contingent’30 not just on legal cultures but also other traditions. While traditions can be constructive, traditions can also constrain full realisation of racial equality in the EU. There is a fundamental clash between the values and concepts contained within the Race Directive and some traditions currently prevailing in many member states – prior to 1997 only Britain had a mature anti-racial discrimination culture. The agency of tradition should not be underestimated: as highlighted by Favell, tradition narrows choices and prevents policymakers from finding pragmatic solutions to present problems. The ‘path dependency’ of policymaking is due to ‘the pull of precedence, tradition and habit’.31 Respect for tradition necessitates the perpetuation of a mythical continuum and a reified order. Assimilation of traditional ideas, morals, practices and institutions is the basis of socialisation: it conditions both understanding and expectations. As the glue of society, it infiltrates both public and private spheres, informing practices, agendas, organisation and institutions.32 It can be argued that we are always ‘possessed by habits and customs, and this fact signifies that we are always influenced by the inertia and the momentum of forces temporally outgrown but nevertheless still present with us as a part of our being’.33 Thus while actors within the EU attempt to establish law and policy along alternative models, the agency of tradition within the national realm pulls reform into a familiar path. This tension constrains the European Union from evolving into a forum for a liberation from national policy solutions. In order to neutralise the power of tradition, they have to be seen as political rather than natural. Traditions are ultimately ‘invented narratives’ developed to serve a purpose. Many were invented between 1870 and 1914 when the nation state became the norm for the organisation of political authority: traditions were invented in order to consolidate this new form of authority. Hobsbawm identified three categories of invented tradition during this period: those that established or symbolised social cohesion or the membership of (real or artificial) groups; those that sought to establish or legitimise institutions, their status and their position in relation to existing authority; and those whose main purpose was socialisation,

30 31 32 33

LeGrand (1996: 56). Favell (1998: 247). Blankenagel (1987: 333–5). Sullivan (2000).

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via the inculcation of beliefs, value systems and conventions of behaviour.34 For example, the development of a secular equivalent of the church in the form of primary schooling and the invention of public ceremonies such as Bastille Day in France served the purpose of socialisation. Compulsory schooling was in addition a way to undermine the monopoly on authority and ties of loyalty to the church. The establishment of capital cities, a national flag, national anthems, military uniforms were invented for political and social purposes as a device to ‘ensure or express social cohesion and identity and to structure social relations’.35 This implies that some basic European traditions must be changed in order for full implementation of the principle of racial equality. The EU Race Directive has to some extent broken both with traditions found in the majority of the EU member states and in EU law: as seen earlier the personal and material scope go beyond that which exists at the national level under both English and German law. The enforcement mechanisms, such as the shifting of the burden of proof, are especially innovative, although the impact of this shift has arguably been curtailed by judicial interpretation.36 However, not only the practice of racial violence but those ideas and habits flanking it need to be addressed. This can only occur with a full excavation of the racial inequalities of the past and an opening of difficult dialogues about racial violence in the present which will give rise to new traditions for the future. Once neutralised, outdated traditions can be removed and replaced with those facilitating the goals of a 21st century polity. New traditions need to be invented to create new bonds of loyalty, into which black Europeans and the principle of racial equality are fully integrated.

34 Hobsbawm & Ranger (1983: 9). 35 Hobsbawm & Ranger (1983). 36 Appiah & Anor v Bishop Douglass Roman Catholic High School [2007] EWCA Civ 10; Madarassy v Nomura International Plc [2007] EWCA Civ 33.

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Index

Action xv–xxix Giddens on xvi Parsons on xvi Ad hoc groups 136–40 meaning 136 African village in Augsburg Zoo 158–62 German press, and 158–62 media reaction 158–62 protests relating to 159 Anti-racial discrimination law Britain xiv evolution xiii social action, and xv Austria Freedom Party 181–3 Berlin Conference 1884 8 Black European Union citizens 1–24 association 2–3 colonial relations, and 2 Britain alienation of black migrant workers 15–16 common law 53 Immigration Act 1962 15–16 migrant labour from colonies 4 multicultural nature of 22 British Commonwealth citizenship 14 immigration controls 14–15 rotation scheme for migrant workers 15 British Empire 5–8 apartheid, and 5–6 black Britons, and 5–8 colonial troops 6–7 migrant workers 7–8 attitudes to 8 racial superiority 5–6 “Red Road” 5 slave trade, and 5 war effort, and 6 British National Party Southall elections 1963 56 Brockway, Fenner colour bar Bills, and 54

Campaign Against Racial Discrimination (CARD) 138–40 functions 138–9 Lord Chancellor, and 140 members 138 origin 138 procedure 139–40 proposals by 139–40 opposition to reforms of legislation 115–16 Citizens Council 137–8 Civil Rights Act 1964 xviii Commission on Human Rights (CHR) 49–50 ICERD, and 50–1 objective 49 SPDPM 49–50 Commission for Racial Equality 94 Confrontation xxiii–xxv consequences xxiv Corporatism 133–5 Cox on 133–4 Germany 134–5 managerialism, and 134 meaning 133 organization of interests 134 Council Reflection Group 75–6 Covert racial violence in employment in Britain 81–95 administrative practices 81 discriminatory vacancies 82–5 Ministry of Labour circular 1946 83–4 justifications 82 Race Relations Act 1965, and 84 Covert racial violence in employment in Germany 95–104 anthropological and social research into Mischlingskinder 96–9 Commissioner for Foreign Affairs 99–102 investigations 101 objectives 100 remit 100 Kirchner and Sieg 96–7 Nazi period 95 World Brotherhood 97–8

Index Definition meaning xvii Difficult Dialogue initiative 189 Drake and Ennals Report 89 Educational institutions microaggression, and 42–3 Empire Windrush 7 European Court of Justice 186–8 direct discrimination, definition 188 Feryn case 186–8 strategic litigation, and 186–8 Equal Employment Opportunities Commission (EEOC) 92–3 Equality and Human Rights Commission 94 Established groups 141–3 ESTAT 126 Ethics of ethnic data 118–26 Britain 120–2 European Union 125–6 reasons for gathering data 125–6 Germany 122–5 federal data protection law 123–4 informational self-determination 122–3 Home Office enquiry 1964 120–1 police records 121 potential misuse 119 quantification as diagnostic exercise 119–20 sensitivities 121–2 Street Report, and 119 Ethical responsibility 107–18 ethnic data, use of 128 Germany 127 investigations, importance of 128 Levinas on 107–8 models of integration 108–11 ‘Other’ 107–8 research, role of 127 EUMC 126 European Parliament impact of studies 189–90 right wing groups in 170–1 European Union 164–90 action programme 166 anti-racial discrimination law 164–90 area of freedom, security and justice 185–9 Commission communication on racism 179–80 common European asylum system 185–6 competence 165–6 confrontation with extreme right wing 181–3 dialogue 189 education 188 EQUAL initiative 166 Framework Directive 76 lobbying 176–80 pluralism, and 132–3

221

Race Directive 2000/43 48–9, 76, 167–9. see also Race Directive research 188 soft measures on racism 165 Starting Line Group 176–80 Treaty of Amsterdam, Article 13 76 European Year Against Racism 1997 180 Evrigenis Committee Report 73–4, 171–3 impact 172–3 information gathering 172 Le Pen, and 171 scope 171–2 Ford Report 173–5 information on right-wing extremists 174 objectives 173 Single European Act, and 173–4 Framework Directive implementation 183–9 France colonial presence in Africa 2–4 migrant labour from colonies 3–4 Germany adoption of black children by American citizens 12 Africans in 8–12 AGG 72 Anti-Discrimination Law 77–8 enforcement 78 scope 78 Anti-Racism Forum 141 Anwerbestopp 20 Article 3, German Constitution 66–8 public authorities, actions of 67 Article 116 of Constitution 17 attacks on Vietnamese guestworkers 31 belonging in 17–21 BetrVg 68–9 black Germans 8–12 black troops 11 CDU/CSU approach to immigration controls 21 change in composition of migrant population 21 children born to guest workers 19–20 citizenship as bloodright 18 Civil Code 67–8 contradictory official discourses 18 corporation 134–5 declared failure of multiculturalism 22–3 denial of overt racial violence 70–1 Deutsche Volksunion 31 Einwanderungsland 22–3 employment, protection against racial discrimination in 68–9 Evangelical Church 141–2 former Nazis 65 formal protection from racial discrimination 66

222

Index

Germany (Cont.) funding of black German children 19 German blood 17 GGO 141 guest workers 13–14 dispersal policy 13 integration 13–14 Kohl, Chancellor 72–3 Kuhn Memorandum 20 integration measures 71–2 law and racial violence 69–70 laws concerning entry and citizenship 71 legal response to covert racial violence 102–4 proposals for reform 102–3 Works Council Act 103–4 migrant workers 4 ‘Mischling’ 12 Mulattisserung 12 Naziism, effect of 9–10 new generation of black Germans post-World War II 11–12 overt institutional racial violence 37–8 pogroms 30 post-reunification racial violence 70–3 post-world War II legal regulation of racism 66–70 public attitude to black Germans 18 racial violence 30–2 statistics 1991 – 1993 32 religious organizations 141–3 repatriation of Africans 10–11 response to overt racial violence 65–78 right wing extremist violence 31–2 skin colour, significance of 19 skinhead attacks 31 stigmatisation of foreigners 71 suspicion of immigration 23–4 trade union associations 143 xenophobia 32 Gordon-Walker, Patrick election defeat 56–7 Griffiths, Peter racist manifesto 56 Griggs v Duke Power Company 92–3 Group action 135–43 forms 135–6 impact on legal response to racial violence 135–43 organizations run by black and migrant groups 145 transformative power of lobbying 144 Haider, Jorg Freedom Party 181–3 Harassment meaning 168 Healthcare services institutional racism, and 44–5 Humboldt University job criteria 37

Influence meaning xx Intelligence gathering xxv–xxvi International Convention on the Elimination of all forms of Racial Discrimination (ICERD) 48–9 British government, and 54–5 debates as to 51–2 opposition of Ministry of Labour 116, 117 origins of 50–1 ratification 53 ratification by British government 59 Institutional racism 62–4 legal definition 62–4 MacPherson Inquiry, and 156–8 Investigation role of xxv–xxvii Jenkins, Roy racial discrimination, on 86–7, 91–3 Jordan v Burgoyne 55 Kahn Commission 73–7 advantages of 74 conclusions 74–5 Race Relations Board compared 114–15 terms of reference 74 Kenya racial subjugation 6 Labour Party election manifesto 1964 57 immigration, and 16 Law policy distinguished xvi–xvii use to restrict movement of black and migrant populations 21–2 Lawrence, Stephen 39, 62–4 Daily Mail, and 154–5 media, and 154–6 murder of 62–4 private prosecution, and 62–3 Lobbying xxvii–xxviii aim xxviii group influence xxvii–xxviii recognition xxviii–xxix MacPherson Inquiry institutional racism, and 156–8 media, and 156–8 Report 39, 63–4 Media 146–63 African village in Augsburg Zoo 158–62 black people in repetitive and limiting news scenarios 150 complex representation of race in 162 Ethnicity in the Media 149 German press 150–1 influence in stereotyping and legitimization 148

Index influence of 162–3 influence of coverage 151–62 Ionie Benjamin on 149 MacPherson Inquiry, and 156–8 news presentation of race 147–8 Orangeburg Massacre 152 Race as News 148 race, and 147–51 relationship with society 147 reports of progroms on asylum homes 151 Stephen Lawrence, and 154–6 US civil rights movement 153–4 value of coverage 151–62 Microaggression 41–3 Ministry of Labour accumulated, impact of 46 educational institutions 42–3 meaning 41 PEP study, and 117–18 Models of integration 108–11 assimilationist 109, 110–11 multicultural 109–10 procedural 109 National Association for the Advancement of Coloured People xviii–xix Naziism 34–7 black foreigners, and 36 black people as political tools 37 colonialism, and 34 dismissive despotism towards black people 36 racism, and 34–7 separation of blacks, and 35–6 Notting Hill racial violence 29–30 Orangeburg Massacre media coverage 152 Osbourne, Cyril immigration, and 55–6 Parchment, Mark racial violence, and 37–8 PEP study 80–1, 84–6 interviews 85 Ministry of Labour, and 117–18 scope 85 situation tests 85–6 Piccoli Report 175–6 Committee on Civil Liberties and Internal Affairs, and 175 recommendations 175–6 Pluralism 131–3 conflict and competition, and 131 EU policy, and 132–3 examples in Britain 131–2 meaning 131 Policy law distinguished xvi–xvii

223

Political opportunity structure 129–45 development of concept 129 effect 144–5 flexible elements 130 McAdam on 129–30 pluralism 131–3 see also Pluralism stable elements 130 Public Order Act 1936 racial incitement, and 60 Race Directive 167–9 direct discrimination, and 167–8 employment, and 168 enforcement proceedings 184 enforcement provisions 169 harassment, and 168 implementation 183–9 infringement actions 184–5 role of social action in evolution of 170–83 scope 167–8, 169 Race Relations Act 1965 59–62 discrimination, definition 60 tort, as 60–1 Race Relations Act 1968 89–91 enforcement 90–1 ineffectiveness of 91 significance of 90–1 Race Relations Act 1976 93–5 Commission for Racial Equality, creation of 94 unjustifiable indirect discrimination 93–4 Race Relations Act 1976 (Statutory Duties) Order 2001 64–5 Race Relations (Amendment) Act 2000 64–5 Race Relations Board 61–2 complaints to 61–2 Kahn Commission compared 114–15 Racial profiling 40–1 Racial violence 25–47 black soldiers in British armed forces 37–8 broad conception 45 broad definition 191–2 categories 26, 191–2 collective message of physical subordination 47 covert 38–45 hidden aggression 38–9 meaning 38 covert institutional 43–5 healthcare services 44–5 promotional procedures in educational field 44 secondary schools 43–4 covert invisibility of 193 covert personal 39–43 modelling 39–40 racial profiling 40–1 refusal to serve 40 demographic transparency, and 193 EU law 197 European traditions, and 197–8

224

Index

Racial violence (Cont.) extremism, and 27 Garber’s typology 25–6 Germany 30–2 group power, and 194 interaction between categories 26 investigations to understand 193–4 lobbying, and 195 matrix 25–45 meaning 25, 26 media, power of 195–7 microaggression 41–3 New Right, and 27–8 electoral success 28–9 Notting Hill 1958 29–30 overt 29–38 institutional 33–8 personal 29–32 path dependency of policymaking 197–8 political opportunity structures, and 194–5 race equality law, evolution of 196 reactionary populism, and 28 response at national level in Europe 192–3 scope of perpetration 27 separation of discrimination from hatred 45 symbolic impact 46–7 teddyboys 29–30 understanding of racism, and 27 victims 25 RAXEN 126 Recognition meaning xvii Redlining 43 Research role of xxv Response to covert racial violence 80–105 different responses to racial violence in Britain and Germany, explanation 106–7 Germany 81 PEP study 80–1, 84–6 qualitative investigations 80 research, need for 104–5 strategic information, need for 104–5 Response to overt racial violence 48–79 Britain 53–65 colour bar Bills 53–4 international response after World War II 49–53 Germany 65–78 see also Germany legal developments 48–9 national response 53–78 Restoring voice and visibility 106–28 Roche, Barbara equality, on 22 Rose Report 112–13

Social action xvii–xxix American Civil Rights Movement xviii–xx context of xxi forms xxii–xxix impact xxix–xxx meaning xvii–xviii pro-democracy bias xxii Social investigation 111–18 Germany 113–14 Enquete Commission 113–14 influence of 114–18 nature of 111 Rose Report 112–13 Soskice, Frank discrimination legislation, on 57–9 immigration, and 16–17 Starting Line Group 176–80 informal network, as 177–8 proposals 178–9 purpose 177 Street Report 88–9 recommendations 88–9 Survey of Different Treatment by Race in Laws of British Tropical African Territories 34 Teddyboys racial violence, and 29–30 ‘Traditional’ racism disappearance of 45–6 Treaty of Amsterdam, Article 13 76 Treaty of Rome 164–5 TUC rejection of government intervention in labour relations 116–17 Uganda Criminal Procedure Code 1950 34 differential sentencing provisions 54 United Nations 48–53 United Nations Declaration on Human Rights 33 Article 2 33 breach in British colonies 33–4 USA ‘borrowing of human capital’ 3 US civil rights movement media coverage 153–4 World Brotherhood 97–8 study 1952, objective of 97