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COP28: Universities have a key role to play in the transformations global society is facing

COP28 needs to deliver real ‘concerted action’ to tackle climate change amid fears it is becoming a talking shop ‘trade fair’ – argues MDX academic Johan Siebers

Amid the huge media coverage of COP28 two themes stand out: Firstly, with 70,000 participants, has this gathering become too unwieldy, a trade fair rather than an international decision-making body, as one commentator put it this week? And secondly, what do we need COP28 to deliver? This is the first global stock-take, the first time the international community steps back and looks at where we are with respect to concrete deliverables agreed earlier. It is likely that much more concerted action is needed if we are to maintain global warming within the 1.5, or even 2 degrees margin. At the same time, as a result of conflicts, polarisation, economic instability and increased insecurity, many national governments are stepping back from promises to drastically cut emissions and to put institutional frameworks and infrastructure in place to end the world’s dependency on fossil fuels. The UK, the home base of Middlesex, is no exception. The approach to energy security the British government is taking will increase national oil and gas production. Once in many ways a leader in the energy transition, Britain at the moment pursues an approach to climate change that can only be described as wavering and confused. Will there be a joint statement on the future of fossil fuels? From food systems to energy security, such a statement is necessary and will define policy development in the time to come.

The wavering is, in my view, a general feature of the contemporary moment. In the run-up to COP28 we heard that the host state had plans to use the conference to broker oil and gas deals with a host of nations. This perhaps not directly prohibited by the letter of the event, but for sure strangely at odds with the spirit of what the world community is trying to achieve. If there is a breakdown in the trust states and nations extend to each other, as is the case in a world riddled by conflict, the necessary cooperation, the sense of interdependence and creative harmony on which climate action depends, suffers. People withdraw into the strongholds of their narrowly defined interests and communities, environmental destruction becomes a price to pay for security and the only winner is militarism, of our nations and of our hearts and minds, one of the main arteries and expressions of colonial patriarchy.

The global academic community of Middlesex has always understood itself as working towards a different future: one of inclusivity, social and environmental justice, equality and equity, celebration of diversity and difference and of economic growth through responsible, social entrepreneurship. Middlesex has a tradition of radical scholarship that sees itself as participating in the shaping of our world. The vision of a better world is built into our DNA, starting with our 19th century initiatives to open up the teaching profession to women and running all the way to the present day, with our work on health inequalities, sustainable business, human rights and many other areas of research, teaching and public engagement that all put knowledge into action to make real improvements in societies worldwide. I invite you to have a look on our websites to learn about our work.

Universities have a big role to play in the social transformations that are needed to face the challenges global society is facing. We can’t afford to continue to try to understand the world by using the lenses of the past. Knowledge and understanding are essential enablers of building a sustainable world community. We are called to think and work in an interdisciplinary way, to teach our students to think and act in that way, to embrace the unity of our intellectual and practical pursuits and to celebrate the pleasure of higher learning, for everyone. More people than ever are entering Higher Education. This is a development that will not stop, no matter how many reactionary voices are trying to put swathes of the global population back into limited perspectives for their growth, for what they can achieve. Like primary education 150 years ago and secondary education 75 years ago, so tertiary education is now quickly becoming a global human right that will change the nature of universities in a fundamental way. It is an exciting time to be in higher education, as a student, a researcher or a lecturer, or all at once. Universities foster the environment that allows people to take control of their own thought process and communication process, to exercise their curiosity, to consider the facts, look for explanations in a methodical way and learn to look at things from a broad and open perspective, critical and appreciative at the same time. We all need to learn that if the vision of a sustainable world is to become a reality.

Photo by Melissa Bradley on Unsplash

Professor Johan Siebers is a Professor of Philosophy of Language and Communication at MDX University and a Theme Director for Sustainability of Communities and the Environment.

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Law & politics

Has Rule of Law backsliding begun in the UK?

Image of the UK Houses of Parliament with a red double decker bus in front

Professor Laurent Pech, Head of the Law and Politics Department at Middlesex University, has been researching a worrying issue he has described as ‘Rule of Law backsliding’ for more than ten years.

Here, he claims there are signs suggesting that a process of Rule of Law backsliding which, in the EU, first began in Hungary before spreading to Poland, is getting underway in the UK.

Since the early 2010s, the EU has witnessed a startling breakdown in compliance with the rule of law, as some Member States’ governments systematically dismantle checks and balances in order, incrementally, to establish de facto one-party states.

My research has examined these systematic and coordinated efforts by some national authorities to undermine the rule of law, with my work especially concerned with the deteriorating situation in both Hungary and Poland.

In the last three years, we have witnessed a number of developments in the UK which are reminiscent of what we have seen in both Hungary and Poland.

For instance, the ‘will of the people’ appeal has often been used as a way to justify violations of the rule of law. The first signs of an unhealthy rhetoric in the UK could be seen too with judges and academics, and more recently lawyers, increasingly subject to abuse and intimidation tactics.

‘Enemies of the People’

In the wake of the Miller case, the attack on the judiciary and the ‘enemies of the people’ headline in the Daily Mail in November 2016 can be considered a hallmark of autocratic regimes as only an independent judicial system can enable individuals to vindicate their rights.

Similarly attacks on ‘pro-remain’ universities was another way to ensure that a counter, in the case of the UK anti-Brexit, discourse is muted.

No voices are thus left to proffer arguments against governmental policies which some may be tempted to justify in the name of ‘the will of the people’ regardless of whether they violate the rule of law or not.

A third parallel one could draw as early as 2016/17 was the attack against George Soros and his Open Society Foundations, both in Hungary as well as in the UK where Nigel Farage sought to investigate Soros funding. The anti-Semitic overtones of the anti-Soros rhetoric can be viewed as an attempt to garner the support of autocratic and nativist forces.

It would be unwise to assume that the UK legal and constitutional system will be strong enough to withstand the ongoing process of rule of law backsliding which seems to be gaining strength in the UK.

Attacking the judges and lawyers

Indeed, the election of Boris Johnson has been followed not only by worrying rhetoric but also, and more crucially, actual steps which could lead to an autocratisation by stealth of the UK.

One may refer here, for instance, to the repeated and dangerous attacks against so-called “activist lawyers” by the Home Office Secretary and the British PM himself. This kind of attacks on the legal profession not only undermine the rule of law but endangers the personal safety of lawyers.

Image of the UK Houses of Parliament with a red double decker bus in front

In this context, let me quote Sir Anthony Hooper, a retired Court of Appeal judge: “Once you’ve lost the independent legal profession, once the judges have become enemies of the people, the future health of this liberal democracy is very much at stake.”

And indeed, under the cover of this rhetoric characteristic of autocratic regimes in the making, we have also seen the unbecoming politicisation of the offices of the Attorney General and of the Lord Chancellor.

Legalising law breaking

In addition, as if this was not enough to worry you, the British government unlawfully prorogued Parliament under a false pretext and most recently, the British government, including the AG and Lord Chancellor, have defended the legalisation of lawbreaking via the UK internal market bill.

As the Select Committee on the Constitution of the House of Lords put it last month:

“Setting out explicitly to break international law in this way is without precedent. It jeopardises international obligations the UK recently ratified, undermines domestic law and is contrary to the rule of law.”

Yet more deliberate undermining of the rule of law is on the way with ongoing governmental work on judicial review and the announced review of the Human Rights Acts should be understood as further deliberate attempts to make the executive power in the UK unaccountable.

COVID-19 has changed the rules

It’s important not to overestimate the resilience of the UK’s constitutional arrangements to the authoritarian gangrene which first began in Orban’s Hungary, especially in a COVID-19 context which has made it easy for governments everywhere to bypass normal law-making procedures on a grand scale.

To avoid a process of what I have called in my research “constitutional capture” by the current political majority in the UK, it is crucial that judges, lawyers, academics but more generally all citizens, realise what the ongoing demonisation of legal professionals and dangerous legislative steps previously mentioned may lead to, that is, the progressive transformation of the UK into an electoral autocracy where authoritarian practices are hidden behind the institutional facades of representative democracy.

While multiparty elections will continue to be regularly organised, these will no longer be fair due to the systemic undermining of most democratic and rule of law minimum standards by the ruling party. 

In 2021, Professor Pech and Dr Joelle Grogan, a Senior Lecturer in UK and Public Law, will submit a REF impact case study entitled “Challenging Rule of Law Backsliding in the European Union”.

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Law & politics

Where Did The Floating Charge Come From?

A man with moustache and top hat sprinting with bag of money under his arm

Los Watkins, an MDX Law Lecturer shares a piece of ongoing research into the concept of the Floating Charge and its impact on modern banking law.

The importance of origins

I’ve always found the idea of origins to be interesting, especially in Law. Why do we need a certain law? To stop something happening, or to make something happen? Was it from the Courts or from Parliament?

The Floating Charge is part of the Banking or Company Law and is an extremely important legal concept for commerce today. Almost every business you’ll see or hear about will have had to make use of it, or is doing so presently.

It seems that the idea really came about more from the Courts with Judges sorting out what was seen as a legal problem where there was no legislation to utilise. This is known as Judicial Activism. It becomes highly important when there is a legal issue to sort out and Parliament is otherwise engaged. For instance, during the past couple of years where it was almost wholly occupied with the Brexit debate!

A man with moustache and top hat sprinting with bag of money under his arm

The history of the Floating Charge

Initially, it may help readers outside this field to have a very brief and rather simplified explanation of what the Floating Charge is and how it works.

In order to give security for borrowing, it is usual for a business to allow the lender to place a charge over some assets which they might own. This will either be over all the assets or over a class of assets; only the land, or only the machinery, for example. If this is a fixed charge (essentially a mortgage over buildings, land or other fixed assets) then the business cannot deal in that asset without the lender giving their consent.

However, if a business has its stock as an asset, then this is clearly impractical, indeed, impossible to obtain that permission for every item sold every day. Therefore, there came into existence the concept of the floating charge. This means that the charge can be over stock as a whole, and, before insolvency, it allows the charged assets to be bought and sold during the normal course of business without reference to the charge-holder (the lender). In practical terms, stock can be sold and replaced freely until the charge falls due, for whatever reason, when it ‘crystallises’, or becomes a fixed charge, and the assets can no longer be sold.

References throughout the years

The conception of a charge over stock has a long pedigree, reaching back as far as ancient Rome. It was only really used in England in a vague and rare manner, and was then disapproved of. Cases such as Ryall v Rolle in 1749, followed from legal writers such as Francis Bacon (Maxims of Law, 1630) and John Perkins (Profitable Book, 1545).

In the early 19th Century, the Courts once again considered the issue with the cases of Alexander v The Duke of Wellington in 1831 and Lyde v Mann in 1833. These cases suggested that a charge over property not presently in the ownership of the borrower may be enforced as part of an Equitable view of the case. This approach was followed by other cases in 1839 and in 1842, where Langton v Horton returned to the view that this could be legal.

Becoming a recognised entity

By 1870 there were four crucial elements of what we now know as the floating charge in place:

  1. That there could be a security over the stock in trade of the borrower
  2. That the borrower had the ability to change the nature of that stock
  3. That the charge could be self-effecting (i.e. nothing more needed to be done to make the charge)
  4. That the charge did not become fixed until a certain occurrence (usually the cessation of trading).

At first, not all Judges agreed with this new idea but it slowly became more generally accepted. In 1879, Lord Jessel, the Master of the Rolls himself, first made a specific reference to the floating charge, rather than any of the other forms of words or descriptions which had been used up to that date. This is significant because it is a recognition that a new term was required for this new concept; a thing does not need a name of its own until it is a recognisable entity in its own right.

Then, in 1897, Lord MacNaughton gave the first real comprehensive and modern definition of the constitution of the floating charge as a piece of law. This was followed by Lord Justice Buckley in the 1910 case of Evans v Rival Granite Quarries.

What we now recognise as the floating charge really had arrived.

Courts vs Parliament

This, then, was the view of the Courts. Parliament made no mention of the concept until 1845 in the Companies Clauses Consolidation Act. However, this legislation only applied to a very specific type of Company and the clause was somewhat vaguely drafted.

However, by 1854, Parliament was addressing the situation of charges and how they might work in business. The current legislation now concerned with the Floating Charge is codified in the Companies Act 2006, Part 25, Schedule A1, s.859A.

In conclusion

Taking all this into account, I would say that the need for what became the floating charge was recognised by the Judiciary long before the Legislature. The run of the cases through the early 19th Century clearly show the various elements of the modern concept being brought into being by the pragmatic actions of the Courts.

I believe that in order for companies, for whole industries to grow, it was, and still is, an absolute requirement for them to have access to capital, and for that, there must have been a requirement for security on borrowing.

The use of stock in trade as security gave a flexibility and an access to growth capital that allowed business to grow fast and to utilise all the opportunities given by the Industrial Revolution. Today, that same flexibility and access to borrowing is used by businesses all over the UK who perhaps rent their premises, lease their vehicles and would otherwise have no fixed assets as security for their business loans.

It is, I suggest, not too much of an exaggeration to say that without the Floating Charge, UK business would be in a far different position today.

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Law & politics Social commentary

Burqa bans and gender (in) equality

Dr Erica HowardErica Howard is the author of a report for the European Commission on ‘Religious clothing and symbols in employment’ and a book on ‘Law and the wearing of religious symbols’ as well as a number of articles on this subject. Here, Erica shares her views on the recent banning of clothing which covers the face in public spaces by the Danish parliament.

Last week, the Danish parliament voted for a ban on covering the face in public. The ban will come into force on 1 August. Denmark follows France, Belgium, Austria and Bulgaria, which all have enacted legal bans on the wearing of face-covering clothing in public places (Religious clothing and symbols in employment). Such bans also exist at local level in some European States. Like in these other countries, the Danish ban is couched in neutral terms and prohibits the wearing of all clothing that covers the face in public spaces, but the bans are usually referred to colloquially as ‘burqa bans’, which indicates the real target of such bans: women who wear burqas – a long loose robe that covers the female from head to toe with the exception of the hands with gauze covering for the eyes – or niqabs – a veil that covers the head and face with the exception of the eyes. Although these bans are often referred to as ‘burqa bans’, very few women in Europe actually wear a burqa; the vast majority of women wearing face-covering veils in Europe wear the niqab or similar type veils.  The Independent reported on the Danish law with the headline: ‘Denmark becomes latest European country to ban burqas and niqabs’, again showing the real target of the ban.

So there are now 5 EU countries that ban face-covering clothing in all public places. This is so, despite the fact that the number of women in Europe who wear the niqab or burqa is very small. A  Danish research report from 2013, estimated that about 150 women in Denmark wore the niqab, half of which were ethnic Danish converts to Islam. This corresponds to about 0.1 or 0.2 percent of Muslim women in Denmark. These figures tally with current rough estimates of face veil wearing women in other European countries.

Image by Aslan Media (CC2.0)

Secular and democratic values

The reasons given for enacting the ban are the upholding of Danish secular and democratic values.  Supporters of the ban have also raised the issue that the veil is a form of female oppression as will be clear from the Independent and other press reports (see e.g. here and here) on the Danish ban. This is the argument I discuss in this blog post. The argument is based on the assertion that women wear burqas and niqabs because they are made to do so by men, be it spouses, family or religious leaders. These veils are thus seen as going against a woman’s fundamental rights and freedoms. The same argument has been put forward for bans on Muslim headscarves.

However, this is based on a very stereotypical view of Muslim women who are seen as the victim of a gender oppressive religion, who need to be rescued from this oppression and who need to be emancipated. Research in five European countries – Belgium, Denmark, France, the Netherlands, and the UK – showed that many of the face veil wearing women interviewed in the research emphasized that they wore the face veil of their own autonomous personal choice, often in spite of disapproval of parents or other close relatives (E. Brems (ed.) The Experience of Face Veil Wearers in Europe and the Law, Cambridge University Press, 2014).

There are many reasons why women wear face veils and the research did not deny that some women are indeed pressured to do so. But, would the fact that some women are under pressure, even if it is a small number, be a sufficient reason for a ban? I would argue that, whatever the number that is under pressure, it is not sufficient to justify a ban. Bans are not only unnecessary, but they are also counterproductive in achieving emancipation for women who are under pressure to wear the face-covering veil. Bans could very well lead to these women not being allowed to go out of the house at all and thus not being permitted to go to school, university or work. Rather than hindering their emancipation, allowing this group of women to wear face veils would promote their emancipation because it might well be the only way they can go outside the home to study and work. Banning the wearing of face veils in public places would also lead to the exclusion of these women from society and would thus punish the victims. Allowing face veils would thus give this group of women a chance to gain equality through work and education.

Paternalism or free choice?

There are two more problems with using gender equality as a reason for banning face veils. First of all, this is based on the view that Islam is a paternalistic religion where men determine what women should wear. But the accusation of paternalism can just as well be levelled at the people using the gender equality argument to support bans and at the state for enacting such bans: banning women from wearing face veils is just as paternalistic because it is another form of prescribing what women should or should not wear. Both sides here ignore a woman’s fundamental human right to autonomy and free choice.

The second problem with using the gender equality argument to support bans on face-covering clothing in public spaces is that the European Court of Human Rights has rejected this argument in a case challenging the face-covering clothing ban in France. In S.A.S. v France, the Court held that a state cannot invoke this argument in order to ban a practice that is defended by women such as the applicant in this case (paragraph 119).

Despite this rejection, the gender equality argument for enacting bans keeps cropping up in debates in many European countries about whether such bans are necessary, as it did in the Danish debates, and the stereotype of the Muslim woman as oppressed persists.

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Arts Social commentary

Cultural Democracy

Dr Loraine Leeson, Senior Lecturer in Fine Art, explores the idea that art is a vital part of civilised society and should be a method of self-expression for everyone rather than the privileged few.

In November 2017 I was invited to participate in a panel discussion on Cultural Democracy for Suite212 on ResonanceFM. A newly configured Labour Party bringing with it a raft of politicised young people has led to renewed interest in the notion that culture is not, and should no longer be seen as, a domain for the privileged for access by the masses. A counter view is that we are all creative and cultural beings who have a right to individual and group expression, and indeed, that this is one of the factors that constitute a civilised society.

Workshop by The Common, a collective of students studying Art Practice and the Community at Middlesex University. Photo ©Kerri Jefferis

Art of the People

This is not a new idea. In the nineteenth century William Morris initiated an ‘art for the people’ movement, believing that the highest achievements of artistic genius involved the creative engagement of ordinary people. A century later Jennie Lee, arts minister in Harold Wilson’s 1960s Labour government produced the first white paper on the arts, A Policy for the Arts: First Steps, proposing that the arts should occupy a central place in British life and form part of everyday experience for children and adults. The Greater London Council (GLC) picked up on this in the 1980s when Ken Livingstone’s left-leaning government for London moved into County Hall. From a situation where an annual budget of £5 million had previously seen distribution amongst five of London’s ‘centres of excellence’, two of those millions were now re-directed into the newly instituted Community Arts and Ethnic Arts sub-committees. I was privileged to serve on the first of these as part of a panel of community arts practitioners and also to witness at first hand a transformation of the capital through a burgeoning of cultural events. London seemed to come to life with festivals and creative activities in which many who had not previously participated in the arts now played an active part. Sadly, this was short-lived. The policies of the GLC across the board had proved so popular that their success led to a backlash of extreme proportions from the right-wing Thatcher government. In order to stop the work of the GLC a whole tier of regional government was eventually abolished, with the result that, for many years to follow, the UK’s major cities were run by a chaotic collection of government agencies.

In the midst of all this The Shelton Trust published Culture and Democracy: The Manifesto for the 1986 conference Another Standard, organised in Sheffield to bring together community artists from across the world to debate cultural democracy and secure its place on a wider political agenda. This was in fact a central tenet of the community arts movement, which saw the realisation of the creative potential of each individual as a route to social transformation. This right to creative expression was later foregrounded in the Bill of Rights for the 1996 Constitution of South Africa following the abolition of apartheid. In this human rights charter freedom of expression, including artistic creativity, appears no less than eighth on the list following such fundamental issues as equality, freedom from slavery and the right to life.

Policy and Politics

The Conservative government’s Culture White Paper of 2016 nevertheless saw the arts mainly in terms of access, geographical parity, international standing and investment. It succeeded several decades in which the UK Art Council in its various manifestations has increasingly focused on access to the arts, seeing the role of non-specialists as audience, rather than promoting more widespread active participation. The recent reorganisation of the UK Labour party under Jeremy Corbyn, has nevertheless proposed placing arts and culture at the heart of government. Its 2017 manifesto for culture A Creative Future For All proposes, for example, an ‘arts pupil premium’ to support cultural activities for schools and measures to support creative industries. However it does not say much more about how the pledge ‘to open up the arts to everyone’ will be fulfilled. To help inform the party’s cultural strategy, members of Momentum and Arts for Labour held workshops at the The World Transformed conference in September 2017. Through two sessions, Cultural Democracy 1 and 2, more than 200 people explored the politics, history and transformative potential of the arts and contributed ideas for a Manifesto for Cultural Democracy. Participants also voted on a set of key values that should underpin this, the three most popular being: democratising the power of arts and culture, the use of arts/culture to create transformational political change, and embedding creativity in society.

Arts for Labour

The first Cultural Democracy session at the conference also served as a re-launch of Arts for Labour, a group originally created in the 1980s by actors and celebrities to improve the wages of cultural workers and support the Labour movement. With an expanding membership that included arts practitioners and trades unions, it later took up the legacy of the GLC’s cultural policies under the leadership of the late Dr. Alan Tomkins. The organisation continued to campaign on cultural issues until the new millennium, after which it concentrated on archiving and reportage. However following a successful fringe meeting at the 2016 Momentum conference, it re-formed as a strategy group to inform, debate and respond to arts and cultural policy, re-launching at The World Transformed the following year. As its new chair I am keen to see how the ideas generated at this and the follow-up events that are planned to take place across the country, can interface with wider policy objectives to lay the groundwork for a radical shift in the way the arts engage with the lives of most people.

Spreading the Word

These ideas formed the basis of the panel discussion at ResonanceFM a few months later. Hilary Wainwright, co-editor of Red Pepper, researcher and writer on new forms of democratic accountability, addressed amongst other things the legacy of socialist ideas about art, particularly those of E.P. Thompson and Raymond Williams, and how these ideas have been re-configured by the New Left. Hassan Mahamdallie, playwright, author and previously an Arts Council Diversity officer, particularly looked at the issues through the lens of Arts Council policy since the 1980s. My own perspective was from the position of a practicing artist and academic with experience of the GLC’s cultural achievements. The full discussion is available online.

The notion of cultural democracy has also entered the world of academia. New research at King’s College London resulted in the 2017 report Towards cultural democracy: Promoting cultural capabilities for everyone, with fourteen practical recommendations for how cultural policy can move beyond the ‘deficit model’ of taking art to the people, but rather empowering more individuals in their cultural lives. In higher education Middlesex University has been leading the way with the UK’s first MA Art and Social Practice, which takes creative practice beyond the institution and enables students to engage with people in the wider social sphere. In 2018 the university will also be offering the first BA Fine Art Social Practice exit degree, which will encourage undergraduates to realise their artistic skills in the wider community.

Challenges

Cultural democracy is not new, but rather an idea that has found a newly conducive context. This is much to do with the growing belief amongst younger generations that change is necessary and that they can and will make it happen. It is also perhaps a confluence between a budding socialist agenda for the UK and the dissatisfaction of so many cultural practitioners over a longstanding retrenchment in public funding for the arts that has sought to control rather than nurture. We should not underestimate what cultural democracy is up against regarding the debilitating effect that increasing privatisation of the arts has been making on this sector. Its ongoing corporate capture indeed seems to be going from bad to worse with the recent appointment of a member of the Murdoch family to Arts Council England’s National Council. It will be up to those who understand that a society stands or falls on the creativity employed by all its citizens to turn this around and enable the democratic values held so dear in societal terms to also enter the sphere of creativity and culture.

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Social commentary

Grenfell is no accident

Upper Grenfell Tower by ChiralJon (CC 2.0)
Upper Grenfell Tower by ChiralJon (CC 2.0)

Professor Kurt Barling Middlesex UniversityKurt Barling, Professor of Journalism and former BBC presenter, uses research and knowledge gained from his investigation into the Lakanal House fire in 2009 to shed light on the circumstances of the recent Grenfell Tower tragedy. Whoever is ultimately held responsible for this horrific event, all the evidence points to the fact that fire safety issues in tower blocks have been systematically neglected for years.

Grenfell was no accident.  It is a colossal scandal.

Meeting Rafael Cervi shortly after the Lakanal fire in July 2009 was a deeply emotional experience. I could barely contain the tears as he recounted watching helplessly while pleading to go back into the building to save his wife and two children who perished in the fire that engulfed their Camberwell block of flats. He had rushed home from work after getting panicked phone calls from his wife Diana. The unprecedented rapid spread of the blaze meant firefighters failed to reach them in time, along with Mbet Udoaka’s wife and newborn baby and Catherine Hickman. The fire behaved in unpredictable ways moving across floors and through internal cavities to hamper the firefighting and rescue tasks. Their stories fuelled my basic journalistic urge to ensure their trauma would never be knowingly repeated.

The young fashion designer Catherine had spent precious minutes on the phone with the fire service operator asking what she should do as the flames and smoke began to overwhelm her. These were replayed at the inquest and more tears were shed. She was told to stay put to be rescued. Her fire escape route from her flat would have taken her to safety. Neither she nor the fire service and firefighters knew the escape balcony existed; a crucial fire-safety feature overlooked by landlord, residents and fire service alike. A culture of fire-risk-complacency had taken hold at Lakanal House and those six deaths demonstrated urgent lessons needed learning.

Image: Lakanal House by Peter Gasston (CC 2.0)

It became one of the most challenging stories of my career. Beyond all those terrorism, war zone and youth violence stories I had covered, it was a story that I felt I had a responsibility to pursue tooth and nail because I reasoned my journalism could genuinely save lives in the future.

I got to know the families, local authorities, safety experts, government officials and activists who all had a stake in fire safety and discovered that not only were Tower Blocks complex but so were the regulations and relationships to ensure they were safe to live in. The research document Investigation into Lakanal House that I prepared for the University Research Excellence Framework in 2014 identified a key long-term narrative from some of the material I had broadcast into the public domain between 2009-2013 when the Lakanal inquest concluded.

Colossal warning

A Tower Block is a complex building as well as community structure. It houses whole neighbourhoods. Some are large enough to accommodate several streets worth of residents at ground level. In the event of a fire, evacuation and rescue needs proper safety procedures to do it safely.

The voluminous evidence presented to the 2013 Lakanal inquest into the six deaths, as a result of that fire, made it abundantly clear that the refurbishment of Lakanal House over many years had fundamentally compromised the fire safety of the 14 storey building.

The core principle of keeping the integrity of a High Rise safe in a fire, is that each individual flat should be able to contain fire from within for 60 minutes. This is called compartmentalization. This failed atrociously at Lakanal and there was no doubt in the minds of fire experts I repeatedly interviewed like Ronnie King, Arnold Tarling and Sam Webb, that periodic refurbishments had introduced key structural changes and new flammable building materials which substantially weakened the fire safety aspects of these buildings.

We discovered that in some cases only 5% of blocks in a borough had complied with the law.

Lakanal House was a colossal warning. Firefighters at the time said they had never seen anything like it before, nor would they want to see it again. Many suffered afterwards from PTSD. The abundant evidence from that fire showed that the building regulations were deeply flawed. Indeed one of the key recommendations from the Coroner Francis Kirkham in 2013 was that part B of the building regulations needed urgent review.

I can remember the argument in court when John Hendy QC (for the families) argued it was well-nigh unforgiveable to add flammable materials to the external envelope of a building which would make the building more vulnerable to rapid fire spread from outside the dwellings, not inside. Well, four years on and the government department responsible – Department for Communities and Local Government (DCLG) – is still apparently reviewing them. Procedures that would undoubtedly have saved lives at Grenfell have not been implemented.

Another of the recommendations from Justice Kirkham suggested that inadequate standards were employed in drafting Fire Risk Assesments (FRA), which must as a matter of law be undertaken on each high-rise block, residential or commercial, on a regular basis, but particularly after a refurbishment or structural changes take place. This is like a building MOT and warns landlords if parts of the building or maintenance regime need to be put right to minimize the risks of fire spreading and ultimately to preserve life.

Back in 2009 I broadcast a report after myself and colleague Ed Davey carried out a Freedom of Information request into how many of London’s 32 boroughs had carried out FRAs on their tower blocks.

The results sparked genuine public outrage when we discovered that in some cases only 5% of blocks in a borough had complied with the law.  In other words 95% of council tenants were living in high rises with no or poor up-to-date safety checks.

This was a disgrace then and it is scandalous to hear that the last FRA on Grenfell was conducted in 2015 before the refurbishments, which may prove to have caused the rapid spread of the fire.  Interestingly I have seen a 2013 solicitor’s letter from Kensington & Chelsea lawyers threatening the author of the Grenfell Action Group blog with action for allegations he was publishing about the sub-standard response to resident questions and concerns.   All I would say about this is that there is a pattern of public authorities trying to intimidate residents who choose public forums to discuss their concerns.  This breeds mistrust, which does not help a fire safety culture, but it does minimize scrutiny of social landlords or local authority’s responsibilities.

The advice on whether to stay put or flee fire in your block when your own home is ‘safe’, is laden with ambiguity in Tower Blocks.  The reality on the ground is residents are often given contradictory advice, as was Catherine Hickman which cost her her life at Lakanal.  A lot of those families who chose to ignore the advice at Grenfell saved themselves.  When a building, let alone an individual flat, cannot withstand fire for 60 minutes this advice is monumentally foolish.  I heard this foolish argument made many times during my research into Lakanal, foolish because it didn’t take account of the evidence.

Image: Upper Grenfell Tower by ChiralJon (CC2.0)

No easy answers

Grenfell reiterates the lesson of Lakanal that firefighters are often attending fires with both hands tied behind their backs, when the working assumption is that they have 60 minutes to locate the fire and put it out.  Well that is proving time and again to be a deeply and fatally flawed premise.  The recommendation from Frances Kirkham was more clarity was urgently needed.  The official response from the incumbent Minister Eric Pickles was that the local Fire Commander at an incident should make that judgment.  But how can they, if the fire takes less than 60 minutes to engulf a major part of a building and they do not have the means of communicating that advice on the ground to residents?

Lakanal House has a sister block and a fire in that block shortly after the Lakanal fire led to every resident self-evacuating.  One resident told me this week; they simply don’t trust the advice from the council or the London Fire Brigade.  In other words it is now common sense at ground level for residents to get out and not stay put. Saving lives in a fire requires a culture built on trust.

There is no doubt that fire safety equipment and sprinklers halt the spread of fire.  In the case of Grenfell the last FRA in 2015 found faulty fire equipment in many places and residents complained. Sprinklers are now standard in new developments and they can be retrofitted to older blocks.  It is a complex construction task but can be done quite affordably.  The Lakanal coroner asked that this be looked at sympathetically.  Still we have no traction from the DCLG on this issue when it comes to our older social housing Tower Block stock across the country.

Let’s be blunt, there are no easy answers, but the Lakanal House fire and the debates that emerged from it, including a Baroness Jenny Jones led London Assembly inquiry into fire risks in timber framed buildings, sought out reasoned evidenced responses.  A public environment which has seen cuts to local authority staffing, LFB fire-fighting capabilities and prevention programmes and social landlords turning to the private sector to manage complex buildings in poorer communities have all played a part in making High Rise living more vulnerable than when those buildings were originally completed.  It may be difficult but it’s not rocket science.

The result is a damning indictment of our approach to government; singular complacency in the face of overwhelming evidence.

Lakanal House was a dire warning. The trauma suffered by the families was a warning.  The inquest in 2013 and prosecution of Southwark Council in 2017 were all warnings.  The recommendations were a call to action. But none were heeded sufficiently, because those in government have seemingly chosen not to prioritise the fire safety issue with firm changes on the ground.  Despite their protestations to the contrary, the tragic evidence at Grenfell calls that seriously into question.

Political issue

I want to make one final point here on the politics of housing.  Since the end of World War II, social housing has always been a deeply political issue.  Providing adequate shelter for the more vulnerable or less affluent members of a rich society is a measure of our values in civil society.  If we believe people need social housing, it should be safe housing.  For those who will try to make party-political-points-scoring mileage in their response to this tragedy, glass houses and stones come to mind.  Social landlords across the country come in all political persuasions as they did across the 32 London Boroughs we found wanting in 2009.  The worst offenders were often those with the most social housing.  The authorities with the greatest burden had the poorest residents.  Think about it, all parties have failed on this fire safety issue.

The residents of Tower Blocks need the rule of law to be upheld and for the law and regulations to maintain a robust fire safety regime to be reviewed and amended if need be and then rigorously enforced.  No one in political life is innocent in this catastrophe.

The result is a damning indictment of our approach to government; singular complacency in the face of overwhelming evidence.  The time for talking is over and the time for real concerted action, listening to the experts, needs to start right now.

Rafael Cervi who moved back to his native Brazil and started a new family was lucky in as much as he has found happiness to heal some of that desperate trauma of loss.  Not everyone was so fortunate.  My personal regret is that all my efforts, as a journalist, did not reach far enough to save those many lives at Grenfell.  Ultimately, we fail those who perish if we repeat the avoidable mistakes and lessons learned from the past.

Professor Kurt Barling broadcast and wrote over a hundred reports for the BBC during his Lakanal House Investigations for BBC London News between 2009-2013.

Read how Middlesex University students have been assisting with the relief effort for the survivors of the Grenfell Tower fire.

Categories
Law & politics

The (not so) Great Repeal Bill

The Great Repeal Bill is intended to convert all existing EU law into UK law. The aim is to provide legal certainty after Brexit Day and to enable the government to repeal aspects of EU law afterwards. However, Dr Joelle Grogan, Lecturer in EU law and Sticky Tricky Law founder, argues the proposed Brexit Day division will still create a great deal of legal ambiguity.

The outcome of the General Election will dictate the type of Brexit that the UK will aim to negotiate with the EU. It will also determine how the UK legal system will be reformed to reflect UK withdrawal. This will have consequences far beyond Brexit Day and the deal (or no deal) negotiated with the EU.

The Conservatives have outlined the process of legal separation and reform which will follow from ‘Brexit Day’ when the UK ceases to be a Member of the European Union in the Great Repeal Bill White Paper. Ostensibly aiming to balance the need for legal certainty with political expediency, the Great Repeal Bill proposes (1) to repeal only the European Communities Act 1972; (2) to convert EU law ‘as it stands at the moment of exit’; and (3) to create powers for Government to make secondary legislation which will ‘enable corrections to be made to the laws that would otherwise no longer operate’. [1.24]

The White Paper briefly outlines some considerations for the devolved legislatures and overseas territories, though does not address substantial issues arising from their distinct legal and constitutional structures, EU citizens’ rights, or borders with EU Member States (these last two issues are to dealt with by the Withdrawal Agreement with the EU).

In Part One of this post, I focus on the repeal and conversion of EU law, and show how the White Paper proposals create more issues for legal certainty than they resolve. In Part Two, I look at the delegated powers.

Schrodinger’s cat. Image: Jie Qi via a CC BY 2.0 licence

1. Repeal

The ‘Great Repeat Bill’ is a misnomer, as it will not repeal all EU law in the UK. In fact, the only element of repeal in the Great Repeal Bill will be the repeal of the European Communities Act 1972 [ECA 1972]. The ECA 1972 is the UK act which gives effect and supremacy to EU law in the UK, and underlies a significant corpus of law in the UK by incorporating the acquis of EU membership, notably the EU Treaties and the EU Charter of Fundamental Rights, into UK law. Two immediate issues to highlight are the uncertainty with regard to the status of EU law in the UK, and the impact on fundamental rights protections in the UK as a result of the Great Repeal Bill proposals.

Schrodinger’s supremacy: The status of EU treaties and EU law post-Brexit

The doctrine of supremacy means that in the event of conflict between EU law and national law in a situation which is governed by EU law, the EU law must be applied and national law must be set aside (please note, this does not mean strike down – the national law will apply where EU law does not). The doctrine aims to guarantee uniformity in the application of law throughout the EU: Member States cannot pick and choose which EU laws to apply and which to ignore, and so a ‘level playing field’ in the single market is assured.

The White Paper states (in bold) that the ‘Great Repeal Bill will end the supremacy of EU law’ in the UK. [2.19] However, in the next sentence it acknowledges that, in the event of conflict, converted EU law will continue to take precedence over pre-Brexit national law – i.e. the supremacy of EU law remains. Similarly, while the content of the EU Treaties will be ‘irrelevant’ post-Brexit [2.9], provisions of the EU Treaties may still serve to assist in the interpretation of converted EU law by the UK courts. [2.10] EU Treaties and converted EU law will therefore exist in a strange state of both having and not having supremacy over pre-Brexit law. It would be left to the observation of the Courts as to when the precedence of converted law does (or does not) exist.

The UK’s ‘leading role in advancing human rights’: removing the EU Charter of Fundamental Rights

The EU Charter of Fundamental Rights codifies fundamental rights, including ‘first-generation’ rights of life, liberty and the prohibition on torture and the death penalty, as well as ‘third-generation’ rights such as the protection of personal data. The EU Charter can be relied upon in national proceedings when the subject-matter of the litigation falls within the scope of EU law. As the Charter has equal legal status to the Treaties, a violation of a right protected by the EU Charter requires the disapplication of the violating national law or practice. The repeal of the ECA 1972 aims to end the effect of the Charter of Fundamental Rights in the UK and to remove the oversight of the Court of Justice of the EU in the areas of law which fall within the scope EU law, including Charter rights.

The White Paper declares that the EU Charter should not be used to ‘bring challenges against the Government, or [to strike down] UK legislation’ [2.23], and so the Charter and the rights codified within it will not be converted into UK law. Strangely, the White Paper then asserts that this will not undermine ‘substantive rights’ which otherwise have existed and exist elsewhere in EU law, and thus will be converted into UK law. The White Paper references these as ‘underlying rights’ which will be relevant to the interpretation by the UK Courts, even when interpreting references to the Charter in converted case law. [2.25] The confusion of what constitutes an ‘underlying right’ when we have to ignore the codified account of them creates significant legal uncertainty, and undermines codified rights (ie data protection in the age of information) which do not exist at common law or in other rights instruments.

Even where the aim is to remove the rights and protections guaranteed by the EU Charter, the White Paper argues that Brexit will not change the UK’s ‘leading role in protecting and advancing human rights’ [2.21] as the Charter is only ‘one element in the UK’s human rights architecture’. [2.22] It identifies the European Convention on Human Rights [ECHR] and mentions (without identification) UN and international treaties as part of this architecture. [2.22]

The distinction between the normative clout of the ECHR and the EU Charter is striking. The ECHR is operative in the UK through the Human Rights Act 1998. Under the 1998 Act, where a law violates an ECHR right to such a degree that it is not possible for the Courts to interpret the law in a way which does not violate that right, the most serious consequence is the issuing of a declaration of incompatibility. Such a declaration is a signal to Parliament that it should consider amending the legislation to take account of violated right. I am unaware of any UN or international rights instrument which has been incorporated into UK law, or can result in substantive remedies. Both the ECHR protections and international conventions starkly contrast with the protection afforded by the EU Charter of Fundamental Rights. Where a law violates a right falling within the scope of the EU Charter, that law must be set aside.

The EU Charter will not be converted, uncertainty of ‘underlying rights’ introduced, and any substantive protections will be removed or weakened. What this leads to is the question of exactly what sort of ‘leading’ role in human rights is envisioned by the authors of the Great Repeal Bill.

2. Conversion

It is not possible to repeal the ECA 1972 without undermining large areas of the law, and creating an unstable situation whereby the rules under which individuals and businesses are operating have no legal basis. The resolution proposed is the complete conversion of EU law into UK law on Brexit Day. This is aimed to guarantee a degree of legal certainty, and allow time for the reform of the law in the months and years (perhaps decades) which will follow.

The task of conversion is complicated by the diversity of EU law norms within the UK legal system: some primary acts are directly based on EU obligations (ie Equality Act 2010), while others are sourced in directly effective EU law, or in secondary legislation. Similarly, the acquis of EU law, including the jurisprudence of the Court of Justice of the EU (CJEU) has formed part of the way in which domestic law has been interpreted. EU law directly relates to areas of UK law as diverse as competition, agriculture, trade, energy, and telecommunications. To give examples from the last week of the wide scope of EU law, compensation to passengers for the cancelled British Airways flights, and the end of roaming charges are based on EU law.  While there will be many issues critically raised by complete conversion, I highlight two broad issues here: the fossilisation of EU law, and the weakening of protection for workers, consumers and the environment.

Set in stone (and fossilised): case law of the Court of Justice of the European Union

Understanding that CJEU judgments form a significant part of UK law as regards the interpretation of EU law, the White Paper proposes that ‘historic’ CJEU case law will be given the same status as binding precedent in UK courts as decisions of the UK Supreme Court. The Great Repeal Bill will not provide any future role for the CJEU in the interpretation of converted law, nor require domestic courts to consider its jurisprudence. [2.13] In essence, this will mean that case law decided after Brexit Day will have no recognised status in the UK. Leaving to one side the kind of pressure that will now be placed on the Courts by practitioners to either expedite proceedings or delay them indefinitely, the Brexit Day division raises as many issues from the perspective of legal certainty as it designs to resolve.

Judgments of the CJEU are relevant where they aim to guarantee uniformity in the application of law throughout the EU: Member States cannot pick and choose which interpretation of a law they would prefer. Fossilising the case law on Brexit Day would leave UK law based on EU norms static and of limited use in cross border matters where the law in the EU-27 is subsequently changed or repealed by the EU legislator, or reformed and clarified in a subsequent case by the CJEU.

For expedience and practicality, it may be good practice for legal practitioners to continue to argue post-Brexit Day CJEU case law as persuasive precedent in cases involving concomitant converted law to minimise divergence. This would, however, only apply in cases where there is no prior judgment in a UK court or where the Parliament has legislated in the area. The Great Repeal Bill leaves no place for the CJEU post-Brexit, but this will be a key issue for the negotiation as the EU will aim to guarantee the uniformity of application of its law and guarantee the rights of its citizens.

Rights, right here, right now: workers’ rights, environmental and consumer protection

The White Paper recognises that a significant source of rights in the UK has been the EU Treaties, and recognises worker and consumer rights as well as environmental protection. [2.17] It underlines that in many areas, UK employment law sets higher than minimum standards, and reasserts a commitment to continuity of these rights – for example, stating that the Equality Act 2006 and Equality Act 2010 will continue to apply though they are based on EU obligations. [2.17] From the perspective of environmental protection and consumer rights, the White Paper emphasises continuity of the established frameworks and rules.

The important element is to highlight that a guarantee of continuity of existing rules is not the same as entrenching these rights. Currently, membership of the EU demands certain minimum standards of protection in these areas, and this requirement will end on Brexit Day. The right to complain to the Commission for a violation of these standards, or for the Commission to bring proceedings in the Court of Justice for a violation of environmental, consumer or workers’ rights will end. Consumer, worker and environmental rights will become (as they have already) a political, rather than legal, issue. They would continue post-Brexit, unless it became politically expedient for them (for example, for trade deals) not to.

Only uncertainty is certain

The White Paper for the Great Repeal Bill sets out the Conservatives’ proposals for the process of separation, reform and revision which will follow Brexit. The repeal of the ECA 1972 and the conversion of EU norms into UK law on Brexit Day aimed to deliver both the legal separation of UK law from the EU but also a degree of legal certainty. In effect, it compromises both and achieves neither. This is not even, however, the most concerning part of the Great Repeal Bill White Paper. In Part Two I consider how Government intends to quickly ‘correct’ EU-derived primary and secondary law through delegating power to Government to change the law with little scrutiny or constraint – a Henry VIII power of unprecedented scale and scope.

This article originally appeared on LSE’s Brexit Blog

Categories
Law & politics

Geert Wilders: a ‘free speech martyr’?

Dr Erica HowardDr Erica Howard, author of the paper ‘Freedom of Speech versus Freedom of Religion? The Case of Dutch Politician Geert Wilders’ and forthcoming book Freedom of Expression and Religious Hate Speech in Europe, explores whether prominent Dutch politician Geert Wilders has been unfairly treated over his extreme views.

Geert Wilders is a member of the Dutch Parliament and the leader of the Dutch right-wing Party for Freedom (PVV), which he founded himself in 2006. He is strongly against Islam and what he calls the Islamisation of the Netherlands.

Islam is, in Wilder’s view, a religion with extreme views that wants to destroy Western civilisation, is violent and wants to subjugate and convert non-believers. He has likened the Quran to Hitler’s Mein Kampf and has linked Islam with criminality. Wilders advocates closure of the Dutch borders for Muslims and loss of Dutch nationality for Muslim criminals.

Wilders has talked about this in quite immoderate terms in many interviews and on Twitter during the last decade or so. In 2011, he was prosecuted for group insult and incitement to hatred, discrimination and violence, but he was acquitted of all charges. Then, at a post-vote meeting with supporters at the time of the local elections in March 2014 in The Hague, Wilders asked the crowd “And do you want more or fewer Moroccans in your city and in the Netherlands?” To which the crowd chanted: “Fewer, fewer, fewer.” “We’ll arrange that,” Wilders said, smiling, when the chanting died down. This and similar comments made at a market a week earlier, led to over 6,500 complaints to the Public Prosecutor’s office.

A painted portrait of Geert Wilders (Image: thierry ehrmann (CC BY 2.0))

Found guilty with no penalty

Wilders was subsequently prosecuted and, in December 2016, convicted of group defamation and incitement to discrimination, but the court did not impose a penalty. In its considerations, the fact that the “fewer Moroccans” remarks were clearly thought out and orchestrated and were meant to have as much media impact as possible played a role. Moreover, it was clear to the court that there had been a discussion on whether to ask about ‘criminal Moroccans’ or ‘Moroccans’ and Wilders had decided to ask about ‘Moroccans’. Wilders’ remarks were thus aimed at the whole group of Moroccans living in the Netherlands and labelled them as of less value than other people and this was covered by the offence of insulting a group based on race. The court did not impose any penalty because it considered that the determination that the accused, as a politician was found guilty was sufficient penalty. Both Wilders and the Public Prosecutor have appealed this decision.

Throughout both trials, Wilders continuously repeated that he was prosecuted for exercising his right to freedom of speech – in other words, he painted himself as a ‘free speech martyr’. He claimed that he was only saying what a lot of people in the Netherlands were thinking and were worried about and, thus, that he was contributing to the public debate. Wilders was thus using the language of human rights to defend his expressions.

Freedom of speech is not absolute

So did his conviction breach his right to freedom of speech as guaranteed by the European Convention of Human Rights? The Convention guarantees the right to freedom of expression or speech, but this right is not absolute and can be restricted under certain prescribed circumstances. However, the European Court of Human Rights has consistently held that exceptions to the right must be narrowly interpreted and the necessity for any restrictions must be convincingly established.

A number of other points can be taken from the case law of the European Court of Human Rights on the right to freedom of speech:

  • The importance of the right for the proper functioning of a democratic society has been stressed regularly, as has the role played by elected politicians in this. Wilders was and is speaking as an elected representative of the people. In fact, his party is the second largest party in the Netherlands after the elections in March 2017;
  • Criminal measures against speech should only be used as a last resort because an opponent of official ideas and positions must be able to find a place in the political arena;
  • The freedom of speech is particularly broad when it concerns matters of public interest or expressions that contribute to the public debate.  It can be said that Wilders’ expressions about Islam and Moroccans are raising issues about the multicultural character of Dutch society, about immigration and integration, which many people are currently very worried about and thus that these remarks do, indeed, contribute to the  public debate; and,
  • A politician can, according to the European Court of Human Rights, use offensive, shocking, disturbing language, can exaggerate and provoke, and be controversial and virulent because of their important contribution to the political and public debate. This is indeed often the way politicians get their message across and they should be able to canvas for votes.

But does this mean that offensive expressions will, in all circumstances, be protected by the right to freedom of expression? No, this is not the case as the Court has found restrictions on expressions of politicians to be compatible with the freedom of expression in some cases because these expressions incited to hatred and violence against a particular ethnic or religious group. But it can be argued, with support from some of the Court’s case law, that political speech can only be limited when it incites to hatred or violence and there is a real likelihood that violence will follow.

The importance of open debate

This seems very similar to the approach adopted in the USA towards freedom of speech. The crucial importance of an open debate for a democratic society relies on the right to freedom of expression. Allowing for broad restrictions on speech including (and especially) political speech would have a ‘chilling effect’ on freedom of speech: it would lead to self-censorship and stop people from expressing themselves and this would have serious effects on the public and political debate, especially if it stopped politicians, and even more so, opposition politicians, from speaking out about what they see as problems in society.

Geert Wilders’ expressions, even his “fewer Moroccans” remarks, did not incite to hatred and violence and there was no real likelihood that violence would follow (and it did not follow). Therefore, the European Court of Human Rights could well find that his conviction breached his right to free speech and so, in this sense, he could be seen as a ‘free speech martyr’, prosecuted for exercising his human rights.

Freedom of Expression and Religious Hate Speech in Europe will be published this August by Routledge.

Categories
Social commentary

Canadian multiculturalism and happiness

Natalie Wall, Research Impact Officer at Middlesex University, is on the organising committee for the upcoming Gender and Education Association conference. She is completing a PhD at the University of Calgary that explores Canadian multiculturalism using feminist and performance theories.

When I was a little girl, my father told me that I could be anything; I could be Prime Minister of Canada, if I wanted to.

He was and still is… wrong.

Canada has never elected a female Prime Minister and the only woman (Progressive Conservative Kim Campbell) to have held the position attained it through hatred of the previous PM and was replaced by the Liberal Jean Chrétien within six months, and this is after having called the election because she showed a demonstrable lead in the polls. Canada has never had a non-white Prime Minister. Even as a child, I knew that my chances were not good and I can’t say that my father approved of my defeatist attitude when I explained my unlikelihood of becoming Canada’s first black, female Prime Minister. This was my first moment of being a black feminist killjoy.

Wait… can I be a black feminist killjoy?

Image: Canadian Flag by Christopher Policarpio (CC 2.0)

Killing joy and taking names

Sara Ahmed tells us that the feminist killjoy “is an affect alien for sure: she might even kill joy  precisely because she refuses to share an orientation towards certain things as being good” and that “[w]e can place the figure of the feminist killjoy alongside the figure of the angry black woman.” Let us suppose that the angry black woman and the feminist killjoy can exist in one body, so that I can become a black feminist kill joy. In fact, let me assume the mantle of black, Canadian feminist killjoy.

Crossing borders and becoming foreign

Over the course of my PhD, I have become foreign. However, I have never felt so Canadian as I have once I became foreign. My foreignness makes me nostalgic for a home that never was, a place to which I never really belonged. I am a black Canadian woman whose father was an immigrant who moved from Trinidad to Canada in the seventies and whose mother grew up in a country house in rural Cape Breton. I belonged to a group of friends who all shared the common experience of being first generation Caribbean Canadian black women. We were antiracist activists living in West Toronto where my high school was lauded as a stellar institution despite my memories of white supremacists handing out hate literature on site and girls being told that they should not speak out against the sexual harassment from faculty members. My antiracism and feminist sensibilities grew in this environment and were intrinsically linked to my self-identification as a black Caribbean Canadian woman.

But, I have become foreign.

As I have become foreign, so has the world around me.

Brexit campaigners told us that the British population needed to “take back control” and control was taken back. And where did Brexit campaigners find inspiration for taking back that control? Michael Gove cites Canadian and Australian immigration policies when pressed about migration on Question Time.

What can we learn from Canada?

After the introduction of Donald Trump’s Muslim Ban on January 28th, 2017, the Prime Minister of Canada’s Twitter account (smugly, one might argue) posted the following:

Amid a flurry of criticism and, yes, some popular approval, the Muslim Ban opened up an opportunity for Canada to remind the international community that it holds the line in North America for diversity and hospitality.

I started my PhD examining multiculturalism in Canada under the Harper government, at a time when the Conservative government was taking liberties with its population’s human rights and making Canada a less tolerant environment than it has traditionally painted itself. See Human Rights Watch’s “World Report 2016” where among other concerns are the refusal to conduct an inquiry into missing and murdered Indigenous women and the Anti-Terror Act of 2015, “law that imperils constitutionally enshrined human rights, including the freedoms of expression and association.”

I am finishing it up under a Justin Trudeau government, a Liberal Canada expressing itself through its proclaimed feminist and hospitable Prime Minister. Trudeau’s likeability and international popularity are reflective of a system of government that always works best when portrayed as idealistic and inclusive. It is a Canada that benefits in real, marketable, ways from its reputation as a multicultural utopia that operates to oppress and manage non-white bodies by using them as objects to parade before other, international and white, audiences.

What’s multiculturalism got to do with it?

Multiculturalism, both official and idealised, works to help define the culture of Canada, by offering a gesture to diversity that has become synonymous with Canadian identity, but also offering a mirror against which Canadian identity can articulate itself. The trope of multiculturalism in Canada works to define culture in two ways: policy that has become a part of the fabric of Canadian self-construction and the persistent differentiation of citizens so that there are real Canadians and the others that help to demarcate the relationship between real and marginalised.

Canada was the first country in the world to integrate idealised constructions of multiculturalism into official policy.  Multiculturalism is intrinsic to Canada’s understanding of citizenship: the Government of Canada says on its website that “Canadian multiculturalism is fundamental to our belief that all citizens are equal. Multiculturalism ensures that all citizens can keep their identities, can take pride in their ancestry and have a sense of belonging.” However, we also have to understand that immigration serves the state’s purpose, “national immigration policies are seen as mechanisms to supply workers for various industries” (Satzewich and Liodakis 62). As state policy, that is to say, multiculturalism can never be purely without benefit to the host state. In fact, immigration is part of the nation-building project, where multiculturalism is both reliant upon that immigration and one of the methods with which the nation ensures the obedience of its subjects, allowing them their cultural identity so long as it is subsumed under their identities as productive Canadian citizens. The success of Canada’s multiculturalism policy is rooted in its marriage of ideology and policy into the very fabric of how Canadians understand what it means to be and act Canadian.

So, while “Canada has its own historical graveyards of shame which are routinely relegated to the footnotes of history” (Mullings et al.), including genocide, Chinese Head Tax, missing and murdered Indigenous women, just to name a few, Canadians are not willing to go on record as xenophobic bullies. In the end, Canadians identify so strongly with multiculturalism that Trudeau won against Harper’s xenophobic campaign in 2015. Canadians supported freedom of cultural identity instead of anti-muslim rhetoric, going so far as to wear traditional mummer’s costumes to the polls in protest over the niqab debate. The focus on the niqab in tandem with the enacting of the Zero Tolerance for Barbaric Cultural Practices Act, which focused unduly on Muslims, was the Conservative government’s undoing.

Alternatively, in the UK, multiculturalism is dead at the hands of home grown terrorism. Immigration fears largely influenced the Brexit vote and continue to make headlines as we head towards 8 June, 2017. As Ahmed tells us, “multiculturalism becomes a problem by being attributed as the cause of unhappiness. When we are ‘in’ multiculturalism, we are ‘out’ of our comfort zone.” As we head into another General Election, I am wondering to what degree the British public is voting for a happiness that stems from having neighbours that look, sound and think like you. Is multiculturalism the root of all unhappiness?

Or is there a lesson to be learned from across the pond?

A harsh and pragmatic lesson to be sure, but a lesson to be learned nonetheless. Because that’s what being a feminist killjoy is all about…

Generative Feminism(s): working across/within/through borders

At the upcoming Gender and Education Association Conference, titled “Generative Feminism(s): working across/within/through borders,” researchers and practitioners will be coming together to think about demarcation and delineation as feminists who are building new, innovative spaces that impact the world around them.

The 2017 conference is being organised and hosted by Middlesex University, London and runs from Wednesday 21st until Friday 23rd June, 2017. As a member of the organising committee, I am excited by the breadth of topics and the disparate backgrounds of the presenters.

You can see the conference programme here.

Categories
Law & politics

The Great Repeal Bill explained in Post-its

Photo by JogiBaer2 (CC BY 2.0)
Photo by JogiBaer2 (CC BY 2.0)

Joelle GroganBritain’s decision to exit the European Union will result in many changes to the way our legal system works. The Great Repeal Bill will remove the power of the European Court of Justice in the UK but the government has to tread very carefully so as not to leave gaps or ambiguities in the law. Lecturer in EU law and Sticky Tricky Law founder Dr Joelle Grogan and her colleague Georgia Price explain the Great Repeal Bill in Post-its.