Challenging Racism in Britain and Germany (Migration, Minorities and Citizenship)

Challenging Racism in Britain and Germany Zig Layton-Henry and Czarina Wilpert

Migration, Minorities and Citizenship General Editors: Zig Layton-Henry, Professor of Politics, University of Warwick; and Danièle Joly, Director, Centre for Research in Ethnic Relations, University of Warwick Title include: Muhammad Anwar, Patrick Roach and Ranjit Sondhi (editors) FROM LEGISLATION TO INTEGRATION? Race Relations in Britain Naomi Carmon (editor) IMMIGRATION AND INTEGRATION IN POST-INDUSTRIAL SOCIETIES Theoretical Analysis and Policy-Related Research Malcolm Cross and Robert Moore (editors) GLOBALIZATION AND THE NEW CITY Migrants, Minorities and Urban Transformations in Comparative Perspective Adrian Favell PHILOSOPHIES OF INTEGRATION Immigration and the Idea of Citizenship in France and Britain Sophie Body-Gendrot and Marco Martiniello (editors) MINORITIES IN EUROPEAN CITIES The Dynamics of Social Integration and Social Exclusion at the Neighbourhood Level Simon Holdaway and Anne-Marie Barron RESIGNERS? THE EXPERIENCE OF BLACK AND ASIAN POLICE OFFICERS Danièle Joly GLOBAL CHANGES IN ASYLUM REGIMES (editor) Closing Doors HAVEN OR HELL? Asylum Policies and Refugees in Europe SCAPEGOATS AND SOCIAL ACTORS The Exclusion and Integration of Minorities in Western and Eastern Europe Christian Joppke and Ewa Morawska TOWARD ASSIMILATION AND CITIZENSHIP Immigrants in Liberal Nation-States Atsushi Kondo (editor) CITIZENSHIP IN A GLOBAL WORLD Comparing Citizenship Rights for Aliens Zig Layton-Henry and Czarina Wilpert (editors) CHALLENGING RACISM IN BRITAIN AND GERMANY Jørgen S. Nielsen TOWARDS A EUROPEAN ISLAM Jan Rath (editor) IMMIGRANT BUSINESSES

The Economic, Political and Social Environment Peter Ratcliffe (editor) THE POLITICS OF SOCIAL SCIENCE RESEARCH ‘Race’, Ethnicity and Social Change John Rex ETHNIC MINORITIES IN THE MODERN NATION STATE Working Papers in the Theory of Multiculturalism and Political Integration Carl-Ulrik Schierup (editor) SCRAMBLE FOR THE BALKANS Nationalism, Globalism and the Political Economy of Reconstruction Steven Vertovec and Ceri Peach (editors) ISLAM IN EUROPE The Politics of Religion and Community Östen Wahlbeck KURDISH DIASPORAS A Comparative Study of Kurdish Refugee Communities John Wrench, Andrea Rea and Nouria Ouali (editors) MIGRANTS, ETHNIC MINORITIES AND THE LABOUR MARKET Integration and Exclusion in Europe

Migration, Minorities and Citizenship Series Standing Order ISBN 0-333-71047-9 (outside North America only) You can receive future titles in this series as they are published by placing a standing order. Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBN quoted above. Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG21 6XS, England

Challenging Racism in Britain and Germany Zig Layton-Henry and

Czarina Wilpert

Editorial matter, selection, Introduction and Afterword © Zig Layton-Henry and Czarina Wilpert 2003 Chapter 3 © Zig Layton-Henry 2003 Chapter 13 © Czarina Wilpert 2003 Chapters 1, 2 and 4–12 © Palgrave Macmillan Ltd 2003 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2003 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N. Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 0–333–64317–8 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Challenging racism in Britain and Germany / [edited by] Zig Layton-Henry and Czarina Wilpert. p. cm. – (Migration, minorities, and citizenship) Includes bibliographical references and index. ISBN 0-333-64317-8 1. Great Britain – Race relations. 2. Germany – Race relations. 3. Racism – Great Britain. 4. Racism – Germany. I. Layton-Henry, Zig. II. Wilpert, Czarina. III. Series. DA125.A1 C46 2003 305.8’00941–dc21 10 12

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Contents List of Figures

vii

List of Tables

viii

Preface

ix

Notes on the Contributors

xii

Introduction Zig Layton-Henry and Czarina Wilpert

Part I

1

Citizenship and Nationality

1 Models of Citizenship and Rules of Naturalisation Rainer Bauböck

23

2 The German Concept of Citizenship and Nationality Dieter Oberndörfer

46

3 Citizenship and Nationality in Britain Zig Layton-Henry

60

Part II

Racism and Racial Inequality

4 Racism and Racial Inequality: the British Case in a European Context Malcolm Cross 5 Dealing with Racial Harassment: the Development of Legal Strategies amongst Local Authorities Marsha Prescod

79

109

6 Anti-Semitism in a United Germany Werner Bergmann

122

7 The Racist Portrayal of Gypsies in the Media Franz Hamberger, Irina Bohn and Kerstin Rock

133

8 The Mobilisation of the Extreme Right in Germany Wolfgang Kühnel

146

v

vi Contents

Part III 9 10

11

12

13

14

Strategies for Combating Racism

Race Laws and Policy in the United Kingdom Colin Munro

165

Enforcing Anti-Discrimination Law in Britain: Here There Be Monsters! Martin MacEwen

189

Changing Employers’ Practices: from Exclusion to Inclusion Mary Coussey

208

Anti-Discrimination Legislation in Germany: from Abstinence to Activism? The Influence of the New EC Equal Treatment Directive on Future Legislation Rainer Nickel

221

Racism, Discrimination, Citizenship and the Need for Anti-Discrimination Legislation in Germany Czarina Wilpert

245

Afterword: Reflections on Challenging Racism and Discrimination in Britain and Germany Zig Layton-Henry and Czarina Wilpert

270

Index

276

List of Figures 4.1 Police stops and searches, 1987/88 4.2 Ethnic minority population in Inner and Outer London, 1991 4.3 Inner City unemployment rates for males aged 16 and over by ethnic group, 1991 4.4 Outer city unemployment rates for males aged 16 and over by ethnic group, 1991 4.5 Indexes of socio-economic groups 4.6 Examination results by ethnic group and gender, 1988/89 4.7 A-Level scores of university applicants, 1990 4.8 Qualification index by ethnic group in Greater London, 1991 4.9 Proportion of ethnic groups in higher employment by city location, 1991 4.10 Self-employment rates by ethnic group, Great Britain, 1991 4.11 ‘Entrepreneurship’ rates by ethnic group, Great Britain, 1991

vii

94 96 97 98 99 100 100 102 102 103 104

List of Tables 1.1 8.1 8.2 10.1 10.2 10.3 10.4 10.5 10.6

Five test criteria for five models of citizenship in democratic states Election results of European extreme right-wing political parties Percentages in each EU member state opposed to the influx of foreigners, 1991–3; ‘not accept them’ Outcome of case, by ethnic group of applicant Outcome of case, by sector of employer Outcome of case, by nature of the complaint Outcome of case, by whether applicant employed by respondent at time of making complaint Type and source of Section 66 complaints, 1978–88 Type and source of Section 66 complaints, 1989–98

viii

26 151 153 194 194 195 195 196 197

Preface and Acknowledgements In Britain the battle in challenging racism has been primarily the struggle to fulfil the legal citizenship rights of African-Caribbean and Asian Britons and make them effective. Formally they are citizens, but informally they have been denied equal rights. Citizenship means more than the legal membership of a state: it means equal rights, equal treatment and equal opportunities. It thus means access to upward mobility and positions in management, business, public employment, and in the political system. Most of all it means freedom from racist violence, and equal treatment by the criminal justice system. Britain has considerable experience with legislation to combat racist discrimination but the effectiveness of this legislation has been hard to assess and there have been constant demands for stronger measures. The political will to enforce equal opportunity legislation seems to have been much stronger in Northern Ireland where more account is taken of equality of outcomes than is the case in the rest of the United Kingdom. The first hesitant steps to combat racial discrimination were taken in 1965 with the Race Relations Act. This banned discrimination in public places, provided for civil remedies and established a Race Relations Board to assist enforcement through conciliation. Incitement to racial hatred was also made a criminal offence, with significant penalties. A new Race Relations Act was passed in 1968 after research by Daniel1 showed that massive levels of discrimination existed in the employment and housing markets. The new Act made racial discrimination unlawful in employment, housing and the provision of goods, facilities and services, including education. Eight years later, discriminatory outcomes showed that racial discrimination was still substantial but had become more covert. While discriminatory advertisements and openly racist recruitment practices had declined, African-Caribbean and Asian Britons were underachieving in education, and were suffering far higher levels of unemployment and worse housing than their fellow citizens. The 1976 Race Relations Act tried to combat this by outlawing indirect discrimination as well as direct, but enforcing this legislation has been extremely difficult. The Commission for Racial Equality has continually pressed for more effective legislation and in 2000 the Race Relations (Amendment) Act was passed extending the scope of the legislation to the police and other public bodies hitherto exempt. ix

x Preface and Acknowledgements

It was only gradually accepted that discrimination by the state against non-whites in immigration policy at the border had serious negative consequences for race relations within the country. It legitimised the widespread prejudice against specific groups such as African-Caribbeans, Pakistanis and refugees who were seen as unwanted by the government and therefore by society as a whole. This prejudice has remained despite official acceptance that Britain has become a multicultural society and that diversity is recognised as a source of vitality and enrichment. In Germany, the struggle has been primarily the battle to achieve formal legal citizenship for foreign settlers, and specifically for the second and third generations born in Germany. This struggle is gradually being won as the citizenship laws are amended. A major breakthrough has been achieved with the introduction of ius soli for the children born in Germany of legal foreign residents under certain conditions. Naturalisation rates of foreigners in Germany are rising, albeit from a low base. The battle to allow dual nationality is less successful, but gradually more people in the ruling Social-Democratic and Green Coalition government argue for accepting new naturalisation and citizenship regulations without requiring a denial of the citizenship of origin. However, the leadership in the opposition CDU/CSU parties continue to mobilise against tolerating dual citizenship on the grounds of endangering loyalty and integration, which for some means the inability to assimilate into German society. This position holds that issues of loyalty are important in deciding who should have the right to participate in politics and be employed in the public service. These parties assume that their constituencies believe that national interests and national security are best served if citizens are wholly committed to one, and only one, state. The extent of discrimination in Germany is less well researched than in the UK, partly because discrimination against non-citizens is legal. However, there is a need to document cases of discrimination to reinforce demands for legislation and support the case for an agency to enforce equal treatment. In a number of areas immigrants have been successfully integrated into German society. As has been pointed out elsewhere, the German government may not have recognised itself as a country of immigration but, owing to demands of German unions, even ‘Guestworker Policy’ allowed recruitment only on conditions of equal social rights with respect to salary and working conditions applicable under German labour laws and regulations. Even so loopholes remained based on treaties with the governments of origin and

Preface and Acknowledgements xi

which for a long time made exceptions, for example in the area of retirement benefits. Certainly the legal rights of migrants defined as ethnic Germans and therefore candidates for immediate citizenship provided a better legal basis for integration. Nevertheless, even these migrants entering in the later years have often been stigmatised as ‘Soviets’ or ‘the Russians’. Many other groups such as the Turks, Gypsies, Jews and black Germans suffer discrimination with – to date – little recourse to juridical protection. As in Britain it has proved extremely difficult to change the culture of organisations and society as a whole in favour of equal treatment and equal opportunities, but some success has been achieved. However, attempts to eliminate subtle forms of discrimination such as indirect discrimination and institutional racism have proved almost impossible. The new initiative by the European Union through its directive based on Article 13 of the Treaty of Amsterdam requiring member states to enforce equal opportunities and eliminate racial discrimination should be an important step in creating a more comprehensive approach and a much more positive environment for those seeking redress against discriminatory acts. This book has been prepared to contrast the different approaches in Britain and Germany to issues of citizenship, immigration and integration. Citizens in both countries may feel that their experiences are unique but in both countries there are important social movements struggling, like their European neighbours, to combat racism and discrimination and to create a more secure and democratic society where everyone independent of their ethnic origins, skin colour or religion, is treated with respect and equity. The editors gratefully acknowledge the assistance and support of the Anglo-German Foundation, which provided the funds for a conference in Berlin at which early drafts of several of the contributions were first presented, and for help with translating and processing the contributions. In particular we are grateful to Connie Martin and Ray Cunningham for their support. We also thank the contributors for their co-operation in preparing and redrafting the various chapters. ZIG LAYTON-HENRY AND CZARINA WILPERT Note 1 W. Daniel (1968), Racial Discrimination in England (Harmondsworth: Penguin Books).

Notes on the Contributors Rainer Bauböck is a political scientist and Senior Researcher at the Austrian Academy of Science Research Unit on Institutional Change and European Integration. He teaches at the Universities of Vienna and Innsbruck. From 1986 to 1999 he was Assistant Professor at the Institute for Advanced Studies, Vienna. In 1998/99 he was a Fulbright Fellow and Member of the School of Social Science at the Institute of Advanced Study, Princeton, NJ. In 1990–91 he was an Erwin Schrdinger Fellow at the Centre for Research in Ethnic Relations, University of Warwick, UK. His research interests are in normative political theory and comparative research on citizenship, migration, nationalism and minority rights. He is the author of Transnational Citizenship: Membership and Rights in International Migration (Edward Elgar, 1994); Blurred Boundaries: Migration, Ethnicity, Citizenship (Ashgate, 1998) (co-edited); The Challenge of Diversity: Integration and Pluralism in Societies of Immigration (Avebury, 1996) (co-edited); and From Aliens to Citizens: Redefining the Legal Status of Immigrants in Europe (Avebury, 1994) (ed.) Werner Bergmann is a sociologist and Professor at the Center for Research on Anti-semitism, Technical University of Berlin. Dr Bergmann’s fields of research are sociology and history of modern antisemitism, xenophobia and right-wing extremism; and the theory of collective behaviour, especially social movement and collective violence. His most recent publications include: Antisemitismus in öffentlichen Konflikten: Kollektives Lernen in der politischen Kultur der Bundesrepublik 1949–89 (Campus Frankfurt/New York 1997); Antisemitism in Germany: the Post-Nazi Epoch since 1945 (Transaction Publishers, 1997) (with Rainer Erb); ‘Antisemitismus in der Bundesrepublik Deutschland 1996’, in R. Alba et al. (eds), Deutsche und Ausländer: Freunde, Fremde oder Feinde? (Opladen 2000) (with R. Erb); co-editor with C. Hoffmann and H. W. Smith, Exclusionary Violence, Antisemitic Riots in Modern German History (University of Michigan Press, forthcoming). Mary Coussey is a Senior Research Associate of the Judge Institute of Management Studies, University of Cambridge, specialising in equality and diversity. She was previously Director of Employment at the xii

Notes on the Contributors xiii

Commission for Racial Equality (1988–94) and worked in the Cabinet Office responsible for equal opportunities policies for ethnic minority civil servants, and for people from different community backgrounds in Northern Ireland (1987–88). She is the UK (Home Office) representative and Chair of the Council of Europe’s Specialist Group on the Integration of Immigrants. She is currently carrying out research with the Centre for Public Law and the Judge Institute of Management Studies, University of Cambridge, into the enforcement of the UK anti-discrimination legislation. Her recent publications include ‘Demonstrating that Diversity Pays in Europe’, Worldlink, 9, 3, July 1999; ‘Ethnic Diversity in the EU’, in Interculturalism in Europe: Societal Diversity and Social Policy within the European Union (Ashgate Publishing, 2000); Making a Difference: the Contribution of Ethnic Minorities to the EU (European Commission, 1998); and Cultural Diversity and Equality between Women and Men (Council of Europe, 1997) (with Wvokke Knocke). Malcolm Cross is the Director of the Centre for European Migration and Ethnic Studies (CEMES) and past editor of the Journal of Ethnic and Migration Studies (JEMS). In 1999 he was Marie Curie Professor of Sociology in the University of Naples and he was the Foundation Director of the European Research Centre on Migration and Ethnic Relations (ERCOMER), Utrecht University , The Netherlands (1993–98). His most recent work (with Cristiano Codagnone) is for a book entitled The Rise of Ethnic Conflict in Europe: a Sociological Interpretation (Polity Press, forthcoming). Franz Hamburger is Professor of Education at the University of Mainz. His co-authors, Irin Bohn and Kerstin Rock, are social scientists. Franz Hamburger has published numerous articles addressing the responses of the receiving society to migration in the fields of education and social work. Wolfgang Kühnel is Professor of Sociology at the University of Applied Sciences for Administration and Law. He has completed extensive research and numerous publications on the sociology of youth and education, social movements, deviancy, right-wing extremism, and violence in childhood and youth. His most recent publication is Dazugehörig und ausgeggrenzt: Analysen zu Integrationschancen junger Aussiedler (Belonging and Marginalised: an Analysis of Young Ethnic Germans’ Chances of Integration) (München-Weinheim, 2000). Zig Layton-Henry is Professor of Politics at the University of Warwick and former Director of the ESRC Centre of Research in Ethnic

xiv Notes on the Contributors

Relations. He is author of The Politics of Immigration (Macmillan, 1992) and editor of The Political Rights of Migrant Workers in Western Europe (Sage, 1990). His main research interests include citizenship, immigration policy and transnational communities. Martin MacEwen was Vice-Principal of the Edinburgh College of Art, Heriot Watt University. He established the Scottish Ethnic Minorities Research Unit with Glasgow Caledonian University as a joint venture in 1986. From 1990 he has published three books on race and the law, an area in which he is an acknowledged expert. He was a founder member of the Scottish Council for Racial Equality in the 1970s and, more recently, the Scottish Discrimination Law Association. He is a member of the Human Rights Forum and the Race Equality Advisory Forum for Scotland. He has participated in expert committees examining race equality issues for the Council of Europe (1990), the Anglo German Foundation (1993), the Equal Treatment Commission in the Netherlands (1998) and the Ministry of Justice in South Africa (1998) and has advised the Commission for Racial Equality on racial harassment issues. He was a visiting professor at the University of Western Australia in 1994 and is now Visiting Professor at the University of Stellenbosch, South Africa. Colin Munro is Professor of Constitutional Law at the University of Edinburgh, which he joined in 1990, having previously taught at the Universities of Birmingham, Durham, Essex and Manchester. He is the author of Studies in Constitutional Law (second edition 1999) and other books and articles on public law, media law and human rights. With his colleague Wilson Finnie, he provided the national report on race laws in the United Kingdom for the European Commission’s survey which was published in 1993. Rainer Nickel is Assistant Professor at the Institute of Public Law of the Johann Wolfgang Goethe-University in Frankfurt and partner of the law firm Stark & Partners in Frankfurt. His fields of work include European Law, German Constitutional and Public Law, and Antidiscrimination Law. He holds a law degree from the University of Frankfurt (1990) and the German Bar Exam (1993). His PhD thesis on Equality and Difference: a Diverse Republik (Nomos, 1999) won the Darmstadt Legal Society Award of Excellence in 1998. From 1998 to 2001 he was researcher/ legal adviser for Judge Prof. Lerke Osterloh at the German Federal Constitutional court in Karlsruhe. His current research focuses on issues of the structural design of EC institutions and on Constitutional Law theory, especially free speech and cultural

Notes on the Contributors xv

rights. Recent publications include articles on the new Equal Treatment Directive of the EU, on the German Federal Constitutional Court and its relation to the ECJ and the ECHR, and on the Milosevic trial in The Hague. Dieter Oberndörfer is Emeritus Professor of Political Science at the Albrecht Ludwigs University, Freiburg, and Director of the Arnold Bergstraesser Institute for Cultural Research. The holder of many honorary awards, he was a previous Director of the Institute of Political Science in Freiburg and has held the Steven Muller Chair for German Politics at the Bologna Center of the Johns Hopkins University. The principal focus of his research and publications is in the field of political theory, the history of ideas, political opinion research, and development policy. He has published 26 books, 17 as editor, and 140 journals in academic journals. Marsha Prescod is a qualified solicitor who has worked in law centres, local government and the private sector. In the late 1980s she developed an interest in legal remedies to combat racial harassment, particularly street attacks and those around victims’ residences. From 1990 to 1996 she worked in local government formulating policies and procedures to facilitate the use of statutory powers to tackle racial harassment. An experienced public speaker, she has run courses for local authorities, for the solicitors’ professional body and for national training organisations. She has advised individuals, voluntary organisations and local authorities wishing to develop corporate strategies in this area, and has issued legal proceedings against perpetrators of harassment. Currently in private practice, she is developing a legal website to provide advice and information. Czarina Wilpert is a native of Los Angeles, California, and a social scientist at the Berlin University of Technology. Her research addresses multiple aspects of international migration, especially questions relating to the future of the descendants of migrants and the social organisation of migrants from Turkey in Germany. Her most recent work addresses issues of immigrants in the informal labour market and the meanings attached to citizenship and nationality. Dr Wilpert is a core member of the TSER Research Network of the European Community on Working on the Fringes: Immigrant Business, Economic Integration and Informal Practices.

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Introduction Zig Layton-Henry and Czarina Wilpert

Racism and racist violence are not unique to Britain and Germany. Hostility to immigrants and asylum-seekers is widespread across the whole of Europe. Incidents of violence against them are not uncommon and racial discrimination is an everyday occurrence in the streets, in factories and in offices. The actions involved in instances of discrimination may not appear in every single case to be very serious, but their cumulative effects are massive. The political impact of racism and antiimmigrant feelings can be seen in the increasingly harsh policies designed to deny the right of refugees to claim political asylum in Europe, and in the desperate measures many refugees take trying to enter Britain and other European countries. The tragic deaths of fiftyeight young Chinese men in June 2000 in the back of a container lorry at the port of Dover show the lengths to which people will go to seek security and a better life. The political impact of prejudice can also be seen in the sustained support for the Front National in France during the 1980s and 1990s until its split in 1998 and subsequent collapse. More dramatic was the success of Jörg Haider’s Freedom Party in gaining 27 per cent of the vote in the Austrian elections in September 1999, and its entry into the governing coalition. Other publications have documented the extent and intensity of racism and theorised about the various forms of racism in European countries in the 1990s (Miles and Thränhardt, 1995). This publication differs from these in that our prime objective is not to make a theoretical analysis of racism, but to challenge racism by examining some of the factors which encourage racism and discrimination against immigrants and ethnic minorities, and analysing strategies that have been proposed to combat racism. These are issues which can be influenced in the political arena. 1

2 Challenging Racism in Britain and Germany

To accomplish this objective we focus on the cases of Britain and Germany, while addressing the role of the state in this process. Thus, we look first at how the state, through its traditions and practices, may offer support for these beliefs, and specifically at the role which citizenship has played and continues to play as a means of inclusion and exclusion. Secondly, we are searching for improved ways to combat racism, encourage effective forms of social control and improve legislation for protecting those subject to racism and discrimination. The violent forms of racism which swept Germany in the wake of unification – the mobbing and violence against asylum-seekers in Hoyerswerda and Rostock, the fire-bombing murders targeting guestworker families originating from Turkey in Mölln and Solingen, the attacks on blacks, Vietnamese, Poles and others identified as ‘outsiders’ in a united Germany – have led to a search for explanations and solutions. In the aftermath of its Nazi past the Basic Law (Constitution) of the new German Federal Republic was explicitly formulated to forbid all forms of racism and discrimination, whether based on national origins, race, language, beliefs, religion or political ideology. The two Germanys, western democratic or socialist totalitarian, were reconstructed with the eyes of the world upon them. Social controls functioned. The dominant position in the two new republics opposed racist ideologies. The term ‘Race’ became an unacceptable scientific, political or social category. The liberal asylum laws of the Federal Republic, granting asylum to political refugees from totalitarian regimes, demonstrated the humanitarian ideals of the new republic. Germans from both east and west believed that racism was relegated to the past. The role which the monocultural nation-state aspiring to a unification of all Germans, and thus proposing only a temporary recruitment of foreign workers,1 might play for beliefs about rights to belongingness and exclusion, was not foreseen. Although all the major western European countries recruited foreign labour in the 1960s, until the 1973 oil crisis, Germany recruited the largest contingent and was the slowest to accept that it had become a country of immigration. Policy-makers coined the term ‘guestworkers’ and this made it more difficult to substitute the policy of temporary labour recruitment for an immigration policy for long-settled foreign residents. The long-term consequences of official policies, which recruited guestworkers and housed generations of foreign families while at the same time refusing to develop an integration policy for these resident foreigners, were ignored.

Zig Layton-Henry and Czarina Wilpert 3

The significance of these policies for beliefs about who has rights to belong became apparent with the accomplishment of German unification and the parallel entry of ethnic Germans, who were legislatively protected as legitimate entrants from eastern Europe, and asylum seekers who were regarded as illegitimate incomers (Wilpert, 1993). For the first time in fifty years racist violence became a public issue. In the postwar era Britain has had a lengthier preoccupation with issues of racist violence as well as legislation to protect minorities against violence and discrimination. In 1958, the racist violence in Notting Hill, an area of London, and in the Midlands town of Nottingham shattered the complacency about black immigration to Britain. It contributed to political pressure for immigration controls against Commonwealth citizens as a means of assuaging public concerns. These controls were introduced in 1962. It also raised awareness of the high levels of racial discrimination, and stimulated academic research (Banton, 1985). This in turn contributed to the first antidiscrimination legislation which was passed as the first Race Relations Act 1965. In the 1970s and 1980s there was continuing concern in Britain about racist attacks and violence (Bethnal Green and Stepney Trades Council, 1978; Witte, 1996) and also about the failures of race relations legislation to reduce discrimination, particularly in employment. These concerns continue to the present day. The unprovoked murder of the young black teenager Stephen Lawrence on 22 April 1993 is only one example of a larger number of racist murders. What is exceptional about the Stephen Lawrence case is the tenacity of his parents’ campaign to bring his killers to justice and the admission of the police at the public inquiry that racism had influenced their response to his murder (Norton-Taylor, 1999). The focus on Britain and Germany serves to sharpen our awareness of the kinds of approaches which might be taken to change the context in order to delegitimise discrimination, to provide legal redress and to establish new norms and social controls for the protection of ethnic minorities and foreigners against violence. Following Mölln and Solingen the debate in Germany took a new turn, and new themes were introduced to the public arena: rights to citizenship, the issue of dual nationality, and even a proposal for a children’s citizenship (Kinderstaatsbürgerschaft) were some of the themes which arose in this context. Changes were made in Germany’s alien law, which ameliorated the rights of access to citizenship specifically for resident young foreigners of the former guestworker populations. For the first time since the recruitment of foreign workers,

4 Challenging Racism in Britain and Germany

the minister of the interior began to record data on racist hate crimes and criminal acts of violence towards minorities and foreigners. A campaign group has been formed to study the possibility of legislation to protect foreigners and ethnic minorities against discrimination. The leap from issues of racist violence to citizenship may appear to be too great, but this is exactly what occurred in 1993. Directly following the events in Mölln, in March and April of 1993, the citizenship issue received for the first time in the 1990s serious debate in the German parliament. Politicians of all political persuasions began to grasp the significance of rights to citizenship for long-term resident foreigners. Many experts in Germany today recognise that a reform of the citizenship laws encouraging access to citizenship for long-term foreign workers and their families could provide a basis for greater rights, a first step toward equality. As the following chapters in this book prove, the notions of citizenship have been used in both Britain and Germany as a means of social differentiation and social exclusion, albeit in different historical processes and contexts. Several authors in this book argue, moreover, that the evolution of notions of citizenship in Great Britain, as well as the development of legislation against racism and discrimination there, must be seen together, in the context of immigration and rights to immigrate. The following chapters focus on the history and changing significance of citizenship and nationality in Germany and Great Britain. The concepts of citizenship and nationality have entirely different origins in the two cases. In the British case the concept of citizenship is very recent and evolved out of the necessity to differentiate rights to legal entry to the UK between those who had a close connection to the UK through birth or residence in the country from those who were at one time imperial subjects. The German tradition of ius sanguinis is tied to Germany’s notion of the nation-state founded on one culture, one nation (one people in the sense of ethnos) and a biological principle of descent. The German concepts of citizenship and nationality are thus strongly linked. Oberndörfer argues that in all republican states based on a liberal constitution a basic tension exists between universal human rights and national identity. Nation-states have had different criteria upon which they base national identity and thus different points of contention. An ethnic (völkisch) ideology dominated Bismarck’s Reich and the Weimar Republic, although these were both multiethnic states. Oberndörfer explains that the Germans adopted a people’s nationalism, to legitimate

Zig Layton-Henry and Czarina Wilpert 5

the creation of a state for all Germans. People with the same language and culture had the right to rule themselves in their own state, and only they and their descendants are entitled to hold full citizenship. Multiracial or multinational states contradict the assumption that each nation or people should have their own state. Minorities have to be assimilated otherwise the unity of the state is undermined. People’s nationalism thus excludes minorities and is negative towards immigration except of those with the same ethnicity as the host population. It was National Socialism which ethnically cleansed Germany. German descent alone defined the right to citizenship and this right to citizenship was confirmed in the founding of the constitution of the Federal Republic of Germany. Article 116 of the German constitution granted rights to German citizenship to Germans expelled from enclaves in eastern Europe. This decision not only contrasts with the lack of policy towards the former guestworkers, resident foreigners and their descendants, it also supports the notion of a community based on ethnic descent. Postwar immigration has created a large permanently resident foreign population in Germany and if this population continues to be marginalised and excluded from the mainstream of society, the longterm consequences for Germany could be very grave. The doctrine of people’s nationalism is now outdated as Germany grows in international confidence as the leading nation in the European Union and is increasingly affected by the globalisation of international economic and political systems. As the foreign population in Germany increases, attracted by relative economic prosperity and political stability, it is increasingly likely that further reforms in the citizenship laws will be introduced. In Britain the focus of concern has been on racist violence and ethnic minority racial exclusion, particularly in the labour market. Layton-Henry argues that the issue of citizenship has been less central, because at the start of postwar immigration in the 1950s, Britain retained an expansive imperial concept of citizenship that derived from feudal times when virtually everybody in the King’s domains were his subjects. As the Empire expanded, the number of the King’s subjects grew quickly as people in newly acquired colonies became British subjects and, as Britain had no citizenship legislation which distinguished between subjects in mainland Britain and elsewhere, all British subjects had the same citizenship rights which could be exercised in the mother country. As the colonies became independent Commonwealth countries, they introduced their own citizenship

6 Challenging Racism in Britain and Germany

legislation, but their citizens still retained their status as British subjects under the British Nationality Act of 1948. It was only in the 1980s that the British government created a new status of British Citizen under the British Nationality Act 1981. This new citizenship was restricted to people with a close connection to the United Kingdom through descent from a citizen or permanent settlement in the country. The consequence of this expansive imperial tradition was that postwar immigrants from colonial and Commonwealth countries in West Africa, the Caribbean, Cyprus, Malta and the Indian subcontinent were all British subjects with full social, civil and political rights. Immigrants from non-Commonwealth countries such as Poland and Italy were foreign nationals without citizenship rights but they could naturalise, if they wished, after five years’ residence. The children of foreign nationals automatically qualified as citizens if they were born in Britain, under the provisions of ius soli. The largest number of postwar immigrants to Britain came from Ireland. In 1948 Ireland formally withdrew from the British Commonwealth but the political rights of Irish nationals were allowed to continue under the provisions of the Ireland Act 1949. The reasons for this special arrangement were that the Labour government did not wish to deprive large numbers of people settled in Britain of rights they were used to exercising. Moreover, most of these voters were Labour Party supporters whom the government did not wish to lose. The continuation of voting rights for Irish citizens was also justified on the grounds of the historic link between Britain and Ireland and the fact that the North of Ireland remained part of the UK. Politicians and their civil service advisers also held the view that nothing should be done to discourage immigration by making Irish people feel less welcome. Many British employers were very dependent on Irish labour. The anomaly by which Irish people could vote in British elections was much resented by sections of the Conservative Party and there were occasional campaigns within the party to remove the vote from the Irish citizens. However, in 1984 the Irish parliament extended national voting rights in Eire to British citizens resident in the Republic. This transformed the anomaly into a reciprocal arrangement and defused the resentment felt by some British Conservatives. The vague, liberal and expansive definition of British subject/citizen was undermined by postwar immigration control legislation which progressively removed the rights of Commonwealth and colonial citizens to unrestricted access to the UK and to permanent settlement. As these rights of access and settlement were removed, it became

Zig Layton-Henry and Czarina Wilpert 7

increasingly untenable to continue the myth that to be a British subject was the same as being a British citizen. The right of access to and settlement in one’s own country is a fundamental right of citizenship and those British subjects who did not have this right were relegated to a form of second-class citizenship. The British Nationality Act of 1981 attempted to resolve this inconsistency by creating a new definition of British citizen restricted to those with close connections to the UK and with full rights of access and settlement. This new definition was to be closer to those of other European Union countries. However, the imperial legacy was hard to shed and the Act created new citizenships for people in the colonies, namely Citizenship of the British Dependent Territories. It also created British Overseas Citizenship for those British subjects without close connections to the UK resident in independent countries. The situation has been made more complicated by legislation which gives special status to people in Gibraltar, the Falkland Islands and some in Hong Kong. However, the return of Hong Kong to China and the ending of British responsibility for its population has prompted the British government to give full British citizenship to the remaining Citizens of British Dependent Territories. As British Overseas Citizenship cannot be inherited the trend will be towards a unified concept of British citizenship. Immigration control legislation has driven the reforms in the British nationality law even to the extent of causing the partial abandonment of ius soli so that children born in Britain to people not permanently settled no longer qualify for automatic citizenship. It is interesting to reflect that postwar immigration has had a major impact on debates about citizenship and nationality in both Germany and Britain. In Germany the impact of postwar immigration has been to open up a debate in favour of liberalising the laws of naturalisation and in particular to allow dual nationality. In Britain, however, postwar immigration contributed to the reappraisal of Britain’s role in the world and a reassessment of her obligations to the peoples of her former Empire. This resulted in legislation restricting full British citizenship to those with close connections to the UK. The issue of the most appropriate form of citizenship for a liberal democracy is discussed in this book by Bauböck. He attempts to illuminate the principles governing the liberal democratic model of citizenship by comparing four ideal typical models which illustrate the range of possibilities in the current debate over citizenship and naturalisation rights. His intention is to show that the democratic state is a special kind of association and that its liberal principles of membership

8 Challenging Racism in Britain and Germany

cannot be adequately described by using an analogy with other forms of community or associations. The analogies employed by Bauböck for communities are derived from Walzer. They are: the club, the church, the city, and the shareholder corporation. After analysing these four forms of voluntary societies, Bauböck sketches elements of what he would consider to be characteristics of a liberal citizenship regime. All five cases are analysed on the basis of six criteria: extent of openness and restrictions to outside entry; the potential of multiple memberships; the possibility of voluntary departure; involuntary expatriation; rights for non-members; and the inclusiveness of collective goals. Finally, Bauböck contrasts the four analogies to a liberal democratic model for an immigration country. The basic norms of this model are: • The equality of all citizens as members of the state, which implies equality of civil rights. • The comprehensiveness of membership, granting civil rights to all persons who are permanent members of the society in which the state is organised. • The substantial elaboration of these rights with respect to civil liberties, rights to political participation and social welfare rights. In comparing the advantages of a liberal democracy with the analogies of voluntary associations, Bauböck expresses the aspiration to go beyond Walzer’s analogy of a club. His argument with respect to the club is that in a liberal democracy the current members and their representatives cannot base their rules of entry to membership on their own discretion; rights to membership are clear and the state is required to respect these. The criteria for membership are also not comparable to acceptance of a religious doctrine, but acceptance of a democratic legal system which does not require a deeper ideological belief. The essential criterion for membership is social membership won through social ties within the society of the state where one is a candidate for citizenship. This right is best proven through the length of stay. The right to citizenship in this context should be open to the totality of the resident population. This recommendation may not be as radical as it appears, as permanent residents in western democracies tend to have most of the civic and social rights that citizens enjoy, including access to the labour market, free education for their children and access to social housing. It is in the area of political rights where restrictions are most

Zig Layton-Henry and Czarina Wilpert 9

noticeable, and in particular, the right to vote in national elections. In recent years a number of countries have extended local voting rights to permanent residents, notably Sweden, Ireland, Denmark, the Netherlands and Norway. The European Union is also encouraging the growth of a European citizenship and identity among the citizens of its member states by extending voting rights at the local and European levels to all nationals of member states wherever they reside within the territories of the Union. Citizenship is not only a legal and political concept but includes a social dimension as well (Marshall, 1950; Faist, 1995). If individuals or groups are systematically discriminated against and are unable to achieve equal treatment and redress for the wrongs they have suffered, then they may be described as having less than full citizenship. Until recently women were legally and politically in a formal situation of lesser rights and could therefore be accurately described as being second-class citizens. It is often argued now that women continue to be systematically discriminated against in western democracies, especially in the labour market where they are disproportionately restricted to lower positions and less well-paid jobs. As the labour market is the gateway to income, status and security, this continues to place women in a less than equal position to men and their struggle for equal rights and opportunities continues. This book is concerned with forms of social exclusion which affect visible ethnic minorities in Britain and Germany. This exclusion may take a range of forms of inequality, disadvantage, discrimination, disincorporation, exploitation, harassment, violence and other constructions of ‘otherness’. These forms of exclusion are widely diverse and range from modest forms of social rejection to racist violence (Vertovec, 1996). We are also concerned with strategies to combat racism and discrimination in Britain and Germany. However, to combat discrimination and racism effectively these concepts need to be defined and their extent delineated in the countries under discussion. Cross considers racism and racial inequality in Britain. He argues that racial inequality is sustained by three separate forces, namely racism itself, class, and social space. He argues that racism is a historically determined set of mythologies which has three basic types. Firstly, there are notions of biological inferiority based on assumed racial categories. Secondly, there is a type based on cultural differences which are assumed to be coherent and self-generating. Thirdly, there is a form of racism based on the identification of people as strangers or ‘others’ because their interests and loyalties are assumed to lie

10 Challenging Racism in Britain and Germany

elsewhere. Cross specifically denies that perceived racial inequality is always the result of racism or that the role of government intervention has been as important as many have argued in shaping the current situation. The role of local and national governments, he argues, has been reactive rather than proactive in determining policy outcomes. They have responded to powerful external pressures rather than created or shaped them. Postwar immigrants were recruited to fulfil roles as workers in cities which were rapidly changing as some areas were economically highly prosperous and expanding while others were poor and in decline. This situation meant that racism, social class and geographical location or social space interacted to create and sustain racial inequality. In Britain, Cross argues that the Commission for Racial Equality located its anti-discrimination strategy within a model of racial equality which could not cope with the broad social trends which hit ethnic minorities particularly hard in the 1980s and 1990s. These broad social forces – which include the fall in real incomes of the poorest groups since 1979, the reduction of urban funding, and the development of urban development corporations which are targeted at declining areas of non-ethnic minority populations – are all linked to government policies which cannot easily be addressed by a government agency which focuses on discrimination at the individual or company level. Cross uses case studies of the Caribbean and Muslim communities in Britain to support his arguments. In the case of the Caribbean community he argues that social class, inner-city decline and changes in the labour market combine with educational failure and racism to create substantial levels of ethnic inequality. In the Muslim case, where one might expect a significant degree of cultural exclusion, when controls are introduced for variables such as age and area of residence, ethnic inequality is much less than the objective figures of, for example, unemployment, suggest. Bangladeshis in inner London exist in a pocket of extreme poverty and unemployment, but elsewhere they are much more prosperous and professional and just as likely as other British Asians to be doing well in education or as entrepreneurs. However, racist violence, a long-standing source of concern in Britain, remains a problem. It emerged as a political issue in the mid1970s when the extreme right-wing National Front was very active in both contesting local and national elections and also on the streets, where it was involved in marches in areas of ethnic minority settlement. These marches were deliberately organised to provoke violence, gain media attention and thereby attract new recruits. It was widely

Zig Layton-Henry and Czarina Wilpert 11

believed that the National Front encouraged a climate of violence against members of immigrant communities and their anti-racist allies. By the 1980s racial harassment and racist violence were well established on the political agenda with the Home Office and the police being involved in initiatives to define and record racist incidents and to establish guidelines of good practice in dealing with such incidents. The actions of the police were, and continue to be, subject to critical attention which is focused on their alleged failure to recognise African-Caribbean and Asian claims that assaults on them often have a ‘racial’ motive. There are also claims of inadequate responses to requests for help and even of police action against complainants. The most dramatic evidence of this was the failure of the Metropolitan Police to collect sufficient evidence to prosecute successfully the murderers of a young black man, Stephen Lawrence. It is still hard to discern the impact of the Macpherson inquiry into these matters (Macpherson, 1999) on the police in particular or on the criminal justice system as a whole. Prescod focuses on racist attacks on local authority housing estates in Britain. Studies have shown that some of the most serious forms of racial harassment occur in urban areas that have significant concentrations of ethnic minority populations. Local authorities have been criticised for raising expectations of tough action in such cases when the normal response is to transfer the victim to new accommodation, thus rewarding the perpetrators. Many local authorities have cited racial harassment as a category of behaviour that can lead to eviction, but they are extremely reluctant to use this sanction, partly because it is seen as a sanction of last resort, and partly in case the courts fail to support the action. The sales of council houses, encouraged by the government, also mean that some people on local authority estates are now private owners of housing and have no contractual relationship with the local authority. Prescod argues that legal injunctions should be used more actively by local authorities, as these are a fairly successful strategy for combating racial harassment and abuse. She believes that local authorities over the 1990s began to use more creative strategies, both to help victims and to punish the perpetrators of racial harassment. More decisive support from the courts has been helpful in encouraging local authorities to take more decisive action. The position of the Jews in Germany, Bergmann argues, is unique. It cannot be divorced from their identification as the victims, par excellence, of the Holocaust. In post-Nazi Germany anti-semitism was banned from public life. The norm against anti-semitism was effective

12 Challenging Racism in Britain and Germany

for nearly forty years, and the most subtle forms of expressions of antisemitism were stigmatised. Anti-semitism is almost completely associated with National Socialism and far right-wing groups. Thus, right-wing extremist political groupings have also had little chance in post-Nazi Germany. This special weight of the past made itself felt in the initial responses to the violence toward Jewish memorials such as Sachsenhausen, in contrast to the rather distanced response to the violence towards asylum seekers in Hoyerswerda. While the public response to the fire-bombings and attacks on asylum-seekers was slow and ambivalent, the public response to the desecration of the Holocaust memorial at Sachsenhausen was immediate and clear. The Jews in Germany are a relatively small minority; they are citizens or have rights to citizenship, and are considered to be socially and legally integrated. Social surveys suggest that the elite and public opinion in Germany are quick to condemn anti-Jewish behaviour in contrast to the ambivalent responses first articulated in connection with Hoyerswerda and Rostock-Lichtenhagen, which to some extent even lent legitimacy to this violent behaviour by using these incidents as reasons to press for changes in the asylum law. Asylum-seekers are perceived as a problem and one that Germany shares with other European countries. However, because of the Holocaust, Jews are a special minority, their treatment is seen as the litmus test of modern German democracy, and there is a societal consensus against antisemitism. In contrast to the suppression of anti-semitism, Bohn and her colleagues argue that the stereotype of the gypsy as a pariah has been revived as a weapon in the battle to exclude refugees and immigrants, except those of German descent, from eastern Europe. They argue that both racist and romantic views of gypsies are based on the assumption that there are fundamental differences between gypsies as a group and the rest of society. Gypsies are constructed as undesirable, criminal and threatening in contrast to the law-abiding stable majority. The stereotypes of gypsies are greatly reinforced by the media. A content analysis by Bohn and her colleagues of twelve local newspapers over thirty-four years showed that in two-thirds of nearly 1000 press reports gypsies were portrayed as criminal. Secondly, criminality was described as an inherent trait of gypsies as a group, so all gypsies were assigned the faults of individual members of the group. Gypsies are defined as a cultural or biological group that is unassimilable because of inherent cultural characteristics such as travelling and delinquency. Anti-gypsy prejudice is thus perpetuated and reproduced as racism and neo-racism

Zig Layton-Henry and Czarina Wilpert 13

by the media in the same way as anti-semitism was reproduced and perpetuated before the Second World War. In contrast to Britain, racist violence in Germany has only recently occupied a prominent place on the political agenda and, of course, this is due to the widespread attacks on refugee hostels and murders of asylum-seekers in the early 1990s. Kühnel speculates that the momentum of a wave of violence like that in the early 1990s is dependent on the societal response, and especially that from politicians, to such extreme right-wing violence. Kühnel’s paper addresses the causes and circumstances of right-wing extremism and racist violence, particularly with regard to young men. Kühnel examines a wide range of survey data on attitudes to racist violence and right-wing extremism and does not find it very helpful in explaining right-wing attitudes or authoritarianism. The best conclusion, he argues, is that a combination of ideas associated with social deprivation combined with fear of unemployment and loss of social status collectively produce right-wing extremism. A further important dimension is the significance of a violent subculture among certain groups of young people such as skinheads and punks who enjoy violence. The response to violence against foreigners often seems to reward the perpetrators. Refugee hostels that are attacked are often closed down and their residents moved to other areas. Public and political condemnation is much less marked than in the case of attacks on Jews or Jewish property. The media response is to argue that the attacks on asylum-seekers are a populist response to a real problem and the solution is not to prosecute the perpetrators but to curtail the entry of ‘bogus’ asylum-seekers. The parallels with the responses to racist attacks in Britain are very clear. Kühnel argues that 70 per cent of these racist crimes are carried out by young men aged 16–20 years, and in nearly half the cases, by east German men. They were not unemployed but often skilled workers or apprentices. Clearly widespread dissatisfaction exists among most east Germans due to the huge gulf between the hopes of social and economic success in a united Germany and the limited chances of its rapid realisation. No doubt there are also collective feelings of discrimination among east German youth who feel west Germans are favoured in education and employment. This provides a fertile recruiting ground for extreme nationalist groups who provide a German identity reinforced with a hostility towards foreigners, who are seen as unjustly competing for German jobs. This legitimises violence against

14 Challenging Racism in Britain and Germany

foreigners. A reinforcing interaction thus occurs between the insecurity and frustration of young people who are not well integrated into adult society but are attracted to violent gangs, and vulnerable scapegoats who lack official and political protection. These continue to encourage racist violence which, if not condoned by politicians and the media, is considered understandable due to the high levels of immigration into Germany. This, however, does not explain racist violence in west Germany. The number of racist attacks, which were in decline following the heights reached in 1993, has been increasing again since 1997. This situation has created a broad alliance initiated in November 2000 between the SPD–Green coalition government and civil organisations throughout society to stop racist violence and to promote tolerance. The federal government has launched a six-year programme with a 25 million Deutschmark yearly budget to develop programmes to combat racism, xenophobia and discrimination, especially in the world of work. A peculiarity of Britain is that it has no written constitution where the rights of minority groups can be entrenched and protected. This means that the protection of minorities has to proceed through legislation. Munro argues that British anti-discrimination legislation, for visible ethnic minorities, was linked to immigration control. As the British government acted to control Commonwealth immigration in the 1960s it was felt that parallel legislation should be introduced to protect new Commonwealth immigrants from racist discrimination. The contradiction between discrimination at the borders and attempts to eliminate discrimination within the borders did not cause political anxiety: in fact politicians saw the policies as complementary. Immigration control was seen as necessary to integration and good race relations as it reduced the numbers of immigrants and reassured the general public that their jobs and way of life were not going to be threatened by a tidal wave of outsiders. The first Race Relations Act in 1965 was a modest piece of legislation passed by a Labour government anxious to obtain Conservative consent to the principles of anti-discrimination legislation. Discrimination on grounds of ethnic origin or ‘race’ was outlawed in public places and Conservative Party consent was obtained by dropping criminal sanctions and relying for enforcement on the civil law. The Act did create one criminal offence of inciting racial hatred. The second Race Relations Act in 1968 made it unlawful to discriminate on grounds of colour, race, ethnic or national origins in employment, housing and the provision of commercial and other

Zig Layton-Henry and Czarina Wilpert 15

services. The publication or display of discriminatory notices or advertisements was also banned. The Act provided for administrative rather than criminal enforcement through the Race Relations Board. However, the Board was very cautious in pursuing cases and its priority remained conciliation and education rather than enforcement. Munro argues that this strategy had its strengths, particularly in avoiding the creation of martyrs. Current British legislation is enacted in the Race Relations Act 1976 which follows previous legislation in creating a civil liability for wrongful discrimination enforceable at the instigation of the victim. It also created the Commission for Racial Equality which was jointly charged with promoting racial harmony and enforcing the law by ensuring the compliance of individuals or institutions through investigations and a system of enforcement orders. A novel feature of the Act was to outlaw indirect discrimination where unjustifiable procedures and practices, which apply to everyone, have the effect of putting people of a particular racial group at a disadvantage. In 2000 a Race Relations (Amendment) Act was passed extending the remit of the 1976 Act to the police and other public authorities. Munro emphasises that the law is not comprehensive. Religious discrimination is not covered by British legislation, although interestingly in Northern Ireland discrimination on grounds of religious belief or political opinion is outlawed. In Northern Ireland there is a Standing Advisory Commission on Human Rights which advises the Secretary of State on the adequacy of the law and government action against these forms of discrimination. There is also a Fair Employment Commission which has extensive powers of investigation, monitoring and enforcement which Munro argues has a greater capacity to support or require affirmative action than is found anywhere else in the British legislation. The criminal legislation against incitement to racial hatred is now part of the law on public order. It has been invoked rarely but sentences of imprisonment have often followed such prosecutions and convictions. This legislation has certainly limited the spread of more virulent and racist propaganda. Groups such as the Board of Deputies of British Jews have been active in reporting cases of incitement to the Attorney General. In general, Munro concludes that the law in Britain has played a significant role in reducing overt discrimination even though this continues to exist at substantial levels. He argues that the law works best when it facilitates actions which people want to take and which

16 Challenging Racism in Britain and Germany

are supported by a broad consensus. He is therefore cautious about encouraging the government to commit itself to affirmative action programmes and recommends that anti-discrimination legislation should be redesigned to outlaw all of the main grounds of discrimination such as race, gender, age, sexual orientation, disability and religion. This more general legislation could be framed as human rights legislation and be enforced by a human rights commission. It would be much less controversial than legislation framed to protect specific minority groups because while rights for specific disadvantaged groups might be unpopular and controversial and so politically difficult to defend, broad legislation to protect human rights would find more widespread support. MacEwen assesses the strengths and weaknesses of the British system and considers that structural changes are needed to effect substantial improvements. He argues that the English Common Law tradition places too much emphasis on individual freedom and individual action for the redress of grievances. There is no opportunity to initiate class or group actions on behalf of a category of persons disadvantaged by systematic discrimination. This emphasis on individual redress, argues MacEwen, has significant drawbacks. It too often results in outof-court settlements to the aggrieved party by which the person discriminated against is bought off and the case is hushed up. The discriminating person or company thus escapes both damaging publicity and the need to reform their procedures and practices. Worst of all, general precedents which might reduce widespread and systematic discrimination are not established. MacEwen’s three major remedies are similar to those of Munro. He favours the establishment of a Human Rights Commission to deal with arbitrary discrimination of all kinds. He also advocates the incorporation in domestic law of all international obligations such as protocols and conventions. Finally, he endorses the need to give the Commission for Racial Equality or a future Human Rights Agency greater strategic powers to promote positive action programmes by those in breach of the Act; the power to require the submission of evidence to show the implementation of such positive action programmes by large employers in the public and private sectors; to permit group action and remedies in the courts; the power to involve non-judicial negotiated settlements ratified by the courts and enforceable; and finally, the power to represent the public interest in court proceedings. If all these recommendations were implemented, real progress might be made against the huge levels of discrimination in the public and private sectors; without them, the

Zig Layton-Henry and Czarina Wilpert 17

access of visible ethnic minorities to jobs, accommodation and equal treatment as citizens will continue to be inferior to that of their white neighbours and they will, in effect, continue to be excluded from full and equal citizenship. Strategies to combat discrimination thus need to include an awareness of the impact of class policies such as the attack on the welfare state, the reduction of trade union power, access to educational opportunities and the need for an urban policy which encourages modern, innovative companies to locate in inner-city urban areas, thus giving ethnic minorities a real chance to participate in economic growth. The existence of substantial and persistent levels of discrimination in the British labour market has been well known since Daniel’s groundbreaking study in the early 1960s (Daniel, 1968). The findings of his research have been confirmed by subsequent studies (Smith, 1977; Brown, 1984; Modood, 1997). The most recent research shows a highly complex situation with some groups such as Chinese and Indians doing relatively well in employment, others such as Pakistanis and Bangladeshis doing poorly, and Caribbeans occupying an intermediate position. There are also considerable gender variations (Modood, 1997). Research findings confirming discrimination contributed much to the strengthening of the laws against discrimination to the extent that the Race Relations Act 1976 outlawed indirect discrimination2 as well as direct discriminatory actions. This legislation was reinforced by a semi-statutory Code of Practice in Employment, drawn up by the Commission for Racial Equality, which was approved by Parliament. This came into effect in 1984 and can be used in cases of discrimination brought before industrial tribunals. The effectiveness of the legislation and the Code of Practice have been matters of considerable debate. Coussey finds that large employers in Britain have, on the surface at least, been greatly influenced. They have generally acted to comply with the law. Most have introduced equal opportunity policies and acted to monitor their effectiveness. Overt discrimination by large companies against members of ethnic minorities in such areas as recruitment and promotion has largely disappeared. Large companies are aware of the law and act to comply with it to avoid bad publicity and possible action against them before industrial tribunals. They are less effective in suppressing overt racism of an informal kind by employees and a significant number of such cases are heard by industrial tribunals. Large public employers are often most responsive to action from the Commission for Racial Equality. Recently, for example,

18 Challenging Racism in Britain and Germany

action by the Commission and recruitment difficulties in a tight labour market have caused the army to make special efforts to recruit and retain members of the ethnic minorities. In the private sector, Coussey argues that managers are very aware of the multiethnic nature of their customer base, for example in Greater London, and therefore of the need to diversify their labour force. Managers of large companies are also aware of the impact of globalisation and the advantage of a diversified workforce in an increasingly international marketplace. However, many traditional company practices such as word-of-mouth recruitment and the re-employment of known subcontractors and casual workers discriminate against ethnic minority people and businesses. Coussey finds that considerable pressure is needed to make anti-discrimination legislation effective. In the United Kingdom she finds the only strong evidence of success to be in Northern Ireland, where considerable pressure has been put on companies to introduce fair employment practices and to end discrimination against Catholics, and a combination of legislation and sustained government pressure has had strongly positive results. This shows only too clearly that legislation alone is not enough; it needs to be reinforced by strong government action, by market conditions, and by the courts or industrial tribunals. Discrimination tends to be cumulative, and antidiscriminatory measures also need to be cumulative if they are to be effective. Rainer Nickel argues that Germany has not developed the legal and institutional instruments to combat discrimination based on racist or ethnic grounds as is the case in many other states. He argues that one major problem is the marked distinction between discrimination by private individuals and discrimination by the state. The Basic Law in the Federal Republic of Germany forbids all forms of discrimination by the state on the grounds of national origin, ethnicity or ‘race’, but not on the grounds of foreign citizenship.3 The situation in the private sphere is much more ambiguous and as a result of this ambiguity individuals who feel they have been discriminated against have little chance of legal redress. Moreover, even if they are successful they will receive only small sums in compensation. This situation could be about to be transformed, argues Nickel, due to the recent directive from the European Union’s Council of Ministers. This directive implements the principle of equal treatment between persons irrespective of ‘racial’ or ethnic origins (Council Directive 2000/43/EC, 29 June 2000). Nickel points out that this directive contains a blueprint for every member state, including Germany,

Zig Layton-Henry and Czarina Wilpert 19

to provide comprehensive protection against ‘racial’ discrimination in both the public and the private spheres. It accordingly provides detailed specifications for achieving an effective judicial process promoting equal treatment and also that it requires member states to introduce supplementary measures such as enforcement agencies to reinforce the legislation. These agencies could be similar in function to the British Commission for Racial Equality and Equal Opportunities Commission. The member states have to notify the European Commission on the action they have taken by 19 July 2003. Nickel therefore feels that the directive opens up the possibility in Germany of effective and wide-reaching anti-discrimination measures. This is because the directive insists that the right to equality before the law and protection against discrimination is a universal human right that must be respected in all member states. It should apply to all persons in both the public and the private sectors, especially in employment, training, health and education. The directive even outlaws indirect discrimination where an apparently neutral provision, criterion or practice would put persons of specific ‘racial’ or ethnic origin at a particular disadvantage compared with other persons, unless the provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving this aim are appropriate and necessary. Nickel views the directive as potentially having a wide scope. It even proposes that the burden of proof in discrimination cases should be made easier. It emphasises the need for effective sanctions to give people who are discriminated against the confidence that if they take the case to court they will receive adequate redress. Nickel perceives the directives of the European Council of Ministers in implementing Article 13 of the Treaty of the European Union as acting as a catalyst for serious and significant anti-discrimination legislation in Germany. This legislation is in many ways a logical follow-up to the liberalisation of the naturalisation laws that took place in Germany in 2000. If Germany is to follow other European countries and accept that it has become a multiethnic society, then it needs a legislative framework to ensure that its non-European German citizens (and permanent residents) receive the equal treatment to which they are entitled. One might expect that the German body politic would be particularly sensitive to accusations of racism and racial discrimination and so would be very willing to pass legislation to outlaw racist and ethnic discrimination of any form. However, as Wilpert argues in her conclud-

20 Challenging Racism in Britain and Germany

ing chapter, there are a number of difficulties in achieving this in the German case. Firstly, and most important, is the fact that many of victims of discrimination, namely immigrants and asylum-seekers, do not have citizenship. The term ‘minority’ in Germany has traditionally been applied to long-established territorial ethnic minorities such as the Danes in Schleswig-Holstein. It is perfectly legal in international law for sovereign states to discriminate in favour of their own citizens and against non-citizens. In Germany there are a whole series of laws which discriminate, quite legally, on the basis of citizenship allocating rights and entitlements to German citizens and not to non-citizens. In practice this indicates that foreigners in Germany, even though they are permanent residents, are not regarded as part of German society and the German community. Wilpert argues that there is thus no legislation in Germany that has the specific objective of protecting minorities of immigrant origins against discrimination. Since the Basic Law forbids all forms of racial discrimination, most Germans believe that ethnic minorities are protected. The appropriate legislation is missing to which black Germans and ethnic groups of non-German origin as well as resident foreigners may take recourse when they encounter racism or discrimination. A serious practical problem is that there are major barriers to obtaining legal redress in the courts if you feel you have been discriminated against. The aggrieved person has to prove that s/he has been discriminated against. This is usually very difficult to prove conclusively so minorities like citizens from Turkey resident for generations have often articulated that they are subject to discrimination but have little recourse to legal procedures to defend themselves. Wilpert supports the position that specific measures need to be taken to allow public agencies to take action against all forms of discrimination whether based on racist beliefs or behaviour, or other acts which discriminate against individuals because of the colour of their skin, ethnic origin, culture or religion. Accordingly it is necessary that both minorities who have citizenship and foreigners need to be protected from discrimination in civil society, from both private persons and institutions. It needs to be made much easier for minorities who are discriminated against to obtain legal redress and compensation. The model that such legislation could follow is the legislation protecting women from discrimination in the labour market. Moreover, it will be necessary, as is the case in Britain, to establish a special public agency in order to enforce such new legislation and to train lawyers specialising in this new field. It will also be necessary to introduce a monitoring

Zig Layton-Henry and Czarina Wilpert 21

system to ensure compliance with the new legislation. Such procedures will be of course highly controversial given the prolonged denial of rights to citizenship to foreign residents and the refusal of Germany to recognise itself as an immigration country with the necessary policies towards immigrants. The first step has been taken with the decision on ius soli for children of legal immigrants born in the country. The second step would be to set up a comprehensive system to protect resident foreigners as well as minorities with citizenship from all forms of discrimination. This could be a crucial initiative that would also recognise that a numerous and visible proportion of immigrants from Turkey have become a permanent part of German society, who deserve equality of treatment and respect. Notes 1 See Oberndörfer’s chapter in this book. 2 Indirect discrimination was defined as applying an unjustifiable requirement or condition which appeared to apply equally to people of different racial groups but which in practice was discriminatory, for example refusing to employ people from particular schools or districts in a city. 3 Unfortunately permanent resident foreigners who do not hold German or another citizenship of the European Union may continue in some cases to be discriminated against on grounds of foreign citizenship.

References Banton, M. (1985), Promoting Racial Harmony, Cambridge: Cambridge University Press. Bethnal Green and Stepney Trades Council (1978), Blood on the Streets: a Report on Racial Attacks in East London. Brown, C. (1984), Black and White Britain, London: Heinemann. Daniel, W. (1968), Racial Discrimination in England, Harmondsworth: Penguin. European Council Directive 2000/43/EC, 29 June 2000, The Implementation of the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin. Faist, T. (1995), Social Citizenship for Whom? Young Turks in Germany and Mexican Americans in the United States, Aldershot: Avebury. Macpherson, Sir William (1999), The Stephen Lawrence Inquiry: Cmnd 4262-1, London: HMSO. Marshall, T. H. (1950), Citizenship and Social Class and Other Essays, Cambridge: Cambridge University Press. Miles, R. and Thränhardt, D. (eds.) (1995), Migration and European Integration: the Dynamics of Inclusion and Exclusion, London: Pinter Publishers. Modood, T. (1997), Ethnic Minorities in Britain, London: Policy Studies Institute. Norton-Taylor, R. (ed.) (1999), The Colour of Justice: Based on the Transcripts of the Stephen Lawrence Inquiry, London: Oberon Books. Smith, D. J (1977), Racial Disadvantage in Britain, Harmondsworth: Penguin.

22 Challenging Racism in Britain and Germany Vertovec, S. (1996), ‘Discrimination, Diversity and Democracy in the New Contexts of Change’, University of Warwick: Centre for Research in Ethnic Relations (unpublished paper). Wilpert, C. (1993), ‘The Ideological and Institutional Foundations of Racism in the Federal Republic of Germany’, in J. Solomos, and J. Wrench, (eds), Racism and Migration in Europe in the 1990s, London: Berg. Witte, R. (1996), Racist Violence and the State: a Comparative Analysis of Britain, France and the Netherlands, London: Longmans.

Part I Citizenship and Nationality

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1 Models of Citizenship and Rules of Naturalisation1 Rainer Bauböck

Granting citizenship is traditionally viewed as a key element of national sovereignty. Each state is free to define the criteria according to which new members are accepted. The different points of departure in the building of a nation and the historical traditions of colonial powers as sending and receiving countries have led to a wide range of rules for transferring and acquiring citizenship. Within democracies, citizenship is not only (or primarily) an expression of national identity; it also means access to a complex bundle of rights. Equal distribution of these rights is one of the basic conditions for democratic legitimation of political authority. Inclusiveness, too, is a norm postulated in a liberal democracy. All people subject to the laws of the land must have basic rights as citizens and must be represented in the legislative process. Access to citizenship must be kept open if the resident population and the number of citizens are no longer equal because of, say, continuing immigration. In liberal democracies this implies normative constraints on national legislation regulating naturalisation. Unlike the rules for automatic citizenship at birth (ius soli and ius sanguinis), all rules for naturalisation in democratic states are based on the concept of voluntary affiliation. Citizenship may not be imposed. However, voluntary membership can be interpreted in quite different ways. I first discuss four ideal-type models to illustrate the range of current interpretation. Nevertheless, my aim is to offer a normative study rather than a descriptive one. These models serve as contrasts. They are intended to show that democratic states are associations of a specific kind and that liberal principles of membership cannot be adequately described by means of analogy with other kinds of communities or associations. These models should also reflect the inadequacies of present membership criteria and of their 25

26 Challenging Racism in Britain and Germany

normative underpinning. Since the Second World War the right to nominal citizenship2 and protection from statelessness and involuntary deprivation of nationality have been raised to the level of human rights. That shift constitutes a normative restriction on the scope of national sovereignty, irrespective of the type of political regime. The scope of the rules governing naturalisation of normal immigrants who possess other citizenship is not similarly limited by human rights, but is certainly limited by a liberal conception of citizenship rights. Criticism of the four models is also an attempt to defend stronger normative constraints for admission rules in democratic states than the prevailing ones. The four analogies of citizenship that have been examined are the club, the church, the city, and the company. The community character of national concepts of citizenship could be illustrated by other organisational models, such as the family, the class at school, or the community of inmates in a prison or psychiatric hospital. Unlike the examples discussed in the following pages, however, these communities are not based on voluntary membership and are therefore less suitable as analogies for the analysis of rules for naturalisation.3 After presenting the four models, I outline the main elements of an alternative model: liberal citizenship. I show the implications of each of the five models by applying five test criteria: (a) openness for access, (b) toleration of multiple membership, (c) voluntary exit, (d) involuntary expulsion, and (e) importance of collective goals. The results of these considerations are summarised in Table 1.1.

Table 1.1

Five test criteria for five models of citizenship in democratic states Club

Church

City

Company

Liberal democracy

Discretion

Confession

Residence

Payment

Conditional option

Multiple Non– No membership competitive

No

Yes

Conditional option

Voluntary exit

Yes

Restrictive

Yes

Yes

Conditional option

Expulsion

Yes

Yes

No

No

No

Collective goals

Yes

Yes

No

No

Partial

Rules for admission

Rainer Bauböck 27

The club model (a) Admission to a club first requires an application for membership. Approva1 of the application is then deliberated at a meeting of the members or of the board acting on their behalf. Acceptance is reciprocal, but successive. The applicant expresses his or her wish first, then the club makes its decision. The applicant does not normally have recourse to appeal against a refusal. Only if the person were a member would he or she be entitled to invoke the statutes of the club, call upon the members to overturn a board decision, or seek a ruling by a supervisory organ. (This arrangement distinguishes the admission procedure from that of expulsion.) Consensus is therefore asymmetrical and reflects an imbalance, or differential, in power relations. This differential marks a stricter demarcation between the club and its social environment than is the case in the other models. The traditional model of naturalisation corresponds to that of the club. First, the government defines the group of those people basically eligible for naturalisation (as many clubs define their eligibility criteria in their statutes). The authorities examine whether the legal conditions for naturalisation have been satisfied and have the final say in the decision. Their discretionary latitude thereby has two dimensions. One consists of vague requirements (such as lasting allegiance to the German nation and integration into German community). The other is the possibility of rejecting an application or barring an appeal even though the necessary criteria have been met. (b) Clear differentiation between members and non-members and the power of members to control new admissions are constituent organisational features of the club. By contrast, competition with other clubs is not a characteristic feature. A football club is defined on that basis, but not a sauna club. Only in clubs that compete fiercely with each other is multiple membership prohibited or considered problematic. Citizenship oriented to the club model can certainly tolerate multinationality. Multinationality would be precluded only between enemy or belligerent nations. From the ‘realist’ perspective of international politics, however, all sovereign countries find themselves, in principle, in a natural state of potential war with each other. This Machiavellian and Hobbesian stance contrasts with another republican interpretation of citizenship that has endured from Aristotle to Hannah Arendt: the view that exclusivity is primarily directed inward, as a necessary limitation of every self-regulating political community. In their conception, multiple nationality would be less of a problem than would be a lack of

28 Challenging Racism in Britain and Germany

clear distinction between nationals and aliens (or, earlier, between citizens and women, slaves, or the unpropertied). Basic rights of citizenship may not be extended to foreigners. (c) Clubs generally permit unrestricted voluntary exit and usually require no justification for such exit. The right to voluntary expatriation must be guaranteed in every state that is based on this model. In practice, however, anyone exercising this right must also emigrate and, in recent times, must possess or acquire other citizenship (to avoid statelessness). The option of voluntary internal renunciation of citizenship would destroy the territorial monopoly of the legal system’s jurisdiction and jeopardise the universality of citizenship rights. (d) Clubs have the right to expel members. There are generally statutory restrictions, however. Expulsion is usually possible only if the image of the club is brought into major disrepute or if its objectives are seriously violated. Expelled members may appeal to the general meeting of the members. The board must put its decision to a vote. If states were clubs, they could expatriate citizens under similar conditions. The practice of ostracism in the city-state of Athens in ancient Greece was based on this notion. In modern democracies, however, deprivation of internal citizenship rights (which are not the same as the divestment of citizenship) occurs only in extreme cases. Banishment has been abolished. Some states do expatriate citizens who join a foreign army, become naturalised citizens of a foreign country, or settle permanently abroad, but apart from these cases a person cannot be deprived of citizenship in a liberal democracy. (e) Clubs pursue a specific objective. It is, however, usually a subordinate element in the catalogue of objectives and values held by the members. A club’s objective is collective in that it represents a common good achievable only through co-operation between its members. The specific nature of club goods (as opposed to private or public goods) implies that each member considers and promotes the interests of other members when pursuing his or her own interest in such goods.4 State objectives are considerably more comprehensive and hence less specific than club objectives. In some respects, though, they can certainly be identified. Social-contract theories postulate the prevention of civil war, the protection of natural rights, or the facilitation of collective self-determination as the state objective. Nationalist doctrines pursue the acquisition and safeguarding of territory as living space for a people, expansive authoritarian domination, the conquest and subjugation of other societies, and so forth.

Rainer Bauböck 29

The club analogy can also be interpreted to mean that the respective state objectives need not pervade all areas of citizens’ lives but must feature in each individual’s hierarchy of values. Citizens are free to go about their affairs and their private lives, but, as voluntary members, they must at the very least accept and be prepared to pay their membership dues in the form of taxes. The function of states is to produce and administer public goods (internal security for example). Some of these are club goods (such as citizens’ rights of political participation) because they are tied to formal membership criteria. In the club model of citizenship all goods produced by the nation-state are ultimately club goods. Non-members, that is, aliens, can in principle be barred from enjoying any of these goods. Laws discriminating against foreigners are democratically legitimated – only citizens enjoy equal rights. Positive externalities due to the public nature of some goods (such as internal security, developed infrastructure, welfare legislation) can benefit aliens as well. But the control that a nation-state exercises over immigrant access to its territory and over immigrant residence within that territory makes it possible to limit access to such public goods too.

The church model (a) Proselytic religious communities are open to everyone who professes their faith. Those from other denominations may convert and thereby become entitled to join the community. In ardent republicanism the principles of proselytic religions are transferred to the state. The French Revolution created a kind of republican church, and the constitution granted civil rights to everyone (including foreigners) who professed the ideals for which the Revolution stood. In the Cold War era the liberal western states treated political refugees from communist regimes similarly, taking them in, granting them refugee status without individual examination of their reasons for seeking asylum, and speeding their access to citizenship. These cases are the exception. Access to citizenship is not open to all those who profess the constitutional principles of a state. Conversely, those seeking naturalisation are seldom required to prove any thorough conversion. In many states, however, those being granted naturalisation on other grounds are required to pledge their allegiance as a ritualised form of such conversion. (b) Multiple membership is possible only in syncretic religions. They used to be the civic religions of great empires. The linkage between

30 Challenging Racism in Britain and Germany

monotheism, written religion and proselytism put an end to the practice. The worship of other gods is the surest sign of paganism. The republican conception of nationality emphasises the citizen’s obligations of loyalty. Multiple citizenship is an indicator of weak loyalty and an acute danger in an environment of potentially hostile states. Feudal states still permitted multiple membership as long as the sovereigns were able to agree. Even the status of subjects as it later homogenised under absolutism still left room in this respect. Today, the clearest reflection of this scope is found in Great Britain, where British subjects and Commonwealth citizens still constitute partially overlapping categories. Such ambiguities must be completely eradicated only if republican or nationalist ideas permeate the law on citizenship. It is possible to serve two masters, but no one can simultaneously belong to two wholly sovereign collectives whose citizens govern themselves in all matters. (c) It is not always possible to renounce church membership voluntarily. That step can be taken without sanctions only upon the separation of church and state, that is, when churches have become institutions within a secularised civil society. No republican version of citizenship prohibits voluntary renunciation of citizenship. Since time immemorial the exit option in political theory has been considered an indicator of tacit consent. In Plato’s Crito, the personified Athenian laws, which left little scope for ‘the liberties of the moderns’ (Benjamin Constant), remind Socrates that he is obliged to accept an unjust death sentence because he had had, but had not exercised, the right to emigrate and renounce his citizenship. Refusal to permit a citizen’s voluntary expatriation after that person has left the country would, accordingly, be a characteristic of nationalist and totalitarian regimes; but it is still a relatively widespread practice, even among member states of the European Union (EU), for example Greece. (d) In many religions, apostates may be expelled even against their will. If the denomination is dominated by priesthood, this kind of decision need not be legitimated by the other members of the faith either. Involuntary expatriation is even more characteristic of totalitarian states today than is the refusal to accept voluntary expatriation. Ostracism in Athens was a republican practice based on the plebiscite; expulsion was not decreed by the authorities but decided by the people themselves by secret ballot. By contrast, in a liberal democracy involuntary deprivation of citizenship is a violation of the basic right to state protection. This right can be forfeited only by acquisition of

Rainer Bauböck 31

protective status as a subject of another sovereign, not as a result of opinions or acts against the state, not even a serious crime. (e) In messianic religious communities the ‘club objective’ dominates all other goals of the members. Commitment and loyalty are required in all areas of life. Social solidarity among the members is one of the main commandments. In addition, however, most religions have developed a universalist moral code that applies to outsiders and non-believers as well. The republican view of citizenship, as exemplified by Rousseau, does leave a sphere of intimacy and oikos intact, but it establishes a hierarchy of virtues, of which the political ones rank highest. Moreover, it prevents the development of a private yet also public sphere of civil society that is different from the state and outside its control. The interests of the individual are subordinated to those of the community. The republic is constantly exposed to two fundamental dangers: the external threat from other states and internal decay due to the preoccupation of citizens with their private interests. From this perspective, opting for a new nationality is a far-reaching decision. It is a kind of adult baptism, for its time horizon is the entire life of a person. It makes for a re-evaluation and devaluation of the person’s past as well as for an absolute bond for the future. Naturalisation does not primarily mean more rights but obligations, especially the duty to defend the state, that is, to die or be killed for the sake of its existence. The position of aliens is more ambiguous in the republican model than in the club model. The boundary between them and the citizens is also one between rival sovereigns and, often, different world-views. The alien who has grown up under a different regime can be the carrier of the virus of despotism, even if he or she arrives as a refugee. The alien must first be quarantined and re-educated before it is possible to become a member. On the other hand, the alien should be acquired for the republican community. In the club model the distinction between aliens and citizens marks a self-evident external boundary, whereas in republican thinking it is a necessary distinction that in principle precludes neither the extension of substantial rights nor magnanimous acceptance. The priority of ensuring the well-being of one’s own community does not necessarily mean exclusivity.

The city model5 (a) The liberal nation-state creates a space for free internal migration. Cities change from closed to open settlements. Natives, citizens from

32 Challenging Racism in Britain and Germany

other parts of the country, and aliens legally residing in the state have the same right to enter and establish residence there. When accommodation and jobs are scarce in relation to the attraction of moving to the city, the establishment of residency becomes subject to a selection process. However, this selection takes place through markets, not state control. ‘Membership’ in a local community as a political unit is not acquired through mere presence but through residence. It follows more or less automatically from the consolidation of social relations over time. Unlike the case with the club or church, the acquisition of membership therefore does not require a conscious decision at a specific point in time. Such a decision may be taken when a new place of permanent residence is chosen. Membership is a later result and side-effect of this decision, but usually not its determining purpose. The liberal norm of the inclusiveness of citizenship rights serves as a basis of a domicile model of citizenship. When nominal citizenship can be acquired according to the duration of one’s residence, it approaches the model represented by modem citizenship of a local community. In all naturalisation procedures the duration of lawful residence is the most important criterion for admission, but nominal citizenship is not automatically acquired anywhere as a result of the mere duration of residence. (Under French law until recently a person automatically acquired citizenship upon coming of age after having lived in the country for five years, provided he or she had been born in the country. This law is closer to a delayed ius soli than to a naturalisation procedure. It has now been changed into a right to request naturalisation.) The duration of residence does not usually confer any right to be naturalised (or only after a very long period of residence). It is only a minimum requirement for applying additional criteria and making discretionary decisions. In democratic receiving countries, however, a kind of ‘denizenship’ is emerging that extends key rights of citizenship, especially the right to permanent residence, to residents regardless of their nominal citizenship. The transition from alien to denizen generally follows automatically or results from a legal claim. The main prerequisite is the duration of residence and, in many cases, regular income, adequate living space, or continuous employment. (b) It is not generally possible to be simultaneously a citizen of more than one local community if affiliation is a function of the location and duration of residence. Few people have their residence in more than one city, and even then only one residence is recognised as the principal domicile. They are not considered fully integrated citizens at their secondary residences and are often ineligible to vote in local elections.

Rainer Bauböck 33

The domicile model of citizenship is not a sound argument for permitting dual nationality. It may be that people have ties to several states, but they do not reside in several simultaneously. There is only one centre of gravity in one’s life, and that is the only place where citizenship can be claimed. A permanent change of that centre of gravity would, however, have to entail a change of nominal citizenship. The principle of dormant dual citizenship is a compromise between the domicile principle and the toleration of multiple nationality. (c) Unlike nation-states, cities are in principle open to immigration. They are all the more open to emigration as well. The voluntary exit from membership in a local community is a simple consequence of giving up one’s residence. It is possible at any time and without justification. As far as exit rules are concerned, the model of urban citizenship corresponds to membership of liberal states. (d) That is only partly true, however, for involuntary expulsion. In the modern nation-state banishment from a city area is a sanction not only difficult to justify but also ineffective unless combined with house arrest. By contrast, de facto forfeiture or formal deprivation of citizenship as a result of moving away seems well-founded. As mentioned above, the practice in some states is to apply the domicile principle not only to the acquisition of nominal citizenship but to its loss as well. Unlike the case with urban citizenship, however, simply giving up residence does not seem sufficient ground for losing nominal citizenship. First, another normal citizenship must be acquired. Second, a number of years should be allowed before expatriation takes place (with general toleration of dual nationality). And third, even under those circumstances, expatriation should not have to be automatic. Instead, declarations of agreement should be required, or, at the very least, there should be opportunities to appeal. (e) With states, it may be possible to make out a collective purpose that stands out from the objectives of their individual members and seems to justify their existence; with cities, this notion is nonsense. What would be the purpose of Berlin’s existence? Modern cities constitute closely knit networks of social interaction and co-operation, but as collectives they have no objectives other than those resulting from the individual inhabitants’ needs in life. To be sure, cities are also political communities, and some are provinces of a federal nation-state. But their subordination to a sovereign national government limits the plausibility that they represent a specific, higher order collective objective beyond the responsibilities of local administration. Administrative autonomy becomes an expression of collective identity when the

34 Challenging Racism in Britain and Germany

regional sub-unit considers itself an ethnic or national one. On the other hand, in many cities the sense of a common history and a specific culture is more palpable and realistic than in the mists and fog of nationalist mythologies. Loss of political sovereignty and the openness of the city in modern nation-states do not necessarily bring about a collective ‘loss of identity.’ If citizenship were to approximate this model, the collective identification with the nation would eventually be replaced by a depoliticised link to ‘homeland’. Nationality, from this point of view, is what it has long been to the vast majority of native citizens anyway: something taken for granted, not based on free choice, and appreciated for its value only when it is lost and only outside the territorial boundaries within which it applies. Liberal theories of the social contract maintain that political membership must be based on consensus. However, it is only in the marginal area of naturalisation that membership is, in fact, acquired through consensus. Why should this theory not be abandoned for this marginal area as well, making naturalisation simply an automatic result of establishing residence? As attractive as such a demystification of citizenship may seem, it goes against one’s intuitive sense that the naturalisation of adult immigrants should depend on their personal decision.

The company model (a) One joins a joint-stock company by buying shares. Other selection criteria among applicants for admission are superfluous (in contrast to the situation with the club, where payment of membership dues does not in itself constitute sufficient grounds for admission). The current company shareholders have the right to block further share issues and thereby block admission of additional members. The sole motive for the individual to join and for the shareholders to admit new members is to optimise individual utility, which is defined as expectation of profit. Citizenship cannot be purchased in the same sense. True, there are often exorbitant fees that can put off immigrants willing to naturalise. But the status of a member of a company does not depend on a single admission price but on the number of shares that member purchases. By contrast, each citizen has one vote, as in a club, regardless of how and at which price he or she acquired citizenship. In politics, the analogous corporate model would be elections with free purchase and sale of voting rights. That arrangement is justifiably considered irreconcilable with democracy. It would indeed be unacceptable if registering to

Rainer Bauböck 35

vote or exercising the right to vote were coupled with high fees, even if their express purpose is to cover administrative costs. But that is precisely what commonly happens when nominal citizenship is granted. The analogy between the company and citizenship becomes more plausible if costs and benefits of the latter are not conceived of only in monetary terms. One could, in fact, outline a realistic model of naturalisation in which calculation of utilities is made the dominant criterion for both admission and acceptance. From this standpoint, the applicant weighs the advantages and disadvantages of naturalisation against each other and weighs the result with the likelihood of acceptance and the price of admission. The rights and responsibilities of citizens are compared with the rights and responsibilities that resident aliens possess in the receiving country and those that emigrants have in relation to their respective countries of origin. If this model is applied to a world of open borders – or, more realistically, a group of migrants to whom the borders of many states are open (citizens of EU countries for example) – then the available options to be assessed can even include choice of the receiving country. The attractiveness of citizenship is then compared not just to the status of being an alien in the respective country or to the return to the country of origin but also to the possibility of naturalisation in third states that are also accessible. Immigrants are not the only ones to behave like purchasers of shares. In certain respects receiving countries, too, practise a policy pursued by companies. They try to maximise the benefit to the receiving society by attaching strings to the places available and giving priority to immigrants with investment capital or human capital. With naturalisation policy, however, the club model tends to dominate. The general criteria tend to reflect the idea of social affiliation (by virtue of residence, language, culture, integrity, and so forth) more than the requirement of net contribution. Nonetheless, the preferred naturalisation of wealthy immigrants in particular or famous athletes or artists show that calculations of benefit are used to justify exceptions to the rule in this sphere as well. (b) Ownership of shares in more than one company is not only allowed but regarded as a rational way to diversify risk. Sentimental ties to a single business encourage uneconomic behaviour. Share ownership in a network of companies competing fiercely with each other may lead to discretionary conflicts for the individual shareholder. Conversely, however, it can facilitate a solution to the conflict (for example, by means of integration or co-ordinated specialisation in separate niches of the market).

36 Challenging Racism in Britain and Germany

The argument for toleration of multiple citizenship is thus even stronger with the company analogy than with the club model. The conflicts of loyalty ensuing from multiple citizenship should be understood primarily as problems of individuals, not of states. From the state’s point of view, problems of applying dissimilar codes of law do arise, but the existence of persons holding multiple citizenship also creates social ties between states, ties that can help resolve such conflicts by means of international agreements and, under certain circumstances, even reciprocal harmonisation of legal codes. Just as unrestricted international share-trading cannot be tolerated between two states that are at war with each other, neither can multiple citizenship in that situation. This is no reason to prohibit it in peacetime, though. (c) Any shareholder can sell part or all of their shares at any time and thereby quit the company. The model of the state as a company establishes a fundamental right to voluntary exit. In radical terms, this model, and only this model, would have to permit voluntary internal expatriation. It could be objected that whoever remains in the country also enjoys the public goods of citizenship and therefore is not allowed to escape the obligations attached to citizenship. Except for military service, however, these obligations no longer have much, if any, connection with citizenship anyhow. The main counter-argument is that expatriates living inside the country remain members of the political community in important ways and that their renunciation of nominal citizenship would split society into formally unequal citizens. This objection is not cogent for the company model. Unequal membership is the rule with companies of shareholders. Whoever is prepared to forgo the advantages of full membership, or is unable to afford it, is simply a half-member or quarter-member. If the state is interested in maximising the number of fully enfranchised citizens, then it must create incentive systems that make that status attractive. The state does not have the right to prevent a free decision in favour of another legal status. At the extreme, one must therefore also be allowed to divest oneself of citizenship rights (by voluntarily selling oneself into slavery, for example). (d) Companies cannot expel members as easily as clubs and churches can. Expulsion means de facto expropriation. In certain depository trust companies a member who has clearly acted in breach of company interests can be expelled if a majority of shareholders decide to pay out the member’s share, thereby depriving the person of discretionary participation but not dispossessing him or her without compensation.

Rainer Bauböck 37

If states were companies, involuntary loss of citizenship would be conceivable only upon serious violation of the rules. But from this standpoint, morally non-culpable offences, too, could justify expulsion if collective interests of other citizens had been adversely affected. Just as utilitarian morals generally provide only a very shaky foundation for basic rights, the basic right to citizenship would be jeopardised by a concept of membership based on calculations of costs and benefits. (e) What distinguishes a company from clubs and churches is the purely instrumental character of interaction between members for the purpose of optimising individual utility. There is no genuine collective purpose of association beyond the individual making a profit and an absence of broad scope for informal, non-instrumental social encounters between anonymous members. The members of joint-stock companies interact primarily as shareholders. They do not constitute a circle of friends with common preferences, a congregation of followers professing a particular faith, or a sphere of urbane public 1ife in which citizens can communicate with one another as strangers on just about whatever they choose. Public life in civil society, however, is necessary so that ideas about a polity’s common and supra-individual purposes can be discussed at all. As temporary utilitarian associations of members seeking to maximise their own utility, states would be unable either to develop democratic public life or to achieve the requisite stability for establishing and maintaining civil peace. As already discussed, states based on the company model would not be able to guarantee equality of citizen rights, either. If the choice between various forms of membership (the emigrant, the resident alien, the naturalised citizen) has become strictly a matter of calculating individual benefit, then it would also be possible to take the rights and responsibilities linked to that membership and differentiate them into bundles of shares that could be offered according to demand and acquired according to individual resources and preferences.

A liberal democratic model for receiving countries Basic norms for this type of model would be: 1 Equality among citizens as members of the state, a condition that implies equal citizen rights. 2 Inclusive membership, meaning that all permanent members of the society organised in the state are included in the allocation of citizen rights.

38 Challenging Racism in Britain and Germany

3 Substantive development of these citizen rights as civil liberties, rights to participate in political processes, and rights to social welfare, thereby presupposing the existence of stable and extensive legislative, administrative, and judicial institutions whose activity guarantees these rights. The four principles for the allocation of membership – consent (the club), confession (the church), residence (the city), and optimisation of utility (the company) – are partially reconcilable with these norms in various arenas or contradict them. Therefore, not a single one of the four models cited above can adequately illustrate the rules of membership in liberal democratic states. Liberal citizenship must be thought of as either a specific combination of the models or as an alternative model. (a) Liberal citizenship clearly differs from the club and church models in its rules of access. Current members and their representatives cannot select and reject applicants as they see fit. Applicants have rights to be admitted that correspond to the state’s obligations to take them in. The admission criterion that applicants must meet is in no way comparable to a profession of faith, either. The willingness to accept a democratic legal order requires no deep conviction or support of a religious or philosophical doctrine (see Rawls, 1993). At most, evidence to the contrary is sought against which to check it. Serious criminal background or active involvement in anti-democratic political organisations, for example, could be obstacles to naturalisation, but proof of active loyalty is not requested of applicants. (What would this consist of in a liberal democracy anyway?) The main criterion for access is the same as in the urban model of citizenship: membership of society, acquired through lasting ties to the society of the receiving country and most clearly documented by long-term residence. Nevertheless, liberal citizenship differs in two ways from that based on the city model. First, it is not premised on open access to the state’s territory. Second, there is no automatic and gradual acceptance of membership. A state can, but does not have to, control and limit immigration into and permanent residence in its territory without liberal norms being violated thereby. In this regard, admission rights are granted to specific groups such as refugees to whom a state carries a specific responsibility, and family members of persons who have already immigrated. The right to citizenship, however, extends much further than these immigration laws. It applies to the entire resident population.

Rainer Bauböck 39

Even if liberal citizenship can be acquired according to the duration of one’s residence, it is still more than a retrospectively ascertained prescriptive right gradually established by virtue of habitual use. It is granted at a particular time, and applicants have the choice of whether or not to accept it. This opportunity to choose actively exists only for immigrants and, in some cases, for second-generation aliens.6 It does not apply to the native population. On the one hand, it is a privilege justified by the circumstance that immigrants also have relevant ties to their own countries, ties that would be disregarded if automatic naturalisation were imposed. On the other hand, the choice is, in some respects, also an expression of a special duty of immigrants to document their definitive affiliation to the political and legal community of the receiving state by making a conscious decision. This declaration should be interpreted as that minimum of ‘affirmation’ or, better, commitment which can be required of immigrants in liberal democracies as well. The rationale for this special responsibility may be found in a socialisation theory of citizenship. The liberal state, through its institutions, must bring up its young citizens to show commitment to its democratic norms and must create for its adults an incentive system that makes respect for these norms of liberal democracy appear reasonable to the individual. This civic attitude towards politics cannot be guaranteed by procedural norms operating at the level of constitutions, legislation and public administration. Respect for these norms on the part of the state and the citizens creates only an external framework within which the latter can begin to understand themselves as members of this particular democracy with its specific traditions and institutions. Immigrants have not shared in this experience. In this sense, voluntary naturalisation does in fact express a particular kind of resocialisation. The test of free choice must not be misunderstood as education for democracy, which is needed by those who have grown up in undemocratic or less democratic states. In principle, all people must be recognised as having the capacity to be citizens of a liberal democracy as long as they, as individuals, have not provided proof to the contrary through their actions. Blanket collective discrimination through exclusion of certain groups from eligibility for naturalisation would be a crass self-contradiction in liberal theory. What naturalisation expresses is nothing more or less than the personal decision to want citizenship in a particular democratic nation (and not in a liberal democracy in general).

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The following additional observations about this liberal concept of optiona1 citizenship are intended to illustrate how it contrasts with the models described in the preceding sections. First, the ‘resocialisation’ referred to above is primarily an act of self-education. The receiving state is not a teacher, the immigrants going through the process of naturalisation are not pupils, and nominal citizenship is not an examination certificate. With voluntary naturalisation, immigrants document that they have familiarised themselves with the political and legal system of the receiving state to the point that they can make this decision responsibly. Only on this condition is it understandable why immigrants can enjoy a legal entitlement to naturalisation without being vetted for their personal aptitude. Second, the curriculum for this education process is not prescribed. The immigrant does not take a course in constitutional law, the political system, the geography of the country or national history. Such knowledge may be useful but is extraneous to the process of self-education. Whether a state is what Rawls (1971) calls ‘well-ordered’ is shown by the effect that its laws and traditions have on society. Migrants catch up on political socialisation by participating in civil society. There are two major obstacles: one socio-structural (ethnic segregation) and one communicational (insufficient knowledge of the language).7 Experience in numerous receiving states shows that both obstacles can be overcome only by incentives and opportunities. Sanctions against immigrants who ‘do not want to be integrated’ are bound to be counter-productive in the context of a liberal state. Third, it is a matter of free choice between fair alternatives. The result of becoming familiar with the receiving state can just as well be a decision not to be naturalised. These alternatives cannot have the same value for everyone, but they must be offered at their fair value. For example, the options are no longer fair if refusal to be naturalised means the threat of having to leave the country. The reason behind a decision against naturalisation does not necessarily indicate a criticism that the receiving state is insufficiently liberal or democratic; it may be based just as legitimately on special (legal, social or emotional) ties to the country of origin. The principle of voluntary application implies that the reason for deciding against naturalisation remains a private matter anyway, whereas the decision to acquire nominal citizenship represents a public act of consent. Fourth, the decision for naturalisation requires time in which to gain experience with the receiving state and its institutions. In this context the duration of the immigrant’s residence as a factor in the process of

Rainer Bauböck 41

naturalisation acquires a sense different from that in the city model of citizenship. It is no longer only a matter of consolidating membership within a society but of integrating into a political and legal system. Fifth, acquiring practical experience with this system presupposes the granting of civil rights before naturalisation. In the hierarchical system of a corporatist state, immigrants could form their own class having rights and responsibilities different from those possessed by the status groups of the native population. The same is true for a republican form of democracy without a liberal norm of inclusion. The Athenian metics were neither slaves nor citizens. Some of them could even become naturalised under difficult conditions. But their special legal status in no way affected the internal legitimacy of an egalitarian republican democracy based on the club model. In liberal democracies, however, egalitarian rights and the imperative of inclusion are coupled. Practising liberal citizenship therefore requires not merely rights but essentially equal rights. That does not mean that all rights have to be equal and that no difference can be tolerated between resident aliens and nominal citizens. Inverting the club model which starts from the fundamental inequality between members and outsiders, one would, however, have to give case-by-case justification for exceptions to equal treatment, and that justification would, in turn, have to rest on the special requirements of liberal citizenship itself. This argument refutes a major objection to the liberal model of optional citizenship. That objection is that automatically transferring citizenship to the native population and granting immigrants free choice for naturalisation creates, at the very least, the possibility of violating the norm of inclusiveness. This consequence can be avoided under two conditions: first, by allowing the native population, too, the freedom of choice to relinquish their citizenship and acquire an alternative one, provided they emigrate; and second, by granting resident aliens legal rights as denizens, a status that would minimise the gulf between them and those enjoying full nominal citizenship. The latter condition applies the norm of inclusiveness to citizenship rights themselves rather than to the formal status of nominal citizenship Not until the two are decoupled does the decision to be naturalised become an expression of commitment rather than one of social pressure or the calculation of individual benefit.8 This view brings up a difference between liberal roles for admission and the company model. They both encompass freedom of choice between alternative options in conjunction with a right to be admitted that is not restricted by selection according to personal suitability for

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the objectives of the association, as is the case with clubs. What differentiates them is that, first, there are no cost barriers for membership in the liberal state; second, all members are allowed to acquire only one ‘share’, with each share having the same value; and third, the purchase of this ‘share’ by those who have not inherited it is not a profit-motivated investment in a business but rather the decision to ratify a pre-existing social membership by entering into formal affiliation with the corresponding legal association. (b) In contrast to the club or company model, multiple membership is not the rule for liberal citizenship, but nor is it a problematic exception, as in the city model. Nor is it precluded from the outset, as in the religious congregation. It is an option that must be held open to those who can make multiple societal membership plausible. In a world of states that are closing themselves off to immigration and restricting the access to citizenship, the migrant who travels around collecting citizenships and who can present a different passport at each border is a subversive element broadening the scope of liberty. At the same time, the aim of liberal democracy cannot be to function as a supermarket for citizenships. Nor may one countenance the imposition of dual citizenship on people whose state of origin refuses to allow their expatriation. As with the decision on acquiring a new nominal citizenship, the decision on expatriation must be voluntary, legally unassailable, and meaningful in the sense of disaffiliation from a community of rights. (c) As mentioned above, the exit rules of liberal citizenship are largely the same as those prevailing in the city model. They clearly have least in common with intolerant religious communities that do not allow their members to leave. The exit rules of liberal citizenship differ from those of the club or company as well in that loss of citizenship is difficult if a person remains in the country and, if the person is abroad, at least an examination is warranted as to whether statelessness would result. (In their relations to a totalitarian state, emigrants have a right to opt for voluntary statelessness, in which case, however, a liberal receiving state has a strong obligation to offer its own citizenship or even automatically grant it. As regulated by international conventions, the general obligation to avoid statelessness can therefore apply differently to various kinds of regimes.) In the city model, internal loss of citizenship is precluded from the outset. One could consider permitting it in a liberal state under certain circumstances – say, in cases of voluntary renunciation of citizenship by previously naturalised dual nationals who have definite intentions of returning but cannot do so in the short term.

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(d) In the liberal model the possibility of mandatory expatriation is minimised. A person is unconditionally protected from internal expatriation and deprivation of citizenship in conjunction with banishment. Nor can a person be deprived of citizenship simply because he or she has resided abroad for a long time. Unceremonious deprivation of citizenship can be justified only if another citizenship is acquired and there are indications that the previous citizenship has been tacitly renounced. Even then, however, it is only a policy that may be pursued; under liberal principles it is by no means required. None of the four models provides sufficient grounds for such strong protection against the loss of citizenship. It is based on the individual’s elementary need of protection against the state’s monopoly on power. However, such protection can be guaranteed only by placing the individual under that very monopoly. As Hannah Arendt (1967) clearly recognised, the status of the citizen (including that of a foreign citizen) is the only effective basis for the assertion of human rights in a system consisting of independent states. Theories of the social contract based on Locke’s thinking as reflected in the club and company models, and theories of the state as a community of values as expressed in the church model, cannot adequately capture the individual’s position of being at the mercy of the state and relying on it at the same time. (e) In the words of John Rawls (1993: 40–3), a well-ordered democratic society is neither a community nor an association. Unlike an association, it has no ultimate purposes. Its constitutional objectives postulate general norms of coexistence, but they do not permit one to put a value on the contribution of individuals or to reward them according to their contribution to collective goals. The status of citizen is the same for all members, and the contribution that can be expected is (in my opinion) not a criterion for the admission of new members. For this reason the club model as a voluntary association dedicated to pursuing a specific collective purpose is disqualified as a useful analogy. The company model takes into account neither the basic equality of citizens nor the significance that social co-operation has for an affiliation for the society, a significance that reaches beyond the mere optimisation of individual benefit. Some aspects bearing on the membership of individuals in societies lie beyond the bounds of rational choice. Being embedded in a network of social co-operation not only defines each individual’s available options for affiliation but also shapes the individual’s preferences regarding those options (without determining them completely).

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However, a society governed by liberal precepts is not a community in terms of shared, comprehensive philosophical or religious doctrines, either. Liberal societies are pluralistic in this respect, meaning that liberalism itself need not be shared as an all-embracing social doctrine or Weltanschauung. The procedural principles and basic rights in liberal democracy must be acceptable as a reasonable basis for a state polity from the perspective of rival doctrines. A stable liberal democracy expects – and needs – a minimum of political involvement and social solidarity from its citizens. The state can neither force the issue with sanctions nor rely on a universally shared moral sense of duty that stamps the passive or silent citizen as an outsider. But one may reasonably hope that: 1 the stable guarantee of comprehensive rights of citizenship promotes the propensity to exercise them responsibly; 2 the inevitable loss of voluntary loyalty in a bureaucratic state can be compensated for if the state itself restricts its domination over those subject to it; and 3 the civilising of competition and conflict in civil society creates distinct areas for the legitimate pursuit of individual self-interest and liberates spontaneous resources of solidarity between the members of such societies. Rawls (1993) bases his theory of political liberalism on the assumption that societies are closed systems of co-operation among individuals throughout their complete lives, from birth until death. However, the increase in transnational migration is a modern phenomenon that makes it necessary to broaden this framework. In addition to issues surrounding liberal norms in matters of immigration, that expansion must also include the principles of naturalisation considered above. Notes 1 A revised summary of the argument presented in this contribution has been published in R. B. Bauböck (1994) Transnational Citizenship: Membership and Rights in International Migration, Aldershot, UK: Edward Elgar, pp. 160–71. The author gratefully acknowledges Edward Elgar’s permission to publish this text. 2 I suggest the term ‘nominal citizenship’ as a translation of the German Staatsangehörigkeit, that is, citizenship as a formal legal relation between a state and an individual. Often this interpretation of citizenship is also referred to as ‘nationality’, which, however, may cause considerable confusion because nationality is also used to categorise different autonomous ethnic groups within a single state. In a broader sense, citizenship refers to a bundle of rights and obligations attached to the status of membership in a

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3

4

5 6

7

8

democratic state. This is the interpretation given by T. H. Marshall in his classic essay of 1949. Although the German term Staatsbürgerschaft is mostly used synonymously with Staatsangehörigkeit, one can use the former when referring to this substantial kind of rights-based citizenship (Grawert, 1984; Habermas, 1992: 638). Neo-republican authors often refer to citizenship also as a set of practices that characterises the ‘good citizen’ (e.g. Oldfield, 1990; van Gunsteren, 1992). In his discussion of citizenship as a form of membership, Walzer (1983: ch. 2) uses the club, the family and the neighbourhood as analogies, with the neighbourhood corresponding largely to the model of the city as discussed here. See Jordan (1989), who, however, does not go into the difference between club goods and public goods, the latter of being freely available to everyone (including non-members). See Bauböck (1993) for a more detailed comparison and for the historical connection between urban citizenship and national citizenship. I assume here that ius sanguinis extending beyond the first generation to be born within the country is irreconcilable with the liberal requirement of inclusiveness. Cultural assimilation going beyond the acquisition of basic knowledge of a dominant language cannot be considered a requirement for integration into liberal societies. In Australia, where citizenship can already be obtained after two years but does not imply much legal advantage, the naturalisation propensity is still quite high, especially among non-European immigrants and among youths who have grown up in Australia. Evans (1988: 246) interprets these results as a gradual growth of commitment: ‘The decision to become an Australian citizen should be seen as a ritual, public affirmation of that commitment.’

References Arendt, H. (1967), The Origins of Totalitarianism (rev. ed.), London: George Allan & Unwin. Bauböck, R. (1993), ‘Einbürgerungen. 29 Thesen über Immigrations, Staats- und Stadt bürgerschaft’, Migration, 1, 129–46. Evans, M. D. R. (1988), ‘Choosing to be a Citizen: the Time-Path of Citizenship in Australia’, International Migration Review, 22, 243–64. Grawert, R. (1984), ‘Staatsangehörigkeit und Staatsbürgerschaft’, Der Staat, 23, 179–204. Habermas, J. (1992), Faktizität und Geltung, Frankfurt am Main: Suhrkamp. Jordan, B. (1989), The Common Good: Citizenship, Morality and Self-Interest, Oxford: Blackwell. Marshall, T. H. (1965), ‘Citizenship and Social Class’, in Class, Citizenship, and Social Development: Essays by T. H. Marshal1 New York: Anchor Books, 71–134. Oldfield, A. (1990), Citizenship and Community: Civic Republicanism and the Modern World, London: Routledge. Rawls, J. (1971), A Theory of Justice, Oxford: Oxford University Press. Rawls, J. (1993), Political Liberalism, New York: Columbia University Press. van Gunsteren, H. R. (1992), Eigentijds Burgerschap, The Hague: Weten-schappelijke Raad voor het Regeringsbeleid. Walzer, M. (1983), Spheres of Justice, New York: Basic Books.

2 The German Concept of Citizenship and Nationality Dieter Oberndörfer

The concept of the national state1 Historical origins The ideological roots of the concept of the ethnic nation-state go back to German idealism and romanticism of the late eighteenth and early nineteenth centuries, particularly as expressed in the philosophies of Herder, Fichte and Schelling. In Germany, ethnic nationalism acquired its political potency and dynamism in the wars of liberation against Napoleon. The nationalism of the ‘French’ Republic had suppressed the right of the German states to self-determination and ignored the claims of German language and culture. In response to French nationalism, and as a rallying point in their struggle for an independent nation-state, the Germans raised ethnic nationalism to a state ideology. As such, it became the ideological foundation of Bismarck’s Reich, and later still the ideological time bomb with which the National Socialists destroyed the Weimar Republic. Basic axiom: unity of people and state within the nation Ethnic nationalism holds that only members of the dominant ethnic group and their descendants are entitled to full citizenship. Since ethnic affiliation is acquired by birth, that is, by blood, ethnic nationalism is inherently racist. Immigration and the integration of members of different ethnicities are incompatible with the concept of a nation of people with common ethnic origins. The basic political axiom of ethnic nationalism is unity between people and state. This unity is realised in the nation. All peoples – meaning, in effect, one’s own people – have the right to live in their own sovereign state. Multiethnic states are not nations, because a 46

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nation is an entity for a single ethnic group. In a nation there is no place for other ethnic groups. The multiethnic state and the nation are mutually exclusive, incompatible concepts. This was a revolutionary idea. It directly contradicted traditional European forms of political organisation. Up to this point, rulers had always held dominion over different peoples. Since the time of Alexander the Great, every prominent state, ancient or modern, had been multiethnic. Indeed, the reputations of famous rulers derived from the fact of lordship over many peoples. In his will, Stephen the Great of Hungary labelled a kingdom with only one people and one tradition as weak and fragile. Ethnic minorities have no rights of residence or existence in ethnic nation-states. They are seen as trespassers on national territory, and a threat to national unity and the purity of the ethnic national culture. Ethnic nations, therefore, may not open their borders to ‘foreign’ immigrants and become immigration countries. The ideology that legitimises ethnic nation-states in terms of ethnicity also programmes them for homogeneity. Hence, their histories, even to the present, are filled with recurrences of repression, persecution and even annihilation of ethnic minorities by the dominating national group. After the First World War, discrimination against ethnic minorities was rife in almost all ethnic nation-states in eastern and south-eastern Europe, in particular Poland, Czechoslovakia, Hungary and Yugoslavia, and their members were treated as secondclass citizens. In the first case of genocide in modern times, three million Armenians were killed in the name of Turkish ethnic nationalism. The Holocaust perpetrated by the National Socialists, the most extreme form of German ethnic nationalism, was ethnic cleansing in the name of ethnic nationalism at its most horrific. People and territory According to the ideology of ethnic nationalism, each ethnic group has its own homeland, a historically determined national territory. This approach has legitimised and continues to legitimise a whole range of conflicts over territorial claims. Was the original homeland of the Germanic people in Scandinavia and northern Germany or was it in India? If Scandinavia and northern Germany, this meant that the Germanic tribes – better, the Germans – were the true descendants of the Aryans. If the Aryans came from Asia, then the Indians were possibly more closely related to them than the Germans were. Had Germanic tribes already settled in Polish areas of west Prussia before

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the völkerwanderung? If so, west Prussia ‘belonged’ to the Germans as the ostensible descendants of these Germanic tribes. All these questions of geographic origins were just as important politically for German ethnic nationalism as the question of whether western Slav tribes had settled in Silesia and Pomerania before the Germans arrived in the eleventh century was for Polish ethnic nationalism. The Serbs justify their current oppression and political declassification of Albanians in the province of Kosovo by claiming that this was ‘originally’ inhabited by Serbs and, therefore, ‘belongs’ to the Serbs. In fact, the Serbs settled in Kosovo only at the time of the völkerwanderung. Historical research has shown that the original inhabitants were Illyrians, in all probability the ancestors of the present-day Albanians. The ethnic group and their culture as a political entity Ethnic nationalism demands for all members of the ethnic group the right to live together within one state. Consequently, German nationalism was pan-German from the start. People and state had to coincide. All Germans should be part of the ethnic national state. As the poet Ernst Moritz Arndt put it: ‘What is the German’s fatherland? Prussia perhaps, or Swabia, the land of German wine, or where gulls circle above the Rhine? Oh no, his fatherland must be greater … wherever the German tongue resounds … must all be part of Germany!’ According to Johann Gottfried Herder, each people has its own ‘genetic individuality’ and soul. The national language and national culture are concrete expressions of this soul, or ‘national spirit’. Together they form an intrinsic unity. Their purest forms, unadulterated by foreign influences, lie in the distant past, the language and culture of the ancient Germans, for instance, and the Aryans, the ancient Slavs and Turks. Hence, the various national languages should be purged of foreign words and the national culture of foreign influences. Ethnic philology – Germany, for instance, or German studies – as well as ethnology and folklore are key ideological disciplines. Their purpose is to reveal the ethnic spirit in language and culture and free it of foreign influence. Ancient customs must be preserved and revived. The political order and the law must reflect ‘unearthed’ ethnic traditions – in reality, traditions constructed by historians and philologists. Foreign cultural influences can be accepted or tolerated to the extent that they can be incorporated into one’s ethnic culture. Thus, although Christianity was essentially foreign to Germanic culture, the National Socialists were prepared to put up with the specifically Germanic form practised by ‘German Christians’.

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The prime objective of political ethnic nationalism is to protect the territory of the ethnic group and preserve its language and culture. All members have a moral obligation to identify with the ethnic community and its culture, to subject all individual interests and goals to it in the event of conflict, and even to sacrifice their lives for it in the hour of need. Wrongs which may have been committed against ‘the’ national community, the collective super-ego, are to be avenged and the honour of the nation restored. Heinrich Heine ironically quotes a pro-Germanic boozer in a Göttingen bierkeller: ‘that one had to take revenge on the French for Conrad of Staufen, whom the French beheaded near Naples’. The inherent logic of nationalism dictates that one’s own people can commit no wrong against other peoples. As the nation is quintessentially good, the ethnic national does not accept violations of others’ human rights as acts of the nation. Like Rousseau’s popular democratic mysticism, according to which the people seek only what is good, nationalism postulates that one’s own nation and its political actions exist in a state of moral innocence and purity. Moral injustice towards other peoples is always the action of individuals, incompatible with the ‘true’, the good national tradition, and hence not associated with it. As the law and cultural values are supposed to reflect the tradition of each ethnic group, universal human rights are rejected. By appealing to vague ‘national’ values, ethnic nationalism breaks with the tradition of western constitutionalism. More recently, African rulers, including many representatives of awful regimes, have repeatedly sought to justify their own inhumane behaviour on the grounds of apparent or actual legal traditions – ‘people’s rights’. Ethnic nationalism treats the ethnic group as a mystic community in which all individuality and all generations from prehistoric times up to the present are subsumed. The individual is born into it and cannot leave it. Even ‘renegades’ remain members and can be brought to account. People who had German national traditions and language, but were unwilling to accept the political unity of the German nation state – Bavarians, Guelphs of Lower Saxony, citizens of Württemberg, or Alsatians who remained loyal to France – were seen as having a false consciousness and being, in fact, traitors. Germans abroad had a duty to remain German and to opt for Germany in any conflict of loyalties. This view was given statutory effect in the Law on German Nationality of 1913 (which is, with amendments, still in force) which repealed the regulation that Germans who resided outside the country for more

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than ten years lost their German nationality. German blood was not to be lost through emigration. Ideology based on the misrepresentation of history As in all forms of nationalism, ethnic nationalism distorts history and makes use of myths to underpin the nation-state ideology. These misrepresentations were a feature of historiography in all European states in the nineteenth century. In Germany, thanks to ethnic nationalism, they were accepted as common wisdom among the educated middle classes and the effects can still be felt today. In the nineteenth century, German historians devoted an enormous amount of intellectual effort to concocting a quasi-organic, linear continuity in German history, from its beginnings among the Germanic tribes to its culmination in the Second German Reich. The Romaneducated Cheruscan prince, Arminius, ‘Hermann the Liberator’, Luther, the reformer, and Frederick the Great, the king of Prussia who spoke and wrote fluent French and broken German, were all instrumentalised as heroes in Bismarck’s struggle to create a German nationstate. The Holy Roman Empire of Charlemagne and his successors, at the height of its power a multiethnic empire, was ‘misconstrued’ as an ethnic German state, that is, the holy Empire of the ‘German’ nation. Yet, even in the fifteenth century, Church Councils used the natio Germania as a collective term of canon law for all peoples that did not belong to the French, Italian or English nations. In other words, the natio Germania included the Poles, Bohemians, Hungarians and Scandinavians as well as the Germans. Nineteenth-century ‘spin doctors’ turned Prussia into the historic precursor of the German ethnic nation-state of 1871. It was conveniently forgotten that, after the Third Polish Partition, Prussia had more Polish than German inhabitants and that the Prussian king’s famous call to arms against the French in 1812, ‘To my people …’, was published in German, Serb and Polish. In the records of the Congress of Vienna in 1815, Prussia is officially described as a Slav kingdom. In the same year, the Prussian king also explicitly guaranteed his Polish subjects the right to use the Polish language in courts and schools. This promise was broken after 1871 after the Second German Reich adopted a policy of mass Germanisation. One deed that was well ahead of its time was Frederick the Great’s decision to grant asylum to Calvinist French Huguenots in Lutheran Prussia. Given the deep rift between the Lutheran and Reformist doctrines at the time, it was a revolutionary step for a predominantly Lutheran state to accept Huguenots – comparable, say,

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to inviting large numbers of Muslims or Hindus to settle in the Federal Republic of Germany today. Frederick the Great also encouraged Muslim Tartars to settle in Prussia and expressed his readiness to build mosques for them. His Prussia had very little in common with the ethnic German state founded in 1871. Nationalist ideology in the nineteenth century and the Federal German Fundamental Law The philosopher Fichte was the first to sacrifice fundamental republican constitutional rights in favour of a strong ‘ethnic nation’ state. His ideas on educating Germans are the horrific ravings of a totalitarian, ethnicist Jacobin. The ‘Greater German’ solution debated at the National Assembly in Frankfurt in 1848 ultimately failed because the Germans and the peoples of the Austro-Hungarian Empire were infected with ethnic nationalism and unable to agree on a political union that would encompass all of them. The time of the supranational empire was gone. Like the cosmopolitan ideas of the German Enlightenment, it was no longer politically viable. From this point on, the democratic, republican forces of German nationalism also lost their appeal. Initially, many had hoped that a German nation-state would sweep away the principalities and establish a single republic. After the representatives of the feudal order approved the ‘Small Germany’ Bismarck had wrought with ‘blood and iron’ in 1870–71, the innate logic of ethnic nationalism began to shape ideas on the internal order of the ethnic nation-state. Unity and strength, superiority and the right of one’s own ethnic group to survive at the expense of other ethnic groups increasingly dominated the goals and policies of the ethnic nation-state. The concept of the republic – legal and political equality for all – was defamed as western, foreign and un-German. This can all be found in Thomas Mann’s Confessions of an Apolitical Person. The ethnic concept of the state was the predominant ideology in the Second German Empire and the Weimar Republic. Yet, on account of the Poles in West Prussia, the Danes, Jews and other minorities, the Second Empire was still a multiethnic state. The Polish and the Danish populations even had their own representatives in the Reichstag. The Weimar Republic was also multicultural on account of the Jews. Only under National Socialism was Germany ethnically purged and homogenised. German descent became the legal requirement for citizenship. As the Fundamental Law of 1949 postulated the reunification of ‘the’ Germans and as Article 116 extended the right to German citizenship to all expelled and ethnic Germans, the new

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Federal Republic was also a community based on common ethnic origin. So-called Saxons from Siebenburgen, whose ancestors had emigrated in the thirteenth century from Lorraine, Luxembourg and the Rhineland to what is now Romania, were allowed to resume German nationality. Yet it is still difficult for third-generation foreigners living in Germany to acquire citizenship, even though they were born there, are part of contemporary German culture, and often speak better German than German nationals from Poland or the CIS states. Granting citizenship to ethnic Germans from eastern Europe after 1945 was a humanitarian gesture towards political refugees, which is what the ethnic Germans were. However, this gesture revived the concept of Germany as an ethnic state. In the eyes of the postwar generation, the pre-1990 Federal Republic of Germany was ‘only’ a state legitimised by its constitution, for Germany was still not unified. Later, when it began to seem improbable that the two Germanies would ever be unified, the Federal Republic began to be accepted by its citizens as a nation in a class of its own, a state legitimised by its constitution. The political foundation of the pre-1990 Federal Republic was not German identity, but the constitution, for there was another German state at the time, the former German Democratic republic, which no one expected would collapse. With the unification of the rump of Bismarck’s nationstate, ethnic nationalist beliefs were bound to be revived. The decisions on whether to grant or refuse citizenship to foreigners living in the Federal Republic and to accept or refuse further immigration have special significance for the future self-perception of the German state, namely whether Germany remains open to Europe or returns to the provincial tribalism of ethnic nationalism. A more liberal approach towards citizenship for foreigners and towards immigration would break with the concept of ethnic nationalism and simultaneously constitute a vital step in realising liberal democracy in Germany.

Reception in eastern Europe, south-eastern Europe and Asia Herder’s ethnic nationalism struck a strong political chord above all in eastern and south-eastern Europe. His praise of the Slavs ensured their enthusiastic reception of his thought, which they reprocessed into a virulent form of nationalism. According to Herder, the Slavs were more original and less tired than the barbaric and warlike Germanic peoples. Bassam Tibi, the Syrian-born German philologist, and others have shown that the spiritual fathers of secular Arabic nationalism also borrowed from Herder’s ideas. The same applies to Iqbal, the father of

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Pakistani nationalism, who came into contact with German romanticism during his studies in Germany. German romanticism – as mediated through Indology – played a significant role in the emergence of Hindu Aryan nationalism in India and Singhalese Buddhist nationalism. Historians of ethnic nationalism in eastern and south-eastern Europe were as inventive as their German colleagues in simplifying complex historical inter-relationships and aggrandising the apparently age-old struggle for an independent ethnic nation. Polish history was reconstructed as an endless struggle from prehistoric times right up to the present for independence and a separate identity. The Poles were as interested as German nationalist historians in determining whether the Silesian princes, Copernicus and Veit Stoß were German or Polish. The Teutonic Order was demonised. The achievements of German settlers in the Polish Empire, in particular the founding of towns and cities, whose citizens had been Polish since the Middle Ages, were all condemned as failed attempts at Germanisation. This interpretation overlooked the fact that Poland was not a Polish nation-state but a feudal empire in which many nations had their homelands, an empire characterised by the high degree of ethnic and cultural tolerance – as demonstrated by the immigration of Jews from Germany. In the conflict with the Prussian version of German Protestantism in the nineteenth century, however, God became an exclusively Polish Catholic God. The preferred borders of the Polish nation-state were those of the mediaeval multiethnic empire of Poland and Lithuania. This pattern of German and Polish ethnic historicism is repeated by the Hungarians and the Czechs, and by every people seeking to legitimise its own ethnic nation-state. Like bacteria in a deep-freezer, the germ of ethnic nationalism survived Communist dictatorship in the eastern bloc and Yugoslavia. The Communist regimes were indeed national prisons. It is not in the interest of dictatorships to devise integrative forms of codetermination or federal political structure or education capable of harnessing the nationalism of different ethnic groups for republican political culture. Thus, the potential resident in ethnic nationalism for oppressing and persecuting ethnic minorities is once again being given free rein in what was the Second World of the former Communist bloc. Armenians and Azerbaijanis hound down and kill one another. Lithuanians, who have just succeeded in liberating themselves from the yoke of Soviet nationalism, are now oppressing their own Polish minority. The Romanian Moldavians are cleansing their libraries of Russian literature

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and putting pressure on their minorities. The Romanians are persecuting their Hungarian and German minorities, the Serbs their Albanians, Croatians and Bosnians. The Serbs see themselves as the true descendants of the ancient southern Slavs. In this view, the Croats, Slovenes, Macedonians and Bosnians have been estranged from ‘their’ real southern Slav Serb nation by centuries of Austrian and Ottoman rule. In much the same way as German nationalists judged Alsatians, the Serbs maintain that the other peoples of Yugoslavia have a false consciousness. They must return to ‘their’ true nation, the Yugoslav-Serb nation – by violence if necessary.

Ethnic culture and cultural freedom in a liberal constitutional state Nation-states have always tried to dictate and impose their national identity on their cultural traditions. Religion, art, cultural preference and even food and clothing have been standardised across nations. A true Pole or Irishman had to be Catholic, and a German living in Bismarck’s Empire should be a Protestant. Under the National Socialists, Germans were even encouraged to return to mythical beliefs of the Germanic tribes. Not only religion, but also art, music, literature and the performing arts were to be free of foreign, corrupting influences. Alien, un-German works of art were therefore destroyed in the Third Reich while mediocre German works displayed in the Haus der deutschen Kunst in Munich were hailed as part of the nation’s cultural heritage. Playing or even listening to jazz – ‘nigger music’ – was made a criminal offence. Even personal taste was nationalised: the wearing of German national costume was encouraged and eating and drinking praised as proper German behaviour. And in the second verse of the German national anthem, the petite bourgeoisie sang the praises of ‘German women’ and ‘German wine’ with particular fervour. The ‘German oak’ was more beautiful and stronger than French or Italian oaks. Nationalists have always had a provincial sense of culture. Human cultures have developed in a process of cultural exchange across millennia, frontiers and ethnicities. Culture is not autistic. In Christianity, the forefathers of the Germans, the Germanic tribes, embraced a cultural development of the Middle East. In the Middle Ages and the Renaissance, the rediscovery of Graeco-Roman philosophy and literature had far-reaching consequences for the culture of the European peoples. German idealism, neo-classicism and romanticism were all tapped for the spirit of the ancient world. The great

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works of literature have been translated into German: Homer, Shakespeare, Molière and Dante are now an integral part of German culture, too. Bach, Beethoven and Mozart (were they Germans or Austrians?) drew on the European musical tradition and left legacies for all mankind; their works cannot be claimed as national property by anyone. The consequence for any people of cleansing culture on the basis of ethnic criteria would be serious to say the least. The Germans would have to return to Wotan and Freia and dress in bearskins, because material progress, technology and production methods have also developed as part of a long history of cultural exchange. Cultural variety is present in all human society. Cultural homogeneity in the sense of seamless agreement on cultural values without conflict has never existed anywhere. Cultural pluralism is the result of reinterpretations of tradition and of cultural exchange. This was also the root of cultural conflict. In this sense, all societies at all times have been multicultural. This cultural variety and dynamism is indigenous to every society. In the liberal republic it is also constitutionally protected. In this way, and in contrast to ethnic nationalism, the liberal state based on the rule of law is open to cultural variety and vibrant culture. The republic is multicultural and protects cultural freedoms. Cultural freedom includes freedom of opinion, freedom of religion and the right to practise one’s religion, freedom of artistic expression and freedom of choice of cultural values in the broadest sense; in other words, the freedom of taste in everyday life. Article 4, Sections 1 and 2 of the Federal German Constitution take all this into account: ‘Freedom of thought, freedom of conscience and freedom of religious and philosophical opinions are inviolable … The right to practice religion shall be unrestricted.’ In Article 5, cultural freedom is defined to include freedom of art, science, research and teaching: ‘Art and science, research and teaching is free.’ Cultural freedom also means that the religious convictions and cultural values of minorities shall not only be tolerated, but may be actively promoted by them. Article 5, Section 1: ‘Every individual has the right to express and propagate his opinions by word of mouth, in writing and in pictures … There shall be no censorship.’ In a liberal democracy there is therefore no established religion, no national art and no national taste. No restrictions are placed on religion and philosophical thought. Any attempt to impose a specific religion or confession on Germans, French men and women or

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Americans as a national duty or characteristic would be an attack on the letter and the spirit of their constitutions. For German, French, British or American citizens, it is their own personal decision whether they wish to belong to a specific Christian faith or convert to Buddhism, Islam or the Bahai religion, or whether they see themselves as members of a secular society without any religious affiliation. The same applies to cultural values. Even if this is unpopular with the teaching establishment, it is up to each citizen to decide whether he or she wishes to read romantic novels, Goethe, the Koran or the tabloids, prefers to listen to Bach, pop or jazz, or chooses to spend free time in museums or engaged in sport. It is not easy to define culture. Cultures are clearly not static. They are dynamic, pluralistic phenomena. Cultural freedom within a republic also takes into account this characteristic of culture that its content changes with history. Thus, German culture today differs radically in terms of values, concepts and acceptable behaviour from the Germany of the Weimar Republic. German nineteenth-century culture was not identical to the culture in the preceding centuries either. The educational canon conceived in the spirit of nineteenth-century German idealism and romanticism that became de rigueur for the small stratum of educated middle-class people (around 3 per cent of the population) has been given a broader scope in recent decades. After the Second World War, there was a cultural revolution in Germany which democratised and widened people’s horizons. Any survey of specifically German features in the country’s culture would reveal a far wider range of vaguer answers in the Federal Republic of Germany than it would in nineteenth-century Germany. The hysterical reaction to a multicultural society in the current political debate in Germany reveals dire undertones. It expresses a desire for a national cultural homogeneity that has in reality never existed in Germany and is impossible in modern German society, where Christians of various confessions and sects and a considerable number of adherents of non-European religions live among a majority of secular citizens. As mentioned above, Germans can become Muslims, Buddhists or Hindus and adopt the cultural values of these religions. This right must also apply to German citizens of nonGerman origin as well as foreigners who either cannot or do not want to become German citizens. The hate campaign against the multicultural society goes back to the wars of religion. It is incompatible with the Fundamental Law of the Federal Republic or the constitution of any other republic.

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The limits of cultural freedom are defined by basic constitutional principles and the rule of law. As religious conflicts seldom lend themselves to compromise, the conflict frequently takes the form of one over the limits of cultural freedom. Conflicts over the potential scope of religious cultural freedoms are not a prerogative of Islam, either, as the dispute over civil marriage in Bismarck’s Germany demonstrates: Christianity has its fundamentalists too. These conflicts have to be tolerated and resolved within the legal system.

German immigration There are approximately seven million foreigners in Germany today. Of these, about 3.5 million have been living there for over twenty years and one and a half million were born there. As the German population is ageing, there can be little doubt that many more foreigners will settle there in future. Even if effective barriers were erected against further immigration, the proportion of foreigners as a part of the total population would continue to rise as a result of differences in birth rates. Yet, according to official policy, Germany does not seek immigrants, only migrants. In other words, unlike immigration countries, Germany does not consider resident foreigners as potential citizens and potential assets to the national community. As far as possible, only ‘Germans’ should be accepted as citizens. Foreigners, by contrast, will continue to be granted a ‘guest status’ with rights of residence for different periods under varying conditions. There are many reasons for the highly emotive political resistance against Germany changing from a state that accepts migrants to an immigration country. As in all countries, people’s attitudes are most strongly conditioned by economic factors. Ideological factors such as the nation-state concept certainly play a role as well, but they should not be demonised. The battle for jobs has evoked racist responses in all European states in the current economic recession. The history of immigration countries teaches us that conflict between the native population and immigrants is typical of times of economic recession and job shortages. That is why the major economic crises in nineteenth-century America led to such acute social conflicts between locals and immigrants, conflicts that were far more serious than the current cleavages between immigrants and native Americans today. The influx of four million foreigners into the pre-1990 Federal Republic after the Berlin Wall was built, when labour was urgently needed, proceeded fairly smoothly, despite Germany’s ethnic

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nationalist traditions. While full employment lasted, there was little if any xenophobia or attacks against foreigners. The first incidence of racism occurred during the 1970s in regions affected by the crisis in the iron and steel industry. In contrast to the post-Wall period, foreigners were now, for the first time, rivals for jobs. The significance of economic issues in attitudes to foreigners is also reflected in surveys, where the greatest potential for xenophobia is always found in rural regions with a weak infrastructure and smallholdings struggling to survive, even though very few foreigners live there and the majority of respondents do not know any foreigners personally. By contrast, although the proportion of foreign residents is much greater in conurbations with high economic growth, there is always much less xenophobia. In Switzerland, there are relatively twice as many foreign residents than in Germany – 17.5 per cent compared to only 7.5 per cent – yet, thanks to strong and stable economic growth with full employment, there have scarcely been any attacks on foreigners. Hence, attitudes towards foreigners are an immediate consequence of economic and social policies. A shortage of jobs or accommodation directly affects attitudes towards foreigners. However, it would be unrealistic to believe that, once the current recession is over and the economic problems of German unification are dealt with, Germany would be ready to move from accepting migrants to welcoming immigrants – to grant millions of foreigners full citizenship instead of just temporary residence permits. The hoary concept of German ethnic nationalism is still an obstacle. Currently, it has been experiencing a revival and been made an instrument and justification for the rash of attacks on foreigners in Germany. Only in times of recession does the concept of the nation-state unleash its inhumane political force. One example of this is the Weimar Republic itself. Ethnic nationalism at the time of the Great Depression made it possible to victimise ethnic foreigners, namely the Jews, as the root of all evil in Germany. In the light of this, an effective economic and social policy is a necessary but not a sufficient condition: ethnic nationalism also has to be replaced by the concept of the republic state. Granting foreigners in Germany full citizenship would enable them to become politically active and pursue their political rights. In this respect, the concentration of foreign workers in large cities acquires a potential electoral significance. A break with ethnic nationalism would mean that in future the only criterion for membership of the political community of Germans would be acceptance of the constitution and observance of the law.

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The Fundamental Law of the Federal Republic constitutionally guarantees the equality of all people, irrespective of background, race or religion, as well as the freedom of culture, the freedom of religion and of cultural values. The legitimacy of republic constitutions is conditional on the realisation of their constitutional norms. Open acceptance of foreign immigrants from foreign cultures is fundamental to their credibility. Refusal is a rejection of legitimacy underpinning the constitutional state, its roots in common values shared by all mankind, in which civil rights derived from human rights are given legitimacy. Note 1 Cf. D. Oberndörfer, Die offene Republik (The Open Republic), Freiburg 1991 (Herder Spektrum; v. 4034); idem, Der Wahn des Nationalen (The Mania in Nationalism), Freiburg 1993 (Herder Spektrum; v. 4279); idem, ‘Assimilation, Multikulturalismus oder kultureller Pluralismus’ (Assimilation, Multiculturalism, or Cultural Pluralism), in Klaus J. Bade (ed.), Migration – Ethnizität – Konflikt, Osnabrück 1995 (Schriften des Instituts für Migrationsforschung und Interkulturelle Studien: IMIS-Schriften, v. 1).

References Oberndörfer, D. (1991), Die offene Republik (The Open Republic), Freiburg: Herder Spektrum, v. 4034. Oberndörfer, D. (1993), Der Wahn des Nationalen (The Mania in Nationalism), Freiburg: Herder Spektrum, v. 4279. Oberndörfer, D. (1995), ‘Assimilation, Multikulturalismus oder kultureller Pluralismus’ (Assimilation, Multiculturalism or Cultural Pluralism) in K. J. Bade (ed.), Migration – Ethnizität – Konflikt, Osnabrück: Schriften des Instituts für Migrationsforschung und Interkulturelle Studien: IMIS-Schriften, v. 1.

3 Citizenship and Nationality in Britain Zig Layton-Henry

In the last decade we have witnessed a tremendous revival of interest in the concept of citizenship. In political science, Michael Moran (1989) has argued that citizenship seems to have overtaken class, market and even democracy as the key concept of the discipline. This is an overstatement of what has occurred, but one can hypothesise that the collapse of the Soviet Empire and disillusion with socialism and social democracy have undermined the dominance of class and class struggle as the motor for extending rights to marginalised groups. Redefining citizenship in a broader and more generous way is seen by many liberal reformers as the path to greater equality and democracy and to a fairer and more inclusive society. This view may be over-optimistic. The western tradition of citizenship and its related concept of nationality tend to be highly restrictive – to be rooted in national closure with a double meaning of limited access from outside and cultural homogeneity within. Citizenship, as Conover, Crewe and Searing (1990) argue, is not only a means for the acquiring of civil, political and social rights in Marshallian terms but is also an identity that acts as an anchor in situating oneself in society (Marshall 1963). This definition emphasises the view that citizenship is closely related to membership of a national community or membership of society. It suggests that one needs to be a member of the community before one can be a citizen. This ideal model of nation-state citizenship is described most clearly by Brubaker (1989) and his description of this ideal type illustrates the blending of the concepts of citizenship and nationality. He argues that this ideal model of citizenship contains the following elements. It should be: 60

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1. Egalitarian (gradations of membership status are inadmissible). 2. Sacred (citizens should be prepared to make sacrifices for their state and not regard citizenship in an instrumental way). 3. National (membership of the political community should be simultaneously a cultural community). 4. Democratic (full membership should carry with it rights to political participation and in the long run residence and membership must coincide). 5. Uniqueness (every person should belong to one and only one state). 6. Social consequential (membership valued both objectively and subjectively) (Brubaker, 1989: 3–5). This ideal model of nation-state citizenship shows the fusion of citizenship and national identity and its exclusive nature. The criteria of sacredness, cultural membership and uniqueness are highly restrictive and increasingly obsolete in today’s world. They do, however, illustrate the two dominant sets of assumptions or traditions that underlie definitions of citizenship: the contractual and the communal. The contractual tends to be legalistic and has at its core a strong emphasis on individualism and individual rights. Citizenship is linked to access to rights – civic, political and social (Marshall 1963). The duties of citizenship in this liberal view tend to be relegated to the background as they are seen as illiberal, restricting the individual’s freedom of action. Many Conservatives at the present time are concerned that citizenship has become increasingly unidirectional, emphasising rights or entitlements from the state and no longer stressing the obligations and duties traditionally expected from citizens. The second view is communitarian. It sees citizenship as rooted in the community. People share common traditions and understandings with their neighbours and come together to pursue a common good. They have a common identity and it is their duty to participate in public activities and affairs. The duties of citizens are much more prominent in the communitarian view. In Anglo-Saxon debates the United States is often given as an ideal type of a country where contractual citizenship is most important and Britain is proposed as an example of the communitarian case. However, there is no clear distinction between the two traditions. Those countries which emphasise citizenship by descent from a citizen, ius sanguinis, would seem to fall in the communitarian tradition but these countries are also often republican, with an emphasis on the sovereignty of the people and the rights of citizens, which seem closer

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to the liberal contractual view. Those countries like the United States which fall into the liberal contractual tradition can place strong emphasis on the duties of citizens and demand a high degree of citizen participation and loyalty. Britain has often been regarded as liberal as far as its citizenship laws are concerned. Historically, citizenship has been granted through ius soli and all born on the territory had the automatic right to citizenship, no matter what the nationality of the parents. Also, British citizenship extended to all people born on British territory, no matter whether it was the territory of Great Britain or overseas territories. When New Commonwealth immigrants migrated to Britain in the 1950s and 1960s they had full civic, social and political rights whether they came from colonies such as Jamaica, or from independent Commonwealth countries such as India or Pakistan. The ius soli method was simple and inclusive. It encouraged the integration of people settled in the UK and provided security for the second generation and the ability to identify themselves with their country of birth. It did, however, assume that the second generation would be accepted and welcomed. But the British case is not as straightforward as I have suggested here. It has always been thoroughly confused, as regards both citizenship and national identity. A good example of this confusion is provided by Enoch Powell who in September 1968 drew attention to the divorce between citizenship and national identity. He said that ‘The West Indian or Indian does not by being born in England become an Englishman. In law he becomes a United Kingdom citizen by birth, in fact he is a West Indian or Asian still’ (Smithies and Fiddick, 1969). This quotation highlights a number of problems in the British case. Firstly, few people ever thought of themselves as United Kingdom citizens. They thought of themselves as British citizens and this is the term adopted in the British Nationality Act (1981). Secondly there is no simple definition of British identity. People in the United Kingdom would traditionally have defined themselves as English, Welsh, Scots or Irish and today we could add a whole range of other identities. These identities may or may not be compatible with a British identity. A Scot may be anti-English but pro-British, an Irishman pro- or anti-British, while an Englishman may see no distinction between being English or being British. Also as many people are descended from parents or grandparents with different British national origins, it is not uncommon in Britain for people to slip between national identities, depending on the social context and the advantages and disadvantages of particular identities.

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Historically the key British concept with regard to citizenship has not been nationality or citizenship itself, but rather subject status. People were subjects of the King by virtue of birth in the King’s dominions or territories. This feudal notion of ‘subject’ reflects the fact that Britain does not have a republican tradition, like many other countries, which rejected royal absolutism and vested power in a sovereign people. In Britain, power was vested in the monarch and then later in a sovereign parliament to whom the people remain subject. The notion of subject was extremely convenient; it helped to resolve the problem of the allegiance of Scots after the union of the Crowns of England and Scotland in 1603 at a time when Scotland had its own parliament and political system. Moreover, it kept people in their place, that is, subject to a central authority. It did not raise them up to the status of citizen rulers who could make awkward demands on the government. The Powell quotation is thus both accurate and inaccurate in its reference to birth in England and national identity. Traditionally it is birth on English soil that makes an Englishman rather than descent from an Englishman. This accords with the Anglo-Saxon adherence to ius soli rather than ius sanguinis, a tradition that Britain began to abandon in the British Nationality Act of 1981. I am very fond of Daniel Defoe’s satirical poem, ‘The True Born Englishman’ (Morley, 1899: 175–218). He makes the point that the English, particularly the upper classes, were often of foreign descent and, in his day, of recent foreign descent. The second generation, however, whatever their antecedents, become transformed into true-born Englishmen (and women): Fate jumbled them together, God knows how; Whate’er they were, they’re true born English now. However, Powell is also right in the sense that racism against Third World people in the postwar period has meant that English-born African-Caribbean and Asian people are still not fully accepted as trueborn English men and women, and that they continue, like their parents and grandparents, to experience discrimination and racial violence. They are excluded from full acceptance into the national community and are subject to criticism as not being fully loyal, as when Lord Tebbit suggested his cricketing test of loyalty, ‘Which side do they cheer for?’ or the article in Wisden Cricket Monthly which claimed that black players in the England team lacked the commitment of ‘unequivocal’ Englishmen

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(Henderson, 1995; Independent, 3 July 1995). As a result they often consider themselves to be second-class citizens in a way that people of European descent rarely do.

Citizenship and empire A major complicating factor in the development of British citizenship was the transformation of Britain from the seventeenth century onwards into an imperial power. As overseas territories were acquired, the number of the King’s subjects expanded enormously. There was no clear distinction made between the King’s subjects born overseas and those born in the British Isles; all owed allegiance to him and deserved his protection. British subjects were not, of course, treated equally, and non-European subjects generally had fewer rights and were subject to more restrictions and controls than Europeans. But no separate citizenship was established for subjects in the metropolitan country and the overseas territories. There were a large number of different statuses, not least because the different territories in the Empire were administered in different ways. Some colonies, such as those in North America, had considerable autonomy and, for example, introduced their own naturalisation procedures. The question was then raised concerning whether decisions made in a colony were binding on the metropolitan power in the same way as British decisions were binding on colonial governments (Dummett and Nicol, 1990). Some territories were controlled indirectly, such as the princely states in India, or as British protectorates. These gave rise to a category of British protected persons who had far fewer rights than other categories of British subject. The British government allowed diversity and autonomy, especially after the successful American rebellion, as long as allegiance to the British Crown was paramount (Roche, 1969). The European-governed Old Dominions had by the beginning of the twentieth century all introduced their own immigration laws, generally designed to control immigration from India and China. So British subjects from one part of the Empire/Commonwealth did not have the automatic right of entry to a colony any more than a colonial subject had the right to enter colonial territories other than his/her own. Britain alone in the Empire allowed British subjects the right of free entry to the Mother Country to exercise their rights as British subjects: for example, they could vote in British elections, stand for office, and work in the public service. This right of free entry to Britain was seen as symbolically important in maintaining Britain’s moral authority and right to imperial leadership. It came to be known rather pompously as

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civis Britannicus sum. However, it was symbolic – a right that was not expected to be exercised by non-European British subjects, and when it was exercised, difficulties were created. For example, before 1942, intending immigrants had to produce documentary proof that they were British subjects. Colonial seamen were subject to controls under the Coloured Seamen’s Order of 1925 (Roche, 1969) and it was wellknown that before the Second World War the British armed forces in the UK operated a colour bar (Sherwood, 1985). Attempts to move towards a common imperial citizenship status by adopting common naturalisation procedures from Commonwealth countries failed at the 1914 Imperial Conference.

The British Nationality Act 1948 It was the Canadians who first challenged the outdated feudal notion of British subject and asserted their independence from Britain by passing their own citizenship law in 1946. This put Canadian citizenship above the status of British Subject for Canadians. Moreover, in response to the sensitivities of people in Quebec, the concept of British subject was replaced by that of Commonwealth citizen. The British government knew that other Commonwealth countries such as South Africa, and countries on their way to independence such as India and Pakistan, would follow the Canadian lead. In order to clarify the whole question of British citizenship and nationality, the government introduced the British Nationality Bill of 1948. This Bill proposed two classes of British citizen: first, citizens of independent Commonwealth countries; and secondly, the remainder, who were called citizens of the UK and colonies. It is interesting to note that the citizens of independent Commonwealth countries such as Canada were to remain British subjects and would continue to be able to exercise their rights as such if resident in the UK. The government wished that the links and unity developed during the history of Empire could be continued, albeit more on a basis of partnership, as the Empire evolved into the Commonwealth. In fact, the Conservative opposition attacked the Bill as unnecessary and as undermining the unity of the Commonwealth because, by giving primacy to local citizenship, the derivative British nationality would gradually decline in importance and eventually lapse. Sir David Maxwell Fyfe, who led the Conservative opposition to the Bill, reserved the opposition’s right to revert to the old common citizenship if this should be the wish of the other Dominions and the member states of the Commonwealth.

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He was also concerned lest the provisions for separate categories of citizens might be used to discriminate against Commonwealth citizens, arguing that there would be no point in these new categories unless there was some intention of dropping the idea of the common status of all British citizens and our proud boast of the open door. ‘We are proud’, he said, ‘that we impose no colour bar restrictions making it difficult for them when they come here … we must maintain our great metropolitan tradition of hospitality to everyone from every part of our Empire’ (Hansard, vol. 453, col. 404, 7 July 1948). The consequences that Sir David Maxwell Fyfe foresaw have gradually come about, largely through legislation by his own party. The Conservative commitment to a common British Imperial and Commonwealth citizenship was not to last long. It disappeared as Commonwealth countries increasingly asserted their independence and became untenable as the introduction of immigration controls removed the rights of most British subjects to enter the UK. The British Nationality Act (1948) reaffirmed citizenship acquisition through ius soli, that is, birth on the territory of the UK and colonies, and birth outside the territory to a citizen father, and also through naturalisation at the discretion of the Home Secretary. It introduced a simplified procedure of registration for citizens of Commonwealth countries who wished to become citizens of the UK and colonies, and presumably because of the large number of marriages by British women to foreign nationals during the war it changed the law by which British women lost their citizenship on marriage to a foreigner, and allowed those who had lost their citizenship in this way to have it restored. The Act recognised that independent Commonwealth countries would wish to give priority to their own individual citizenships, but it tried to maintain Commonwealth unity through the reaffirmation of the status of British subject, which would continue for both citizens of the UK and colonies and citizens of independent Commonwealth countries. It did not define British citizenship or British nationality in a restrictive way. A wide variety of peoples were subsumed under the heading of citizens of the UK and colonies, and all these, as well as citizens of independent Commonwealth countries, had the right of access to, and settlement in, the UK.

The decline of civis Britannicus sum Postwar immigration from the New Commonwealth did not receive the welcome that Sir David Maxwell Fyfe suggested that it should. This

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is probably because the policy of the open door was meant to remain symbolic rather than real. It was a means of enhancing Britain’s moral leadership in the Commonwealth, and was not meant as an invitation to immigrate. If the myth had any reality, then it was as a means of strengthening the links between the Old (white) Commonwealth and Britain by encouraging Britons to emigrate to the Old Commonwealth and ensuring freedom of entry to Britain of Commonwealth people regarded as kith and kin. When colonial migrants from New Commonwealth countries began to arrive after 1948, they were unexpected and unwelcome. Neither the political elite nor the general public welcomed black immigrants, despite the labour shortage, and despite their colonial and Commonwealth ties that had been so important during the war and continued to be vital for Britain’s international trade and her strategy to preserve her status as a great power in the postwar world. Gradually a campaign to control New Commonwealth immigration gained support, particularly in the Conservative Party, and a series of immigration control measures were introduced in the decade 1961–71. The major steps were the Commonwealth Immigrants Act 1962, the 1965 White Paper: ‘Immigration from the Commonwealth’, the Commonwealth Immigrants Act 1968, and the Immigration Act 1971. These measures were clearly designed to control the immigration of non-white British subjects from colonial and Commonwealth countries. This was made explicit in the legislation, all of which exempted certain categories of people from control. The 1962 legislation, for example, exempted the Irish who, it was argued, were too difficult to control, since part of Ireland was within the UK. In reality, the Irish were considered to be too valuable a source of labour to deter and were also thought to be easily integrated into the UK population. This positive welcome to Irish people existed at official levels despite the continuing legacy of Irish antagonism to Britain caused by the past colonial relationship and by the continuing division of Ireland. The 1968 legislation exempted from control those with close ties to the UK by birth, naturalisation or descent from a British parent or grandparent. While the leading government and opposition spokesmen denied the Bill was racist, it was clearly designed to restrict the entry of British citizens without close ties to the UK, the vast majority of whom were non-white. The 1971 Immigration Act introduced a new concept of patriality which had been foreshadowed in the 1968 Act. A ‘patrial’ was defined as a person having the right of abode in the UK and included citizens

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of the UK and colonies with close connections with the UK through birth, adoption, registration, naturalisation and residence. But it also included Commonwealth citizens born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the UK and colonies by virtue of their birth in the UK (Immigration Act 1971, Section 2). This section gave privileged access to the UK to people of British descent. The 1971 Immigration Act gave the British government complete control over the entry of non-patrials to the UK, but it did not end public concern over immigration. Interestingly the Heath government was defeated in Parliament in 1973 over new immigration rules needed as a result of the 1971 Act. The government was defeated because many Conservative MPs and their constituents wanted easier access to Britain for their kith and kin in the Old Commonwealth. The government changed the rules to allow people descended from a British grandparent to be exempt from immigration controls, thus widening the definition of ‘patrial’ which had been restricted to ‘descent from a British parent’ during the committee stage of the 1971 Act. Throughout the 1970s, Enoch Powell continued his campaign against non-white immigration, as did the National Front. The expulsion of Asians from Uganda in 1972 and a moral panic over Asian immigrants from Malawi in 1976 helped to maintain immigration as a public issue. Powell increasingly campaigned against family reunification and especially the numbers of dependants entering the UK from the Indian sub-continent. By the mid-1970s a suggestion, first raised by Powell in 1972, that British citizenship should be redefined was receiving considerable attention and support in political circles. Immigration control legislation had resulted in a situation whereby the status of citizens of the UK and colonies no longer defined who had the right of entry to the UK. In international law, all citizens have the automatic right of entry to the national territory and the right of abode. Restricting rights of abode to certain categories of citizen violated international law and exposed the racist nature of the immigration laws. Many politicians of both major parties felt that a redefinition of the citizenship laws would eliminate the basis for accusations of racism. It would also emphasise that Britain was no longer a imperial power and result in a citizenship that was more appropriate to Britain’s reduced role in the world. In April 1977 the Labour government published a Green Paper entitled British Nationality Law: Discussion of Possible Changes. This contained the proposal that there should be two forms of British citizenship: the

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first, British citizenship for those with close connections with the UK, and the second, British Overseas Citizenship for those who were citizens of the UK colonies. British Overseas Citizenship would not carry with it the right of entry to the UK. The Conservatives were coming to the same conclusion. In 1975 a committee of the Society of Conservative Lawyers concluded that the absence of any ‘separate status of UK citizenship available primarily to persons born in the UK or born outside the UK to fathers of UK descent was the most extraordinary anomaly of the present law’ (Conservative Political Centre, 1975). Their report also drew attention to the fact that the immigration laws had created a single citizenship with different rights when it would be more sensible to have different citizenships with different rights. This was becoming the accepted view and in the 1979 general election the Conservative manifesto contained a commitment to introduce a new Nationality Act. The link between immigration and reform of the nationality laws was explicit. The party’s proto-manifesto, The Right Approach, argued that a new Nationality Act would allay people’s fears of unending immigration and establish a rational basis for British citizenship (Conservative Political Centre, 1976). A study group set up by William Whitelaw when he was opposition spokesman on Home Affairs recommended in 1980 that ‘a new separate category of citizenship, namely UK Citizenship, should be created for people who belong and have their homeland in this country and therefore have the right to come, live and work here or, in the words of the Immigration Act 1971, have the right of abode in the UK. Our immigration policies should be based directly on our nationality laws’ (Conservative Political Centre, 1980).

The British Nationality Act 1981 The commitment to introduce a new Nationality Act was the most wide-reaching and important proposal in the Conservatives’ election manifesto. It was not only a break with an ancient tradition, but it affected the status of millions of people from Malaysia to the Falkland Islands, from Hong Kong to Bermuda, as well as in Britain itself. It would define British Citizenship for the first time and effectively make redundant the earlier status of British Subject. As mentioned earlier, the Labour government of 1974–79 had also decided that the nationality law had to be revised, and had published proposed changes. It had argued that a new scheme of citizenship should reflect the strength of the connection that various groups of people had with the UK. It

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proposed two categories of citizen: namely, British Citizens and British Overseas Citizens. This latter group was to consist mainly of people connected with existing dependencies and those who had retained their British citizenship when the colonies or dependencies in which they lived became independent (Home Office, 1977). The government published a White Paper on its proposed nationality legislation in July 1980 (Home Office, 1980). There was tremendous concern and anxiety about the implications of the proposed bill, and representations were made to the government and opposition parties by ethnic minority organisations, the churches, the CRE and civil liberties groups. The government published its bill in January 1981 (Home Office, 1981). The bill set out three major categories of citizenship: British Citizenship, Citizenship of the British Dependent Territories and British Overseas Citizenship. British citizens would be those citizens of the UK and colonies who had a close personal connection with the UK, either because their parents or grandparents had been born, adopted, naturalised or registered as citizens of the UK, or through permanent settlement in the UK. One controversial proposal was that, as a general rule, British citizenship should descend only to the first generation of children born abroad to British citizens born in the UK. This caused consternation to expatriate Britons all over the world, and also to Britons working or serving abroad, many of whom had not themselves been born in Britain as their parents had been involved in imperial service or overseas trade. The bill also proposed that children born in Britain of certain categories of foreign parents, or whose parents were of uncertain status – because of illegal immigration or through overstaying their period of residence, for example – would not automatically be entitled to citizenship. Mr Whitelaw was to tell the House of Commons: ‘The Government sees no reason why a child should ever have citizenship simply because his parents happen to be in the United Kingdom when he is born’ (Hansard, vol. 31, col. 697, 11 November 1982). This was the first time that the Anglo-Saxon tradition of ius soli, conferring citizenship by virtue of birth in the territory, had been questioned. It marked a move, albeit a modest one, towards the continental tradition of ius sanguinis, conferring citizenship by virtue of descent from a citizen. Persons marrying a British citizen would no longer have an automatic right to citizenship, but would be able to apply for citizenship after three years’ residence. Citizenship of British Dependent Territories would be acquired by those citizens of the UK and colonies who had that citizenship

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by reason of their own or their parents’ or grandparents’ birth, naturalisation or registration in an existing dependency or associated state. The third category, British Overseas Citizenship, was essentially a residual one with virtually no rights. It was intended for those citizens of the UK and colonies who did not qualify for either of the first two categories, and related mainly to holders of dual citizenship who lived in Malaysia, but also to East African Asians entitled to come to Britain under the quotas established in the Commonwealth Immigrants Act 1968. British Overseas Citizens would not be able to pass on this citizenship, nor would they have the right of abode in any British territory. It was hardly a citizenship at all – rather, a phasing-out of British Subject status. In reality, it was a strong invitation to those British Subjects permanently settled abroad and with no close connection with the UK to acquire full local citizenship as quickly as possible and end the pretence of a continuing British connection. It was a further indication that the British government wished to divest itself of overseas obligations that were a legacy of its imperial past. There was a risk that if the children of British overseas citizens were refused citizenship by their country of birth, they would be born stateless but, as most of their parents had dual citizenship, the government considered this risk to be slight (Home Office, 1980). The Home Secretary introduced the bill for its second reading on 28 January 1981. He declared that under the immigration laws it would not adversely affect the position of anyone lawfully settled in the UK. It did not discriminate on racial or sexual grounds, he claimed, and it provided the comprehensive and logical overhaul of citizenship legislation that had so long been required and which it had long been the duty of the UK government to introduce (Hansard, vol. 997, cols. 931–41, 28 January 1981). The opposition attack on the bill was even more ritualistic than usual, as they themselves were committed to a revision of the citizenship laws, and the government’s proposals owed much to the previous Labour government’s Green Paper. Conservative backbenchers spent much of the debate making representations on behalf of dependencies such as Gibraltar, the Falkland Islands and Hong Kong. Some of them also argued that it was unjust to distinguish between children born abroad to people who were British citizens by birth and those whose parents were British by naturalisation or registration. There was considerable support for the sensible proposal, put forward by Roy Hattersley for the opposition, that each colony should have its own citizenship rather than the cumbersome common citizenship proposed in the bill

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for British Dependent Territories. Unfortunately the government did not agree to this amendment and the opportunity to simplify citizenship arrangements was lost. The government had a comfortable majority of fifty on the second reading. Shortly after the debate, the Home Secretary announced two major amendments to the bill: first, that any child born in the UK who did not acquire British citizenship at birth might acquire it after ten years’ continuous residence, irrespective of the status of the parents; and second, that citizens by naturalisation or registration would be allowed to transmit citizenship to children born overseas in the same way as British-born citizens. These amendments were reassuring to members of the ethnic minority communities, and were welcomed in the Rajya Sabha by the Indian Foreign Minister, Shri Navalsimha Rao. The first amendment was a move back towards the ius soli principle. Some rightwing Conservative backbenchers were angry at the concessions made by the government. Ivor Stanbrook, a member of the standing committee examining the bill, said they showed a contempt for backbench opinion and were a betrayal of government pledges on immigration (The Guardian, 5 February 1981.) After considerable discussion in committee and on the floor of the House, the bill received its third reading on 4 June. It then went to the Lords and returned to the Commons with ninety amendments, all except one of which were accepted by the government, including the controversial Gibraltar amendment. This gave Gibraltarians special access to British citizenship, a concession which was later extended to Falkland Islanders after the war with Argentina. The nationality bill was enacted and came into force on 1 January 1983.

The consequences of the Nationality Act The decision by the government to introduce a more restrictive British citizenship and to phase out the entitlement of Commonwealth citizens to automatic registration for UK citizenship1 caused considerable anxiety among the permanently settled immigrant community – an anxiety that was increased by the fact that the nationality bill was introduced in a context which emphasised more rigorous immigration controls. The result was a huge rise in applications for registration and naturalisation as British citizens. Applications rose from 38 000 in 1978 to 70 000 in 1981 and 96 000 in 1982, despite a large increase in fees, which the government introduced to make the service self-financing. Naturalisation fees rose from £90 in 1979 to £200 in April 1982. The

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fee for those entitled to registration rose from £37.50 in 1979 to £70 in 1982. According to the Select Committee, this produced a notional profit to the Home Office of £6 million in 1982–83 (House of Commons, 1984). The Home Affairs Committee criticised the level of fees, which it felt was unfairly high and deterred some people from applying for citizenship. The government agreed to reduce them, which it did in 1984 (Home Office, 1984). The Home Office was also censured for not anticipating the surge in applications, which resulted in long delays. This was criticised by the Home Affairs Committee in its 1983 report, but even more strongly in its 1990 report, which condemned the incompetence and inexcusable delays of the Immigration and Nationality Department in dealing with registrations and naturalisation applications. This was particularly disgraceful, it felt, in a fee-paying service (House of Commons, 1990). The Home Secretary published a White Paper on 25 October 1982, setting out proposals for changes in the immigration rules made necessary by the Nationality Act. Mr Whitelaw argued that the Act now defined those belonging to the UK, and that all women who were British citizens should have the right to be joined by their husbands or fiancés; in future, all British citizens would be able to bring their husbands or wives or fiancé(e)s into Britain (Hansard, vol. 31, cols. 692–9, 11 November 1982). This was not entirely true, as the spouses or fiancé(e)s would have to satisfy immigration officers that the primary purpose of joining their partner was not immigration to the UK. The opposition criticised and opposed the changes in the rules, arguing that some were too restrictive, while fifty Conservative MPs supported a reasoned amendment tabled by Ivor Stanbrook that they would encourage abuse of the immigration laws through the arranged marriage system (The Guardian, 11 November 1982). The new rules were finally approved by Parliament on 15 February 1983.

Conclusion One of the legacies that Britain inherited from her imperial past was an expansive and liberal form of citizenship. The concept of citizenship was foreign to Britain’s non-republican tradition and the key concept was that of British Subject, but both citizens of the UK and colonies and citizens of independent Commonwealth countries were British Subjects. This meant that once resident in Britain they had full civic, social and political rights. A new restrictive form of British Citizenship, requiring a close connection to the United Kingdom, was not

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introduced until the British Nationality Act 1981. This imperial legacy was reinforced by the postwar efforts by Britain to retain its great power status through the attempt to retain its leadership of the Commonwealth. These resulted in Britain retaining its liberal citizenship provisions during the main period of postwar immigration, 1948–71. This legacy has resulted in a situation where the British response to postwar immigration in terms of citizenship reform has been very different from that of its European neighbours. Postwar immigration to western Europe created a situation in many countries where large numbers of people – mainly migrant workers and their families – did not have the citizenship of their countries of work and residence. They could not enjoy full civic, social and political rights unless they naturalised. However, for a variety of reasons naturalisation rates were very low. These reasons would include the wish to return, not to lose property and inheritance rights, and not to lose one’s previous citizenship and compromise national identity, as well as the difficulties of naturalisation and fear of rejection. Gradually, as it was realised that postwar migration had resulted in settlement, many of the receiving countries relaxed their restrictions on foreigners and liberalised their nationality laws. Sweden led the way in 1974 and has been followed by other Scandinavian countries, Belgium and the Netherlands. In the 1980s France too lifted some restrictions on foreigners, though more recent French administrations have taken a more restrictive position. In Britain, most postwar immigrants had citizenship rights as they were either British subjects or citizens of the Irish Republic who were treated as if they were UK citizens because of the historic links between Britain and Ireland and the needs of the British labour market. The fact that citizens of Commonwealth countries and colonies had citizenship rights did not have adverse consequences for the British political and party systems. For example, they vote overwhelmingly for mainstream British parties. Citizenship and voting rights, however, did not protect them from anti-immigrant agitation and racial violence. Nor did it protect them from the harsh consequences of arbitrary immigration rules and laws. In the postwar period the trend in Britain has been one of tougher and tougher immigration controls aimed at ending immigration from the Third World and the Indian sub-continent in particular. It has also been towards a more restrictive definition of citizenship. This is because the expansive notion of British subject came to be increasingly untenable as most British subjects in the former Empire lost their right

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to immigrate to the UK. Technically, by 1980 some 950 million people could claim to be British subjects, mainly because they were citizens of independent Commonwealth countries who were defined as British subjects under the Nationality Act of 1948. As there was no definition of British Citizenship, all subjects were citizens even though most had no right of access to the UK after the immigration laws of 1962, 1968 and 1971. A new citizenship law was both inevitable and expedient. It was impossible to continue with a situation where most British citizens lacked the fundamental right of citizenship that is the right of entry and abode in the country of their supposed citizenship. It is clear that if the Labour Party had been elected in 1979 it too would have introduced a new British Nationality Act. The British Nationality Act of 1981 did not end the confusion surrounding British citizenship. While there is now a citizenship for those with close connections with the UK which does provide the right of access and abode in the UK, there are also a variety of categories of British citizenship which do not. These include British Dependent Territories Citizen and British Overseas Citizen and British National (Overseas). Moreover, many citizens of independent Commonwealth countries have the right of access to the UK because they are of British descent. Special arrangements also apply to Gibraltarians, Falkland Islanders and some people in Hong Kong. Now that Hong Kong has reverted to China, the British government has announced that it will grant full British citizenship to all the remaining citizens of the British Dependent Territories. The British approach to citizenship has been pragmatic and expedient. It has never been idealistic, though on occasion it has been claimed to be. The concept of personal allegiance to the King was expedient in the seventeenth century as it solved the problem of the allegiance of the Scots, who then had their own parliament. By the end of the nineteenth century, this notion had evolved into that of allegiance to the institution of the Crown rather than personal allegiance to the monarch. The notion of civis Britannicus sum whereby all subjects in the Empire and Commonwealth had a common British citizenship was an expansive and unifying ideal, a legitimation of Britain’s imperial role, and was felt to be needed to hold together such vast and diverse territories. But it was quickly abandoned when the far-flung citizens began to exercise rights that were meant only to be symbolic for them – though they were meant to be real, of course, for people of British descent and British expatriates wishing to return to the UK.

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However, the expansive notion of British subject has aided the integration and acceptance of people from the New Commonwealth. Politicians, governments, the media and other electors have had to take their opinions and needs into account, especially at local level in major urban centres where ethnic minority voters form a large and growing proportion of the electorate. The government can, to a certain degree, ignore the wishes of non-citizen groups like asylum seekers as they cannot back up their protests by votes. But electors are hard to ignore even when they are a minority and Britain’s ethnic minorities are very active in the political process and are becoming more adept at defending and promoting their interests. Note 1 Commonwealth citizens entitled to automatic registration as British citizens had to exercise this right by 31 December 1987; otherwise, they would have to apply for naturalisation on the same basis as aliens.

References British Nationality Act 1981, London: HMSO. Brubaker, W. R. (ed.) (1989), Immigration and the Politics of Citizenship in Europe and North America, London: University Press of America. Commonwealth Immigrants Act 1962, London: HMSO. Commonwealth Immigrants Act 1968, London: HMSO. Conover, P., Crewe, I. and Searing, D. (1990), Conceptions of Citizenship Among British and American Publics: an Exploratory Analysis, Department of Government, University of Essex: Essex Papers in Political Government, March 1990, no. 73. Conservative Political Centre (May 1975), Towards a New Citizenship, Report no. 566, London: Conservative Central Office. Conservative Political Centre (1976), The Right Approach: a Statement of Conservative Aims, London: Conservative Central Office. Conservative Political Centre (1980), Who Do We Think We Are? London: Conservative Central Office. Defoe, D. ‘The True Born Englishman’, in H. Morley (ed.) (1899), The Earlier Life and Chief Earlier Works of Daniel Defoe, London: George Routledge & Sons, 175–218. Dummett, A. and Nicol, A. (1990), Subjects, Citizens, Aliens and Others: Nationality and Immigration Law, London: Weidenfeld & Nicolson. Hansard, Parliamentary Debates, House of Commons. Henderson, R. (1995), ‘Is it in the Blood?’, Wisden Cricket Monthly, June 1995. Home Office (1977), Cmnd 6795, British Nationality Law: Discussion of Possible Changes, London: HMSO. Home Office (1980), Cmnd 7987, British Nationality Law: Outline of Proposed Legislation, London: HMSO. Home Office (1981), British Nationality Bill, Session 1980–1, 13 January 1981, London: HMSO.

Zig Layton-Henry 77 Home Office (1984), British Nationality Fees, Government Reply to the Third Report from the Home Affairs Committee, Session 1982–3, London: HMSO. House of Commons (1984), British Nationality Fees, Third Report from the Home Affairs Committee, Session 1982–3, London: HMSO. House of Commons (1990), Administrative Delays in the Immigration and Nationality Department, Fifth Report from the Home Affairs Committee, Session 1989–90, June 1990, London: HMSO. Immigration from the Commonwealth (1965) Cmnd 2739, London: HMSO. Immigration Act 1971, London: HMSO. Marshall, T. H. (1963) ‘Citizenship and Social Class’, in Sociology at the Crossroads, London: Heinemann. Moran, M. (1989), ‘Introduction’, in V. Vogel and M. Moran (eds), The Frontiers of Citizenship, London: Macmillan. Morley, H. (ed.) (1899), The Earlier Life and Chief Earlier Works of Daniel Defoe, London: George Routledge & Sons, 175–218. Powell, E. (1968), speech delivered to the Annual Conference of the Rotary Club of London, Eastbourne, 16 November 1968, in B. Smithies and P. Fiddick (1969), Enoch Powell on Immigration, London: Sphere Books. Roche, T. W. E. (1969), The Key in the Lock, London: John Murray. Sherwood, M. (1985), Many Struggles: West Indian Workers and Service Personnel in Britain 1939–45, London: Karim Press. Smithies, B. and Fiddick, P. (1969), Enoch Powell on Immigration, London: Sphere Books.

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Part II Racism and Racial Inequality

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4 Racism and Racial Inequality: the British Case in a European Context Malcolm Cross

The objective of this chapter is to offer a critical evaluation of the British experience in a European context. The argument is in three sections. The first sets out an interpretation of the issue, which differs in some important respects from conventional views in the academic literature. There are two major differences which can be highlighted from the outset. The first is the denial that all racial inequality is the result of racism. The second is to deny that government intervention has been as critical as many contend in shaping the current situation. The latter is not intended to deny the independent importance of policy; it is simply to suggest that governments at both local and national levels have been largely reactive. They have responded to pressures generated elsewhere, rather than pioneered a distinctive line in determining outcomes. Their secondary role, however, is not without importance but it does act as a corrective to more ambitious assumptions about the role of policy. The second section develops the implications of this view in the British case. It points in particular to the contradictions in government policy that are seen more clearly in the light of the first section. The third section of the chapter tries to knit the first two sections together by focusing on two major sections of the British minority population, namely those of Caribbean origin and British Muslims. The conclusion is that not only has British policy proved partial in practice but that it has always served to generate separatism. Perhaps more important still, the tendency for the emergence of separate agendas for action has then provided a ready-made reason for inaction. It is argued, moreover, that ‘anti-racist’ strategies have been ineffectual and of little relevance in combating racial inequality, largely because they have assumed that it was synonymous with racism, and even then a rather one-sided view of it. 81

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Racial inequality Racial inequality is a form of social division sustained by three separable pillars. One is racism itself, an historically determined set of mythologies which serve to legitimate and guard entry to privilege and social esteem. The second is social class, or that system of vertical division resting upon access to income through employment, to wealth and the enjoyment of particular lifestyles. The third is social space or that structure of opportunities which is moulded by geographical location and which provides the arena in which everyday life is lived. If these are indeed separable pillars sustaining racial inequality, it follows that positive changes in one direction may be undermined by negative changes in another. Indeed, I shall argue that this has been the case in Britain, where the potentially beneficial effects of legislation, however muddled and self-contradictory they may have been, have to be seen in the context of other social inequalities which have tended to widen the gulf between ethnic minorities on the one hand and majorities on the other. In order to make this argument clearer, I shall look in turn at each pillar sustaining racial inequality. Racism In Britain, but to a lesser extent in continental Europe, racism has been viewed in what I have earlier called a ‘uni-dimensional way’ (Cross, 1992). What I mean by this is that, notwithstanding wide differences in theories of causation, most commentators have assumed that racism is about how one part of society treats an undifferentiated ‘other’. There is sometimes recognition that treatment itself may be intentional or purposive – or that it may not – but there is not usually an acknowledgement that the theories steering processes of closure and exclusion contain separable strands of thinking. Historically, there are three main appeals contained in racist theory, although in the British case peculiarities of history have meant that only two have been centrally relevant in the last two decades. It is widely and rightly recognised that racism must contain an implicit or explicit deterministic theory; a mythological foundation that legitimates and rationalises subsequent actions. Different forms of racism are thus founded upon separable deterministic theories. The three are, first, a notion of innate or biologically determined proclivity; second, a concept of coherent and self-generating cultural difference and, third,

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the identification of the archetypal ‘stranger’ or person whose interests and loyalties lie elsewhere. Of course, in practice these three are often confused and one particular group may come to bear the burden of all three. It is important to identify them separately, however, because they possess different properties. Thus appeals to biological notions of inferiority are especially resistant to change while, at the other end, ‘stranger’ theories are difficult to sustain over time; they carry with them the seeds of their own destruction. In Britain, the latter type of theory was mobilised during the period of postwar migration but fell away quickly in the light of universal citizenship rights and the realisation that migrants were an integral component of British society (Patterson, 1964). By contrast, cultural theories are remarkably durable, but what is crucially important is that they imply a different logic of exclusion from the other two. For example, with this variant of racism, there is no necessary denial of competence in cultural minorities by dominant majorities; only that integration must be accompanied by separation and self-containment. In making these distinctions, it is very important to emphasise that this does not imply a judgement over the consequences of these different mythological roots. I am not saying that one type is less or more racist. I am saying, however, that appeals to these different theories and forms of legitimation may have different consequences for the groups whose presence is identified by them. For example, the nature of the perceived threat will differ. Theories of biological capability do not normally involve a perception of the imminent subversion of cherished values. Victims of this type of exclusion are typically perceived as a behavioural threat justifying policies of containment and control by official agencies. By contrast, cultural theories do identify difference as threatening to sacred values; in this case, state agencies are frequently defined as having the task of softening the impact of this threat by recognising difference and providing (minimal) institutional support for its maintenance. Under certain conditions, namely when majority communities feel that little is being done to give substance to their claims to advantage, it is all too easy for this type of exclusion to lead to confrontation between ‘plural’ sections of society. So called ‘racial violence’ is largely of this type. Indeed the interaction between minorities and majorities is often shaped by perceptions on the part of the latter of a threat from groups perceived as cunningly competent. Antisemitism is, of course, the archetypal case.

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Social class It is rarely denied that social class has a bearing on the fortunes of ethnic minorities, but it is less common to see this as a distinctive support for continuing racial inequality. This is partly the consequence of the period when social theory was heavily influenced by Marxism (Miles, 1982). In this approach, social class was not looked at as a separable form of social division but as the form underlying others. Moreover, the logic of Marxist theory tends to both reductionism and to the argument that non-class forms of inequality eventually become vestigial. Unsurprisingly, given the overwhelming evidence on the reproduction of racial inequality and the role of white labour organisations in its maintenance (Duffield, 1988), these claims have tended to be countered by equally assertive denials. Thus British theory, at least, has been polarised in an unproductive debate between ‘class’ and ‘race’ theorists. The empirical analysis of racial inequality has suffered greatly thereby. Indeed this is one major reason for the unsustainable elision between discrimination theory and theories of racial inequality. The central argument for the salience of class divisions as a separable buttress of racial inequality can be expressed in terms of two main propositions. The first is that, given the empirically demonstrable resilience of class divisions, the initial incorporation of migrants as a low-paid, replacement labour force will have long-term effects, regardless of discrimination. These effects will be manifest in both economic and social terms. Put another way, migrant labour has a particular relationship to the labour market, and to productive relations in general. These are paralleled by social relations in terms of housing, environmental conditions and the quality of life. This will be true even in countries where class divisions are more fluid and less rigid than in the UK. With the benefit of hindsight, it now possible to see more clearly that migrant labour represented a stage in the evolution of manufacturing industry in western Europe. Migrant labour was used to sustain profitability and prosperity in the period before the transition to global production, sectoral specialisation and geographical concentration. It is now apparent that future prosperity will depend not upon the local costs of manufacturing production but upon specialisation in tertiary services, knowledge-based design and information services. This is having a profound effect upon class divisions (Esping-Anderson, 1993). In some accounts at least, the structure is becoming transformed from a wide-based pyramid into an egg-timer shape in which the bottom section is itself divided into a service proletariat and an ever growing

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sector of non-workers. Former migrant labourers are deeply affected by these changes, regardless of the degree to which they may be discriminated against on racial grounds (Sassen, 1996). Changing cities Social scientists have been slow to accommodate what could be called the increasing ‘spatialisation’ of society. It has always been the case that industrial prosperity, whether market-based or not, has had spatial implications. The transitions in the eighteenth and nineteenth centuries to industrial society led to a marked shift in the fortunes of towns against rural regions. As far as minorities are concerned, however, social scientists have noted their concentration in urban areas but rather than consider what this meant in terms of racial inequality, they have been preoccupied with other relationships to ‘white’ society. Thus the literature is overwhelmingly concerned with the question of ‘segregation’ from white neighbours. These concerns are based on the liberal assumption that low levels of segregation are good for ‘race relations’ in that they improve the quality and quantity of interactions across racial divisions. The issue which is becoming of increasing importance is not segregation defined in this way. Rather it is the issue of concentration itself. If industrial societies are becoming increasingly ‘spatialised’, in the sense that prosperity and poverty are becoming overlain with geographical significance, then what matters is the proportion of a particular group in areas of decline and social exclusion. Put at its simplest, changes in the class structure mean that those who came to labour are now much less likely to be so doing; if those who migrated are now locked into areas of regional and urban decline then spatial exclusion joins social exclusion as a buttress to their continued inequality (cf. Massey and Denton, 1993). In fact changes within cities are not wholly negative for ethnic minorities. In general terms urban populations have declined faster than jobs with the result that new opportunities have appeared, particularly for entrepreneurs in petty retailing and wholesaling. These opportunities have occurred throughout the cities, in areas of very low prosperity and more fortunate zones within suburbs. Where minorities have succeeded in relocating in such areas they have been better placed to pursue these opportunities with the result that some major cities now reveal a marked ‘ethnic division of labour’ with major consequences for economic divisions (Cross and Waldinger, 1992).

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The dynamics of racial inequality This sketch has had two main purposes. The first is to challenge the assumption that racism alone determines racial inequality. The second is to put in a plea for a dynamic model, in the sense that western societies are experiencing economic and social changes of fundamental significance to all minorities, although not all may be affected equally by them. If racism is multifaceted, for example, then some groups will be constrained in some ways and not others. If class divisions are in the process of change then how some groups have been able to exploit access to social mobility options will have an important effect on their future. If some have, similarly, been able to move out of regions or areas of decline then this too will have profound effects on their future position. One additional point is also highly pertinent. The three pillars of racial inequality that have been briefly outlined are, of course, interrelated in practice. I have emphasised their autonomy in order to make it clear, for example, that anti-discrimination policy alone will never produce racial equality, but this is not intended to suggest that one form may not influence another. For example, racism has a remarkably powerful function in legitimising or making ‘natural’ what is actually occurring for other reasons. For example, if some communities become heavily concentrated in urban areas undergoing progressive decline, then appeals to racist theory can be used to ‘explain’ policies of containment. Moreover, evidence from the United States suggests that the demographics of urban decline are themselves highly influenced by racial mythologies. So called ‘white flight’ is a major factor in progressive urban concentration (Massey and Denton, 1993). In the second section of this chapter I turn to examine British policy itself in the light of the foregoing argument.

British policy Whether by commission or omission, most governments pursue some sort of policy on all three areas outlined above. The British government has clearly done so, but not necessarily with a consistent purpose. In other words, policies in one field may pull in opposite directions from those in another. In fact in the British case, the tensions have been even more profound since policies which are specific to the ‘racial’ part of racial inequality have been contradictory. These can be seen from an inspection of the major initiatives over the last two decades.

Malcolm Cross 87

The 1976 Act In offering any appraisal of the 1976 Race Relations Act, however brief and rudimentary, it is first necessary to recognise both the limits and the possibilities of law itself. In addition to well-made arguments about the individualising properties of British law, it is also true that it focuses on differential treatment. If racial inequality is only partially shaped by the actions of individuals or institutions, it can only partially be remedied by changes wrought to those actions. On the other hand, law always has an exhortatory effect, the more so if it is paralleled by current morality. What the law proclaims is therefore not without importance. The 1976 Act operates with a restrictive concept of discrimination based on the first and third theories identified above. Section 3, for example, defines the ‘racial grounds’ which qualify in outlawing discrimination as ‘colour, race, nationality or ethnic or national origins’ (Race Relations Act, c74, section 3). At first sight this suggests an acceptance of all three forms of racist theory but in fact ‘ethnic origin’ is not a satisfactory synonym for ‘ethnicity’. This is most obvious in its exclusion of religion as a ground for discrimination (Modood, 1993b). In practice, therefore, appeals against unequal treatment under the Act are likely to be most successful in cases where physical appearance is the basis for differential treatment. Most minorities can be affected in this way, so to this extent the Act is of potential benefit to them, but is bound to be less relevant in circumstances where ethnic identity is founded upon a set of values which the Act fails to identify as grounds for differential treatment. Tariq Modood (1993b), for example, has argued that this is particularly important in the case of British Muslims. By the usual socio-economic measures of disadvantage Muslims are the worse-off groups, and yet, unlike religious groups such as Sikhs and Jews, they are not deemed to be an ethnic group and so are outside the terms of existing anti-discrimination legislation. One consequence of this is that British policy has seen court-based contests over which groups are to be considered as having an identifiable ‘ethnic origin’ and which not (Banton, 1989; Cashmore, 1989). It is well known that the British legislation makes provision for ‘indirect’ discrimination, or differential effects that are a consequence of decisions motivated by non-racial factors.1 In fact this part of the legislation has been largely counter-productive. In the first place it has proved very difficult to sustain a case under ‘indirect’ discrimination clauses, but this is not the main problem. It has also had the effect of

88 Challenging Racism in Britain and Germany

individualising what are structural changes. For example, if a firm chooses to relocate its production from Bradford to Bournemouth, or move (more improbably) from clothing to computers, it will probably have a profound effect on Bradford’s Muslim population. But it is inconceivable that the 1976 Act could be used to oppose these changes, not simply because they might be thought desirable or inevitable on economic grounds, but because the actions of the firm are thought to be so far from the ‘individual treatment’ model embodied in the Act. Thus what was once considered one of the strongest points of the British legislation has proved in practice one of its greatest weaknesses. The Act appears to recognise other sources of inequality but without specifying what these are. Moreover, they are assumed to lie in discrimination, which is defined in terms of individual treatment, when in fact the inequalities that have grown apace in the last two decades have sprung from other sources. The Commission for Racial Equality The Commission for Racial Equality is the chief custodian of the Act and its existence is as potentially important for the elimination of discrimination as the provisions of the Act itself. This is because its first and second duties go well beyond the legislation and specify a promotional function of opposing discrimination and furthering equality of opportunity and ‘good relations between persons of different racial groups generally’. More than a decade ago, I published an essay on the Commission which was intended to be supportive during a period when it was under heavy fire for apparently doing so little to prevent or ameliorate the conditions which led to the urban disorder of 1981. I would not wish to dissent now from the general conclusion that I reached then: [The CRE] is an organisation which has too much to do because no other agency in central or local government is prepared to contribute to a co-ordinated policy. It has minimal resources because the promotion of racial justice appears to be low on the list of central priorities. (Cross, 1982: 86). I went on to argue that it was a sad reflection on the short-sightedness of central government that ‘the prospects of new initiatives and new purpose (have) become brighter only in the glow of inner city arson’ (1982: 86).

Malcolm Cross 89

Since then the Commission has doggedly pursued the implementation of the Act, often receiving at best surly acceptance in the media for its pains. It has had to mount a largely internal struggle to try and stem the flow of government legislation and administrative initiatives with damaging effects on ethnic minorities, while at the same time being the victim of real reductions in revenue. The Commission’s position is particularly constrained by its confinement to a ‘discrimination’ model of racial inequality, with the result that it has proved most ineffectual when attempting to combat the widening gulf of inequality deriving from other sources. The position of most ethnic minorities in Britain, and some in particular, worsened considerably in the late eighties and early nineties, but not largely because discrimination grew. The result is that the Commission has had to struggle hard to hold on to a reputation for relevance. Section 11 of the Local Government Act If the 1976 Act incorporates an implicit theory of discrimination which locates its aetiology in classical racism and xenophobia, Section 11 of the Local Government Act is based on quite different assumptions. This clause, designed to provide a framework for the statutory powers of local government, locates racial disadvantage in cultural difference. It calls for the provision of supplementary services at the local level which meet ‘special needs’. Clearly ‘special needs’ in this context can be of two types. They can aid assimilation (e.g. language teaching) or sustain pluralism (e.g. support cultural festivals). By and large pressure from the centre has been applied to further the former while applications from community groups have been more interested in the latter (Cross, 1998). What is important, however, is that Section 11 has proved increasingly difficult to mobilise against racial inequality. There were very determined attempts to do this but each fell by the wayside in the face of equally determined central government hostility. The most famous case was that of Brent in north-west London where central government intervention came very close to undermining the last vestiges of local autonomy (cf. Cross, 1991). What is not normally recognised is that the contradictions between the 1976 Act and Section 11 played a major role in splitting ethnic minority communities. African-Caribbean politicians and community leaders in Brent, for example, were leading advocates of anti-racist strategies in recruitment and service delivery. In promoting this line they fell foul of central government in a major way, but also they alienated the Asian sections of the borough whose

90 Challenging Racism in Britain and Germany

concerns were not ‘anti-racist’ in the same way. For them the issue was one of community coherence and the use of local opportunities to enhance cultural solidarity. The provisions made possible by Section 11 of the 1996 Local Government Act were one of the main ways of achieving these goals (Cross, 1998). Social inequality Average incomes in the UK grew by 30 per cent in real terms over the decade from 1979. There was a marked difference, however, in the probability of a household enjoying this real rise according to its overall income level. The real income of the bottom decile increased by only 2 per cent over the decade before housing costs were deducted, while after housing had been accounted for the bottom tenth actually experienced an average fall of 6 per cent in their real incomes (DSS, 1992: 28). This deterioration in the overall income position of the poor is consistent across different family types. Taking income after housing, and including all income-related benefits, the lowest decile of income receivers acquired approximately 44 per cent of average income in 1979, whether they were single adults or couples with or without children. By 1988/89 this proportion had fallen to 32 per cent of the average for each of these three family types. The next decile up received 56 per cent of average income in 1979 and 44 per cent a decade later; the third decile enjoyed 65 per cent in the former year and 54 per cent in the latter (DSS, 1992: 63). This growing inequality in incomes was accompanied by pronounced falls in real income for the poor. Real incomes fell dramatically over the decade for all families at the bottom end of incomes, but in particular the effect was more pronounced for what had hitherto been thought of as less vulnerable groups. The data suggest that couples with children and single people or couples without children were those hit the hardest. When housing costs are deducted the falls at this end of the income spectrum are greater. Major falls in real income were experienced by the poorest fifth regardless of their economic position. Here again, being supposedly ‘normal’ (couples, with at least one full-time worker) was no insulation against a major decline in real income. Of course, this is not the same as saying that either family type or economic position are irrelevant in determining likely income. Some family types (pensioners and single parents) are more likely to be poor, as are some economic groups (e.g. the unemployed). It is simply to say that other groups, when they were

Malcolm Cross 91

amongst the poor, were not insulated from the general worsening of relative conditions for all those at the lower end of the income spectrum. The single most important feature of the decade 1979–89 was the changing shape of income distribution. Both before and after housing costs were met, the distribution showed a marked rise in the numbers receiving less than approximately £75 per week, an equally marked fall in those on middle incomes between £75 and £200 per week, and a sharp rise in those receiving over £200 per week (at 1992 prices) (DSS, 1992). Of these changes to the shape of the income distribution, the most important is the movement of significant proportions of the middle income receivers to the higher level, both as a result of increased remuneration and tax reductions. This has occurred without any beneficial effect to those at the lower end. Inevitably the movement has increased the proportion of the population with ‘below average income’ as ‘average income’ itself has moved upward in real terms (DSS, 1992: 154). The negative effects at the bottom end of the income distribution are not, however, insignificant. After housing costs were met, for example, those at the very bottom of the distribution (zero or negative incomes) grew from 0.2m in 1979 to 0.5m in 1988/89 (DSS, 1992: 154–5). The increasing numbers of those who are poor was proportionally much larger at the lowest end of the income distribution. Family type and economic position clearly make a difference to the probability of being poor. Over the decade 1979–89, this relationship altered sharply. If we take the normal division applied in the European Community of half average income as the dividing line, then we can see a dispersal effect as vulnerable family types have become more and more likely to slip into poverty. As we saw above, on this measure, the number of individuals in poverty rose 136 per cent from 4.4m to 10.4m over the decade 1979–89. The data reveal that whereas only 9 percentage points separated different family types in 1981 (from 3 to 12 per cent), by 1989 this had risen to 35 points (from 8 to 43 per cent). With the dramatic worsening of the economy after 1989, it became highly probable that more than half of those in the worstplaced family type (a single person with children) fell below the poverty line when it is defined in this way. These figures are before housing costs are deducted. After housing costs are met, the position is clearly worse for the more vulnerable since, even in 1989, one in two single parent families received less than half average income, even taking account of benefits. It is particularly striking that the data suggest a dramatic worsening of the position after 1987 (Cross, 1993d).

92 Challenging Racism in Britain and Germany

What all this amounts to is that poverty has massively increased over the last decade. Moreover, it has become ‘normalised’ in the sense that it has increasingly affected the lives of the able-bodied of working age, among them a increasing number of ethnic minority people in Britain’s cities (Amin and Oppenheim, 1992). In other words, the widening of social class divisions and the spread of poverty into the ranks of the able-bodied of working age has had a disproportionate effect on ethnic minorities, particularly those who have been unable to use either educational or entrepreneurial routes out of low status, low income positions. Urban strategies Urban policy in Britain contains a profound paradox. On the one hand the Urban Programme, which dates from May 1968, was announced immediately after the infamous ‘Rivers of Blood’ speech by Enoch Powell that foresaw violent confrontation as the outcome of a minority presence in Britain. The proportion of ‘New Commonwealth Immigrants’ was always a significant variable in identifying areas of urban need. On the other hand, the Department of Environment, which has steered urban policy from that day to this, has steadfastly eschewed identifying racial equality as a policy goal. Indeed, central government grants to local government have tended to be reduced unevenly with the effect that more has been lost from inner urban boroughs with high ethnic minority proportions than has been gained by programmes of urban renewal and regeneration. For example, central government has reduced the grants to local authorities which enabled them to build social housing. The greatest falls in house building have been in those areas where ethnic minorities are concentrated. In Greater London the percentage fall in house building was 70 per cent between 1977 and 1990 and in the West Midlands it was 53 per cent (PSI, 1992: 57). This compares with a national fall of 39 per cent. Not only have areas in which ethnic minorities live been disproportionately affected by cuts in public expenditure, but also where specific policy developments occurred, they have been gradually switched from ‘inner cities’ with high ethnic minority concentrations to other parts of the country. For example, the ‘traditional’ Urban Programme was an important part of central government funding to ‘inner cities’ in 1986/87 when it accounted for 53 per cent of expenditure. By 1991/92, this programme had declined to only 27 per cent of ‘inner city’ budgets (PSI, 1992: 74). Moreover, those regions identified as ‘deprived’ in 1980/81 with high levels of ethnic minorities were the most likely to

Malcolm Cross 93

see the largest shift in funds. Thus the London Borough of Hackney, with the fourth highest proportion of ethnic minorities in Britain in 1991 (33.7 per cent) and the second highest level of ethnic minority unemployment (29 per cent), saw the greatest fall in its grant per head under the Urban Programme, from £72 in 1980/81 to £23 in 1989/90. Similar falls were evident in other London Boroughs and also to a smaller extent in Birmingham, Manchester and Liverpool. In place of the Urban Programme funding, Britain developed Urban Development Corporations, which were non-elected agencies designed to provide economic regeneration in partnership with the private sector. These came to account for just under 60 per cent of total funds and, with the exception of the London Docklands area, were located outside zones of high ethnic minority concentration. Even within the Docklands area, research to date has suggested that local people – of any ethnic origin – have not proved to be major beneficiaries. There is an important sense, therefore, in which central government interventions have at best had little effect on the generation of the ‘underclass’ and, at worst, have helped bring about the conditions in which such forms of social exclusion have grown. Cities have figured less prominently in public expenditure and that which there has been has swung away from zones and programmes which might help ethnic minorities.

The case of the Caribbean British It is possible to demonstrate that the three forms of racial inequality outlined in section one have had a particular salience for describing the fortunes of Britain’s population of Caribbean origin. First, they have been the object of a biological theory of racism which has generated an apparently immutable stereotype of an underachieving, criminally inclined and feckless minority increasingly destined to live beyond the pale of civilised society. Perhaps the clearest measure of this image is through the actions of the British police, whose disproportionate focus on young Caribbean males has helped to ensure that this group is heavily over-represented in the criminal justice system (Fitzgerald, 1993). The processes are clearly complex and relate to behavioural manifestations amongst this group as well, but there is some evidence to suggest that the targeting of Caribbean males has a long history. Certainly, they are more likely to be stopped, and if stopped subsequently searched, than are others (Figure 4.1).

94

Police Searches after Stops (1987/88)

Police Stops by Ethnic Group (1987/88) Per cent stopped 20 15 10 5 Stopped 1+ Stop✱

White 15 12

Asian 14 16

Afro-Car 20 19 Ethnic category Stopped

Traffic Pedestrian

Per of stops resulting in search

White 9 20

Police stops and searches, 1987/88

Afro-Car 34 36

Asian 14 25

Ethnic category

1+ Stop✱

Source: British Crime Survey (Skogan, 1990) ★ % of those stopped, stopped again

Figure 4.1

40 35 30 25 20 15 10 5

Traffic Source: British Crime Survey (Skogan, 1990)

Pedestrian

Malcolm Cross 95

This stereotype is not, however, the preserve of the police. It is found in the courts and in prisons themselves (Cross, 1992). Nothing better illustrates the bifurcating effects of racist imagery than the differential treatment in the criminal justice system. Indeed one of the finest studies of the court system in Britain found, inter alia, that official decision-making tended to magnify the differentials found in the occupancy of prisons. Asians, for example, are represented in British prisons at a level which could be predicted from their demographic profiles, while Caribbean British people are heavily over-represented. The report by Roger Hood (1993) and his associates showed that court processes exacerbated this tendency. As far as social class effects are concerned, the evidence is equally compelling. Two-thirds of the Caribbean population in the UK live in Greater London, particularly in the ‘inner city’ (Figure 4.2). Their employment and economic position has been dramatically affected by changes to the structure of jobs in the capital. Ethnic minorities are disproportionately strongly represented amongst London’s unemployed compared to a decade ago, both because they are more numerous and because they appear to have been disproportionately affected by the downturn in economic fortunes affecting the capital at the end of the decade (and subsequently). Job losses between 1960 and 1983 are estimated for Greater London at 820 000 jobs, while a modest revival occurred after that date (Buck et al., 1992: 82). Again, however, the greatest improvement occurred outside Greater London itself in the surrounding districts of the south-east. Industrial restructuring brings about a collapse in the availability of unskilled jobs in the formal economy and as it does so a growing ‘mismatch’ opens up between those with the certified skills that are in demand and those without. It is this phenomenon which William Wilson (1987; 1989), John Kasarda et al., (1992) and others have referred to in identifying ‘the underclass’. In 1971, there were over one million jobs in manufacturing in Greater London, many of them unskilled or semi-skilled. By 1989, this number had fallen to 0.4m (Buck et al., 1992: 83). Over the same time period, the jobs available in finance and producer services had risen from 520 000 to just under 800 000. Service jobs have grown especially in Outer London and in the regions beyond. As Nick Buck and his colleagues summarise the position: the share of the goods production and circulation sector in Greater London employment fell from 45 per cent in 1971 to 26 per cent in 1989 … By contrast the financial and producer services increased

96

Ethnic Minority Population in Outer London in 1991

Ethnic Minority Population in Inner London in 1991

Proportion of total (%)

Proportion of total (%) 16 14

8 13.4

6.5

7

12

6

10

5

8

4 5.2

6 2.8

2.9

4

1.2

2

4.8 3.8

3 1.4

2

0.3

1

0

0 Black

Indian

Source: Census 1991

Figure 4.2

Pakistani

Black

Bangladeshi Other

Source: Census 1991

Ethnic minority population in Inner and Outer London, 1991

Indian

Pakistani

Bangladeshi Other

Malcolm Cross 97

their share of Greater London employment from 13 per cent to 23 per cent (Buck et al., 1992: 87). Associated with this transition went a gradual relocation of employment prospects from the centre outwards. The Caribbean-descended population has not been able to follow either the jobs exodus or the opportunities represented by the changes in the type of job on offer. The result is that they have become particularly prone to exclusion from work wherever they are located in the city (Figures 4.3 and 4.4). In other words, their position is not one of ‘inner city’ isolation, although that may well be the lot of some; rather, it is one of being increasingly shepherded into an ‘underclass’ where prospects of becoming employed are minimal. Caribbean peoples are not disproportionately excluded from employment because they live in inner areas. They are, however, disproportionately affected by ‘inner city’ decline, because that is where the majority of them live. The result is that they are heavily under-represented in higher level employment when compared with others (Figure 4.5).

Unemployment rate (%) 50 40 30 20 10 0 25 and over

<25

All

Age group white

black

Ind

Pak

B/deshi

Irish

Other

All

Source: 1991 census

Figure 4.3 Inner city unemployment rates for males aged 16 and over by ethnic group (1991)

98 Challenging Racism in Britain and Germany Unemployment rate(%) 40 30 20 10 0 25 and over

<25

All

Age group white

black

Ind

Pak

B/deshi

Irish

Other

All

Source:1991 census

Figure 4.4 Outer city unemployment rates for males aged 16 and over by ethnic group (1991)

Unfortunately, there is very little evidence of change in this pattern over time. Caribbean people are less likely than any other groups to be able to follow employment prospects to other parts of the country and they are least likely to have been able to use the educational system as a stepping stone to new employment prospects. This latter point is particularly important. The Caribbeandescended population of Greater London, for example, has never been allowed to translate its enthusiasm for educational performance and familiarity with the English language into commensurate educational success (Figures 4.6 and 4.7). What this evidence reveals is that the Caribbean population is very poorly placed to fight the additional barrier of discrimination by treading the path of those before and entering those areas of employment which require higher education (Modood, 1993a). The Muslim debate The position of Muslims in Britain is clearly not the same as for the Caribbean British. The first point to note is that they are subject to a different form of racist exclusion which manifests itself less in terms of oppression by official agencies of control and more at a street level.

Index of SEG: South Asians compared to white, Greater London (1981/1991)

Index of SEG: black✱ compared to white Greater London (1981/1991) Index (Black on white)

Index (Asian on white)

100

100

50

50

0

0

–50

–50

–100

1981

1991 Socio-economic group

Prof Skilled

Manag Semi-sk

Source: 1981 Census (special tabs) 1991 Census (10%) ✱ Black = all black groups

Figure 4.5

O/t N/M Unskil

–100 1981 Prof Skilled

1991 Socio-economic group Manag Semi-sk

O/t N/M Unskil

Source: 1981 Census (special tabs) 1991 Census (10%)

Indexes of socio-economic groups

99

100 Challenging Racism in Britain and Germany Per cent passes 50 40 30 20 10 0 4+ h/g✱ 2+ 'A's

A/C M 15 6

A/C F 20 4

As M As F 42 35 21 13 Ethnic category 4+ h/g✱

Wh M 30 12

WH F 31 12

2+ 'A's

Source: Drew, Gray and Sime,1992 ✱ 'Higher grade' passes at 18

Figure 4.6

Examination results by ethnic group and gender (1988/89)

Average Score 20

15

10 'Black'

Indian

14

17

Pakistani Bangladeshi 15.7

16.4

White 18.2

Ethnic group Source: UCCA, 1991; Table 11A

Figure 4.7

A-level scores of university applicants (1990)

Notwithstanding the ‘Rushdie Debate’, the threat of Muslims in Britain is perceived as being one to the British way of life which is bound to be experienced at a local level. Thus anti-Muslim sentiment, while real enough in the British establishment, is largely confined to theologians of liberal values who see in Muslim anger at apostasy a threat to

Malcolm Cross 101

freedoms of expression which make little sense to everyday folk. By contrast, at the street level all Asians are ‘Pakis’ whose internal cultural complexities are lost in a wish to segregate and condemn. At the other extreme, it is significant that popular opinion is less agitated by the rise of the far right in Tower Hamlets. It is striking that opposition to the BNP has been muted except for the opportunistic role of ‘anti-racist activists’ whose activities have largely served to legitimise popular indifference. In social class terms, British Muslims are nearly as evenly spread across the class structure as other Asians. It is probable in time that they will come to be as successful in class integration terms as Sikhs, Hindus and African Asians. Two pieces of evidence support this view. First, in educational terms – with the one exception of London’s Bangladeshi community in Tower Hamlets – British Muslims have been doing rather well. Figure 4.8 develops a qualifications index on the basis of the 1991 Census. The groups identified in the Census are then ranked in relation to the white population. What the ranking shows is that ethnic minorities run right across the spectrum of qualifications with Bangladeshis and Caribbean people scoring well below whites and other Asians and Africans (many of whom are students) scoring well above. This appears to provide more support for the proposition that if there is a divergence of ethnic minority fortunes in Britain, it is between the black population and the Bangladeshis on the one hand and Indians and Pakistanis on the other. The most common thesis, however, is that of ‘Islamic exceptionalism’ in which all Muslims are seen as being in a similar position to the black population (Modood, 1991; Jones, 1993). In fact the evidence does not support this interpretation. The position of Bangladeshis in East London is an important pocket of poverty which is the result of local strategies of exclusion combined with marked economic decline. It is not so much the product of a general process affecting all Bangladeshis, let alone all Pakistanis or all Muslims. Outside Inner London, Bangladeshis have as high a proportion of qualified people as other Asians. Young Bangladeshis in Outer London are no more likely to be unemployed than are comparable white people. Moreover, as Figure 4.9 shows clearly, while only a small proportion of the black population is in professional and managerial employment, regardless of whereabouts in the city they live (10.8 per cent in Inner London; 13.7 per cent in Outer London), this is not true for Bangladeshis. Just under a quarter of the population of Outer London as a whole is in professional and managerial employment. For the Asian population, most of whom live in Outer London, the proportions are at least

102 Challenging Racism in Britain and Germany

as high (Indians, 23.5 per cent; Pakistanis, 24.7 per cent; Bangladeshis 35.8 per cent). The Census records the proportion of the population over the age of sixteen who are full-time students. This measure is, of course, affected Index (White = 0) 80 60 40 20 0 –20 –40 –60 –80 B/deshi Carib B/Other Pak Indian O/Asian African O/Other Chinese Ethnic groups Source: 1991 Census (10%)

Figure 4.8

Qualification index by ethnic group in Greater London, 1991

'Higher' employment (%) 40 35 30 25 20 15 10 5 0

Inner City A/C

Outer City Ind

Pak

B/desh

Greater London Wh

All

'Higher' = professional or managerial Source: 1991 Census (10%)

Figure 4.9 1991

Proportion of ethnic groups in higher employment by city location,

Malcolm Cross 103

by the age structure of populations, but if Bangladeshis were conspicuous by being outside the educational system after the years of compulsory schooling were over, then there might be grounds for thinking that they would be poorly placed for finding higher-level employment. Forty per cent of Greater London’s student population recorded in the 1991 Census was of ethnic minority origin, and Bangladeshis were as likely as other Asians to be among them. Again, the Caribbean population, who constitute nearly 60 per cent of Greater London’s black population, are less likely than other minorities to be engaged in full-time study. Second, when considered nationally, South Asians are twice as likely as whites to be small businessmen or women with employees, while the black population is less than half as likely to be in this position (Owen, 1993: 5). Levels of ‘entrepreneurship’ among British Muslims are also high. The 1991 Census, for example, showed that Muslims had the highest level of ‘entrepreneurship’ of any group identified in the census except for the Chinese. Figures 4.10 and 4.11 show this quite clearly. The first gives the proportion of various ethnic minorities who are among the self-employed; the second, the proportion who are actually employers of others, both as a proportion of all who are employed and as a proportion of the self-employed. It is quite clear that all ‘Asians’ score well on this index of economic activity, although there is clearly room for a debate over its long-term significance.

per cent of all employed 30

23.9

25

20

18.6

20 12.8

15 10

6.7

5 0 Black

White

Indian Pakistani Ethnic groups

B/deshi

Source: Owen, 1993, Table 4, 1991 Census. ✱ Rate = per cent of all employed

Figure 4.10

Self-employment rates* by ethnic group, Great Britain, 1991

104 Challenging Racism in Britain and Germany per cent 72.7

80 60 43.3

38.5

33.5

40 24.2 20 1.6

4.3

8.7

9.2

13.0

0 Black

White

Indian Pakistani Ethnic groups

% of employed

B/deshi

% of s/emply

Source: Owen, 1993, Table 5, 1991 Census. ✱ 'Entrepreneurship' = employers

Figure 4.11

‘Entrepreneurship’ rates* by ethnic group, Great Britain, 1991

The argument put forward by Roger Waldinger and myself is that post-industrial changes to cities have generated the conditions which have stimulated this success. As manufacturing has declined, cities in the ‘old economic core’ of European states have rapidly lost populations. As they have done so, new opportunities have opened up, particularly in niche services. It is these which some minorities have been able to fill (Cross and Waldinger, 1992). It may be said that these arguments are contradicted by evidence of high levels of unemployment amongst Muslims. Unemployment levels cannot be satisfactorily assessed nationally because of the wide disparities at the local level. In Greater London, for example, Muslim unemployment levels are very high in the Tower Hamlets borough but much lower elsewhere. This is particularly true amongst young people and supports the proposition that generalisations about the similarity between Muslims and Caribbean British people are false. Muslims in London, for example, have much lower levels of unemployment when controls are made for age-group and location. This supports the proposition that relative newness, indicated by linguistic difficulties, combines with disproportionate location in a zone of extreme poverty, to produce the evidence of particular disadvantage. Outside the inner city, younger Muslims are likely to make the transition into class integration that is characteristic of other ‘Asian’ minorities. In spatial terms too, there is an important sense in which Muslims are uniquely located. They are disproportionately concentrated in areas of regional

Malcolm Cross 105

decline, particularly the north of England. They are also heavily concentrated in some important zones of cities where the ‘inner city’ effect appears strongest and most resistant to change.

Conclusion Where does all this take us in an evaluation of the British experience? First of all there is no denying that legislation against discrimination is important, but there is a case for being more restrictive in one way and more extensive in another. It is unhelpful to include ‘indirect’ discrimination because it will prove impossible to implement an antidiscrimination law based on this principle. The law should be more extensive in one way, however, and that is in relation to the basis of discrimination itself. With a more extended definition of the grounds on which discrimination can occur it is possible to embrace the major forms of racism. In particular, it must be possible for groups whose claim to equal treatment is based on their separate religious traditions to seek redress under the law. The foregoing argument has other important implications. The most important of these is that the policy objective to aim for is not ‘antiracism’, it is the promotion of racial equality. Once this is realised then those forms of inequality which are not dependent upon differential treatment are brought within the orbit of policy. It is impossible, for example, to contemplate an end to racial inequality while some groups are so severely affected by policies of opening up social divisions. Although we have not yet the evidence to prove it, the real threat to the fortunes of the Caribbean population in Britain may have come less from renewed bouts of discrimination, and more from a determined policy of opening up the old wounds of class inequalities. Similarly, there are clear tendencies in the UK for some cities to be developing communities of the dispossessed which appear to be set to drift in what can only be described as the direction of the ghetto (Cross, 1993a; Cross and Keith, 1993). UK policies show at present no realisation of this problem, which has been masked in practice partly by the tendency of researchers to group all ethnic minorities together. Finally, I have argued that government intervention has been largely reactive (Cross, 1998). This is perhaps to give an overly passive impression. In fact, policy – where it has been more active – has been largely divisive. It has led to a confusion between central and local initiatives; it has produced social splits which are increasingly pushing Caribbean people into the ranks of the poor; and it has helped to generate areas

106 Challenging Racism in Britain and Germany

of spatial decline by progressively shifting resources into regions where some populations are defined as more deserving and more likely to benefit from newly supported economic activity than are others. In sum, while there are positive and negative lessons from the British case, above all it shows the need to be clearer about the problem itself before fashioning effective solutions. The British case is one where the debate over the legal aspects of citizenship has never been central to the struggle for racial equality. In that sense the issues have been ‘post-citizenship’. What it shows is that the legal provisions of legislation to oppose discrimination are a necessary but not sufficient condition for achieving racial equality. For that to occur there must be an awareness that discrimination can take different forms, a determination to encourage access to educational opportunities and a willingness to countenance an urban policy which offers ethnic minorities a real option of participation in areas of economic growth. Note 1

(i)

(ii)

(iii)

The 1976 Act says in S1 that a person discriminates against another if: He applies to that other a requirement of condition which he applies or would apply equally to persons not of the same racial group as that other but: which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with; and which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and which is to the detriment of that other because he cannot comply with it (Race Relations Act, c74, S.1).

References Amin, K. and Oppenheim, C. (1992), Poverty in Black and White, London: Child Poverty Action Group/Runnymede Trust. Banton, M. (1989), ‘Are Rastafarians an Ethnic Group’, New Community, 16,1, 153–8. Buck, N., Drennan, M. and Newton, K. (1992), ‘Dynamics of the Metropolitan Economy’, in S. Fainstein, I. Gordon, and M. Harloe (eds), Divided Cities: New York and London in the Contemporary World, Oxford: Blackwell, 68–104. Cashmore, E. Ellis (1989), ‘The Dawkins Case: Official Ethnic Status for Rastas’, New Community, 16, 1, 158–64. Cross, M. (1982), ‘Racial Equality and Social Policy: Omission or Commission?’, in C. Jones and J. Stevenson (eds), The Year Book of Social Policy in Britain 1980–81, London: Routledge & Kegan Paul, l73–88.

Malcolm Cross 107 Cross, M. (1992), ‘Two-Dimensional Racism’, unpublished paper presented to the conference on Sociology and the Problem of Order, University of Bristol, September 1992. Cross, M. (1993a), ‘Migration and Social Change in European Cities’, in R. King, (ed.), The Geography of New Migrations in Europe, London: Belhaven. Cross, M. (1993b), ‘“Race”, Class Formation and Political Interests: a Comparison of Amsterdam and London’, unpublished paper presented to the conference on Racism, Ethnicity and Politics in Contemporary Europe, Loughborough, UK, 24–26 September 1993 Cross, M. (1993c), ‘The Labour Market Position of Ethnic Minorities in Europe: a Theory and Research Agenda’, unpublished paper presented to the conference on Arbeidsmarkt en Sociale Zekerheid: Beleid in Beweging, Free University, Amsterdam, October 1993. Cross, M. (1993d), ‘Generating the New Poverty: a European Comparison’, in R. Simpson, and R. Walker, (eds), Europe: for Richer or Poorer?, London: Child Poverty Action Group, 5–20. Cross, M. (1998) ‘Multicultural Policies and the State: a British Paradox’, in M. Martiniello, (ed.), Multicultural Policies and the State: a Comparison of Two European societies, University of Utrecht: ERCOMER. Cross, M., with Brah, H. and Mcleod, M. (1991), Racial Equality and the Local State, Monographs in Ethnic Relations no.1, Coventry: Centre for Research in Ethnic Relations. Cross, M. and Keith, M. (eds) (1993) Racism, the City and the State, London: Routledge. Cross, M. and Waldinger, R. (1992), ‘Migrants, Minorities and the Ethnic Division of Labour’, in S. S. Fainstein, I. Gordon and M. Harloe (eds), Divided Cities: New York and London in the Contemporary World, Oxford: Blackwell, 151–74. Department of Social Security (1992), Households Below Average Income (1979–88/89), London: HMSO. Department of Social Security (1993), Households Below Average Income (1979–90/91), London: HMSO. Duffield, M. (1988), Black Radicalism and the Politics of De-Industrialisation, Aldershot: Avebury. Esping-Anderson, G. (ed.) (1993) Changing Classes: Stratification and Mobility in Post-Industrial Societies, London: Sage. FitzGerald, M. (1993), Ethnic Minorities and the Criminal Justice System, Research Study no. 20, Royal Commission on Criminal Justice, London: HMSO. Hood, R. with Cordovil, G. (1993), Race and Sentencing, Oxford: Clarendon. Jones, T. (1993), Britain’s Ethnic Minorities, London: PSI. Kasarda, J., Friedrichs, J. and Ehlers, K. (1992), ‘Urban Industrial Restructuring and Minority Problems in the US and Germany’, in M. Cross, (ed.), Ethnic Minorities and Industrial Change in Europe and North America, Cambridge: Cambridge University Press, 250–75. Massey, D. S. and Denton, N. A. (1993), American Apartheid: Segregation and the Making of the Underclass, Cambridge, Mass. and London: Harvard University Press. Miles, R. (1982), Racism and Migrant Labour, London: Routledge and Kegan Paul.

108 Challenging Racism in Britain and Germany Modood, T. (1991), ‘The Indian Economic Success: a Challenge to Some Race Relations Assumptions’, Policy and Politics, 19, 3, 177–89. Modood, T. (1993a), ‘The Number of Ethnic Minority Students in British Higher Education: Some Grounds for Optimism’, Oxford Review of Education, 19, 2, 167–82. Modood, T. (1993b), unpublished background paper to the Commission on Citizenship, Institute of Public Policy Research, October 1993. Owen, D. (1993), Ethnic Minorities in Great Britain: Economic Characteristics, 1991 Census Statistical Paper No. 3, Centre for Research in Ethnic Relations, University of Warwick. Patterson, S. (1964), Dark Strangers: a Study of West Indians in London, Harmondsworth: Penguin. Policy Studies Institute (1992), Urban Trends 1, London: PSI. Sassen, S. (1996), Transnational Economies and National Migration Policies, IMES, University of Amsterdam. Skogan, W. G. (1990), The Police and Public in England and Wales: a British Crime Survey Report, Research Studies No. 117, London: Home Office. Wilson, W. J. (1987), The Truly Disadvantaged: the Inner City, the Underclass and Public Policy, Chicago: University of Chicago Press. Wilson, W. J. (1989), ‘The Underclass: Issues, Perspectives and Public Policy’, Annals of the American Academy of Political and Social Science, 501, 182–92.

5 Dealing with Racial Harassment: the Development of Legal Strategies Amongst Local Authorities Marsha Prescod

In England and Wales, local authorities consist of elected councils of varying kinds, created via statute, who draw their power to operate from legislation. The legislation provides the framework within which local authorities are supposed to function. Their financing comes from a combination of central government grant, taxes raised on business within their own boundaries, and taxes levied upon their residents. Since the nineteenth century, the services they provide to their local population have expanded: they now cover areas as diverse as family welfare (social services) education, licensing for clubs, theatres, restaurants, exhibition halls and sports grounds, public hygiene, provision of housing and regulation of housing standards, town planning, and control of the environment, which includes disposal of waste, noise emissions and pollution. Local authorities are, in addition, major employers in the UK, holding billions of pounds (sterling) in assets and controlling billions more in pension funds for past and present employees. Not surprisingly, they are a major feature of life in England and Wales, legally, politically and economically. So it was perhaps inevitable that, when it came to looking at organisations and agencies best placed to combat some of the activities arising from racial discrimination and the effects of these activities, central government saw fit to lay a duty (as opposed to just granting powers) upon local authorities to ‘Make appropriate arrangements with a view to securing that their various functions are carried out with due regard to the need: (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity, and good relations 109

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between persons of different racial groups’ (Race Relations Act 1976, Section 71). The objective of this chapter is to look at the problems encountered in legal strategies local government used to combat racial harassment in the 1980s when policies were first made, consider the reasons for some of these problems, and examine the strategies that slowly evolved in the 1990s, culminating in further legislation necessitated by the failures of those earlier legal strategies. Concern about racial harassment, including acts of racially motivated violence, was voiced by organisations within black and ethnic minority communities since the late 1950s, but not until the late 1970s and early 1980s did such concerns start to generate a response in local government policies and activities in the areas where postwar migrants had settled (FitzGerald, 1989). By then, the problem had become sufficiently widespread that both campaigning organisations (Joint Committee Against Racialism, 1981) and central government (Home Office, 1981) had published reports on the national picture. Given that local authorities had explicit duties under Section 71 of the Race Relations Act 1976, that studies showed that some of the most serious forms of racial harassment occurred in urban areas with significant concentrations of communities most at risk of such harassment (see for example Bethnal Green and Stepney Trades Council, 1978), and that one area of vulnerability was in or around the housing of populations at risk, local authorities came to be viewed as one of the main agencies, after the police, having the duties, powers and resources to tackle the problem. Although there is no criminal offence or civil wrong specifically geared to deal with racial harassment per se, the wide range of statutory powers granted to and wielded by local authorities has for many years given them ample scope for legal actions of various kinds (Forbes, 1988). And being major landlords which provide lowcost housing in areas where some of the most vulnerable communities live, local authorities are in a position to pick up routinely through their council departments many incidents that never come to the attention of the police. Yet, as reported incidents of racial harassment rose steadily throughout the 1980s, local authorities were subjected to increasing criticism for failing to recognise and act on complaints of racial harassment presented to them from day to day, despite having policy statements about their commitment to tackling this subject. A Local Government Ombudsman case during the early 1990s provides a typical example of problems victims can face when presenting a case of racial harassment to a local authority (Municipal Journal,

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1993). In this case, a family living in a home owned by Bristol City Council endured eleven years of racial harassment involving – amongst other things – verbal abuse, smoke bombs, graffiti, noise, false complaints to the police and other agencies, and threats. The perpetrators were neighbours of the victims who were also council tenants. Despite there being a racial harassment policy, continuous complaints from the victims, information on the identity of the perpetrators, and powers for the local authority as landlords to deal with them (Forbes 1988, 19) the perpetrators were not interviewed formally by the Council, and few warning letters were sent. Finally, the victims complained to the Ombudsman who made a highly critical report, but although the Council apologised to the victims and agreed to pay them £10 000 in compensation, the perpetrators were never prosecuted. Researchers such as Fitzgerald (1989) have noted that by the late 1980s numerous local authorities had begun to include in their tenancy agreements with public sector tenants clauses that made racial harassment by a tenant or by members of a tenant’s household grounds for eviction. However, orders granting local authorities the right to evict tenants for breach of contract were rare in the 1980s, in the early 1990s amounting to approximately one tenant per thousand. There were also inherent difficulties both in the preparatory stages and in the possible use of the court’s discretion. In the 1980s and for much of the 1990s, criticism of local government’s poor record of using legal action to deal with racial harassment tended to concentrate on the overall failure of local authorities to take any legal action at all in response to the vast majority of complaints brought to their attention, rather than on the difficulties they faced in obtaining an order that would enable them to evict perpetrators. In its 1992 London Housing Survey, the London Research Centre found that 1912 incidents of racial harassment were recorded by London borough housing departments. In 1991, although the identity of the alleged perpetrator(s) was known in 498 of the incidents, legal action was actually taken in only 61 cases, whilst transfers – that is, rehousing – of the victims occurred in 948 cases (London Research Centre, 1992). By proclaiming the intent to act and threatening the use of heavy legal penalties, authorities raised expectations, only to dash them. The problems seem to be manifold. There is reluctance by local authorities to take up cases and to get expert legal advice, combined with bad preparation of some cases that are taken up. (London Research Centre, 1992: 112)

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In response to such criticisms, it was suggested during the 1990s that technical inadequacies in the law and the legal process hindered the attempts of both local authorities and the police to be effective in dealing with racial harassment. Criminal law, for example, requires sufficient evidence to discharge the burden of proof, which requires the prosecution to prove the case ‘beyond a reasonable doubt’. Civil law requires that the plaintiff (that is, the person bringing the action), should have some locus standi to bring a case, thereby placing the financial and emotional burden on individuals already stressed by incidents taking place. Thus, it is argued, new legislation needs to be enacted that will create an actual offence of racial harassment or racial violence, place police under a duty to investigate, set out terms of imprisonment in the event of conviction, and increase the effectiveness of the judiciary in dealing with such cases (Calland, 1994). An analysis of why, despite the passage of the Race Relations Act, local authorities seemed unable to take routine legal action when presented with complaints of racial harassment, particularly in their own housing stock, points to various factors. In many cases, the transfer of victims – rather than legal action against the alleged perpetrators – took place either because of requests by the victim, or because of mutual agreement between victim and housing officers (London Research Centre, 1992: 11). In most authorities, policies on tackling racial harassment are in theory corporate (that is, integrated into the day-to-day operations of all departments), but in practice are left to a single department (usually housing) to own and/or attempt to solve, despite central government guidelines making it clear that such an approach is not good practice (Department of the Environment, 1989). The lack of synchronised corporate activities has also hampered the gathering of evidence. During the lifespan of a case, a number of departments – housing, social services, education, environment (environmental health) – may be involved in aspects of it because of their statutory duties and powers. Victims and/or their advisers, and perpetrators themselves, may have contacts with various departments and agencies, as solutions are sought ranging from mediation or warning letters through to repairs to damaged properties and management transfers. Indeed, any single department may find that various sections or divisions have simultaneous involvement in a case. In the housing department, for example, estates management, technical services, allocations, and the race unit may all be involved to some extent. A corporate approach to tackling racial harassment, requires, at the level

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of implementation, that all relevant departments, divisions, sections and units are able to process speedily and efficiently their particular part of a case and carry out effective liaison, referral and monitoring. Forbes and Bridges (1990) noted that the traditional relationship between housing and legal departments, in dividing responsibility for investigating, interviewing, gathering evidence and processing cases, was in itself a stumbling block when it came to cases of harassment. As in-house lawyers, legal departments have traditionally left the preliminary stages of investigative work, for example the gathering of evidence and the taking of statements, to the client departments which deal with service delivery and have greater contact with the public. Legal officers processing such cases are called in at a later stage, and are presented with evidence (mainly technical) to prepare and conduct a case based on it. This approach works well when used in technical or regulatory areas such as trading standards, planning violations, building regulations or public health, not least because the departments dealing with these areas have well-developed mechanisms that have evolved over a period of time (in some cases, up to a century). The mechanisms are well understood by the officers concerned, who process the cases routinely and facilitate the carrying out of the statutory duties concerned. In such technical or regulatory areas, this division of labour results in bulk processing and rapid turnover of cases, and a high success rate in legal actions, which leads in turn to a greater confidence in council departments in tackling the matters concerned and has a deterrent effect on individuals or organisations who would break the law in those areas. However, such an approach is very different to what is required to implement local authority policies on tackling racial harassment when it comes to taking legal action against perpetrators. Fitzgerald (1989: 98–102) looked at the legal strategies used by local authorities in dealing with racial harassment cases reported to housing departments during the first wave of policy implementation in the 1980s. Strategies consisted of changing the tenancy agreement to cite racial harassment explicitly as one of the types of anti-social behaviour that would be treated by council landlords as a breach of the tenancy agreement, and which could lead to a possession action being brought against tenants who were perpetrators, or who had household members or visitors who were perpetrators. The sanction against perpetrators explicitly stated in most policies was the ultimate that a landlord could bring against a tenant, namely eviction. The weaknesses of such a strategy were several, however.

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Foremost was the fact that in housing and legal departments in local authorities there was a lack of expertise in routinely processing, all the way through to eviction, cases of nuisance and/or harassment that did not involve any racial element. Local authorities are social landlords, and the eviction of tenants who were often from the poorest sections of society was contrary to the prevailing ethos. Whilst evictions became more commonplace during the 1980s, these tended to be for substantial rent arrears, and local authorities were constrained to bring such actions because changes in local government financing were making rents a more important source of income than previously. Next, there were difficulties arising from contemplation of a single sanction (eviction) so severe that it was rarely used except in cases of high, long-standing rent arrears. It created a tendency in officers to delay intervention, intervening only in cases of long-standing, highlevel harassment (serious physical assault or damage to property), rather than cases of low-level to mid-level harassment (repeated verbal abuse, for example, or campaigns of noise nuisance). After all, how could officers be expected to use the same sanction for a case involving verbal abuse by, say, an elderly tenant, as for a case involving physical assaults by young adults? (Prescod, 1991: 2). Then there was the fact that eviction as a sanction was not open to local authorities in cases where the perpetrators did not live in public sector housing and thus had no contractual relationship with the council as landlord. This also effectively ruled out any victims who were living in the private sector, who made up to 59 per cent of people registering complaints (London Research Centre, 1992: 3). Local authorities did have powers to assist private sector tenants experiencing problems of harassment if the alleged perpetrator was the landlord or an agent of the landlord (Protection from Eviction Act 1977, see below). However, actions initiated under this legislation were not specifically connected to racial harassment – the statute predated local government policies on the topic – and did not cover harassment by other tenants, or where victims were houseowners. A final weakness was that in cases of racial harassment where local authorities had managed to synchronise the activities of housing and legal departments effectively, they still risked falling at a final hurdle, in that the local county courts, the most accessible civil legal forums in terms of geographic location and cost, once the case was proved had final discretion as to whether it was ‘reasonable’ to grant an order for possession. County court judges could conclude that, although the council bringing the legal action had proved that the perpetrator had

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indeed committed the acts complained of, it was not reasonable to grant a possession order to the council landlord, thereby making innocent family members living in the same household homeless along with the perpetrator. In reaching determinations on the issue of reasonableness, judges are not bound, as local authorities are, by a duty to eliminate unlawful racial discrimination as set out in Section 71 of the Race Relations Act 1976. These difficulties should be viewed in a context where, when it comes to working on cases of racial harassment, ‘There is undoubtedly a tendency to avoid the issue on the part of managers, politicians, and housing commentators because it is seen as too intimidating, too intractable a problem, or simply as a policing problem’ (Ginsburg, 1989). Thus by the mid-1990s it was apparent that if local authorities were to tackle racial harassment with any degree of success, they would have to overcome the problems of synchronising the activities of relevant departments, the lack of a wider range of legal sanctions, and the difficulties in obtaining evictions in the courts. The first area of improvement came about as a result of rising levels of recorded anti-social behaviour on local authority housing estates . From the mid-1990s, local authorities in the larger urban areas began to make positive attempts to pursue more creative legal strategies in response to the pressure of continually rising statistics of anti-social behaviour – often of a criminal nature, such as nuisance, assaults or criminal damage – as well as racial harassment. (Ironically, such statistics came about because of recording and monitoring provisions that a number of local authorities and police forces had placed at the heart of their racial harassment policies.) As advocated by those working within a local authority remit (Prescod, 1991) a wider, more flexible range of responses that varied in weight according to the nature of the harassment, and that covered remedies in both civil and criminal courts, began to be implemented, albeit patchily, to deal with anti-social behaviour. For example, the use of injunctions, a civil remedy that can result in imprisonment if the Court Order is breached, had been promoted for some time (see for example Campbell, 1992; Forbes and Bridges, 1990: 8; Prescod, 1991: 4) and began to be adopted by local authorities including Southwark, Manchester, Newham, Hackney, Hammersmith and Fulham from about 1993 onwards. The courts have a wide discretion in the granting of injunctions: as Section 37(1) of the Supreme Court Act 1991 states, the High Court may grant an application ‘in all cases in which it appears to the court to be just and convenient to do

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so’. Injunctions were viewed as a handy legal tool, used either on their own or in conjunction with other remedies, for a number of reasons: • First, in an emergency, an injunction can be obtained within hours of a serious incident. Local county courts are used to processing applications for injunctions in cases involving a range of anti-social behaviour where the parties are known to each other, such as domestic violence, nuisance or illegal eviction, and where the allegations concern activities similar to those in racial harassment cases, up to and including violence. Thus, there are mechanisms in local county courts to deal with such matters speedily. • Second, injunctions can be granted without the perpetrator having to be alerted in advance, (these are known as ex parte injunctions) which, in cases involving the intimidation of victims who seek legal assistance, can be an important protective measure. Furthermore, breach of the terms of an injunction puts the perpetrator on a collision course with the courts if he or she continues with the behaviour under scrutiny. • Third, interim injunctions can be granted using evidence that contains hearsay: thus, for example, council officers could swear affidavits exhibiting complaints received orally and in writing and the court could take them into account, quite apart from a victim’s direct testimony. • Fourthly, county courts are able, in cases where the alleged perpetrator denies the activities complained of, to require him/her to give an undertaking not to engage in such activities in future. Such a requirement does not mean the person giving the undertaking admits to having broken the law, but it binds him/her from breaking the law in the future, in the same way that an injunction does. • Finally, unlike criminal law which punishes past activities, injunctions can be used to curb future behaviour. Breach of an injunction (or of an undertaking given to the court in lieu), is a contempt of court, punishable by imprisonment. Civil courts can and do jail people for contempt of court, and this can therefore be a most effective deterrent. When policies and procedures concerning racial harassment were drawn up in the 1980s, the use of injunctions by local authorities to deal with breaches of the tenancy agreement was not commonplace. However, from the early to mid-1990s, local authorities began to use

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them as part of an attempt to grapple systematically with racial harassment and other forms of anti-social behaviour such as nuisance, criminal damage or trespass, all of which had become growing problems in both private and public sector housing and which, hitherto, neither local authority landlords nor other social landlords such as housing associations were getting to grips with (Bright, 1993). Various approaches have been adopted in using injunctions. The London Borough of Hackney, faced with severe problems on one of its housing estates (nuisance and criminal activities such as burglary, criminal damage and assault), which rendered the estate unpopular with tenants and put council officers at risk when carrying out their duties, used a strategy of multiple injunctions. This involved issuing proceedings against a number of defendants, and asking for injunctions against all of them simultaneously, the terms of which not only barred them from committing criminal activities in respect of the council’s property or tenants, but barred them from venturing on to the estate. A massive evidence-gathering exercise had preceded the launching of the legal action, providing statistics ranging from the shortage of housing in the borough to the high level of voids (unoccupied property) on the estate, and the higher than average repairs bill due to the anti-social activities of the defendants, and which gave the court a picture of the damaging effect of the behaviour involved. The granting of the injunctions had a positive effect on the estate (Bhose, 1994). As legal action other than eviction started to be launched during the 1990s, changes in the courts’ approach to the granting of possession orders also became apparent. Towards the late 1990s the higher courts began to overturn decisions in the lower county courts where reluctance to punish innocent members in households where perpetrators lived had prevented possession orders from being granted as county court judges used their discretion after harassment had been proved. There was a set of important Court of Appeal decisions signalling a recognition that the ultimate legal sanction needed to be applied by council landlords against tenants engaging in (or having a household member engaging in ) anti-social behaviour: • In Kensington & Chelsea RBC v Simmonds (The Times, 15/7/96), a suspended possession order was upheld against a mother (the tenant) who argued that she could not be responsible for her son who resided with her and was the perpetrator, as she could not control him.

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• In Darlington BC v Sterling (1997, 29 HLR 309) a possession action was taken on the basis of the behaviour of the tenant’s son, who was thirteen years old. The district judge had decided that a possession order should be made, recognising that the tenant had actually tried her best to control her son, but the county court judge (his senior at county court level) overturned the possession order on an appeal. The Court of Appeal ultimately restored the possession order. • In Bristol CC v Mousah (Legal Action, June 1997), possession was refused in the county court against a tenant found to have supplied illegal drugs. This was owing to the length of time between the activity and trial, and to the fact that the tenant would not be rehoused after possession. The Court of Appeal granted possession. A proper approach was that in the case of the most serious breach of a tenancy agreement, it would be reasonable to order possession in the absence of exceptional circumstances. Here there were none. Cases such as these, and the success of injunctive actions set out above, were widely reported in legal and local government journals, encouraging more councils to look at legal actions. Gradually, from 1995 onwards, initiatives requiring local government services to function more like private sector organisations such as Compulsory Competitive Tendering (CCT) forced a reappraisal and improvement of services provided to tenants; as a result, local authorities around the United Kingdom started to make more coherent attempts to come to grips with anti-social behaviour by tenants, and, to a lesser extent, racial harassment. The former has come about due to increasing government concern about anti-social behaviour on estates and in city and town centres at weekends. An example of the new approach came from Manchester City Council. In 1993, working with tenants’ associations, and after research and testing via a pilot scheme, the council launched an initiative entitled ‘Solving Neighbour Problems’. In this initiative, an attempt was made, via a comprehensive manual, to provide officers and tenants with solutions to a range of problems from abandoned cars, dangerous dogs and noise nuisance to harassment. Other local authorities, for example Rochdale, have used existing legal powers to develop new approaches, also looking at measures to protect and support victims such as alarms, panic buttons and mobile phones, and, to increase the chance of gathering evidence by the use of enquiry agents, surveillance cameras.

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A recent report examining racial harassment in Britain and local authorities’ response to it (Lemos, 2000) looks at the sixty-seven local authority areas identified by the 1991 Census as having the highest numbers of black and minority ethnic residents. This research found widespread practical strategies to assist victims, for example provisions for safety measures for victims (such as lighting and security) and third-party reporting centres that have arisen out of the lessons learned from the policy implementation failures of the 1980s and early 1990s. Examples of good practice were noted in some local authority areas such as Leeds, which has a Racial Harassment Project set up specifically to channel the council’s resources effectively as regards aid to victims, training for relevant agencies, and action against perpetrators. However, the widespread development of projects assisting victims has not been matched by a substantial increase in legal action. The report noted that only 10 per cent to 15 per cent of reported incidents led to criminal action, and only a small proportion of councils had applied for injunctions or possession orders. Thus local authorities, spurred on by government and media concerns about general anti-social behaviour, and more personal matters such as domestic violence and stalking (particularly as they affected front-line services such as the police and other emergency services) began to develop further strategies. At the same time, the pressure for new legislation – particularly since greater public awareness of racial violence followed the successful campaign leading up to the Stephen Lawrence Inquiry (see below) – resulted in the passage of the Housing Act 1996 to strengthen powers to deal with anti-social behaviour in public sector housing, and the Crime and Disorder Act 1998 to curb anti-social behaviour unrelated to the public sector housing stock. In the Housing Act 1996, ground 2 of schedule 2 of the Housing Act 1985 was amended (the ground dealing with possession actions based on cases of nuisance and annoyance). The intention was to expand and strengthen the grounds under which possession could be sought, and speed up legal procedures. Nuisance or harassment that took place in common parts – corridors, entrances, lifts, pathways, grounds of estates – was covered. The use of professional witnesses – for example enquiry agents and housing officers – was made easier, as it enabled someone other than the victim(s) to give evidence of an observation of the behaviour concerned. Anti-social behaviour by visitors was included as a ground for possession. The new grounds for possession in the Housing Act 1996 were also introduced for the tenants of Housing Associations, in recognition of

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the fact that these organisations are increasing becoming the biggest social landlords as more local authority housing stock gets transferred to them as landlord or managing agents. Furthermore, local authority and housing association, and social landlords are able under Section 153 to apply for the power of arrest to be attached to one or more provisions of an injunction which the court grants in relation to a breach or anticipated breach of a tenancy agreement. The Crime and Disorder Act 1998 has given councils and police services remedies such as Anti-Social Behaviour Orders (available against anyone aged ten or over) and the power to establish curfew schemes in an area. If offences are ‘racially aggravated’ (a definition is given in the statute), there are powers for the courts to increase the penalties for offences by treating this as an aggravating factor in sentencing. Following an inquiry into the racist murder of a young black man, Stephen Lawrence, in 1993, a report was published in 1999 which had in its terms of reference the remit to identify lessons to be learned for the investigation and prosecution of racially motivated crimes (Macpherson, 1999). This has ensured that, at the beginning of the new century, racial harassment is an issue more firmly on the agenda of not only local authorities and social landlords, but of the police service, the Crown Prosecution Service, the courts and other public institutions where it highlighted serious failures. However, it remains of be seen whether the greater prominence given to the issue of racial harassment, together with the recent legislation and changes in approach in the civil courts set out above will lead to more effective local authority response in the long term. Given that historically local authorities have been loath to make full use of the whole range of legal remedies available to them (Forbes, 1988) and that so far the new remedies under the Crime and Disorder Act 1998 have been used either infrequently (for example only 130 Anti-Social Behaviour Orders have been made within the last twelve months) or not at all (no Curfew Orders made in the last twelve months since their introduction in 1999), the outlook is not promising. References Bethnal Green and Stepney Trades Council (1978), Blood on the Streets: a Report on Racial Attacks in East London, London: Bethnal Green and Stepney Trades Council. Bhose, R. (1994), ‘Multiple Civil Law Injunctions’, paper presented at Institute of Local Government (INLOGOV) Seminar, Birmingham University, 14 March. Bright, J. (1993), Everybody Needs Good Neighbours, London: Housing, February.

Marsha Prescod 121 Calland, R.(1994), Race Attacks: Do We Need New Law? London: Labour Research. Campbell, R. (1992), Dealing with Racial Harassment, London: Housing, July/August. Crime and Disorder Act 1998, London: HMSO. Department of the Environment (1989), Tackling Racial Violence and Harassment in Local Authority Housing: A Guide to Good Practice for Local Authorities, London: HMSO. Fitzgerald, M. (1989), ‘Legal Approaches to Racial Harassment in Council Housing: the Case for Reassessment’, New Community, 16, 1, October, 93–105. Forbes, D. (1988), Action on Racial Harassment – Legal Remedies and Local Authorities, London: Legal Action Group. Forbes, D. and Bridges, L. (1990), Making the Law Work against Racial Harassment: Report of the LAG Research Project, London: Legal Action Group. Ginsburg, N. (1989), Racial Harassment Policy and Practice: the Denial of Citizenship, London: Critical Social Policy no. 26. Home Office (1981), Racial Attacks, Report of the Home Office Study, London: HMSO. Housing Act 1996, London: HMSO. Joint Committee Against Racialism (1981), Racial Violence in Britain, London: JCAR. Lemos (2000), Racial Harassment: Action on the Ground, Plymouth: Lemos & Crane. London Research Centre (1992), Harassment in London: the London Housing Survey 1992, London: LRC. Macpherson, Sir William (1999), The Stephen Lawrence Inquiry, Cmnd 4262–1, London: HMSO. Municipal Journal (1993), July article on Local Government Ombudsman Report no. 91, 1BJ2696. Prescod, M. (1991), Racial Harassment: Proposals for the Development of Policies for Effective Legal Intervention, London: London Borough of Hammersmith and Fulham, Housing Committee Report No. HC3483. Protection from Eviction Act 1977, London: HMSO. Race Relations Act 1976, London: HMSO. Supreme Court Act 1991, London: HMSO.

6 Anti-Semitism in a United Germany Werner Bergmann

In contrast to the main immigrant groups living in Germany such as the Turks and minorities who are clearly ‘atypical’ in terms of their appearance, the small minority of Jews (around 43 000 individuals) is inconspicuous in everyday life. The Jews are also socially and legally fully integrated and have citizen status by law. Whenever there are attacks on Jewish facilities or anti-semitic opinions are voiced, this is motivated by the special German–Jewish history and by old anti-semitic traditions and not by recent social conflicts. The Jews are primarily represented in the public eye as the victims of the Holocaust, whereas other victim groups such as gypsies, foreign forced labour or Russian prisoners of war have never achieved this status. On the one hand, this has meant that Jews have always represented their interests to a wider audience than other persecuted peoples or immigrant minorities who have settled in Germany more recently. On the other hand, anti-semitism has become a taboo subject in public. The topic of ‘the Jews’ is ‘somehow unsettling’ and is avoided to the extreme, especially as this subject is always associated with unwelcome reminders about National Socialism.1 In the late eighties, survey results seemed to suggest that antisemitism was in steady decline in line with the natural ageing process of the older generation. Surveys of cohort groups after 1935 suggested that there was a hard core of only around 5 per cent of the population who supported anti-semitism (on surveys up to 1989, see Bergmann and Erb, 1991). Western fears that many GDR citizens who were to be allowed to become part of the new FRG would be anti-semitic and racist turned out to be completely unfounded. Comparative opinion polls carried out in 1990 found far fewer anti-semites among GDR citizens (4–6 per cent) than in the former FRG (15 per cent) (Wittenberg et al., 1991; Jodice, 1991; Emnid Institute, 1992). 122

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Discrimination against foreigners and asylum-seekers living in Germany was virtually the same in both east and west. Then the wellpublicised wave of racist violence erupted after 1991. In its wake came renewed attacks on memorials for Jewish victims of the Holocaust and Jewish burial grounds as well as anti-Jewish propaganda and defamation. The way anti-semitism is so frequently reported in the press makes it appear to be some kind of xenophobia, although I do not support this view. Jews living among the population at large are not seen in the same context as the ‘immigrant problem’. The perpetrators do not see them as a threat to their jobs, homes or welfare, or even as a ‘cultural threat’. Anti-Jewish feeling is clearly related to the German heritage. It is highly unlikely that memorials to the Holocaust were almost exclusively attacked and vandalised simply because of the efficiency of the security provisions for Jewish community buildings. Current anti-semitism in Germany does not feed on the ethnic group conflict which is common practice in the US. It represents a sentiment derived from the unique German/Jewish history which is why we speak of ‘secondary anti-semitism’. The perpetrators of the attacks in Sachsenhausen or the Plitz Bridge in Berlin can be traced to the extreme right of the political spectrum. There, anti-semitism has retained its meaning since 1945 beside the new target of ‘foreigners’. The fact that these anti-Jewish attacks from the extreme right occurred in the wake of a new wave of racist activity only accounts for the link between anti-semitism and xenophobia within these groups and does not prove that both normally arise as a result of the same motive and conflict definitions. Let us now examine anti-semitism on four levels: the attitude of the general public towards Jews, anti-Jewish actions, anti-semitic organisations, and opinion and public reaction of the political elite.

Attitude of the general public towards Jews There have been several waves of anti-semitic violence in the FRG (for example, in 1953, in 1959/60, in 1965 and at the end of the 1970s), which have not necessarily been associated with any increase in antiJewish feeling among the general public. What is the position today? Following German unification, has a new nationalism begun to develop, and a desire to forget the past which has made the ‘admonishing’ of Jews ‘more undesirable’ than before 1989? The picture revealed by the latest opinion polls is inconsistent. Jews living in Germany at the end of 1991 were considered less likeable than in 1989. On an

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eleven-point scale ranging from likeable to unlikeable, (from –5 to +5), sympathy for Jews fell slightly from +0.7 to +0.4 (+0.6 in East Germany), but general opinion about Israelis experienced the reverse trend between 1989 and 1991, moving from +0.4 to +1.0, with +0.9 in East Germany. (Emnid Institute, 1989: Table 61; 1992: Table 20). However, desire for social distance from Jews is declining steadily. In December 1992, only 7 per cent did not want to have Jews as neighbours. Overall, this produces a picture of relative stability in terms of public opinion with a slight downturn. Negative stereotyping of Jews was far more widespread in April 1992 than in 1987; for example, when asked whether the following characteristics were representative of Jewish character, the following changes took place over a five-year period:

Unreliable Inconsiderate Sly/crafty

1987 (%)

1992 (%)

15 15 42

28 23 54

Similarly, fewer positive characteristics were attributed to them. The picture of the typical Israeli is even more distorted. A third of Germans described them as aggressive and narrow-minded at the beginning of 1993. This poll was conducted at the time of the Intifada campaign which was seen by many people as excessively brutal with the ongoing deportation of activists from the Hamas movement towards the end of 1992. On the other hand, these changing opinions were not uniform either and remained minimal in most cases. The general public themselves did not perceive any broad increase in anti-semitism in Germany in 1991. There were no signs in the representative surveys of a general move towards anti-semitism even among the younger sectors of the population. On the contrary, the 18–24-year-old group revealed the most positive trends. Special youth studies (Förster et al., 1993) which include young people from the age of fourteen do, however, reflect a new trend towards a growing left/right polarisation and loss of identification with the middle-class centre parties in the former East German states. Some 12 per cent approved of anti-semitism (Saxony/Sachsen-Anhalt) which was below the figures for nationalist and racist sympathisers, of 50 per cent and 29 per cent respectively. There was still a clear majority against anti-semitism of 71 per cent, compared to only 30 per cent rejecting nationalism and

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45 per cent against racism. Yet, this reveals a clear negative trend because it is the youngest group, that is 14–18-year-olds, who are showing substantial anti-semitic potential. Around 14 per cent agree with the statement, ‘The Jews are Germany’s misfortune’.2 This percentage is a great deal higher than the figures for the over-20s. There were also marked sex- and education-related differences. Male apprentices, in particular, tended to be more inclined to accept anti-semitism: 33 per cent dislike Jews, compared to 10 per cent for female trainees; 16 per cent of male pupils in the 11th/12th grade were against them, while the figure for girls was 4 per cent (Föster et al., 1993). The situation is slightly different in West Germany. A representative telephone survey conducted in Schleswig-Holstein in December 1992 in response to a similar statement, ‘The Jews are a people who cause nothing but disaster’ among young people produced a far lower level of approval of only 5.1 per cent among 14–18-year-olds and 4.2 per cent among 19–24-year-olds (Institute for Applied Social Research Studies, 1992: Table 28). However, young people of 14–24 years of age were more antisemitic than the mid-range age groups.3 This may indicate a negative generational trend in their attitude towards Jews. Current scientific convictions claiming that the younger the people, the less anti-Jewish they are, have been proved incorrect. To summarise, then, over the population as a whole there has been a slight increase in negative feelings towards Jews. These opinions have, however, become polarised, particularly among young people, although this is not exclusively restricted to them, so that anti-Jewish opinions are increasingly prevalent mainly amongst young people within the right-wing subculture.

Anti-Jewish actions The number of anti-semitic offences recorded rose sharply again in 1991 and 1992 as part of the wave of violence directed against foreigners, yet the percentage rise was lower than for racist offences. The figures reveal the following picture: in 1991 there were 367 cases (9.5 per cent), and in 1992 420 cases (7.1 per cent), of which 48 (2.6 per cent) were crimes of violence. Propaganda-related offences (graffiti and poster campaigns) are the most common crime in 250 out of a total of 420 cases, followed by verbal defamation and inciting violence.4 Actual attacks on Jews are rare and are consistent with the number of Jews actually living in Germany. Out of the number of cases of actual bodily harm reported (7 cases), the majority of these were

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non-Jewish Germans who had either been called Jews or had their parental ethnic background questioned. In almost all the cases reported, arson and bomb attacks and other forms of property damage were directed against memorials, places of remembrance or Jewish cemeteries, ultimately targeting an iconoclastic redefinition of these works of art or institutions, and less frequently against current Jewish communities, as in the case of the asylum-seekers’ hostel, for example. Jews were subjected to telephone threats and poison pen letters, however, particularly in the case of prominent Jews or those in exposed positions, such as the writer Ralph Giordano or Inge Deutschkron (1992–93). A survey of German Jews conducted by Alphons Silbermann and Herbert Sallen in 1990 (although this was not representative), did, however, reveal that such cases were the exception rather than the rule. Among the Jews questioned, a good proportion thought that many Germans were anti-semitic, yet there were very few instances of personal discrimination at work or in the neighbourhood (Silbermann and Sallen, 1992: 47). The extreme fluctuations and long-term trends should also be taken into account when assessing these figures. Monthly statistics on the defilement of Jewish buildings and cemeteries in the period from January 1992 to February 1993 clearly reflect the way in which antiJewish campaigns have allowed phases of racist activity and peaked after the Rostock pogrom in October to December 1992. Short-term swings, such as this one, do not reveal a great deal about potential levels of anti-semitic violence in general. The fact that over 30 cases of anti-semitic violence have been recorded in the FRG on average since 1986 compared to the 15–20 years previously is far more revealing. In other words, given the escalation to over 40 in 1990/91, 62 in 1992 and 56 in November 1993, the stable trend since the mid-eighties should not be overlooked. Among those responsible for anti-semitic violence there is proof that at least half of those had extremist rightwing political affiliations, and this no doubt applies for the vast majority of the remaining 50 per cent as well. Surveys measuring the inclination to discriminate and the attitude of the general public to anti-semitism show that there is virtually no support for it. Nowadays, 90 per cent believe that people who commit anti-semitic crimes should be punished and only 6 per cent are against this. By comparison, only 41 per cent were in favour of punishment in 1949 and 15 per cent were against. Repudiation of racial violence is far less pronounced by contrast. In December 1991, 27 per cent of West Germans and 13 per cent of East Germans sympathised with extremist

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right-wing action, although there was less support following the Rostock pogrom, with 16 per cent of East and West Germans still in favour (Emnid Institute, 1992: Table 23; Allensbach Polling Institute, 1992). A large majority now tends to favour outlawing anti-semitic groups, for example 80 per cent in 1990. A minority of just 12 per cent were against such a ban and the figure among 18–29-year-olds was even lower at only 7 per cent (Jodice, 1991: Table 6a). Comparative studies have shown that right-wing extremists are not rejected by such a substantial and growing sector of the population in any other European country. In December 1992, 77 per cent of West and 79 per cent of East Germans (compared to 66 per cent West and 72 per cent East in 1991) rejected right-wing extremists in their neighbourhood (Noelle-Neumann, 1993). Active discrimination such as boycotting Jewish doctors or writing protest letters about reparation payments to Israel is tolerated by only a very small sector of radical Jew haters (–0.8 per cent for the former action and 3 per cent for the latter). A great many were in favour of full citizenship and equal rights for Jews: in 1987, a majority of 70 per cent supported equal rights for Jews, although the remaining 30 per cent rejected equality. Some 15 per cent thought that Jews should not be able to become civil servants or MPs in Germany. Approximately onetenth of Germans would be glad to see the Jews leave Germany.5 However, almost all those questioned disapproved of blatant discrimination or violence. A fairly substantial minority clearly favoured inequality at work and discrimination under the legal system. However, for many of those interviewed, the term ‘Jew’ was not synonymous with the idea of ‘German citizenship’, and many also thought the term included non-German Jews and Israelis.

Anti-semitic organisations It has been shown that perpetrators of anti-semitic crimes are almost all from extremist right-wing groups or neo-Nazi organisations, or are on the fringe. Right-wing extremist organisations are covered elsewhere in the book, so I will limit my comments to anti-semitism. This has always played a role in the extreme right of the political spectrum because nationalism and National Socialism in Germany are inextricably linked to German/Jewish relations. In contrast to racism, which claims the inferiority and inequality of other people, traditional anti-semitism has, with its power struggle and conspiracy theory, a theoretical function for the right wing, to explain why German politicians

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let so many foreigners into the country and therefore threaten the future of the German people, and why the German press continually remind their readership of the crimes committed under National Socialism. Anti-Semitic diatribe, such as ‘the Jewish Republic of Bonn’, or ‘politicians under licence’, or the speech by Schönhuber (former leader of the ‘Republikune’ Party) describing the Jews as the ‘fifth occupying power’, clearly illustrates the explanatory function served by anti-semitism. The Jews are far less interesting as an ethnic or religious minority in such small numbers, and far more so as the ‘troublesome reminders’ of the darker side of German history. Revisionism, especially the denial of the Holocaust, is one of the key issues adopted by the right wing and aims to prove that the role played by the Jews as victims and reminders is based on a historical lie.6

Opinion and public reaction of the political elite The history of anti-semitism has shown that the attitude of the political elite to the Jews is vital to the success of anti-semitic policies. In 1990, the American Jewish Committee in their survey on anti-semitism interviewed fifty politicians from East and West Germany, comprising parliamentarians and party functionaries. The results reveal a sizeable gulf between the general public and the elite, who have a more positive view in almost all respects.7 There is almost unanimous agreement among politicians in favour of a critical appraisal of the National Socialist period, by including it in the curriculum in schools (100 per cent in East and West), along with persecution of Nazi war criminals (86 per cent West, 90 per cent East) and remembrance of the Holocaust. With the general public, there is far wider support in favour of letting bygones be bygones. Approval of specific political issues such as reparations payments or banning anti-semitic movements is less marked and, in some cases, is even less popular than among the general public. A typical distinction is made in this context between symbolic gestures such as supporting the ability to learn from history and showing a lack of prejudice and the practical level, where the interests of the electorate, costs and international factors play a role. However, immigration policy, of all things, is the one clear exception. In the case of Jews from the Soviet Union or CIS countries, from which over 17 365 (up until 2 February 1994) have settled in Germany, 23 000 applications have been processed and 100 000 have been filed. They are accepted as refugees under a quota system and are entitled to the appropriate social security provision of settlement allowance,

Werner Bergmann 129

unemployment benefit and social security, skilled job training or retraining in the same way as ethnic German immigrants from Russia, and they are not subjected to the asylum process. This preferential treatment clearly shows the special historical legacy (Miklis, 1993; Der Spiegel, 1994) and the parliamentary parties unanimously agreed in 1992 to show leniency towards Jewish immigrants from the CIS countries. One interesting result relating to the current situation is provided by politicians’ responses to questions of whether anti-semitism was a serious problem in Germany in their view and whether anti-semitic movements should be banned. In both cases, West German politicians presented a harmless picture in 1990 when half of them did not consider anti-semitism to be a problem at all. Only 4 per cent, that is two out of the fifty surveyed, considered it to be a very serious problem, showing far greater optimism than the general public about the situation. One-third of West German politicians were opposed to a ban on anti-semitic groups and this was also far higher than the support shown by East German politicians (16 per cent) or the general public (12 per cent). West German politicians tend to minimalise problems to project a more positive international image of Germany’s willingness to learn from the past, a trend first revealed in the 1950s. In other words, although the political elite is clearly against anti-semitism and rightwing extremism, it systematically underestimates their strength in practical policy. This only began to change gradually after the rush of racist and anti-semitic attacks in 1991 and 1992. After the autumn of 1992, a more uncompromising policy has been pursued, aimed at combating violence by banning a number of neo-Nazi organisations and carrying out numerous raids on right-wing neo-Nazi strongholds. On the other hand, it has to be said that both the political elite and the general public were quick to condemn anti-Jewish campaigns such as the attack on the memorial on the Plitz bridge or the ‘Jewish shack’ in Sachsenhausen. The Foreign Minister, Klaus Kinkel, visited the concentration camp at Sachsenhausen and there were protest marches in Berlin, for example. These reactions were far more clear cut than the response to the attack on asylum-seekers’ hostels at Hoyerswerda or Rostock, where the violence was condemned but the attackers were still implicitly given to believe that they had responded to a critical social problem. One CDU politician in Rostock was forced to resign immediately in November 1992, when he implied to Ignatz Bubis that his home was in Israel to get him to answer questions about the violence between Israelis and Palestinians, whereas other racist comments or

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remarks directed against foreigners in general by politicians often go unpunished. Ever since the American High Commissioner, John McCloy, declared that German/Jewish relations were a ‘touchstone’ of the new German democracy in 1949, anti-semitism has been seen as an attack on democracy in politics, particularly in the public eye, as it is felt that there is a great deal of ‘international’ interest in this subject. The Jews in Germany therefore represent a special minority which is particularly well represented on broadcasting commissions and at the Federal Office for Youth Censorship, despite their small numbers, in contrast to Muslim Turks, for example. The ‘paragraph on ethnic, religious or cultural discrimination’ which was introduced in 1960 in response to an anti-semitic smear campaign, and the amendment to Paragraph 194 StGB [German Criminal Code], according to which the so-called ‘fabrication of Auschwitz’ became punishable by law (1985), were primarily designed to protect the Jewish minority from insult and defamation. Jews are seen as ‘democratic watchdogs’, as well as being assigned the role of the victim, and this situation has been exploited by both Heinz Galinski and now Ignatz Bubis, as their leading representatives, to consistently warn against anti-semitism and racism.8 Politicians could easily take a tougher line with anti-semitism because German/Jewish conflicts fall under the class of symbolic politics, but little can be achieved by symbolic gestures on the practical level of immigration and integration. There is no all-party consensus, as with anti-semitism, just dissension and pleasing the voters. I therefore believe that anti-semitism and xenophobia are only partly related. The gradual collective learning process associated with anti-semitism has not had any overall impact on racism. Notes 1 In a survey by the Emnid Institute entitled ‘Anti-Semitism in Germany’, Bielefeld 1992, Table 4, which was conducted in December 1991, Germans were asked to respond to the statement, ‘Many people do not dare give their real opinion about the Jews’. Some 41 per cent of Germans said that this was quite true, or absolutely right, 20 per cent believed it was quite wrong or incorrect, whereas 38 per cent opted for the middle category (3 + 4) on the scale of 1–6 ranging from agree completely to disagree totally. On the question of whether this was a taboo subject for Germans, far fewer of those questioned felt ‘uncomfortable with the whole topic of Jews’ (25 per cent yes, 42 per cent no, 31 per cent middle category). West Germans believed that more West Germans had difficulty with the topic than East Germans. This was almost certainly due to the different treatment of the topic in public by the two parts of the nation, and the high moral tone taken

Werner Bergmann 131

2

3

4

5 6

7

8

in Western Germany that led to a spate of scandals and affairs in the history of the FRG. See on the question of taboos Werner Bergmann and Rainer Erb, Der Antisemitismus in der Bundesrepublik Deutschland. Ergebnisse der emprischen Forshung von 1946 bis 1989 (Anti-semitism in the FRG. Results of Empirical Research between 1946 and 1989), Opladen 1991, chapter 12. In a youth poll conducted in Brandenburg at the beginning of 1993, where all comprehensive school pupils were questioned, 25 per cent agreed that all or part of this anti-Jewish slogan was true. 3.2 per cent of 25–34-year-olds agreed with the statement, only 2 per cent of 35–44-year-olds were in favour. Anti-semitism began to rise again among the older age groups. 5.3 per cent were in favour in the 45–59 age group and among those over 60, 9.4 per cent were in favour (Institute for Applied Social Research Studies, 1992). The number of violent acts committed against Jews fell again in 1993 (46 cases). Although the total number of anti-semitic crimes continued to rise, amounting to 577, most of these were so-called propaganda offences. See Bundesamt für Verfassungsschutz (Federal Office for Protection of the Constitution). See Bergmann and Erb, 1991, for a commentary of these figures relating to 1987. The FRG is the only nation in which public denial of mass genocide, the socalled ‘fabrication of Auschwitz’ is officially punishable by law on the grounds of defamation or revilement of the memory of the dead (paragraph 194 StGB [Strafgesetzbuch = Germany Criminal Code]). See critique on the background to this law in Sebastian Cobler, ‘Das Gesetz gegen die ‘Auschwitz-Lüge’. Anmerkungen zu einem rechtspolitischen Ablaßhandel (The law against the ‘fabrication of Auschwitz’. Notes on special dispensation in legal policy). In Kritische Justiz, 18, 1985, 159–70. A non-representative study of the attitude of (Bavarian) journalists who play a crucial role as ‘gatekeepers’ by publishing anti-anti-semitism, also shows that this profession is less anti-Jewish than the general public on average and that they accept the specific responsibility of the Germans for what happened in the past. See Adalbert Zehnder, Antisemitismus, Philosemitismus, Journalismus. Journalisten und ihr Umgang mit dem Judentum (Anti-semitism, anti-anti-semitism and journalism. Journalists and their attitudes towards Jews), Magisterarbeit, University of Munich 1993. This is clearly acknowledged by other minorities in Germany. This is why representatives of the Italian contingent in Berlin (comités) awarded the Central Committee Chairman Bubis their ‘Premio Comités ‘93’ award for his work against racism (Tagesspiegel newspaper, dated 6.1.1994).

References Allensbach Polling Institute (1992), Survey 5059, September 1992. Bergmann, W. and Erb, R. (1991), Der Antisemitismus in der Bundesrepublik Deutschland. Ergebnisse der emprischen Forshung von 1946 bis 1989 (Antisemitism in the FRG. Results of Empirical Research between 1946 and 1989), Opladen, chapter 12. Cobler, S. (1985), ‘Das Gesetz gegen die ‘Auschwitz-Lüge’. Anmerkungen zu einem rechtspolitischen Ablaßhandel’ (The law against the ‘fabrication of

132 Challenging Racism in Britain and Germany Auschwitz’. Notes on special dispensation in legal policy), Kritische Justiz, 18, 159–70. Der Spiegel (1994) Eine neue Ausreisewelle (A new wave of departures), interview with the Chairman of the Central Jewish Council in Germany, Ignatz Bubis, magazine 4, 54f. Emnid Institute (1989), Zeitgeschichte (Contemporary History), Bielefeld. Emnid Institute (1992), ‘Anti-Semitism in Germany’, Bielefeld. Föster, W., Friedrich, H., Müller and Schubarth, W. (1993), Jugend Ost. Swischen Hoffnung und Gewalt (Youth in East Germany. From hope to violence), Opladen, 114–16. Institute for Applied Social Research Studies (infas) (1992), Bad Godesberg: Jugend und Rechtsextremismus in Schleswig-Holstein (Youth and extreme right wing politics in Schleswig-Holstein), Conducted on behalf of NDR, Hamburg. Jodice, D. A. (1991), United German and Jewish Concerns. Attitudes towards Jews, Israel, and the Holocaust, Working Papers on Contemporary Anti-Semitism, American Jewish Committee, New York. Miklis, M. (1993), ‘Die Situation der Jüdischen Emigranten aus der GUS in der Bundesrepublik Deutschland’ (The situation of Jewish emigrés from the CIS states in Germany), Judaica, 49, 19–30. Noelle-Neumann, E. (1993), Rechtsextremismus in Deutschland (Right wing extremism in Germany), documentary report for Frankfurter Allgemeine Zeitung newspaper, no. 65, 18 March 1993, Table A1. Silbermann, A. and Sallen, H. (1992), Juden in Westdeutschland. Selbstbild und Frembild einer Minorität (Jews in West Germany. Self-image and external profile of a minority), Cologne, 47. Wittenberg, R., Prosch, B. and Abraham, M. (1991), Antisemitismus in der ehemaligen DDR (Anti-semitism in the former GDR), in Tribune, 30, Issue 118, 1991 102–20. Zehnder, A. (1993), Antisemitismus, Philosemitismus, Journalismus. Journalisten und ihr Umgang mit dem Judentum (Anti-semitism, anti-anti-semitism and journalism. Journalists and their attitudes towards Jews), Magisterarbeit: University of Munich.

7 The Racist Portrayal of Gypsies in the Media Franz Hamburger, Irina Bohn and Kerstin Rock

Introduction Gypsies who originally fled to central Europe to escape civil war and pogroms in eastern Europe are now classed as undesirables or ‘asylum seekers’. The standard stereotype of the ‘gypsy’ has been revived as an ideological weapon in the battle to stop East–West migration and stem the growing tide of refugees from eastern Europe. The reconstruction of the ‘gypsy’ as an undesirable is traditionally contrasted with the ideals of a stable society. This traditional image of the gypsies is authoritatively perpetuated and reproduced in various guises by the media. Any scientific analysis of the motives behind the perpetuation and reconstruction of the image of the ‘gypsy’ in society therefore requires a close examination of the historical context of how gypsies have traditionally been treated by ‘experts’ in the past to complement the usual studies on terminology and method. The reason for this is because the expert is all too frequently automatically accepted by society as an authority and this has had a real impact on the discrimination and persecution of gypsies in Germany.

Romanticisation or damnation – general consensus by experts and society According to historical sources, gypsies first came to central Europe some time during the fifteenth century. Gypsies have therefore been living in Germany for over 600 years, supplemented 150 years ago by gypsies coming into central Europe from eastern Europe as well. This process is being repeated again today. The roots of the gypsies before their arrival in central Europe can be determined from their language 133

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and show that they originally came from the north-west of India (among the range of historical accounts, see specifically the historical extract from Martins-Heub, 1983). The varying degrees of acceptance encountered by these migrants in society towards the end of the Middle Ages and in the early modern period provide a clearer insight into the contradictions during this period than the status and specific characteristics of these migrants themselves. There is the famous letter of patronage from King Sigismund in 1423, for example: Therefore, if this Voyvode Ladislaus and his people should come to any place owned by any one of our rulers, whether it be in the country or the town, we shall entrust you to protect Voyvode Ladislaus and the gypsies who are his subjects, look after them, help them, welcome them and even protect them from trouble and harm. (Kawczynski, 1990: 213) Yet such overwhelming acceptance of these migrants was the exception rather than the rule, as can be seen later with the attitudes of many so-called enlightened princes who were otherwise in favour of modernising the economy and society. Gypsies were soon widely discredited and persecuted. Throughout history, they have been accused variously of being wicked sorcerers, witches, common criminals and traitors to justify some form of persecution. Images of gypsies as a danger to society and apparently threatening to overthrow the social order and capture other people’s land were the arguments which were used to justify pogroms. They even made the proclamation by Kaiser Ferdinand the First in 1556, that gypsy women and children were not to be murdered, but exiled instead, sound like a humane deed (Kawczynski, 1990: 213). This persecution of gypsies and their stigmatisation as the reincarnation of the Anti-Christ and inhumane beasts continued over the next few centuries. Yet, journeymen and traders were just as important for the farming community as the local suppliers were, so there was peaceful coexistence and co-operation as well as persecution. In spite of this, racist violence persisted in times of hardship and under the auspices of ideological domination. A headmaster called Tetzner from Langensalza justified this in his history of the gypsies published in 1935, as follows: Hordes of people from a far-off nation suddenly overrun our homeland without warning and threaten to take over the whole of Europe

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within a few years with their strange ways, often preferring a life of crime, poverty and persecution, rather than settling down to a comfortable and civilised life as law-abiding citizens. Who would ever have thought when the first groups of these tinkers and thieves began to swarm through Germany, that they would be no better than their forefathers were four hundred years earlier. Those inhumane beasts who invaded our communities at the beginning of the 15th century like a swarm of locusts were God’s punishment! The survival of the gypsies makes a mockery of the human race … the Jews are foreigners and so are the gypsies. These people even look alike. Just look at their greasy black hair and their piercing black eyes – both the Jews and the gypsies have the same features! Their dark skin like most of Abraham’s children in the Bible must surely mean that these two races have the same roots. (Tetzner, 1835: 67) The counter-movement which emerged as an antithesis to this negation during the romantic period was rather weak. Gypsies were thereby associated with nature and natural life, in the same way as ethnologists later described them as the ‘true wildlife’. The suppressed needs of alienated subjects and outsiders in modern capitalist society were projected on to those who lived ‘freely’ like the gypsies, that is, they were in reality forced to ‘live like outlaws’. ‘Research into gypsies’ throughout history, including modern ‘studies of gypsies’, has always been perpetuated and reproduced within this historical context of complete opposites. The reconstruction of the ‘gypsy’ was ultimately legitimised by experts. They directed this social behaviour, especially during the worst phase of the planned Holocaust under National Socialism. This research was based on the following characteristics: Research on gypsies begins with classification of the language and the ethnic roots of gypsies. It is intended to gather and evaluate relevant information obtained from gypsies themselves depending on the subject specialisation and special requirements of the research. One of the standard natural defence mechanisms employed by gypsies is to consistently misinform outsiders or refuse to elaborate on their language, social and political organisations, world views, or art and culture in general at all. (Martins-Heub, 1983: 59)

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The enquiring mind and these natural defence mechanisms each dominated at some time throughout history. In the past, experts assumed and it was accepted without question in society that a specific identity constitutes the object. Constituent requirements do not need to be obtained interactively for this, unless the idea of studying gypsies is to be abandoned in principle. Even the more critical studies of gypsies nowadays, where evidence is required in this discipline, are based on an exotic perspective. For example, Gronemeyer argued the case for research into gypsies which ‘was to be based on empirical findings’ and ‘a natural curiosity and lack of fear of the unknown’ and ‘healthy respect for the unknown’ (Gronemeyer, 1985: 7). Knowledge in the empirical tradition is set against moral theory. The paradoxes in cognitive theory cannot be overcome in an impossible expert subject area like this: the ‘gypsy’ remains an object of desire for the romantic researcher. Gypsies serve as reminders that multicultural life is possible and the walls of cultural conformity are not impenetrable which is a rare phenomenon. (Gronemeyer, 1985: 7) The romantic ideal within the confusion of scientific theories links unenlightened ‘gypsies’ with bourgeois culture and can at least justify its own good intentions. Nevertheless, ideas which are based on backwardness and legitimise delinquency and so pave the way for persecution were still common both in research practice and in society. For example, the writings of R. Ritter, Head of Racial Hygiene and Human Biology Research at the Department of Health in the German Reich provided the seeds of a racist science. His essay entitled Primitivität und Kriminalität (Primitive culture and delinquency) from 1940 is preceded by the following introduction: In order to eradicate primitive and unstable elements as far as possible, it is advisable to study a group of people in depth who are renowned world-wide as the original race of unstable people, namely gypsies. Studies of these creatures will enable us to gain further insights into the relations between instability and delinquency and will provide us with opportunities for comparing them with other anti-social criminal groups. (Ritter, 1940: 197) Any characterisation of ‘gypsies’ as ‘creatures’ (‘primitive low-life forms’), can only offer a solution to the problem of the gypsies which

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is ‘characteristic of their race’. This type of biological and racist research was by no means over in 1945. It persisted undeterred. The racist core was just disguised behind a few cloaked remarks in this survey on these ‘poachers’ by Arnold who comments: It is a historical fact that real gypsies and other travellers tend to operate in groups. It would be wrong to claim that gypsies, or their descendants and relatives were born robbers. Any causal relation is not a direct result of this, but generally applies under nomadic conditions. Poachers have to earn their living by collecting food. They are not therefore robbers by nature, but their situation means that they are more likely to become thieves than any other sector of the population. (Arnold, 1980: 318f.) ‘Nature’ was considered to determine delinquency among ‘poachers’ under National Socialist racism and now ‘culture’ is the watchword. That is the difference between racism and neo-racism. (For the debate on racism, see Dittrich and Radtke, 1990; Bielefeld, 1992). Both racist and romantic perspectives of ‘gypsies’ are based on a common assumption that there is a fundamental difference and that a specific group is assigned an unusual quality. They observe the beginnings of social change like scientific research and justify what occurs in practice in society. Everything which occurs in practice in society is reconstructed in the context of whatever happened in the past. The perpetuation and reconstruction of the ‘gypsy’ in theory and practice is also an essential requirement for another practice where it is impossible to make a ‘fresh start’.

Press portrayal of gypsies Reports in twelve local daily newspapers over a total of thirty-four years were analysed in a survey on the image of gypsies in the local press. The survey was conducted between 1979 and 1991 on local newspaper reports in Dortmund, Cologne, Darmstadt and Mainz/Wiesbaden. Some 944 press reports in total were analysed in terms of quality and quantity. The main result of the survey is that expert knowledge on the gypsies is produced and reproduced as racist and neo-racist dialogue by the press. Reports on gypsies were classified as reports on perceived groups with specific characteristics which distinguished them from the rest of the population. Each of the reports surveyed contained elements

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typecasting the people described as gypsies, in addition to their social class. The most direct form of typecasting was the use of the ethnic label in almost 80 per cent of cases. They were linked to gypsies by way of personal and behavioural characteristics and stereotyped clichés about the image of these people. These characteristics encouraged clear ethnic identification in most cases. A number of these characteristics were often associated with one another. In any case, this classified the person within a group, so that each statement about an individual could be interpreted as a statement about the group and vice versa. This has resulted in direct stigmatisation of gypsies in cases where ethnic affiliations were linked to suspected criminals. In 67 per cent of all reports (544 out of 944), individuals who were described as ‘criminals’ were variously named as ‘gypsies’ and ‘travellers’. In 10 per cent of the reports, a connection was made between the ethnic group and a suspected crime based on a stereotyped description of the features, general outward appearance and dress code of the suspected criminal. The reconstruction and assignment of types of crime in this context as an ethnic characteristic for a ‘criminal group’ is given the status of a functional equivalent. A wide range of elements are recreated which enable the reader to draw conclusions about this ‘criminal group’ from this chain of associations, without this assignment ever being explicitly described. The reader also becomes an ‘accomplice’ by correctly identifying the clues supplied by the author. There are two extremely important issues associated with the representation of people in the press reports on gypsies. Firstly, they feature most frequently as criminals. Only 18 per cent of all newspaper reports do not refer to criminal behaviour. The dominance of the theme of ‘delinquency’ in reports on gypsies is shown by the fact that the subject of crime cropped up in 60 per cent of all the reports studied. In three out of four local case studies, delinquency is referred to in over 70 per cent of all reports (local case studies concentrated on specific urban regions, where there had been previous conflict with gypsies). And secondly, gypsies are almost exclusively treated as a collective in the local press. In 97 per cent of cases reporting events involving gypsies, they are described as a group of people. Collective members are characterised by way of their ethnic group in 77 per cent of cases and family relations in 44 per cent of cases. In 18 per cent of cases, their social set-up is also mentioned (‘clan’ or ‘extended family’). As a result, gypsies are defined as a

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group based on assumptions about their cultural or biological origins. The close association between family ties and group mentality is reflected by the wide range of contexts in which this occurs: The musicians play well together and their six guitars sound like two at full volume. This is hardly surprising considering all six Frenchmen are related. (Rhein-Zeitung Mainz, 4.4.90) Thieving family trio – mother, daughter and an uncle visiting them from abroad, tried to go shopping for free in a chain store on Mainzer Str. (Wiesbadener Kurier, 9.1.91) The fourth child from Fuhrmannstr. did not go [to school ], because she had no shoes, according to a friend. The family dog had buried them somewhere. (Darmstädter Echo, 16.1.82) The musical harmony in the first example does not refer to artistic ability, but the fact that the musicians are related, or ‘of the same blood’. In the second text, the term ‘family’ is disassociated from its meaning in the context of a social unit and redefined as a structure for a criminal organisation. The final quote forcibly brings home the scale of family ties: even the dog is seen as part of the family. The texts used in the examples show that gypsies are collectively defined mainly in terms of family and ‘blood relations’. The exaggerated importance attached to family and culture is also highlighted by behavioural traits and social characteristics of gypsies which are attributed to their culture and family affiliations in various contexts. This is also illustrated by examples where social outcasts and references to delinquency are used to support the argument. Although social injustice is covered in the press debate, it is rarely described as the result of a two-way process in society; it is represented instead as a ‘foible’ which is unique to gypsies who are intent on escaping from their ‘true existence’ and traditions. Many of them live on social security. Doorstep selling has virtually died out, this is only done on a sporadic basis now … The gypsies in Mainz are fairly settled in fact. But they still dream of travelling freely and selling their wares like before, and this will be handed down from generation to generation. No wonder so

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many of them do not welcome a regular wage or regulated working hours. (Rhein-Zeitung Mainz, 21.3.91) The staff are very concerned about how the seven children of school age in the clan should be taught. Apart from the language barrier, it is unlikely that they would be able to concentrate on teaching material for long periods in a normal primary school with their mentality and temperament. (Darmstädter Echo, 23.1.80) The first quote claims that integration of gypsies would be difficult, not because of their lack of formal education or discrimination by their employers, but because they have handed down this ‘dream of travelling and selling their wares’ from generation to generation. The same type of argument can be found in the second section of text. Special learning difficulties faced by gypsies attending school are attributed to the language barrier and the mentality of the children. This supposedly sympathetic statement, which perhaps does not intend to be discriminatory, in fact contains implicit associations which can be categorised precisely because of the well-meaning intentions behind this description. Delinquency is characterised by the fact that criminal behaviour appears to be a common trait among gypsies which is culturally based and biologically founded, and runs in the blood: It was quite clearly a gypsy tradition to get children to go on thieving trips and then to face up to their crimes in public. (Darmstädter Tageblatt, 19.4.84) Explicit criminal acts are described as a ‘gypsy tradition’ in this text. Delinquency is highlighted as a cultural trait which is typical of the group. The following passage attributes criminal behaviour to both cultural and biological factors: The girl presented by the lawyer, however, is a picture of innocence and is clearly not from the same clan of gypsies either. (Frankfurter Allgemeine Zeitung, 4.9.81) The term ‘clearly’ plays a key role in the text. The idea of two known criminals with a similar record is not even seen as a coincidence, but a matter of course and is described as if it is to be expected. The explanation for this ‘non-coincidental factor’ is based on a racist concept

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because the only common bond is their affiliation to ‘the same clan of gypsies’. The alleged delinquency of the two people is attributed with their blood ties. The preconceived idea of the biological inheritance of modes of behaviour and social mores is illustrated in the following passage: The growing numbers of ‘mixed marriages’ between gypsies and Germans or non-gypsies is seen as a glimmer of hope by the German authorities and viewed with concern among gypsies. (Darmstädter Tageblatt, 11.10.79) These press reports on gypsies reveal a uniform structure in their argument, irrespective of the issues. Modes of behaviour and attributes which are assigned to gypsies as their main ethnic characteristics are either socially unacceptable from the outset (as is the case with criminal behaviour), or condemned in the press report itself. In around 40 per cent of the newspaper articles, gypsies are described as ‘dangerous forces’ or ‘morally reprehensible’. Contact between gypsies and the rest of the population is described in a bad light in half the reports. In contrast, only 10 per cent of these reports positively welcome interaction. The characteristics mentioned in the debate in the local press on gypsies contain racist elements. According to Balibar, neo-racist discourse is no longer biologically based like racist discourse. Cultural characteristics of individuals and groups determine this neo-racist discourse in the sense that these people are ‘preceded by their historical origins and genealogy, and by an unchangeable, unshakeable existence via their origins’ (Balibar, 1989). There are also overtly racist types of argument in the newspaper reports, as the quotes substantiate, but overall there is more neo-racism. The cultural tag substitutes the term race in most cases in the press reports. Negative comments on the behaviour of gypsies are mainly associated with their affiliation to a culture and not ‘their blood’. Yet, the same unchangeable patterns of behaviour are described when the roots of characteristics are attributed to biological or genetic make-up. The assumption of a dominant cultural identity like this implies that blurring the distinctions might mean a complete loss of identity: It is doubtful whether gypsies would desire integration or whether this can be expected of them, as they would be forced to sacrifice their own identity. (Darmstädter Tageblatt, 10.11.83)

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After all these experiences, we must ask ourselves whether Darmstadt would really be doing the gypsies a favour if they were put into a position where their civil rights were defined and these would be defended to preserve the peace, whether they liked it or not. (Darmstädter Echo, 1.8.81) This kind of discourse implies that violating cultural distinctions which should be maintained between groups would inevitably bring about ethnic conflict and aggression. Rejection is described as a ‘natural reaction’. Xenophobia is also understandably on the increase in towns and cities particularly in recessionary times, on account of the extra burden created by foreigners. (Frankfurter Allgemeine Zeitung, 30.9.82) But, of course there are also gypsies who steal and their attitude to life and material possessions is foreign to us, and so this obviously encourages wholesale mistrust. (Darmstädter Echo, 12.10.79) ‘Cultural differences’ between gypsies and the rest of the population are clearly cited as the reason for the conflict which has produced ‘natural divisions’. The consequence is that exclusion from society is their only guarantee of survival. And anyone who promises to help them, must not judge them by our standard of living and desire for order. This does not mean that we should open our hearts to the gypsies, this just means that they should be given the opportunity to live their life without harming others. If gypsies do not want to become integrated because they do not understand or accept the standards of the majority of normal citizens, they can only live their life on the fringe of society. On the edge of town. (Darmstädter Echo, 18.7.81) This example also clearly shows that a hierarchical structure of our different ways of life is inevitable. The gypsies’ inability to allow themselves to integrate is met with initial incomprehension, evoking all the implications of ‘backwardness’ and ‘social inadequacy’. Even the descriptions of ‘communion with nature’, ‘historical social order’ and ‘born’ musicality which are used to reconstruct the foreign element in the romantic image of the ‘wild gypsy’ in the press, still

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show gypsies as ‘inferior’ and ‘under-developed’. Their classification as a ‘natural being’ also indicates a ‘less civilised culture’. Attempts to discredit gypsies in the press reports were not just content to label them as less civilised, but were most damning in their wholesale dehumanisation: Travellers have trained them to react like dogs and prey on the tourists in pairs. (Express Köln, 14.5.87) In this example, gypsy children are given a new attribute (an ability to be trained), with trained responses just like Pavlov’s dogs. The children are denied the essential human quality of intelligent behaviour, in contrast to all other forms of life; they are classed as dogs. Dehumanisation of a person as a means of categorisation is a way of preparing for or justifying treatment which is not subject to normal rules of human behaviour. Dehumanisation of the Jews also played a central role in the National Socialist Jew-baiting pogroms, for example. The form of discourse adopted by the local press changes as local conflict heightens. Neo-racist forms dominate the picture in reports on cultural events, whereas the language of conflict becomes more open and direct where the administration, police and press are involved with exaggerated criminality or in the rejection of groups of gypsy sympathisers. The dialogue becomes militant and racist when fundamental interests and the main public institutions in society are perceived to be under threat. The texts examined from the local press follow anti-semitic tradition in terms of the issue of dehumanisation. Anti-semitism is also a type of ‘culturalist’ racism. The pseudo-biological racist concept was never a major argument. Anti-gypsy ideology is based on the same methods as anti-semitism and is currently fulfilling the same social and individual psychological function. This is revealed in the current public debate on ‘gypsies’, political experience with gypsy asylum-seekers and primarily the pogrom-style attacks in recent years.

Conclusions This study has not produced any startling new findings. It does prove, however, that the same methods of portrayal are employed in reports on gypsies as for other minority groups in society (van Dijk, 1989). Anti-gypsy feeling is perpetuated and reproduced as racism and neoracism by society and the media (van Dijk, 1989). The rejection of

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gypsies as a minority group by society is not a natural phenomenon, but the result of a well-documented process (Hebler, 1993). It is interesting to note that a government institution such as the police has contributed substantially to the development of this public dialogue, and in some cases has even provided them with the motive and the theme (Bohn et al., 1993). The treatment of minority groups in society within government institutions could easily be exposed as the result of glaring generalisations on delinquency among gypsies, for example (on the police, see Feuerhelm, 1987). The timing of anti-gypsy tirades in the media is determined by the intensity of local conflict reported in the regional press. It is also linked to the nature of political conflict about domination where minority groups are exploited and publicly discredited (Jäger, 1993). Racism in society remains linked to the rejection of democratic equal rights arguments by society as well. References Arnold, H. (1980), Fahrendes Volk. Randgruppen des Zigeunervolkes (Travellers, fringe groups and gypsies). Neustadt an der Weinstrabe, 318 f. Balibar, E. (1989), ‘Gibt es einen ‘neuen Rassismus’?’ (Is there such a thing as ‘new racism’?) Das Argument, 175, 374. Bielefeld, U. (ed.) (1992), Das Eigene und das Fremde. Neuer Rassismus in der Alten Welt? (Known and unknown. New racism in an old world?), Hamburg. Bohn, I., Hamburger, F. and Rock, K. (1993), ‘Die “absolute” Belastungsgrenze – Roma in der Ost-West-Migration’ (The ‘absolute’ limit – gypsies in East-West migration), in H. Meuelemann and A. Elting-Camus (eds), 26. Deutscher Soziologietag. Lebensverhältnisse und soziale Konflikte im neuen Europa (26th German Sociology Seminar. Living conditions and social conflict in Europe today), Opladen. Darmstädter Echo (daily newspaper 1979–84). Darmstädter Tageblatt (daily newspaper 1979–84). Dittrich, E. J. and Radtke, F. O. (eds) (1990), Ethnmizität. Wissenschaft und Minderheiten (Ethnic problems, experts and minority groups), Opladen. Express Köln (daily newspaper 1986–7). Feuerhelm, W. (1987), Polizei und ‘Zigeuner’. Strategien, Handlungsmuster und Alltagstheorien im polizeilichen Umgang mit Sinti und Roma (The police and gypsies. Strategies, initiatives and practical theories for gypsy policing policy), Stuttgart. Frankfurter Allgemeine Zeitung (daily newspaper 1979–84). Gronemeyer, R. (1985), ‘Warum Tsiganologie: Bemerkungen zu einer Wissenschaft mit Blutspuren’ (Why study gypsies? Notes on empirical expert studies), in Giebebner Heft für Tsiganologie (Giessen series on studies of gypsies), Issue 1/1985, 3–7. Hebler, M. (1993), ‘Ausländerbeschäftigung, Ausländeerpolitik und Einstellungswandel’ (Preoccupation with foreigners, immigrant policy and changing attitudes), in M. Hebler (ed.), Zwischen Nationalstaat und multikul-

Franz Hamburger, Irina Bohn and Kerstin Rock 145 tureller Gesellschaft (From the nation state to multicultural society), Berlin. Jäger, S. (1993), Brandsätze. Rassismus im Alltage (Explosive issue of racism in everyday life), Duisburg 1992 and Institut für sozialpädagogische Forschung Mainz (ISM) e.V. (Educational Psychology Research Institute Mainz) (ed.), RassismusFremdenfeindlichkeit-Rechtsextremismus: Beiträge zu einem gesellschaftlichen Diskurs (Racism, xenophobia and right wing extremist politics – contributions to the social debate), Bielefeld. Kawczynski, R. (1990),’Roma in Deutschland – zwischen Vertreibung und Pogrom’ (Gypsies in Germany – from persecution to pogroms), in Bleiberecht (Right of abode), November 1988–November 1990, Chronologie – Dokumentation – Berichte (Chronology, documentation, reports), Hamburg, 212–26. Martins-Heub, K. (1983), ‘Zur mythischen Figur des Zigeuners in der deutschen Zigeurnerforschung’ (The mythical figure of the gypsy in German research on gypsies), Forum für Sinti und Roma (Forum on gypsies), vol. 1, Frankfurt am Main. Rhein-Zeitung Mainz (daily newspaper 1987–91). Ritter, R. (1940), ‘Primitivität und Kriminalität’ (Primitive culture and delinquency), in Monatsschrift für Kriminalbiologie und Strafrechtsreform (Monthly journal on criminal biology and criminal law reform), 31 (1940), issue 9, 197–210. Tetzner, T. (1835), Geschichte der Zigeuner: ihre Herkunft, Natur und Art (History of the gypsies, their origins, traditions and behaviour), Weimar and Ilmenau 1835, v. See quote from ‘Sintigeschichte zwischen Thüringen und Mark’ (Wherever I wander with Stachlingro. Gypsy history from Thuringen to the Mark’, in Dritter Weg (Alternatives), issue 2/1993, 67–73. van Dijk, T. A. (1989), ‘Mediating racism. The role of the media in the reproduction of racism’ in R. Wodak (ed.), Language, Power and Ideology, Amsterdam/Philadelphia. van Dijk, T. A. (1991), Racism and the Press, London. Wiesbadener Kurier (daily newspaper 1987–91).

8 The Mobilisation of the Extreme Right in Germany Wolfgang Kühnel

Since its establishment in 1949, the Federal Republic of Germany (FRG) has gone through several phases of extreme right-wing mobilisation. However, none has had such a far-reaching impact on political and public life as the latest developments since the beginning of the 1990s. The reasons why the dark sides of society express themselves particularly persistently in authoritarian, exclusionist and extreme right-wing tendencies in Germany may well be historical (see Rüsen, 1996; Wehler, 1994), but a separate paper would be needed to discuss this. One fact that is just as interesting is that the latest wave of racist acts of violence broke out during a phase of far-reaching social change. Unification of the two German states, economic recession, and migration from eastern and south-eastern Europe are the significant structural changes in terms of domestic policy. In foreign policy, it is the moves towards European integration in economic and fiscal terms that are particularly crucial. A glance at some of the topics (migration, political asylum, unemployment, the changed framing conditions for politics and commerce in national states through globalisation, deregulation of the welfare state) reveals that the political demands of extreme right-wing groups and parties do not flare up by chance. Such tendencies are found not only in Germany but also in other west and east European countries and the USA.1 However, what is specific to Germany and in need of explanation is the comparatively slight mobilisation effects of extreme right-wing parties compared with the strong mobilisation effects and the successful impact on established politics of acts of violence or the activities of neo-Nazi groups. In this chapter, I wish to cover three topics. I shall start by taking a look at the most recent extreme right-wing trends in Germany, and, as far as space permits, I shall make comparisons with other European 146

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countries. This will concentrate on racist and extreme right-wing acts of violence, the election successes of extreme right-wing parties, and xenophobic attitudes. The second topic will be an attempt to explain the origins of the latest mobilisation in favour of extreme right-wing goals in Germany. One focus will be the impact of migration processes and public opinion in this field. In the third topic, in order to gain an appropriate estimation of the influence of extreme right-wing activists, actions and attitudes on society and politics, I shall switch perspective to the political institutions, in particular, to the party political system. From this perspective, I shall consider not only how established politics deals with right-wing extremism but also how this has been influenced by the debate on citizenship and changes in the law of asylum.

Right-wing extremism and racist violence in Germany: trends and structures The term right-wing extremism is used to describe attitudes, actions or organisations that are opposed to universal principles of equality, tolerance and pluralism; the call for the subordination of the citizen to national interests; the justification of social inequality in racist or ethnic terms; and the demand for ethnic homogeneity of national or demographic groups. It is frequently accompanied by discrimination or exclusion of social (or ethnic) minorities, and, in extreme cases, this may take violent forms (see Heitmeyer, 1993; Jaschke, 1994). This is clearly a relatively broad definition of right-wing extremism. The concept includes extreme right-wing and racist violence (see Björgo and Witte, 1993), hate crime (see Hamm, 1994), but also ultranationalist forms of expression in political parties, organisations (see Kitschelt, 1995) and religious groups (see Kaplan, 1998). The form of right-wing extremism in each country depends largely on political opportunity structures (Kitschelt, 1986; Tarrow, 1989). The situation in France, Italy and Germany provides a good example of this: compared with France and Italy, extreme right-wing parties have hardly any influence in Germany. Germany tries to ban such parties. As a result, violenceoriented subcultures become all the more important. However, even a comparison of the extreme right-wing parties in France and Italy is difficult. Whereas the Front National exhibits unmistakable racist tendencies, these are not so unequivocal in the Lega Nord. The Lega Nord’s campaigns focus particularly on regionalist demands (see Betz, 1994). Despite the difficulties involved in a comparative examination

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of right-wing extremism, it is crucial that social scientists do not neglect it. From the entire spectrum of forms of extreme right-wing expression, I shall select indicators with a firm theoretical base. The first indicator is extreme right-wing or racist actions directed against persons and institutions, specifically, violence, assaults and arson. On this level, actions are not necessarily linked to political goals. The second indicator is the decision to vote for extreme right-wing or radical right-wing parties. The opinions underlying such behaviour represent more or less rational decisions in favour of the political goals of an organisation. The third indicator is xenophobic attitudes. This is chosen because it can be assumed that recent migration has led to a heightened problem awareness in the general public and defensive attitudes toward foreigners. Nonetheless, it has to be emphasised that there is no linear relation between the proportion of foreigners in the population and xenophobia.2

Trends in right-wing violence A series of studies has now been published that analyses the background of racist outbreaks in Germany (see Kühnel, 1998; Lüdemann, 1995; Ohlemacher, 1994; Willems et al., 1993). But international comparisons are rare (see Alber, 1995; Björgo, 1993). One major reason for this is the data problem. Because they are collected by different institutions (police, security services, ministries of the interior) and from different perspectives in each country, data are exceptionally difficult to compare. While acknowledging these difficulties, Ruud Koopmans (1995) has still attempted to compare trends in racist and extreme right-wing acts of violence in various European countries from 1988 to 1993. He drew on data from France, the United Kingdom, the Netherlands, Switzerland, as well as the three Scandinavian countries, Denmark, Norway and Sweden. In general, his findings confirm that Germany sadly takes a leading position (Koopmans, 1995: 13–15). Nonetheless, there is also an exceptionally high potential for violence in the United Kingdom and Switzerland. Germany and the United Kingdom reveal a similar increase in extreme right-wing and racist acts in the period 1990–3; whereas, in Switzerland, the wave of violence peaked in 1991, and has since abated. Sweden reveals a comparable level of serious acts of violence to that in Switzerland: it first peaked in 1990, declined in 1991, and rose again in 1992. In contrast, Denmark, the Netherlands

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and Norway have conspicuously low levels of violence, and in France racist offences have hardly any weight at all. Taken together, although on different levels, an increase in racist and extreme right-wing attacks between 1990 and 1992/1993 can be confirmed in Denmark, Germany, the United Kingdom and Switzerland (see Koopmans, 1995). The increase in acts of violence can be related to trends in the numbers of asylum-seekers. From 1989 to 1993, the number of persons seeking asylum in Germany increased from 121 300 to 322 500 (an increase of 266 per cent). In Sweden, the increase over the same period was from 32 000 to 37 581 (117 per cent). The number of asylumseekers in Switzerland rose from 24 500 to 41 600 in 1991 (170 per cent) and then dropped to 24 700. In the United Kingdom, the number rose from 16 800 to 28 000 (166 per cent increase). In Denmark, 4600 persons sought asylum in 1989 compared with 14 300 in 1993 (an increase of 310 per cent). The Netherlands saw an increase from 14 000 to 35 300 in 1993 (an increase of 252 per cent) followed by a drop to approximately 17 000 in each of the following years. Norway has had an almost constant quota of asylum-seekers at approximately 5000 per year. The quota rose only in 1993 when it reached 12 800. In the following years, it fell back considerably (to 3300 in 1994). The exception is France: here, there has been a decline from 60 000 (in 1989) to 26 600 (in 1993; Beauftragte der Bundesregierung für Ausländerfragen, 1997: 296–7). Without postulating any causal relations, some countries do seem to indicate that the increase in the number of asylum-seekers during the period studied is accompanied by an increase in violence. After all, most attacks and assaults were directed at asylum-seekers and the hostels in which they were accommodated. Other factors (e.g. unemployment, or the dismantling of the welfare state) were not decisive for this mobilisation of violence. Nonetheless, there are also deviations from this pattern. The relatively high increases in the numbers of asylum-seekers in Denmark and the Netherlands are unable to account for the low level of violence in these countries. Further explanations are required, probably related to the political culture in dealing with foreigners and the opportunities to acquire citizenship. I shall return to this topic with regard to Germany later. The scarcely organised forms of violent protest against asylumseekers and ethnic German immigrants (Aussiedler) engender a form of mobilisation for extreme right-wing goals that certainly attracts a high level of publicity, as Germany has clearly shown. However, attempting

150 Challenging Racism in Britain and Germany

to bring about lasting political changes through violence and terror alone seems to be a problematic endeavour. It requires an adequate organisational structure and the impact of the media that can be used to focus and assert political interests. Generally, this is the task of extreme right-wing or radical right-wing political parties or associations. They need to mobilise and integrate sections of the population with their policies and assert their goals in competition with other political parties.

Radical right-wing parties in Europe Table 8.1 reports election results for extreme right-wing or populistic right-wing parties. It can be seen that extreme right-wing voters are conspicuously strong in Austria, Belgium and France. Neither should organised right-wing extremism be underestimated in Denmark. However, in both Denmark and France, violent acts are relatively rare. In Germany, Sweden and Switzerland, extreme right-wing parties have hardly any impact on the party political system. However, it is precisely these countries that have relatively high levels of violence. Xenophobic and racist violence seems to be less frequent in countries in which extreme right-wing parties have made gains or are embedded within the political system. Although the extent to which activists in extreme right-wing parties are also involved in acts of violence should not be underestimated, they generally distance themselves from extreme right-wing violence. Support for violence would discredit them in the eyes of the general public. Mobilisations of violence may well be easier to bring about in countries in which two phenomena combine: a lot of public attention focused on immigration and asylum-seekers and their controversial discussion, plus a failure to take up these issues or allow them access to the political system because of divisions within the political elites or their blocking tactics. Germany provides a particularly impressive example of this: increasing numbers of refugees from former Yugoslavia as well as immigrants from other countries in eastern and south-eastern Europe have particularly roused public opinion against foreigners and asylum-seekers. This situation was reinforced by the disagreements between the political parties and the blocking of any decisions by the governing party, the Christian Democrats (CDU). Even after 1993, when the parties reached a compromise on the asylum issue, negative feelings towards foreigners and asylum-seekers persisted. Although there has since been an increase in the sanctioning

Table 8.1

Election results of European extreme right-wing political parties

CH Autopartei

1989 1990 1991 1992 1993 1994 1995

D Republikaner

S Ny Demokrati

DK Fremskridtspartiet 8.9

1981 1982 1983 1984 1985 1986 1987 1988

F Front National

11.0*

N Fremskrittspartiet

A Freiheitliche Partei Österreichs

4.5

I Lega Nord

1.1

3.6 3.5*

1.3* 3.7

1.4 9.7

9.8 4.8 9.0

2.6 14.4** 9.7 11.7*

B Vlaams Blok

7.1* 2.1

5.1

5.3* 6.4

1.9

13.0

4.1*

1.8*

16.6

6.7

6.6 8.7 6.3

10.5* 15.0**

1.9 3.9*

6.4

22.5 7.8* 7.8

8.4 6.6*

* European union elections; ** French presidential elections Source: Betz, 1996: 354.

151

152 Challenging Racism in Britain and Germany

of violence towards asylum-seekers and foreigners, there has been no change in their negative image in public opinion. The topics used to spread a negative climate were the abuse of asylum, so-called ‘economic refugees’ (Wirtschaftsflüchtlinge) or ‘phoney refugees’ (Scheinasylanten) and the crime rate among foreigners. Representatives of the major political parties in Germany have exploited this situation. Whereas in foreign policy, they wanted to create the impression that something was being done to counter racist violence in Germany, they simultaneously wanted to limit the immigration of refugees. The purported reason was that the refugees were placing too much strain on the employment and welfare systems. The major political parties were certain about gaining the support of large parts of the population with such an ambiguous strategy. The result has been a distancing from extreme right-wing violence while simultaneously awakening the latent xenophobia in the population. Alongside the differences between a more party-politically organised and a more violent form of extreme right-wing mobilisation, it can be seen that, in most European countries, extreme right-wing political parties were successful in elections during a short period of time (1989–90). This was the period when the global upheavals and the societal changes in eastern and south-eastern Europe arose and triggered stronger waves of migration than before. This was all happening at a time when western European countries were having to face the problems of deregulating their economies and dismantling jobs and the welfare state, and discussions on European unification, particularly in economic terms, were getting under way. National resentments and defensive attitudes towards foreigners and asylum-seekers became apparent. This brings me to the problem of xenophobia.

Xenophobia in the EU states There is now ample proof that xenophobia is an essential component of extreme right-wing movements and parties (see Betz, 1994, 1996; European Commission, 1997; Heitmeyer et al., 1995; Jaschke, 1994; Kitschelt, 1995; Wiegand, 1995). There can be no doubt that defence, hostility and even demands to expel foreigners and asylum-seekers are the main topics that always guarantee extreme right-wingers the greatest successes in mobilisation. This makes it important to know how xenophobic potentials have developed in public opinion in recent years, and how far they have contributed to waves of extreme right-wing mobilisation. I shall refer to data sets from the Eurobarometer for the years 1991,

Wolfgang Kühnel 153

1992 and 1993 (see Küchler, 1996: 256). Comparisons across this time series nonetheless have to be interpreted with caution, because questions in 1993 differed somewhat from those in 1991 and 1992. Table 8.2 reports the percentages of citizens in various member states of the European Union (EU) who are opposed to the influx of foreign workers from Mediterranean states and eastern Europe, of asylumseekers, and of citizens from other EU states. Table 8.2 Percentages in each EU member state opposed to the influx of foreigners 1991–3: ‘not accept them’

D D-W D-E F UK NL I B DK IRL E P GR

Immigrant workers from south (A) 91 92 93

Immigrant workers from east (B) 91 92 93

Asylum–seekers (C) 91

92

93

EU citizens (D) 93

25 25 26 33 26 28 15 34 25 12 11 7 26

26 26 23 22 23 22 15 27 19 13 9 7 24

24 27 11 24 20 16 15 29 8 18 7 7 18

25 29 12 29 20 18 17 29 10 13 8 10 19

21 23 12 30 19 11 18 25 8 16 7 11 24

16 14 21 18 19 16 10 16 7 6 5 5 19

29 30 27 34 27 34 14 33 37 10 10 11 28

25 22 36 37 28 23 16 32 30 13 13 9 32

32 33 28 24 26 29 14 27 29 10 7 10 30

34 32 39 29 28 23 17 28 26 13 10 11 31

Questions in 1991 and 1992: A(B) ‘Some people from different countries of the South of the Mediterranean (coming from Eastern Europe) wish to work here in the European Community (in the West). For this type of immigration, what do you think should be done here in the EC: accept them without restrictions, accept them but with restrictions or not accept them?’ C ‘Some people suffering from human rights violations in their country are seeking political asylum. For this type of immigration …’ Questions in 1993: A ‘If people from different countries of the South of the Mediterranean wish to work here in the European Community, do you think that they should accept without restrictions, accept but with restrictions or not accept?’ B ‘And what about people coming from Eastern Europe who wish to work in the West?’ C ‘And what about people suffering from human rights violations in their country who are seeking political asylum?’ D ‘And what about citizens of other countries of the European Community who wish to settle in (our country) ?’ Source: Küchler, 1996: 256.

154 Challenging Racism in Britain and Germany

As to be expected, rejection quotas are lower for citizens of EU states compared with asylum-seekers or migrant workers. However, this difference is not as large as one might expect. A small proportion of the population reject all freedom of movement. This is particularly the case in France, eastern Germany and the United Kingdom. Migrant workers from the southern shores of the Mediterranean and eastern Europe are confronted with comparatively strong barriers in Belgium, France, eastern and western Germany, the United Kingdom and Greece. Denmark also has an unexpectedly high non-acceptance of migrant workers. Asylum-seekers are opposed strongly in Belgium, France, western Germany and Greece. The low rate of rejection in eastern Germany is surprising. Probably east Germans focus their rejection on immigrants from eastern Europe, because they have a much stronger presence than asylum-seekers. In addition, deterred by racist violence, asylum-seekers have tried to gain admittance to western Germany. In Ireland, Italy, Portugal and Spain, the rejection of immigrants and asylum-seekers is far lower than in the other EU states. A more or less clear increase in xenophobic attitudes in the period from 1991 to 1993 can be ascertained only in relation to migrant workers in France, eastern Germany and Greece. Changes between 1991 and 1992 reveal a particularly strong increase in hostility towards foreigners in Denmark, France, Germany, Greece and the Netherlands. In Belgium and the United Kingdom, in contrast, rates remained constant at a relatively high level. However, these findings should be treated with caution in view of the short time interval involved. Studies presented by Küchler (1996: p. 254) indicate that such hostility has increased in all western European countries, particularly between the late 1980s and the beginning of the 1990s. Germany is no exception here. This trend corresponds with increases in the numbers of migrant workers and asylum-seekers from eastern and southern European countries and from the Mediterranean basin who are seeking admittance to the wealthy EU states in order to escape the social and political crises in their countries of origin. Xenophobic and racist attitudes are an expression of defensive postures arising from a fear that foreigners are unjustifiably in a more advantageous position than oneself. The feeling that immigrants and asylum-seekers can enjoy the benefits of the welfare state without having earned them seems to be a major motive for social envy that extreme right-wing movements and parties exploit successfully for their mobilisations. In the majority of European states (with the exception of Ireland, Italy, Portugal and Spain), we can assume that the relatively

Wolfgang Kühnel 155

rapid increase in xenophobic and racist attitudes at the beginning of the 1990s has had an influence on the number of assaults on foreigners and has helped to strengthen extreme right-wing political parties. Nonetheless, this trend alone cannot explain why in Germany, for example, it was mobilisations resulting from racist violence that had such a strong impact, and not radical right-wing political parties.

What causes radical right-wing movements? I shall mostly refer to the situation in Germany, and, when possible, I shall make limited comparisons with other countries. In this explanation of extreme right-wing movements and parties I shall discuss two perspectives: the first refers to concepts used to analyse the impact of the social problems of modernisation, loss of status and (relative) deprivation (see Davis, 1962; Gurr, 1970). This also involves the question of the consequences of social change in terms of the disintegration, insecurity and status anxieties (Lipset, 1964) in modern societies. The second perspective refers to the political opportunity structures (see Kitschelt, 1995, 1997; Koopmans, 1995; Kriesi, 1991; Tarrow, 1989, 1991) that help extreme right-wing parties or movements to succeed. Which opportunities for institutionalisation and access to the party political system are available to the extreme right wing? How far are parties and political culture able to integrate radical right wing attitudes? How do political elites respond when authoritarian and racist issues become more popular in the political agenda and in public life? A further field of research is also relevant for the explanation of right-wing extremism and xenophobia: their derivation from personality structures. This includes the idea of the authoritarian personality (Adorno et al., 1950) as well as the dogmatism concept (Rokeach, 1960). However, I shall not deal with this here, because my approach focuses less on the characteristics of personality development that influence behaviour and more on the structural conditions of social and political growth. I shall start with the first set of questions: is racist violence and rightwing extremism a side-effect of the modernisation of society? Do persons tend to react in this way when they perceive threats to their status or are subject to deprivations? These questions cover various aspects: they address the consequences of social change for both personal living conditions and the integration of society (see Heitmeyer, 1993). The more rapid and dramatic the course of social change, the greater the tendency for anomie and insecurity to spread. Norms lose

156 Challenging Racism in Britain and Germany

their binding nature, and deviant forms of action such as criminality, suicide and, in our case, right-wing extremism result. This theory is not new. It was first developed by Durkheim (1973, 1986) during the nineteenth century, and applied by Parsons (1942) to explain National Socialism. Parsons considered that National Socialism’s success was based on an ability to integrate persons who had lost their roots through social change. Kornhauser (1966) also adopted this idea and applied it to his theory of the mass society. He assumed that industrial societies hardly possess any intermediary organisations and are therefore less able to forge social ties. The weaker the integration through such institutions, the more favourable the conditions for mass movements. These approaches correspond to the ideas of Heitmeyer (1993) on social disintegration and disorientation. He explains right-wing extremism in terms of the consequences of individualisation that lead to the erosion of traditional social milieux and the disappearance of binding norms. Feelings of powerlessness, situations of isolation, and insecurities arise that increase the probability that extreme right-wing tendencies will appear. However, it is doubtful whether disintegration alone can provide a general explanation for right-wing extremism. Merton’s (1968a, 1968b) work on social structure and anomie provides the important indicator that persons confronted with anomic structures differ in their reactions depending on the available opportunity structures and action scopes. It is interesting to note that hardly any disintegration phenomena could be ascertained among the youths involved in racist activities in Germany during the early 1990s (see Willems et al., 1993). They were well-integrated in work, vocational training and schools, and did not live in deprived family structures or isolation. In sum, a certain degree of anomie and disintegration is normal in modern societies, and it is necessary to specify the conditions and situations in which persons exhibit extreme right-wing reactions. Dramatic social change, like that experienced in eastern Germany, may be a sufficient, but it is in no way a necessary, condition for extreme right-wing violence. There is also a need for subcultures that view violence as a legitimate means of dealing with conflicts as well as situations in which conflicts escalate. Another decisive aspect is the presence of opportunity structures that convince extreme rightwing activists that goals can be achieved successfully through violence, and that the risks involved are low. This requires public support, or at least toleration of violent acts. An interpretation framework for projecting attributions of guilt and building up a

Wolfgang Kühnel 157

composite picture of an enemy also needs to be available in the mass media and in politics. One further aspect in the explanation of extreme right-wing attitudes is the assumption that the accelerated diffusion and segmentation of labour markets as well as the pressure on welfare states due to global changes are eliciting fears of exclusion, loss of status, and relative deprivation in increasingly broader segments of the population. Whether social groups experience absolute destitution or disadvantage is not decisive. What is important is the subjective fears resulting from the conflict between expecting to maintain one’s standard of living and the declining opportunities to do this. It can be assumed that perceived disadvantage is reinforced through comparisons with other social groups (e.g. migrant workers and asylum-seekers). Attributions of responsibility are then directed particularly towards ethnic minorities. Numerous extreme right-wing political parties use this topic to try to integrate those who have lost out through the process of modernisation. Success can be confirmed for the Republikaner in Germany (see Klein and Falter, 1996), the Front National in France (see Loch, 1997; Perrineau, 1997), and the Freiheitliche Partei Österreichs in Austria (see Betz, 1994; Ulram, 1997). The new extreme right-wing parties seem to be becoming more attractive for members of the increasingly disadvantaged working class who were still voting for the social democratic parties in the 1980s (Kitschelt, 1995, 1997; Loch, 1997; Perrineau, 1997). It remains to be seen whether they will become the new working-class parties. Their political programmes have shifted from a focus on foreigners and internal security to economic demands that are fairly close to the concepts of economic liberalism. Kitschelt (1995: 259–65) has pointed out that the socio-political strategy of restricting welfare state provisions to those who pay contributions into them is highly reconcilable with neo-liberal attacks on the welfare state. He also notes that radical right-wing parties also do not believe in Keynesian employment policy, but in tax cuts and reducing state involvement in order to encourage the growth of new companies. In Germany, the expansion into economic and socio-political topics has taken the wind out of the sails of the Republikaner. Germans assign more competence to the traditional political parties in this domain. This brings me to the second set of explanations that address political opportunity structures. These can be understood as political structures that social actors can either promote or hinder through their activities (see Kitschelt, 1986; Tarrow, 1989, 1991). Which factors of political opportunity are involved here? These are, first, the degree

158 Challenging Racism in Britain and Germany

of open access or closure in the political system; second, the stability or instability of political commitment; third, the existence of influential allies; and, fourth, conflicts within and between elites. In general, the German political system can be considered to be relatively closed. This is decisively due to a long tradition of corporate negotiation of interests. The German party political system´s ability to integrate is relatively stable (see Loch, 1997), making it hard for small parties to gain a footing in the parliamentary system. Extra-parliamentary movements have to overcome high barriers when institutionalising themselves and trying to gain access to parliament. This applies particularly to activists in extreme right-wing parties whose public appearances are still viewed with suspicion in light of Germany’s National Socialist past. This does not necessarily imply that the topics favoured by the Republikaner do not meet with public approval. What has happened is that the ‘hot’ topics of foreigners, asylum and the crime rate among foreigners have now also been taken up by the major parties, the Christian Democrats (CDU) and the Social Democrats (SPD). As a result, it is no surprise that, with very few exceptions, racist and authoritarian demands are communicated more in the informal and private sphere and do not find their way into parliament in any organised form. In addition, the repression of overt acts by right-wing extremists has been stepped up in many German states since the attacks at Rostock, Hoyerswerda, Mölln and Solingen. However, this has not deterred extreme right-wing youth from violence, as recent developments in the state of Brandenburg have shown. Although attacks on foreigners, extreme right-wing networks, rock concerts and the like have been followed up and prosecuted officially, it is unlikely that this has led to any changes in public opinion on foreigners and asylum-seekers. This means that the fertile breeding ground for tolerating sympathising covertly with racist acts continues to exist among broad sectors of the population. How does the instability or stability of party political commitment impact on right-wing extremism? It is maintained widely that lack of interest in politics, an increasing proportion of non-voters, and changes in the characteristic groups that vote for traditional political parties have made it easier for radical right-wing politics to succeed. Extreme right-wing parties profit from protests directed towards establishment politics. This does not just apply to France and Austria (see Betz, 1994, 1996), but also to Germany (see Falter, 1994). The fact that extreme right-wing parties have had only limited success in Germany so far is also an outcome of the strategies of established parties. To a

Wolfgang Kühnel 159

certain degree, they have been able to integrate potential right-wingers. For example, Falter (1994: 158) reports that 20 per cent of CDU/CSU voters (the CSU is the Bavarian sister party of the CDU), 17 per cent of non-voters and 14 per cent of SPD voters possess a closed set of extreme right-wing attitudes. This suggests that the electorate of established parties may well include voters with extreme right-wing orientations. An apparently stable façade covers over potential extreme right-wing attitudes that emerge into the open only when Germany is confronted with major political and economic crises. There can be no doubt that right-wing parties also make their own contribution to their lack of success in Germany. First, because they convey the impression of being continuously subject to internal strife; second, because they have been unable to mobilise any voters with their own topics such as cutting back immigration and restricting social welfare provisions to Germans alone. They were even unable to benefit from the debates on unification or the legislation on asylum. These themes were taken over by the CDU/CSU and the SPD. The alteration of the constitution (Article 16), giving way to populist prejudice and public pressure, has tied radical right-wing voters to the established parties rather than the Republikaner. Even though their authoritarian and ethnic demands found favour among the political elites of the CDU/CSU and SPD during the 1990s, they themselves have profited the least from them. However, this does not mean that extreme right-wing tendencies have declined in Germany. The way in which disputes over foreigners and asylum-seekers have been orchestrated among the elites and in political public life may have favoured the opportunity structure for a muffled racism and for extreme right-wing attacks outside of parliament and political parties. The disputes between the elites leading up to the changes in the law on asylum have helped to improve the opportunity structures for radical right-wing and populist right-wing demands in several ways: conflicts between the elites or within the elites always provide good preconditions for a mobilisation (see Tarrow, 1989). Without consensus, problems escalate, and the radical right-wing becomes more vocal. This eventually forces the established political elites to make concessions. This was the case in 1993, with the more restrictive legislation on asylum-seekers, foreigners, but also ethnic German immigrants from the former Soviet Union. The aboutface of the elites on ethnic demands to restrict migration resolved the differences between the CDU/CSU and the SPD and signalled to the population that they had regained their ability to govern. These

160 Challenging Racism in Britain and Germany

political decisions were followed by a relative decline in the wave of racist violence. However, this has not meant an end to the problem, because violence towards foreigners still persist.

The impact on the German political system I would now like to summarise the findings and return to the third topic mentioned in my introduction: the consequences of right-wing extremism and migration for the German political system. Like other EU states, Germany has witnessed a strong political mobilisation for ethnic goals since the end of the 1980s. In Germany, this does not find its expression in stronger extreme right-wing parties, but far more in populist right-wing policies in the established parties and violence towards foreigners and asylum-seekers. This development is the consequence of a global change linked to the deregulation of the capital and labour markets, the declining political power of national states, and the end of the east–west conflict, and it leads to a reduction in the amount of low-qualified work and a reorientation away from a welfare state policy of distribution towards one of competition. This has a particularly negative impact on the economically and socially most vulnerable groups in the working class (see Kitschelt, 1995; Loch, 1997; Ulram 1997). Because of the decline in unqualified jobs, they experience loss of status and also feel threatened by migrant workers and asylum-seekers, even when the way they perceive their situation is based more on projections than on any real competition. It is not so much absolute but far more the relative experiences of deprivation that are decisive for their high ethnocentric mobilisation potential. Perceiving that they are no longer able to attain their own goals because of restricted opportunities combined with comparisons with the living conditions of migrants form an essential foundation for their fears. The fact that ethnocentric orientations can be mobilised politically is also due to the behaviour of political parties. The discussions on immigration and asylum led to a polarisation between the political elites at the beginning of the 1990s that had a favourable impact on extreme right-wing demands and violent actions towards foreigners. The increase in acts of violence and the fear that this would frighten off foreign investors were certainly not the only, but nonetheless decisive, incentives to seek a compromise in the form of a restrictive legislation on asylum and foreigners. The binding element here is the view that Germany should not be allowed to become an immigration country. Legal initiatives in favour of a realistic and regulated immigra-

Wolfgang Kühnel 161

tion policy have been blocked repeatedly. Although it is clear that legal regulations are not a panacea that will curtail ethnic demands, they function as an important signal for foreigners who wish to acquire full civil rights in their country of residence. The example of the Netherlands shows that granting the vote to foreigners does not increase support for ethnic or fundamentally oriented political parties. Just like the population in general, foreigners also vote for left-wing, social-democratic or conservative parties depending on their social milieu. In contrast, the rigid adherence to citizens’ rights based on descent as in Germany encourages exclusions based on ethnic and cultural definitions. If, moreover, ethno-particularistic definitions form the basis for political interests, whether in a populist or an extreme right-wing form, then groups in society that fear social deprivations will also respond with ethnic and culturally motivated exclusions. Up to now, extreme rightwing political parties have had very little success in mobilising this potential. It is the established political parties that have tried all the more to profit from populist demands to limit welfare-state provisions, criticisms of the so-called abuse of asylum, or calls for special sanctions against crimes committed by foreigners. However, courting authoritarian and ethnocentrically oriented groups cannot overcome the threat that the extreme right wing may well be able to integrate this potential much better, as the latest elections in Hamburg have confirmed. Notes 1 For trends in individual countries, see, for Austria: Betz (1994, 1996), Ulram (1997); Belgium: Betz (1994); Denmark: Björgo (1995); Mayer and Perrineau (1992), Perrineau (1997); Italy: Merkel (1996); Netherlands: van Donselaar (1993); Witte (1993); Norway: Björgo (1995); Sweden: Lööw (1995); Switzerland: Koopmans and Kriesi (1997); Eastern Europe: Kürti (1998); USA: Kaplan (1995); Weinberg (1998). 2 For example, Küchler (1996) has analysed data from the Eurobarometer and found that countries like Greece and Italy exhibit high levels of xenophobia despite comparatively low proportions of foreigners in their populations.

References Adorno, Theodor W., Else Frenkel-Brunswik, Daniel J. Levinson and R. Nevitt Sanford, (1950), The Authoritarian Personality, New York: Harper & Row. Alber, Jens (1995), ‘Zur Erklärung von Ausländerfeindlichkeit in Deutschland’, in Ekkehard Mochmann and Ute Gerhardt (eds), Gewalt in Deutschland. Soziale Befunde und Deutungslinien, München: Oldenbourg, 39–77. Beauftragte der Bundesregierung für Ausländerfragen, Migration und Integration in Zahlen. Ein Handbuch (1997), Bonn. Betz, Hans-Georg (1994), Radical Right-Wing Populism in Western Europe, New York: St. Martin’s Press.

162 Challenging Racism in Britain and Germany Betz, Hans-Georg (1996), ‘Radikaler Rechtspopulismus in Westeuropa’, in Jürgen W. Falter, Hans-Gerd Jaschke and Jürgen R. Winkler (eds), Rechtsextremismus. Ergebnisse und Perspektiven der Forschung. Politische Vierteljahresschrift, Special Issue, 27, Opladen: Westdeutscher Verlag, 363–75. Björgo, Tore (1993), ‘Terrorist Violence against Immigrants and Refugees in Scandinavia: Patterns and Motives’, in Tore Björgo and Rob Witte (eds), Racist Violence in Europe, Basingstoke/ New York: Macmillan/St. Andrew Press, 29–45. Björgo, Tore (1995), ‘Extreme Nationalism and Violent Discourses in Scandinavia: “The Resistance”, “Traitors”, and “Foreign Invaders”’, in Tore Björgo (ed.), Terror from the Extreme Right, London: Frank Cass, 182–220. Björgo, Tore and Rob Witte (1993), ‘Introduction’, in Tore Björgo and Rob Witte (eds), Racist Violence in Europe, Basingstoke/New York: Macmillan/ St. Andrew Press, 1–16. Davis, James C. (1962), ‘Toward a Theory of Revolution’, American Sociological Review, 27, 5–19. Durkheim, Emile (1973), Le Suicide. Paris: Presses Universitaires de France (Nouvelle édition: 1re trimestre 1930). Durkheim, Emile (1986), De la Division du Traviale social, Paris: Quadrige: Presses Universitaires de France, 1986 (1re édition 1930). European Commission, Racism and Xenophobia in Europe (1997), Eurobarometer Opinion Poll, No. 47.1. First Results presented at the Closing Conference of the European Year Against Racism, Luxembourg, 18 and 19 December 1997. Falter, Jürgen W. (in collaboration with Marcus Klein) (1994), Wer wählt rechts? Die Wähler und Anhänger rechtsextremistischer Parteien im vereinigten Deutschland, München: Beck. Gurr, Ted R. (1970), Why Men Rebel, New Jersey: Princeton University Press. Hamm, Mark S. (1994), American Skinheads: the Criminology and Control of Hate Crime, Westport: CT: Praeger. Heitmeyer, Wilhelm (1993), ‘Hostility and Violence towards Foreigners in Germany’, in Tore Björgo and Rob Witte (eds), Racist Violence in Europe, Basingstoke/New York: Macmillan/ St. Andrew Press, 17–28. Heitmeyer, Wilhelm, Birgit Collmann, Jutta Conrads, Dietmar Kraul, Wolfgang Kühnel, Ingo Matuschek, Renate Möller and Mathias Ulbrich-Hermann (1995), Gewalt. Schattenseiten der Individualisierung bei Jugendlichen aus unterschiedlichen Milieus, Weihnheim und München: Juventa. Jaschke, Hans-Gerd (1994), Rechtsextremismus und Fremdenfeindlichkeit: Begriffe, Positionen, Praxisfelder, Opladen: Westdeutscher Verlag. Kaplan, Jeffrey (1995), ‘Right-Wing Violence in North America’, in Tore Björgo (ed.), Terror from the Extreme Right, London: Frank Cass, 1995, 44–95. Kaplan, Jeffrey (1998). ‘Religiosity and the Radical Right: Toward the Creation of a New Ethnic Identity’, in Jeffrey Kaplan and Tore Björgo (eds), Nation and Race: the Developing Euro-American Racist Subculture, Northeastern University Press, 102–25. Kitschelt, Herbert (1986), ‘Political Opportunity Structures and Political Protest. Anti-Nuclear Movements in four Democracies’, British Journal of Political Science, 16, 57–85. Kitschelt, Herbert (in collaboration with A. J. McGann), (1995), The Radical Right in Western Europa. A Comparative Analysis, Ann Arbor: University of Michigan Press. Klein, Marcus and Jürgen W. Falter (1996). ‘Die dritte Welle rechtsextremer Wahlerfolge in der Bundesrepublik Deutschland’, in Jürgen W. Falter,

Wolfgang Kühnel 163 Hans-Gerd Jaschke, Jürgen R. Winkler (eds), Rechtsextremismus. Ergebnisse und Perspektiven der Forschung. Politische Vierteljahresschrift, Special Issue 27, Opladen: Westdeutscher Verlag, 288–312. Koopmans, Ruud (1995), A Burning Question: Explaining the Rise of Racist and Extreme Right Violence in Western Europa, Science Centre Berlin, Research Unit: Public and Social Movements, Discussion Paper FS III 95-101. Koopmans, Ruud and Hanspeter Kriesi (1997), Citizenship, National Identity and the Mobilisation of the Extreme Right. A Comparison of France, Germany, the Netherlands and Switzerland, Science Centre Berlin, Research Unit: Public and Social Movements, FS III 97-101. Kornhauser, William (1966), The Politics of Mass Society, New York/London: Free Press/Collier-Macmillan. Kriesi, Hanspeter (1991), The Political Opportunity Structure of New Social Movements: its Impact on their Mobilisation, Science Centre Berlin, Research Unit: Public and Social Movements, Discussion Paper FS III 91–103. Küchler, Manfred (1996). ‘Xenophobie im internationalen Vergleich’, in Jürgen W. Falter, Hans-Gerd Jaschke and Jürgen R. Winkler (eds), Rechtsextremismus. Ergebnisse und Perspektiven der Forschung. Politische Vierteljahresschrift, Special Issue 27, Opladen: Westdeutscher Verlag, 248–62 Kühnel, Wolfgang (1998), ‘Hitler´s Grandchildren? The Re-emergence of a Right-Wing Social Movement in Germany’, in Jeffrey Kaplan and Tore Björgo (eds), Nation and Race: the Developing Euro-American Racist Subculture, Boston, MA: Northeastern University Press, 148–74. Kürti, László (1998), ‘The Emergence of Postcommunist Youth Identities in Eastern Europe: From Communist Youth, to Skinheads, to National Socialists and Beyond’, in Jeffrey Kaplan and Tore Björgo (eds), Nation and Race: the Developing Euro-American Racist Subculture, Boston, MA: Northeastern University Press, 175–201. Lipset, Seymour Martin (1964), ‘The Source of the Radical Right’, in Daniel Bell (ed.), The Radical Right, Garden City/New York: Doubleday, 75–95. Loch, Dietmar (1997), ‘(Rechts-) Populismus in Frankreich – und in Deutschland? Politische Konfliktlinien und Mobilisierungsthemen im Vergleich?’ Newsletter. Forschungsnetzwerk für ethnisch-kulturelle Konflikte, Rechtsextremismus und Gewalt, 8, 2, 12–26. Lööw, Helene (1995), ‘Racist Violence and Criminal Behaviour in Sweden: Myths and Reality’, in Tore Björgo (ed.), Terror from the Extreme Right, London: Frank Cass, 119–160. Lüdemann, Christian (1995), ‘Fremdenfeindliche Gewalt und Lichterketten’, in Gerad Lederer and Peter Schmidt (eds), Autoritarismus und Gesellschaft. Trendanalysen und vergleichende Jugenduntersuchungen 1945–1993, Opladen: Leske und Budrich, 355–381. Mayer, Nonna and Pascal Perrineau (1992), ‘Why Do They Vote for Le Pen?’ European Journal of Political Research, 22, 123–41. Merkel, Wolfgang (1996), ‘Rechtsextremismus in Italien: Von der neofaschistischen Systemopposition zur postfaschistischen Regierungspartei: Der Aufstieg der Alleanza Nationale’, in Jürgen W. Falter, Hans-Gerd Jaschke and Jürgen R. Winkler (eds), Rechtsextremismus. Ergebnisse und Perspektiven der Forschung. Politische Vierteljahresschrift, Special Issue 27. Opladen: Westdeutscher Verlag, 406–22.

164 Challenging Racism in Britain and Germany Merton, Robert K. (1968a), ‘Social Structure and Anomie’, in Robert K. Merton, Social Theory and Social Structure, New York: Free Press, 185–214. Merton, Robert K. (1968b), ‘Continuities in the Theory of Social Structure and Anomie’, in Robert K. Merton, Social Theory and Social Structure, New York: Free Press, 215–48. Ohlemacher, Thomas (1994), ‘Public Opinion and Violence against Foreigners in the Reunified Germany’, Zeitschrift für Soziologie, 23, 3, 1994, 222–36. Parsons, Talcot (1942). ‘Some Sociological Aspects of the Fascist Movements’, Social Forces, 20, 138–47. Perrineau, Pascal (1997), ‘Les facteurs de la dynamique électorale du Front National’, Paper presented at the conference ‘Authoritarian Trends in the Age of Globalisation’, University of Bielefeld, 8–10 October 1997. Rokeach, Milton (1960), The Open and Closed Mind, New York: Basic Books. Rüsen, Jörn (1996), ‘Kollektive Identität und ethnischer Konflikt im Prozeß der Modernisierung’, in Wilhelm Heitmeyer and Rainer Dollase (eds in collaboration with Johannes Vossen), Die bedrängte Tolleranz. Ethnisch-kulturelle Konflikte, religiöse Differenzen und die Gefahren politisierter Gewalt, Frankfurt a.M.: Suhrkamp, 142–52. Tarrow, Sidney (1989), ‘Struggle, Politics, and Reform: Collective Action’, Social Movements and Cycles of Protest, Western Society Program, Occasional Paper No. 21. Center for International Studies: Cornell University. Tarrow, Sidney (1991), ‘Kollektives Handeln und politische Gelegenheitsstruktur in Mobilisierungswellen: Theoretische Perspektiven’, Kölner Zeitschrift für Soziologie und Sozialpsychologie, 43, 4, 647–70. Ulram, Peter A. (1997), ‘Sozialstruktur und Wahlmotive der FPÖ-Wähler. Zur Modernität des Rechtspopulismus am Beispiel des Phänomens Haider’, paper presented at the conference ‘Authoritarian Trends in the Age of Globalisation’, University of Bielefeld, 8–10 October. van Donselaar, Jaap (1993), ‘The Extreme Right and Racist Violence in the Netherlands’, in Tore Björgo and Rob Witte (eds), Racist Violence in Europe, Basingstoke/New York: Macmillan/ St. Andrew Press, 46–61. Wehler, Hans-Ulrich (1994), ‘Nationalismus als fremdenfeindliche Integrationsideologie’, in Wilhelm Heitmeyer (ed.), Das Gewalt-Dilemma, Frankfurt a.M.: Suhrkamp, 73–90. Weinberg, Leonard (1998), ‘An Overview of Right-wing Extremism in the Western World: a Study of Convergence, Linkage, and Identity’, in Jeffrey Kaplan and Tore Björgo (eds), Nation and Race. The Developing Euro-American Racist Subculture, Northeastern University Press, 3–33. Wiegand, Erich (1995), ‘Ausländerfeindlichkeit in der Festung Europa: Einstellung zu Fremden im europäischen Vergleich’, in Bundesamt für die Anerkennung ausländischer Flüchtlinge (BAFI)/Informationszentrum für Sozialwissenschaften (IZ) (eds), Einwanderung und Asyl. Eine Dokumentation sozial- und rechtswissenschaftlicher Literatur und Forschung. Nürnberg/ Bonn, 31–9. Willems, Helmut (in collaboration with Roland Eckert, Paul B. Hill, Stefanie Würtz and Linda Steinmetz) (1993), Fremdenfeindliche Gewalt. Einstellungen, Täter, Konflikteskalationen, Opladen: Leske und Budrich. Witte, Rob (1993), ‘Racist Violence: an Issue on the Political Agenda’, in Tore Björgo and Rob Witte (eds), Racist Violence in Europe, Basingstoke/New York: Macmillan/St. Andrew Press, 139–53.

Part III Strategies for Combating Racism

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9 Race Laws and Policy in the United Kingdom Colin Munro

The laws on race in the United Kingdom are quite extensive and involve some legal complexities as well as raising issues of principle, policy and practice. In this chapter there is room only for an overview, but it may be worthwhile to consider how policy on race has been translated into law in the United Kingdom, some thirty years after specific legislation was first enacted. A preliminary difficulty attends any discussion of law in the United Kingdom. Although the state is not federal, its constitutional structure arises from unions of the constituent nations, and there are functionally three legal systems, that of England and Wales, that of Northern Ireland, and that of Scotland. A variety of historical, legal and political factors determines whether any particular area of law assumes different aspects in the three jurisdictions or presents an identical or similar appearance in two or all of them. For present purposes, it may be observed that the laws concerning race are substantially similar in England, Wales and Scotland (although there are slight differences in the enforcement procedures and in the relevant criminal laws), and it is natural to regard these laws, in which the Race Relations Act 1976 is central, as applicable throughout Great Britain, which is the mainland island. It should be noticed, incidentally, that substantial commonality is likely to persist, notwithstanding the further measures of devolution of government which occurred in 1998. The Government of Wales Act 1998 does not give the National Assembly for Wales general power to legislate. The Scotland Act 1998 provides that ‘the subject-matter of the Race Relations Act 1976’ is reserved, so as to be excluded from the legislative competence of the Scottish parliament, although the devolved institutions are not prevented from debating or discussing issues of race, and are not excluded 167

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from ‘the encouragement (other than by prohibition or regulation) of equal opportunities, and in particular of the observance of the equal opportunity requirements’ (Scotland Act 1998, Schedule 5, Section L2). The Race Relations Act 1976 did not extend to Northern Ireland, and the history of its race laws is quite different, in part because its experience of immigration is quite different. It will be convenient to concentrate on mainland Great Britain, before later glancing at Northern Ireland which, as we shall see, may be in the vanguard in one respect at least.

A policy evolves Racial tensions which surfaced rather suddenly in the 1980s and 1990s in Austria and Germany (following migration from the east and south) and France and Italy (after migration from the Maghreb) seemed less evident in Great Britain at that time. This is not to pretend that everything smells lovely in the English country garden. There were, and are, real problems and concerns in Britain, but as was noted in the EC Commission’s comparative survey of the twelve Community member states in 1992, the provenance of the British anti-discrimination law is rather different (Commission of the European Communities, 1993). As compared with most of the countries of western Europe, the British experience of immigration and problems of racism or xenophobia is relatively earlier and longer. The ‘indigenous’ British population has itself been melded from Celts, Romans, Danes, Angles, Saxons and Normans, amongst others, and cultural and other differences still distinguish the Scots, Welsh and Irish (and there are many persons of Irish birth or descent who live in Great Britain) from each other. Then, as the United Kingdom also became the motherland of a huge Empire (and subjects of the Crown from any part of it had for long the right to reside in the United Kingdom), London in particular has had ethnic minority populations of many kinds for longer than most cities. Besides, in the nineteenth century, the United Kingdom was amongst the most liberal of European states and was often a haven for those fleeing from less liberal regimes or from persecution. In this way a sizeable Jewish community grew up in London in the nineteenth and early twentieth centuries, along with assorted political refugees. Following the Second World War, some groups of displaced persons (of whom the 1argest number were Poles) were permitted to remain in or to come to Great Britain. Then, during the 1930s and early 1960s

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when the expansion of the British economy created shortages of labour (which were aggravated by Britons emigrating abroad), there was substantial immigration from the New Commonwealth, especially (and successively) from the West Indies, India, Pakistan and Bangladesh. However, following a reaction in public opinion, politicians legislated to diminish rights of immigration, with Acts of Parliament in 1962, 1968 and 1971 which were progressively more restrictive (Dummett and Nicol, 1990). By the later 1960s, primary immigration had fallen to low levels, and in ten years between 1964 and 1974, half a million more persons left the UK to live abroad than came from abroad to live in the UK (Davis and Walker 1975). By 1992, after the Census of 1991, the ethnic minority population of Great Britain was estimated to total 3.2 million, or 5.8 per cent of the population (Schuman, 1999). Differences in age distribution and birth rates mean that the relative size of the ethnic minority population will continue to grow, aside from migration, over the next ten years. By 1997, the ethnic minority population was estimated at 3.6 million (or 6.4 per cent), of whom just under half were persons born in the United Kingdom and just over three-quarters had British nationality. In the light of this history it may be appreciated that, in the United Kingdom at least, race relations is not an issue concerned with immigration only, nor is it an issue concerned solely with race (in any sense of that problematic term) or colour. The breadth of the British legislation indicates some recognition of these points. Nevertheless, it must be conceded that problems of race relations were presented more acutely when immigrants in the l950s and l960s were predominantly ‘black’ or Asian. In 1958 there were race riots in London’s Notting Hill, which signalled that traditional tolerance was neither so strong nor so widespread as to eradicate all underlying prejudice. British governments were reluctant to recognise that a problem existed but by the l960s it was apparent that a race relations policy was required. One pressure imposed in the aftermath of Empire was the need to disaggregate or to redesign nationality and immigration laws. For example, it has been calculated that if nothing had been done, by the 1980s over 1000000000 people in India, Pakistan and Bangladesh alone would have had the right to enter and settle in the United Kingdom. Another pressure was the demand to counter prejudice or, if prejudice could not immediately be prevented, to counter the discrimination which might result from it. The fortuitous interaction of these two spurs to formulation of a race relations policy led to its assuming the two-pronged aspect which it

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has borne ever since. Immigration – or rights to immigrate – must be curtailed, and the legislation required would inevitably affect more black people than white people since the desire to come to settle in the United Kingdom was disproportionately commoner in the black Commonwealth countries. As a sign of good faith, and as proof of lack of intention to discriminate racially, legislation to protect those members of ethnic minorities already in the United Kingdom was required. This symbiosis of policies led to protection against racial discrimination becoming progressively more effective and wide-ranging as restrictions on immigration grew tougher. Thus the Commonwealth Immigrants Act 1962 was paralleled by the Race Relations Act 1965, the Commonwealth Immigrants Act l968 by the Race Relations Act l968, and the Immigration Act l97l was followed by the Race Relations Act 1976. This ‘shadowing’ of immigration laws by race relations law was quite explicit. It would be easy to condemn this official policy as hypocritical or even illogical. There is an inner contradiction at its heart, which certainly did not escape the notice of those immigrants and their descendants who lived in the United Kingdom. However, the official view was that racial harmony could best be achieved (or perhaps could only be achieved) if the rate of immigration were slowed. In recanting his opposition to the 1962 Act, the rising Labour MP, Roy Hattersley, said in debate in 1965: ‘We are all in favour of some sort of limitation. We all wholeheartedly oppose any sort of discrimination (Hansard, vol. 709, col. 378, 23 March 1965). The two largest political parties shared a broad consensus on this, even if at times there were differences of emphasis and tone (LaytonHenry, 1984). A sharper difference was marked by Enoch Powell’s populist line, but as significant was the fact that, following his notorious speech in 1968 in which he saw the River Tiber foaming with blood, he was immediately sacked from Edward Heath’s shadow cabinet. The parties came to share a consensus too about the techniques to be used. Of course, race laws could not be given the status of fundamental constitutional provisions, for the simple reason that the United Kingdom lacked any constitution of that kind. The common law provided only sketchy protection against racial discrimination (there was a little: see, for example, Constantine v Imperial Hotels Ltd., 1944; on this and on the making of the early legislation, see Lester and Bindman, 1972), so the enactment of legislation would necessarily provide the vehicle. But whether the criminal law or the civil law should be employed, and precisely how, were questions which had scarcely been

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considered when the first government Race Relations Bill was introduced. As enacted, the Race Relations Act l965 created a single criminal offence of stirring up racial hatred, but its anti-discrimination provisions depended on civil actions for their enforcement. However, a much more thorough consideration of techniques preceded the enactment of the second Race Relations Act in l968 (which was also much more extensive in its application). An investigation was sponsored by the Race Relations Board and the National Committee for Commonwealth Immigrants, and conducted by Professor Harry Street, Sir Geoffrey Howe QC and Geoffrey Bindman. The Street Committee were impressed by a method of enforcement which they found in some North American jurisdictions, where special administrative agencies used a mixture of techniques of education, persuasion and conciliation, and, only in the last resort, legal enforcement by civil courts. Their report advised that similar techniques would be best for Great Britain (Street, Howe and Bindman, 1967). In preferring administrative to criminal enforcement, the Committee pointed to a number of advantages. They considered that criminal proceedings would be less likely to be brought, noting that the higher standard of proof required in criminal proceedings would often be impossible to satisfy. Criminal proceedings might also cast a discriminator in the role of martyr rather than transgressor. Criminal proceedings would be brought by the police or a public prosecutor, who would not have specialist experience. Most importantly, criminal proceedings are aimed at the punishment of the wrongdoer, and not at the provision of a remedy for the victim of discrimination. These arguments are persuasive. They were influential when the government decided to extend the legislation in 1968, and they have commended themselves to governments ever since.

The civil law The 1aw concerning discrimination on racial grounds is found principally in the Race Relations Act (RRA) 1976, the successor to the earlier Acts of l965 and 1968. It created civil liability for wrongful discrimination enforceable at the instance of the victim; it also created the Commission for Racial Equality (CRE) to oversee the promotion of racial harmony, and created a parallel system of enforcement by the Commission. The legislative provisions are supplemented in some important areas by codes of practice drawn up by the Commission, some of which (such as the codes on employment and

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housing) have statutory authority, while others (such as the codes on education) currently do not. The grounds of discrimination which are unlawful in areas to which the Act applies are colour, race, nationality and ethnic or national origins. The House of Lords has held that it is the colloquial meaning of the terms which is intended, rather than the scientific meaning (if such there be) or the legal meaning in other contexts (Ealing L.B.C. v Race Relations Board, 1972). There is no doubt that the Act catches discrimination against blacks (or whites), or against Pakistanis, or against non-citizens,1 or against Irish, or against Jews (regarded as an ethnic group for this purpose: Seide v Gillette Industries, 1980; R v Edwards, 1983), for example. The term ‘ethnic origins’ is more difficult to interpret, but the House of Lords gave guidance in Mandla v Dowell Lee (1983) when it held that the Sikhs were an ethnic group protected by the Act. According to Lord Fraser, to constitute an ethnic group for this purpose, a group must ‘regard itself and be regarded by others, as a distinct community by virtue of certain characteristics’. These must include a long shared history of which it is conscious and which it nurtures, and a cultural tradition of its own including family and social customs, often but not necessarily associated with religion. Other factors such as a common geographical origin or common descent, a common language, and a common literature were helpful, but not necessary, for identification of such a group. In subsequent application of this test, Romany gypsies have been held to constitute an ethnic group, whereas Rastafarians have not (CRE v Dutton, 1989; Dawkins v Crown Suppliers (PSA) Ltd., 1993). The exclusion of ‘religion’ as a prohibited ground was deliberate policy. In fact, as we have seen, some groups such as Jews and Sikhs are incidentally protected because they qualify as ethnic groups. Other religionists such as Muslims or Hindus, when discriminated against on the ground of their religion, are not covered as such, although the indirect discrimination clause (which is described below) combined with the national origins or ethnic origins ground, will give them protection in certain circumstances.2 Meanwhile, the Satanic Verses affair and the apparent difficulties of setting up Muslim schools within the state sector have highlighted aspects of institutional discrimination in favour of Christianity. A case can be made for extending the antidiscrimination law, especially as cultural and religious differences sometimes form a dimension of racism. The case is probably stronger in respect of some kinds of private discrimination than for something like new laws of group defamation, for example. But one may readily

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understand why governments have been wary of moving beyond ‘biological’ distinctions into what may seem to be the rather different realms of opinion and belief, with their attendant difficulties of definition. ‘Discrimination’ is widely defined under the Act. One kind, usually termed ‘direct discrimination’, is constituted when somebody treats a person less favourably than he would treat other persons. It is the impact of the actions which matters, and an innocent motive or intention does not alter things (James v Eastleigh Borough Council, 1990, a decision on sex discrimination). Segregation is specifically equated with direct discrimination (RRA 1976, s. 1[2]). A second category of unlawful discrimination is ‘indirect discrimination’. A person discriminates against another if he or she: applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other, but: (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it (RRA 1976, s. l[1][b]). The test appears complicated, but provides a necessary means of dealing with covert discrimination (where a deliberate discriminator tries to hide behind an ostensibly neutral condition) as well as instances of unwitting discrimination (although there is no right to damages when indirect discrimination is unintentional). A third category of discrimination is ‘victimisation’, where a person is treated less favourably because of his or her use or threatened use of the Race Relations Act (RRA 1976, s. 2). The areas in which discrimination is unlawful are widely defined in the l976 Act. Broadly speaking, the Act applies to employment, housing, education and any ‘provision of goods, facilities or services to the public or a section of the public’ (RRA 1976, s. 20). That is only a summary: the Act runs to eighty sections, many of them quite detailed. There are some exceptions and exemptions, for example, when racial

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grounds may be counted as a ‘genuine occupational qualification’ in the recruitment of employees (RRA 1976, s. 5), or where adoption is concerned (RRA 1976, s. 23). However, some of the loopholes and possible exceptions have been dealt with in the l976 Act or later. Thus private clubs, if they number more than twenty-five members, have been brought within the scope of the Act (RRA 1976, s. 25; on the earlier position, see Munro, 1975: 210), and provisions in the Courts and Legal Services Act 1990 (Sections 64, 65) have ensured that the services of barristers or advocates must be sought and must be offered without racial discrimination. In general, it is fair to say that exceptions and exemptions, which are liable to be the bane of anti-discrimination laws, have been restricted to a reasonable minimum. It is also fair to describe the British legislation as relatively wide in its reach. It is not, however, entirely comprehensive. Partly, this is because of a policy decision that there should remain a sphere, albeit restricted, of the ‘private’, where the law should not apply. Therefore, there are some situations, such as adoption of a child and employment in private households, which are deliberately excluded. There are other gaps which may have been unintended, but which appear from time to time. For example, in R v Entry Clearance Officer. ex p Amin (a decision on sex discrimination) it was held by the House of Lords that the clause concerning ‘provision of goods, facilities or services to the public or a section of the public’ was not apt to extend to an immigration officer’s functions in performing his duties. The precise extent of this hole was unclear, but one of its more serious implications was to leave it doubtful how far police officers’ actions were subject to the Act, an issue which a subsequent decision (Farah v Commissioner of Police of the Metropolis, 1997) hardly resolved.3 However, the Race Relations (Amendment) Act 2000, when it becomes law, will have the effect of making it unlawful for a public authority to discriminate against a person on racial grounds in carrying out any of its functions, subject – as you may very well expect – to a few exceptions. There is also one saving clause which could potentially throw a cloak of legality over many instances of discrimination. Section 41 of the Act provides that nothing done in pursuance of any enactment of statutory instrument of authorised ministerial requirement will be unlawful.4 This provision means that the Act gives way to earlier as well as later legislation and it is by this means, for example, that overseas students (from outside the European Union) may be charged higher fees to study at British universities. An example of impotence against later legislation was provided by R v Cleveland County Council,

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ex p CRE, 1993), where an education authority was held not to have acted unlawfully in arranging a child’s transfer at parental request away from a school which had mostly Asian pupils, in the light of the authority’s duties under the Education Act 1980. However, a restrictive interpretation of section 41 was adopted by the House of Lords in another case concerning teacher training qualifications (Hampson v Department of Education and Science, 1991), so its effects are not as wide as they might be. In any event, extravagant fears of discrimination being embedded in other enactments would not be justified. There are believed to be no laws which expressly distinguish between persons on grounds of race or colour or ethnic origins. The nationality and immigration laws are certainly indirectly discriminatory, but one might describe these as visible blemishes rather than hidden cancers. There are a few differences in the legal position of individuals, for example on the right to vote in elections. However, generally non-citizens in the United Kingdom are not particularly subject to disabilities or deprived of rights. When discrimination is found in or derived from legislation, whether openly, implicitly or surreptitiously, it might be described as ‘institutional discrimination’. In recent years, there has been considerable emphasis in debate on ‘institutional racism’, which the former Chairman of the CRE, Sir Herman Ouseley, has defined as ‘organisational structures, policies, processes and practices which result in ethnic minorities being treated unfairly and less equally, often without intention or knowledge’ (CRE, 1999: 8). The racially motivated murder of Stephen Lawrence was followed by unsuccessful attempts to prosecute the suspects, and later an inquiry chaired by Sir William Macpherson, which reported in 1999 (Cm 4262). The report identified institutional racism in the Metropolitan Police, and although not all of its recommendations were accepted by the government, some of them were reflected in the reforms made by the Race Relations (Amendment) Act 2000, which closes a few of the gaps which had appeared in antidiscrimination law. It may be noticed in passing that the Human Rights Act 1998, which came fully into effect in 2000, will not greatly affect the law on racial discrimination. One of the ‘Convention rights’ from the European Convention on Human Rights, which become enforceable as such in domestic courts, is a right to freedom from discrimination on specified grounds, which include race, colour and national origin. However, the relevant Article (Article 14) does not confer a free-standing general

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right, but is applicable only to ‘the enjoyment of the rights and freedoms set forth in this Convention’. Therefore it would not apply to discrimination in employment, for example, although it would apply to something such as freedom of expression. There have been initiatives aimed at extending European Community law into the combating of race discrimination and, following the Treaty of Amsterdam, Article 13 of the Treaty Establishing the European Community provides a legal base for action. However, action depends on unanimity amongst member states in the Council. For the moment at least, domestic law remains predominant in importance. Domestic law, centred on the Race Relations Act 1976, should not be thought of as merely providing remedies for action. A prominent feature of the British legislation, as it has developed, is the deliberate blend of law enforcement and promotional activity. The enforcement of the law is by two means in tandem: civil action at the instance of a victim and administrative enforcement by the CRE. A victim of discrimination in employment may bring proceedings in an employment tribunal, and in other fields may take action in a civil court. The Commission has power to assist actual and prospective litigants when it is reasonable to do so. A weakness in operation has been the existence of an artificially low statutory ceiling on industrial tribunal awards (which, for example, in 1993 stood at £11,000). However, the fortuitous influence of a European Court of Justice decision in a sex discrimination case (Marshall v Southampton and South West Hampshire Area Health Authority [no.2], 1994) led to change, when the government conceded that it would be wrong in principle to maintain a limit on compensation for racial discrimination when there would be none for sex discrimination. The Race Relations (Remedies) Act 1994 removed the limit. The level of damages remains subject to guidelines developed by the superior courts, where it has been suggested that ‘awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the 1976 Act gives effect … on the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained’ (Alexander v Home Office, 1988: p. 122). Most observers have concluded that awards have been disappointingly low. The CRE is the specialised agency created under the legislation. It has a series of general duties, namely to work towards the elimination of discrimination, to promote equality of opportunity and good relations

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between persons of different racial groups, and to keep under review the working of the Act so as to advise the Home Secretary of the need for amendment. Within these general duties, the Commission may give financial or other assistance to organisations to further these ends and may assist, or themselves undertake, any educational activities or research to these ends. In addition, the Commission has an independent role in enforcing the Act. Some kinds of unlawful action, such as instructing a person to discriminate or publishing a discriminatory advertisement, are only restrainable by the Commission (RRA 1976, ss. 28–31). More generally, the Commission has power to conduct a formal investigation for any purpose connected with its duties under the Act, either upon complaint or of its own volition. When in the course of a formal investigation the Commission becomes satisfied that a person has committed an unlawful act, it may issue a non-discrimination notice (or ‘stop notice’), subject to procedural safeguards and a right of challenge. When a non-discrimination notice becomes final, during the following five years a court order is obtainable to restrain any further unlawful action, actual or anticipated. These are graduated and effective powers. But investigations take time, and the Commission’s activities are inevitably constrained by the resources and time available, as well as by the limited role which it is allowed in litigation. It would be a sensible reform to give the Commission wider powers to litigate, so as to reduce the need to rely on individual action as the primary means of enforcement (Pannick, 1982: 16).

The criminal law The creation of a specific offence, generally if a little inaccurately known as incitement to racial hatred, dates from 1965, since when its terms have been amended on several occasions. Before 1965, incitements to racial hatred could in some circumstances attract criminal liability. Ancient common law crimes such as sedition and public mischief were sometimes apt, although not invariably. A statutory creation provided a clearer and more serviceable avenue. A Public Order Act was enacted in 1936 in response to the activities of the British Union of Fascists, which had culminated in the battle of Cable Street and the Mile End Road pogrom. The Act prohibited the wearing of political uniforms and gave the police powers to impose conditions on the holding of processions which might occasion serious disorder.

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It also made it an offence for a person, in a public place or at a public meeting, to use ‘threatening, abusive or insulting words or behaviour, with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned’. The statutory offence was used to prosecute Colin Jordan, leader of the National Socialist Movement, when in 1962, addressing a (largely hostile) crowd gathered in Trafalgar Square, he provoked them with the claim that ‘Hitler was right’ (Jordan v Burgoyne, 1963). Notwithstanding Jordan’s conviction of an offence under that effective provision, there was a case for the creation of a more specific offence. The coverage of the criminal law was incomplete, since it would not generally extend to promotion of hatred as opposed to violence. The Labour Party, in its 1964 general election manifesto, promised its support for such a measure. In government, its decision to create a specific offence was influenced not only by the perceived inadequacy of the existing law, but also by the symbolic value of an appropriate condemnation. These factors were sufficient to overcome its reservations about legislating in a way which, being open to attack on the ground that it involved an infringement of freedom of speech, raised difficult problems of principle and expediency. Section 6 of the Race Relations Act 1965 provided that a person was guilty of an offence if, with the intention of stirring up racial hatred, he or she circulated written matter or used words in public which (a) were threatening, abusive or insulting and (b) were likely to stir up such hatred. The offence was entirely separate from the anti-discrimination provisions of the Act, but ‘racial’ was defined in the same way. The offence was partly modelled on the offence of provoking disorder in the Public Order Act 1936, but in order to denote official abhorrence, the maximum penalties were made higher than for it. However, practical experience of the offence was unhappy. The first prosecution brought, against a youth who had attached a racialist tract to an MP’s front door, was unsuccessful: the action did not constitute sufficiently public circulation to satisfy the wording of the provision (R v Britton, 1967). Shortly afterwards the aforementioned Colin Jordan was convicted of the offence and received a sentence of eighteen months’ imprisonment, and two of his supporters were also convicted in connection with the distribution of leaflets. In 1967 also, Michael Absul Malik (known as Michael X) was convicted and sentenced to twelve months’ imprisonment on account of a speech made at a Black Power meeting (R v Malik, 1968). When a few other prosecutions based on incitement to hate white people were brought, it actually became

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possible to observe at one time that more black people had been successfully prosecuted than whites. Probably the major defect of the definition was its requirement of proof of an intent to stir up racial hatred. This was intended as a safeguard of the right of freedom of expression, but it made it difficult to secure convictions. Four members of the Racial Preservation Society, authors of a publication which referred to the dangers of ‘race mixing’ and called for the return of people of other races to ‘their own countries’, were acquitted after a trial (R v Hancock, 1968). The moderate tone of their propaganda made it difficult to disprove claims that they intended merely to engage in reasoned debate. Arguably, the enactment of the offence had succeeded in deterring the crudest forms of racial abuse but had had the incidental effect of encouraging more subtle forms of racialist propaganda, which were possibly more insidious in their effects. The opportunity was not taken to amend the definition of the offence in 1968 when the second Race Relations Act was passed. However, in his report on an occasion of disorder in London in 1974, Lord Justice Scarman (as he then was) described Section 6 as ‘an embarrassment to the police’ and ‘useless to the policeman on the street?’ (The Red Lion Square Disorders, 1974, para. 125). This influential criticism helped to ensure reform, which was implemented via the Race Relations Act in 1976 (although as a matter of policy the revised offence was inserted into the public order laws as being its appropriate home). The main change made in 1976 was to remove the requirement of proof of intent and replace it with the requirement to prove that hatred would, having regard to all the circumstances, be likely to be stirred up against any racial group in Great Britain. The change may have made the law a little easier to enforce, but the numbers of prosecutions remained fairly low. Between January 1979 and March 1986, only fifty-nine people were prosecuted for the offence. In fact, there were still difficulties in the form of the law. In some cases it was difficult to prove a likelihood that hatred would be stirred up, either because the words used were so contrary to decent human sentiment as to be more likely to provoke sympathy for the intended victims than revulsion or because the recipients were unlikely to be affected. Sometimes racialist propaganda, if it were ‘moderate’ rather than virulent, might not obviously be ‘threatening, abusive or insulting’. Further modifications were made when the offence was redefined in the Public Order Act 1986, which remains in force. By Sections 18–25, a new set of offences (with definitions differing slightly according to

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the medium of communication) made intention to stir up hatred an alternative to likelihood. There was a new offence of possession; an exemption which existed under the previous law, for material circulated only privately to members of an association, was abolished; and additional powers of arrest, entry, search and forfeiture were provided. Therefore some, but not all, of the deficiencies and difficulties which attached to the earlier provisions were removed. The enforcement of the law was perhaps again rendered a little easier. But much would continue to depend on the priority given to the offence by police officers (who have sometimes been criticised for an apparent lack of commitment in this regard), the readiness of the law officers to authorise or to undertake prosecutions, and the attitudes of judges, juries and magistrates. Numbers of prosecutions have, in fact, remained very low. While it is reasonable to conclude that the existence of the racial hatred offence has helped to prevent the spreading of offensive propaganda, it has not eliminated the problem altogether, and the Attorney-General conceded in 1990 that racialist propaganda was tending to increase (The Times, 4 December 1990). Critics’ calls for the racial hatred offence to be extended so as to protect against attacks on religion (Poulter, 1991: 371), or to be redefined more loosely in terms of vilification, have so far fallen on deaf ears. However, racialist chanting at football matches was made an offence (in England and Wales) by the Football (Offences) Act 1991. What came to be perceived as a more important matter than the racial hatred offence was the incidence of racial attacks and, more widely, racial harassment. The problem lay outside the topic of race laws in a sense, in as much as the offences involved were ordinary offences, albeit racially motivated. However, recognition of the scale of the problem grew with mounting evidence of it. Racially motivated incidents (as defined in Association of Chief Police Officer guidelines) reported to police forces in England and Wales numbered 4383 in 1988 and 7734 in 1992. An estimate, using the British Crime Survey data of 1991, was that there were 130000 racially motivated offences in that year (Aye Maung and Mirr1ees-Black 1994). There were considerable difficulties in deriving inferences from these figures, over and above the usual difficulties of criminal statistics, but on any view they point to a serious problem. Following some earlier attempts to legislate which had been abortive, the Crime and Disorder Act 1998 provided for racial aggravation attaching to the commission of crimes to be taken account of in sentencing, and created new offences of racially aggravated conduct amounting to harassment.

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Retrospect and prospect Thirty-five years after the first Race Relations Act was passed, it is worth taking stock and worth considering too how the law might develop, if it is not to be left in a state of relative neglect, tempered by occasional beneficial emendations. The CRE observed ten years ago that it was paradoxical that racial violence was increasing while racial discrimination was decreasing: What is the difference? … Is racial discrimination practised by those with economic power in society, and racial harassment and violence practised by those without it? Those with economic power would obviously feel more secure than those without it and have no need to find scapegoats for their own situation. (CRE, 1991: 17) It is welcome to note that the Commission does consider that discrimination is decreasing, although ‘not at all fast enough’. Certainly there have been some successes attributable to the legislation, such as the disappearance of some of the cruder manifestations of discrimination such as colour bars in pubs and clubs or openly discriminatory advertisements. An experienced observer of the race laws, Professor Bhikhu Parekh, considers that there has been ‘significant progress in racial integration and harmony’ since the l960s, and that ‘the lead given by the law’ has been an important factor in producing it (Parekh, 1991). The Commission, in its third review of the legislation, agrees that ‘there has been measurable progress in tackling discrimination and prejudice in Britain’ (CRE, 1991: 17). If there is some cause for qualified optimism, it is not incompatible with the verdict of the CRE that ‘inequality, prejudice and racial discrimination have shown great staying power’ (CRE, 1991: 17), as demonstrated by their investigations and research, as well as that of others. Nearly twenty years after the first Race Relations Act was passed, a field experiment showed that about 40 per cent of South Asian and Afro-Caribbean job applicants were denied an interview where a similarly qualified white applicant was given one (Brown and Gay, 1985). In 1998, the Labour Force Survey figures on participation in the labour market showed that the ratio of black and Asian to white unemployment had risen from a low of 1.7:1 ten years earlier to 2.4:1 in the spring of 1998 (CRE, 1999: 3). From such evidence, it can be inferred that the Race Relations Acts have been only partially

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successful. However, their partial failure would not be altogether surprising. Law in isolation cannot bring about social change, but will do so most effectively when it facilitates action which people want to take and is supported by a broad social consensus. The race relations law, however, was never, as the Race Relations Board once hopefully suggested ‘an unequivocal declaration of public policy (Race Relations Board, 1968: para. 65). With the dualism inherent in the simultaneous curtailment of immigration, the signals sent out by governments and politicians were ambivalent. It must be said that the ambivalence continues to this day, and not only in as much as immigration remains tightly controlled, but also with regard to law and policy on asylum-seekers, for example. If one were hoping that the race relations law would not only prevent discrimination, but would eliminate disadvantage for the ethnic minorities, then more certainly the law must be deemed to have failed. Racial and ethnic minorities are still disadvantaged in important spheres of life in Britain. Aside from the labour market, ethnic minorities are disproportionately more likely to be living in overcrowded accommodation or to be homeless. There are concerns over the criminal justice system and sentencing: African-Caribbeans constituted 10.3 per cent of the male prison population in 1991 (while they constituted only 1.8 per cent of the general population in the 16–39 age group which is most relevant), and 22.8 per cent of the female prison population (against 2 per cent in the equivalent general population age group) (see generally Smith, 1994). Hood’s study of sentencing in five Crown Courts in the West Midlands suggested that although other reasons (such as greater propensity to plead not guilty) were more important, discrimination against black people in sentencing was part of the explanation of their over-representation in prisons (Hood, 1992). Even if more recent research (Jones, 1993) has shown some improvement in the conditions of life of black people in the course of the l980s (for example, with much improved rates of entry to higher education), there are still many indications of economic and social disadvantage. Of course, disadvantage is not wholly attributable to discrimination. The prospects of the ethnic minority communities are likely to have been disproportionately affected by the economic problems of the inner cities and changes in the labour market amongst other factors, as well as higher rates of crime in the areas in which they live. Some commentators have called for disadvantage to be tackled by programmes of ‘positive’ or ‘reverse’ discrimination or ‘affirmative

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action’ or ‘preferential treatment’ (the disagreements in this matter extend even to terminology) (see Lustgarten, 1986: 68; McCrudden, 1993). It would seem that policies of conferring equal provision up to a specified minimum, for example in education or (un)employment, are based on a ‘need’ principle and would be wrongly described as positive discrimination, even if they resulted in disproportionate allocation of benefit. There is no doubt scope for such policies to be extended beyond their present levels in the United Kingdom. However, positive discrimination in its true meaning would, if practised, count as unlawful discrimination under the Race Relations Act, with some strictly limited exceptions for training schemes and services when a racial group has special needs (RRA 1976, ss. 35–38). Should the policy be reversed, so as to authorise programmes of positive discrimination such as have been instituted in the United States or India or Malaysia? The moral duty to help disadvantaged groups in society is persuasive, and philosophical arguments against positive discrimination can be countered, but there remains a prudential issue as to the wisdom of such a strategy, and governmental disinclination towards going down that path may be justified on pragmatic grounds. Great Britain is not the United States, with its inheritance of guilt, and British people set much store by the myth of an egalitarian society based on principles of equality, fairness and merit, even if it is a myth. A serious commitment to programmes of positive discrimination would quite probably be counter-productive and damaging to community relations. In fact, the case for programmes aimed at redressing disadvantage could be stronger if labels of race and ethnicity were removed. There is much to be said for moving to a holistic, rather than a specific approach. The law might be framed more widely to guarantee equal protection for all, or alternatively an anti-discrimination law might be drafted so as to encompass all of the grounds of discrimination – race, gender, age, sexual orientation, disability, religion or whatever – which are to be prohibited. In either event an independent body, with functions corresponding to the width of the law, would be needed to perform a variety of important roles. If such an agency had branches or divisions specialising in different aspects, then the advantages of specialist experience inhering in bodies like the CRE need not be entirely lost. There would be some important gains. At a practical level, a body with wider functions and experience would have a larger contribution to make when the causes of discrimination, as for example that suffered by black women, are cumulative.

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The effect on public attitudes would be beneficial as wel1. Those persons who talk scathingly of ‘the race relations industry’ would be deprived of their easy target: it is harder to mock or criticise a wider concern for human rights. There are some signs that the backlash against the specific approach comes not only from the political right, whence it might be expected, but also from some representatives of the ethnic minorities, who may feel that they are being wrongly labelled or are being patronised under current approaches. Therefore, there is much to be said for playing down the concerns with race and gender which are predominant in contemporary British legislation, in order to replace those laws with provisions aimed at all forms of arbitrary discrimination, which demonstrate a concern for people as human beings with common needs and aspirations. It may at first sight seem paradoxical, but perhaps on reflection is unsurprising, that this approach has commended itself in that part of the United Kingdom which has not yet been considered.

Northern Ireland Northern Ireland, as so often, is something of a special case. The more conspicuous problem in that territory has not been racial discrimination as it would be understood in most countries but rather, as it is sometimes termed, ‘monochromatic racism’. In the partitioned enclave in the north of the island which after 1922 remained within the United Kingdom, there is a majority populace descended from a ‘plantation’ of farmers and workers from Scotland and England in the eighteenth and nineteenth centuries, who are predominantly Protestant in religious leaning and ‘unionist’ in political sentiment. However, a large minority, representing more than a third of the population, is indigenous, Roman Catholic by birth or association, and predominantly ‘republican’ in politics. The community division, defined by a cluster of attributes, beliefs and attitudes, is the most prominent feature of Northern Ireland society and politics. The evident risk of discrimination by the entrenched but threatened majority in Northern Ireland was not entirely ignored by Westminster and Whitehall, when it proposed a scheme for devolved government in Ireland which, in the event, was to come into operation only for the partitioned six counties. The Government of Ireland Act 1920 made it unlawful for public authorities there to discriminate on the grounds of a person’s religious belief or political opinion. The selection of these as the relevant criteria should in reality be seen as an attempt to prohibit

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discrimination on the grounds of membership of one of the two communities. The attempt was scarcely successful during the Unionist hegemony which persisted throughout the lifetime of the Northern Ireland parliament at Stormont, and discriminatory actions in the public sector as well as in the private were amongst the grievances which sparked off a civil rights campaign in the 1960s. Following the outbreak of civil disturbances and the reimposition of direct rule in 1972, the Westminster parliament legislated more widely in the Northern Ireland Constitution Act 1973, so as to prohibit discrimination on the grounds of religious belief or political opinion on the part of any public authority in the province. The same Act created a Standing Advisory Committee on Human Rights. Discrimination in the employment field within the private sector, on the grounds of religious belief or political opinion, was made unlawful by the Fair Employment (Northern Ireland) Act 1976, as strengthened by the Fair Employment (Northern Ireland) Act 1989, and an enforcement agency, the Fair Employment Commission, was set up under the legislation. If in Northern Ireland concerns about racism as more usually understood were for long left unalloyed by legislative action, it was not merely because the community problem was much more prominent, but also perhaps because immigration by ethnic minorities did not occur on anything like the same scale as in Great Britain in the 1950s and 1960s. In the early 1990s, the province had a population numbering just below 1.6 million (McMurray and Evans, 1993) of whom, according to an estimate, the ethnic minority groups made up only around 10000, approximately half of them of Chinese origin (Central Community Relations Unit (Belfast), 1992).5 Belatedly, there was legislative action in respect of xenophobia and racism. By the Public Order (Northern Ireland) Order 1987 there were created offences involving the spreading of hatred or fear, against a group distinguished by race, colour, nationality, ethnic or national origins, or religion. The inclusion of religion, which does not appear in the corresponding provisions on the mainland, is also explained by the unique problem of sectarian divisions. The Standing Advisory Commission on Human Rights in Northern Ireland called for the Race Relations Act l976 to be extended to Northern Ireland (Standing Advisory Commission on Human Rights in Northern Ireland 1990) and eventually in 1997 comparable legislation was enacted in the form of the Race Relations (Northern Ireland) Order 1997, which provided that discrimination on racial grounds would be unlawful in the situations covered.

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There was also established under the 1997 legislation a CRE for Northern Ireland. However, in the event it was to be short lived. Following progress in the ‘peace process’, and agreement on a framework of associated reforms in the Belfast Agreement (Cmd 3883) concluded on Good Friday in 1998, there was provision for devolved government amidst other constitutional initiatives and changes in the Northern Ireland Act 1998. By that Act, the functions of the Commission for Racial Equality for Northern Ireland, the Fair Employment Commission, and the agencies concerned with sex discrimination and disability discrimination were transferred to a new body, the Equality Commission for Northern Ireland. At the time of writing, the prospects for successful implementation of the devolution package as a whole remain precarious, but in any event it would seem that a holistic approach to issues of equal treatment is going to be pioneered in Northern Ireland. At the same time, the Standing Advisory Committee on Human Rights has been replaced by a more powerful Northern Ireland Human Rights Commission which will ‘keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights (Northern Ireland Act 1998, s. 69). Although the circumstances obviously differ in some ways, these reforms should be watched with interest, as they may point to ways forward for the mainland as well. Notes 1 Nationality (including citizenship) was specifically added to the prohibited grounds by the 1976 Act, following the decision in Ealing L.B.C. v Race Relations Board to the effect that ‘national origins’ did not encompass current nationality. 2 For example, requirements as to employees’ dress may be held to discriminate unlawfully against persons from certain national or ethnic groups, if they are neither justifiab1e nor statutorily protected. 3 The vicarious liability of the chief officers for acts by police officers has since been extended in the Race Relations (Amendment) Act 2000. 4 The provision must now be read subject to the Human Rights Act 1998, which qualifies its effect when relevant. However, as noticed later, the Act is not relevant to most instances of racial discrimination. 5 The 1991 Census in Northern Ireland had no ethnic group question.

References Aye Maung, N. and Mirrlees-Black, C. (1994), Racially Motivated Crime: a British Crime Survey Analysis, London: Home Office Research Unit. Brown, C. and Gay, P. (1985), Racial Discrimination: 17 Years After the Act, London: Policy Studies Institute.

Colin Munro 187 Central Community Relations Unit (Belfast) (1992), Race Relations in Northern Ireland. Commission of the European Communities (1993), Legal Instruments to Combat Racism and Xenophobia, Luxembourg: Office of Official Publications of the European Communities. (The author and his colleague Wilson Finnie were national reporters for the United Kingdom.) Commission for Racial Equality (1991), Second Review of the Race Relations Act 1976; a Consultative Paper, London: CRE. Commission for Racial Equality (1998), Reform of the Race Relations Act 1976, London: CRE. Commission for Racial Equality (1999), Annual Report 1998. Davis, N. and Walker, C. (1975), ‘Migrants Entering and Leaving the UK, 1964–74’, Population Trends, 1, 2. Dummett A. and Nicol, A. (1990), Subjects, Citizens, Aliens and Others, London: Weidenfeld and Nicolson. Great Britain, Home Office (1974), The Red Lion Square Disorders, Cmnd 5919, 15 June, London: HMSO. Great Britain, Northern Ireland Office (1998), The Belfast Agreement: an Agreement Reached at the Multiparty Talks on Northern Ireland, Cmnd 3883, London: HMSO. Hansard, Parliamentary Debates, House of Commons. Hepple, B. (1992), ‘Have Twenty-Five Years of the Race Relations Acts in Britain been a Failure?’, in Hepple, B. and Szyszczak, E. (eds), Discrimination: the Limits of Law, London: Mansell. Hood, R. (1992), Race and Sentencing, Oxford: Oxford University Press. Jones, T. (1993), Britain’s Ethnic Minorities, London: Policy Studies Institute. Layton-Henry, Z. (1984), The Po1itics of Race in Britain, London: Allen & Unwin. Lester A. and Bindman, G. (1972), Race & Law, London: Longman. Lustgarten, L. (1986), ‘Racial Inequality and the Limits of Law’, Modern Law Review, 49. Macpherson, Sir William (1999) The Stephen Lawrence Inquiry, London: Cm 4262. McCrudden, C. (1993) in McCrudden, C. and Chambers, G. (eds), Individual Rights and the Law in Britain, Oxford: Oxford University Press. McMurray, R. and Evans, T. (1993), ‘1991 Census of Population for Northern Ireland’, Population Trends, 74. Modood, T. (1992), ‘Cultural Diversity and Racial Discrimination in Emp1oyment Selection’, in B. Hepple and E. M. Szyszczak (eds), Discrimination: the Limits of the Law, London: Mansell. Munro, C. (1975), ‘Race Relations – the Discriminating Distinction’, Modern Law Review, 38. Northern Ireland Act 1998, London: HMSO. Pannick, D. (1982), ‘Class Actions and Discrimination Law’, New Community, 10. Parekh, B (1991), ‘Law Torn’, New Statesman and Society, 14 June, 23–4. Poulter, S. (1991), ‘Towards Legislative Reform of the Blasphemy and Racial Hatred Laws’, Public Law. Public Order (Northern Ireland) Order (1987), SI 1987/463 (NI 7). Race Relations Act 1976, London: HMSO. Race Relations Board (1968), Report for 1966–67.

188 Challenging Racism in Britain and Germany Race Relations (Northern Ireland) Order 1997, SI 1997/869 (NI 6). Schuman, J. (1999), ‘The Ethnic Minority Populations of Great Britain – Latest Estimates’, Population Trends, 96, 33. Scotland Act 1998, London: HMSO. Smith, D. J. (1994), ‘Race, Crime and Criminal Justice’, in M. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Crimino1ogy, Oxford: Oxford University Press. Standing Advisory Commission on Human Rights in Northern Ireland, Religious and Political Discrimination and Equality of Opportunity in Northern Ireland: Second Report, Cmd 1107 (1990). Street, H., Howe, G. and Bindman, G. (1967), Report on Anti-Discrimination Legislation, October, London: Political and Economic Planning and Research Services Ltd.

Cases cited Alexander v Home Office, 1988, 2 All ER 118. Commission for Racial Equality v Dutton, 1 All ER 306, 1989. Constantine v Imperial Hotels Ltd. [1944] IKB 693. Dawkins v Crown Suppliers (PSA) Ltd., IRLR 284, 1993. Ealing L.B.C. v Race Relations Board, AC 342, 1972. Farah v Commissioner of Police of the Metropolis, 1 All ER 289, 1997. Hampson v Department of Education and Science, 1 AC 171, 1991. James v Eastleigh Borough Council, 2 AC 731, 1990. Jordan v Burgoyne, 2 QB 744, 1963. Mandla v Dowell Lee, 2 AC 548, 1983. Marshall v Southampton and South West Hampshire Area Health Authority (No.2), QB126 1994. R v Britton, 2QB 51, 1967. R v Cleveland County Council, ex p Commission for Racial Equality, 91 LGR 139, 1993. R v Edwards, 3 Cr. App. R.(S.) 145, 1983. R v Entry Clearance Officer. ex p Amin, 2 AC 818, 1983. R v Hancock (1968, unreported). R v Malik, 1 All ER 582 1968. Seide v Gillette Industries, IRLR 427, 1980.

10 Enforcing Anti-Discrimination Law in Britain: Here There Be Monsters! Martin MacEwen

The aim of this chapter is fourfold; to describe in outline the kind of enforcement available for breaches of the Race Relations Act 1976, as amended; to identify both strengths and weaknesses in the British system; to suggest what structural changes would effect improvement; and to identify lessons that the British experience may indicate for other legal systems.

Introduction There are important contextual aspects of the law in Britain which will be largely assumed but which inform the British approach. Most obviously, the common law legal system places great emphasis on the need for express legislative constraints on what may otherwise be seen as an infringement of ‘freedom’. Frequently the courts will adopt a fairly narrow construction of statutes, particularly if there is an apparent conflict of competing rights and the statutes provide no explicit or even implicit resolution. Second, there is no written constitution which defines, let alone guarantees, civil or human rights. Third, the UK, while a signatory to a number of relevant covenants, conventions and protocols, with one exception, does not incorporate these into domestic law. Fourth, the UK has chosen to take the path of making discrimination a civil offence and not a criminal one, following the US lead in the Kennedy era of the early sixties. Fifth, and despite criticism that the British legislation confers group rights and in doing so encourages a ghetto mentality to race relations, the essence of all complaintbased enforcement is the pursuit of individual redress. Lastly, and without detracting from the important role of the Commission for Racial Equality and the potentiality of specific duties enabled by the 189

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Race Relations (Amendment) Act 2000, enforcement remains responsive to private action rather than determined by public accountability.1

The international dimension While it may be a truism that the essence of international obligations is that they masquerade as law but lack the processes of enforcement that characterise domestic provision, there are important qualifications to that premise. The European Convention on Human Rights and Fundamental Freedoms of 1950 enables individual reference under Article 25 to its Commission and to its Court. Over a period, the UK has been the subject of about 8 per cent of reports on merits of the former and about 10 per cent of the latter although few of these references concerned race discrimination. Consequently it has been possible for individuals to pursue cases to a resolution including less formal friendly settlements and decisions under Article 32 by the Committee of Ministers. The Human Rights Act 1998 effectively incorporates the Convention into UK law but there are nonetheless substantial difficulties to be overcome by a complainant. Notably there is the limitation of redress to breaches of the restricted set of rights defined by the Convention. Thus acts of racial discrimination under Article 14 are only deemed to be in breach when they relate to an explicit provision or are considered to constitute degrading treatment under Article 3. Moreover, there is an obligation to exhaust domestic remedies (Article 26), and while the Convention attempts to provide effective remedies before a national authority, the longevity of the whole process is daunting. Cases had taken five years before a hearing and without change it was expected that this would increase to seven or ten. In a partial response to this, the Council of Ministers’ Declaration of Vienna in October 1993 intimated its intention to amalgamate the responsibilities of the European Commission and the Court with the latter dealing with all references from start to conclusion. The major objective of this development was to speed up the process of dealing with complaints. While recognising that the Court takes a dynamic view of the Convention,2 that the Court of the European Union has drawn on the Convention as a source of customary law in its interpretation of its judicial competence, and that the Convention may be formally incorporated into the Union in due course, the fact remains that the European Convention has not made substantial inroads into racial discrimination. It will not do so until its scope is extended.

Martin MacEwen 191

The international convention most relevant to race discrimination is the UN International Convention for the Elimination of all forms of Racial Discrimination (ICERD) of 21 December 1965. This convention has attracted more than 150 signatories and was the first UN convention to establish an independent committee with a responsibility for investigating individual complaints (an optional obligation under Article 14). Because the UK has not agreed to individual petition under this article, there are no remedies available for individual complainants: it is possible for states to make submissions in respect of fellow state signatories alleging a breach of the rights protected but this has never been invoked. While the individual enforcement provisions of this convention are innocuous, there are substantial obligations on states to review existing legislation and policy, particularly regarding its impact on both central and local government and to eradicate racial discrimination, both direct and indirect; the initial focus of the Committee on decolonisation and anti-apartheid measures is clearly past and the requirement for states to submit reports every two years has, for many, initiated a process of internal accounting. But such processes, while potentially of great strategic importance in developing systemic measures to counteract racial discrimination, do little to enforce the law in the eyes of an aggrieved party. Moreover, in the past a majority of states party to ICERD have been tardy in the submission of one or more reports.3 Because the European Union has a more effective method of enforcing obligations through the direct applicability of some measures against individuals as well as state parties, the prospect of incorporating both the European Convention and ICERD within Community Law remains important for the enforcement of human rights in the longer term. However, the provisions of Article 13, following the Treaty of Amsterdam, are of particular significance in enabling EU antidiscrimination directives.4 Two such European Union Directives under Article 13 in 2000 will be important in influencing revision to anti-discrimination law in both the UK and the rest of Europe. These are the Employment Framework Directive (2000/78/EC) and the Race Discrimination Directive (2000/43/EC). The Framework Directive requires legislation to cover the grounds of sexual orientation and religion by 2003 and age by 2006 – it does not extend to goods, services or facilities. The longerterm UK government proposals include the creation of a single equality commission, thus integrating the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities

192 Challenging Racism in Britain and Germany

Commission, perhaps in a manner similar to the Equality Commission in Northern Ireland.5

Enforcement available under the 1976 Act For the first time in UK law (previous legislation comprised the Race Relations Acts in 1965 and 1968), individuals were enabled by the Race Relations Act 1976 to initiate and pursue complaints of unlawful racial discrimination in the ordinary courts without a requirement for the Race Agency (previously the Race Relations Board and now the Commission for Racial Equality (CRE)) to adopt the mantle of the pursuer or plaintiff. Broadly, the Act combines the right of an individual to pursue legal remedies with the strategic functions of the CRE which has power to enforce the law in a limited range of circumstances in the public interest. The principal rights and functions are as follows: (a) An individual, with or without assistance from the CRE, may pursue a complaint of direct or indirect racial discrimination in respect of (1) employment (which progresses through industrial tribunals which deal with most employee/employer disputes), (2) the provision of goods, facilities and services, (3) the provision of housing or accommodation and (4) private education (the last three of which progress to the County Court in England and Wales and to the Sheriff Court in Scotland). (b) The general duty not to discriminate in the provision of public education is enforceable by the Secretaries of State responsible for education in England, and for Wales and for Scotland in their respective jurisdictions. (c) The powers of the CRE in relation to enforcement may be summarised as follows: • To conduct formal investigations on its own initiative of a general nature or into named persons, the latter where there is some reason to believe that discrimination is or has been occurring. • To issue non-discrimination notices where discrimination is found in respect of a formal investigation. • To institute legal proceedings in respect of persistent discrimination. • To take proceedings in respect of discriminatory practices, in respect of advertisements and in respect of instructions or pressure to discriminate.

Martin MacEwen 193

• To assist individual complainants in the pursuit of a legal remedy. • Under the Race Relations (Amendment) Act 2000, to enforce specific duties placed on the public sector through secondary legislation.6 These are through the service of compliance notices and otherwise through application to the courts for compliance orders.

Strengths and weaknesses The fora Unlike a number of other jurisdictions, the fora of courts and tribunals are neither specialist in race matters nor in human rights.7 While the UK domestic tribunals have developed experience and some knowledge and sensitivity to race complaints over the years, other fora in Britain do not have that advantage. Moreover, they reflect the biases of the legal profession in their composition, and the provision of training has been inadequate and far from systematic.8 The procedure Some 60 per cent of complaints relate to employment and proceed through industrial tribunals. The advantage of tribunals over courts is that they are relatively informal, quick and inexpensive and the tribunal members may develop specialist knowledge not only of the work situation but also, as noted above, of discrimination issues (including that developed through the experience of dealing with sex law (see Gregory, 1987 and Palmer, 1992). The study by McCudden, Brown and Smith, Racial Justice at Work (PSI, 1991) showed that 1.5 per cent or 1381 cases which were handled by industrial tribunals in a two-year period to 1988 concerned racial discrimination, with a 60/40 per cent private/public sector split. The outcome by the kind of complaints is given in Table 5.15 to that report (see Tables 10.1–10.4 below). Table 10.5, from MacEwen, l991 (p. 381), provides a breakdown of all complaints received by the CRE in the period 1978 to 1988. Table 10.6 provides the same breakdown for the period 1989 to 1998. Generally, tribunals attempt to assist complainants in presenting cases but this falls far short of the adoption of an inquisitorial process such as that followed in the French administrative tribunals; the fora do not have any responsibility to demand the production of relevant evidence of their own initiative, to determine the salient features of a case, and no one other than the complainant or his or her representative upholds

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the public interest in seeing that unlawful discrimination is disclosed and that recompense is exacted.9 The accessibility of the courts is more problematic; designated County Courts in England and Wales and the Sheriff Court in Scotland deal with all non-employment cases including housing, education and the provision of goods, services and facilities to the public. If not represented by the CRE (who will instruct lawyers), an individual will be significantly disadvantaged if he or she forgoes legal representation. Legal Aid is not available for tribunal work and the means-tested financial limits for court work, together with the need to show reasonable cause before getting support, present an impediment to individual enforcement. Information The Race Relations Act 1976 enables a complainant to send a questionnaire seeking information from a respondent (see also Questions and Table 10.1

Outcome of case, by ethnic group of applicant

PSI classification

Afro-Caribbean (%)

Asian (%)

Settled Withdrawn Dismissed Upheld Other Unweighted basea Weighted basea

22 33 31 8 5 166 359

22 47 24 4 3 500 500

a The base includes multiple applications but one only of the exceptional group of related applications by one individual; it excludes cases brought by the CRE.

Table 10.2

Outcome of case, by sector of employer

PSI classification

Private sector (%)

Public sector (%)

Voluntary or other (%)

Settled Withdrawn Dismissed Upheld Other Unweighted basea Weighted basea

28 31 27 10 4 293 605

13 55 25 5 3 195 415

35 35 22 4 4 26 51

a

The base is defined as in Table 10.1.

Martin MacEwen 195 Table 10.3

Outcome of case, by nature of the complaint

PSI Selection classification recruitment (%) Settled 22 Withdrawn 34 Dismissed 29 Upheld 11 Other 4 Unweighted 179 basea Weighted basea 362

Promotion (%)

Nature of duties (%)

Other terms & conds. (%)

Racial Dismissal abuse (%) harassment (%)

18 43 28 7 4 68

10 89 – 1 – 40

13 77 9 1 – 44

24 38 24 11 2 49

31 30 28 5 6 185

144

81

91

99

395

a

The base is defined as in Table 10.1. Only selected types of complaint are shown (compare Table 5.12 in PSI, 1991).

Table 10.4 Outcome of case, by whether applicant employed by respondent at time of making complaint PSI classification Settled Withdrawn Dismissed Upheld Other Unweighted basea Weighted basea a

Employed by respondent Yes

No

16 53 24 4 3 182 392

26 35 29 7 4 331 697

The base is defined as in Table 10.1.

Replies Order 1977). Failure to respond or evasive responses entitle the court to draw adverse inferences – as it may do for a failure to follow a CRE statutory code of practice (in employment or housing). In a job refusal case a question might be ‘Provide a breakdown by race of applicants for any similar vacancy occurring in the last two years; identify those shortlisted by race and those ultimately appointed’. This procedure has proved valuable though the courts have proved too reluctant to draw adverse inferences. A number of CRE investigations and academic studies have shown that, not infrequently, victims of unlawful indirect discrimination are unaware of how well or otherwise, in comparative terms, they have been treated. Thus in housing, black

196

Table 10.5

Type and source of Section 66 complaints 1978–88

A Year

B Complaints received

C Employment

D Non-employment

E Housing

F All from London/South

G All from CRCs

1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 Total % of total

1033 986 779 864 956 994 1202 1150 1016 1271 1440 11691 100

699 619 458 547 595 567 765 734 619 827 982 7412 63

334 367 321 317 361 427 410 402 380 428 449 4196 36

55 112 79 67 + 72 67 85 59 43 78 788 7

415 402 364 410 458 464 591 563 493 572 679 5411 46

255 275 207 213 242 * 351 232 272 349 299 2961 25

+ (+71 average) * (+266 average) The difference between the column B and the sum of columns C and D consists of ‘out of scope’. Source: CRE Annual Reports, 1978–1988.

Martin MacEwen 197 Table 10.6

Type and source of Section 66 complaints 1989–98

A Year

B Complaints received

C Employment

D Nonemployment

E Out of scope

F All from London/ South

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 Total % of total

1307 1381 1655 1557 1630 1937 1682 1750 1661 1657 16217 100

904 960 1203 1105 1160 1314 1179 1134 1174 1098 11231 69

377 379 375 412 425 576 464 504 456 479 4447 27

26 42 77 40 45 47 39 112 31 80 539 3

635 660 801 739 – 999 940 862 751 766 7153 44

Source: CRE Annual Reports 1989–1998.

applicants and tenants in Liverpool, in Tower Hamlets, in Birmingham and in Edinburgh appear to have suffered relative disadvantage but they lacked relevant knowledge on which to base a complaint.10 Standard of proof While the test in civil law of ‘balance of probability’ is less onerous than the criminal test of ‘beyond reasonable doubt’ the difficulty of proof in cases of both direct and indirect discrimination remains substantial. Statistical evidence is admissible but courts remain too willing to accept unsubstantiated explanations as to why someone was refused a job, promotion or housing. Literally thousands of acts of discrimination take place each year (see PSI, 1991 and MacEwen, 1991) but the CRE has received on average only about 1500 complaints per annum. The success rate for complainants is about 3 per cent, not dissimilar to the clear-up rate for crime. But for many criminal offences the offender has first to be identified and, as noted above, the standard of proof is more onerous. Where racial disadvantage has been proved there is a strong argument that the onus should shift to the respondent to provide a substantial and plausible explanation other than racial discrimination. In cases of indirect discrimination, the test of ‘justifiability’ has frequently been interpreted to the benefit of the respondent. While public policy suggests that the standards applied to

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the public sector, and those in receipt of public funds, should be higher than the private sector to demonstrate a commitment and benchmark, they remain largely the same.11 In some jurisdictions, monitoring and reporting requirements are placed on larger companies, say those with more than 100 employees.12 Because there is no requirement to monitor in the private sector, the evidence that would demonstrate discrimination is frequently absent. In the absence of such an obligation, monitoring may be viewed, with some logic, as a potential liability as well as a tool of improving practice. The specific duties now placed on public bodies require monitoring and annual publication in respect of employment. Such documentation may inform both the CRE and tribunals in respect of investigations and hearings respectively, with the potential for shifting the onus of proof in real terms – a welcome advance. Class action There is no opportunity to initiate class or group action on behalf of a category of people disadvantaged by systemic discrimination. This has a number of consequences; first, the remedy of damages, reinstatement etc., is limited to the individual complainant where representative action is problematic. This does little to encourage the respondent to invest in anti-discrimination methods; it is cheaper to pay when caught than plan not to offend. Second, the individual cannot spread costs of seeking redress by sharing with other potential benefactors. Third, trades unions, neighbourhood law centres, Racial Equality Councils and others are unlikely to be reimbursed for the real costs of supporting an action; consequently they are likely to limit their support to those of unusual or symbolic interest. Constraints on the CRE’s role The CRE’s role is important but inhibited by legislation and judicial decisions. Until the Race Relations (Amendment) Act 2000, the legislation did not allow the CRE to draw up statutory codes other than in employment and housing (informal codes have been provided in areas such as education and mortgage lending). The legislation (and its judicial interpretation) has stopped wide-ranging CRE inquiries into named respondents including the civil service. The procedure which allows respondents to query every move of the CRE is cumbersome – a ‘spider’s web’ in the view of the judiciary itself which has done some additional weaving.13 The CRE is not entitled to be represented in legal proceedings in the capacity of amicus curiae for the purpose of advising

Martin MacEwen 199

the court of the public interest in proceedings. There is an unspoken assumption that the individual pursuit of a remedy will equate with the public interest on all occasions; too frequently the righteous litigant is bought off and the price of secrecy protects the respondent against systemic change in practices that have made or contributed to racial discrimination. Even in the tribunals of first instance, the CRE has no status in respect of its interpretation of the Act. In Canada, for example, the Human Rights Agency is given authority to provide authoritative interpretation of relevant legislation by way of a written code which is binding on tribunals and courts of first instance (McKenna in MacEwen et al., 1994). This prevents wasteful and frivolous challenges generally and also the lower courts indulging in aberrant idiosyncratic interpretations; where the guide goes wrong the higher courts may correct the error. The CRE is not restricted to the provision of legal assistance in the support of an applicant. The power under Section 66 of the Act may comprise the giving of advice, procuring a settlement, arranging advice from a lawyer, arranging representation and otherwise. Accordingly it would be open to the CRE to refer a complainant to an independent lawyer for advice regarding enforcement when it felt that there was a potential conflict of interest between, for example, the interests of the complainant in a speedy settlement and the public interest in a longerterm remedy to systemic discriminatory practices. There is no record of this having happened; it seems likely that the interests of both parties do not always coincide and that when they don’t, it is the public interest that is sacrificed. Remedies The Race Relations Act 1976 provides a broad range of potential remedies. Most criticism is made in respect of small awards regarding damages generally and in particular the lack of exemplary damages being awarded in the public sector, and the failure to award significant damages for solatium (hurt feelings or insult). It is not possible to insist on a programme of positive action to counteract past patterns of discrimination and no penalty is possible in respect of a finding of indirect discrimination. In common with other employment cases, reinstatement is not enforceable – though further damages result from a refusal. There have been improvements in the damages awarded recently but there remains a concern that the courts fail to realise the public policy aspect of these awards. The decision in Marshall 2,14 a sex discrimination case under the Sex Discrimination Act 1975 and the

200 Challenging Racism in Britain and Germany

European Community legislation, paved the way for improved compensation under the Race Relations (Amendment) Act 1994 but it was the European Court that dictated the pace of change and not the government’s commitment to equity.

Structural changes A number of key structural changes are worthy of consideration, outlined below. Create a Human Rights Commission and an Equality Commission responsible for all discrimination cases A Human Rights Commission and an Equality Commission, as created in Northern Ireland in the aftermath to the Easter Agreement by the 1998 NI Act, might be established. The latter might deal with all cases of discrimination, perhaps with separate sections for the major areas – sex, race and disability – with a further one dealing with other aspects of discrimination such as religion, sexual orientation, class and age. As noted above, the UK response to the EU equality directives of 2000, has stated a preference for a common Equality Commission in the longer term but its powers and remit have yet to be discussed. 15 The Queensland Anti-discrimination Act of 1991, as amended in 1993, lists thirteen areas of discrimination. The difficulty of dealing with one aspect of discrimination in isolation is that the explanation of irrational behaviour only has to shift to some equally bizarre explanation falling outside the limits of the Act concerned for it to escape enforcement. Perhaps the example of Manitoba should be followed: the law there prohibits arbitrary discrimination, generally.16 Incorporate all international legal obligations into domestic law This might be done either by giving precedence to such obligations in domestic law, as in Greece, or by creating a more substantive Human Rights Act which, unlike the Race Relations Act 1976 or the Human Rights Act 1998, would take precedence over other legislation as if a constitutional provision. No doubt constitutional purists would question the historical propriety of legislating in this manner in the UK but the European Communities Act 1972 provides a precedent and the Dicey doctrines of the supremacy of parliament (expressed on occasion as a ground for declining to limit parliamentary powers17) are just that – dicey doctrines.18

Martin MacEwen 201

Providing new strategic powers for the CRE or state agency These could include the following: • The power to require the adoption of positive action programmes such as employment equity plans by those subject to a special duty and those considered to be in breach of the Act. These should include monitoring, the submission of regular reports – in the case of corporate bodies in their statutory Annual Reports – the setting of targets, the identification of senior personnel with specific responsibility for implementing the provisions and the extension of the programme monitoring period in the event that the ‘last report’ proves unsatisfactory to the CRE.19 • The power to represent the public interest in court proceedings and to seek appropriate remedies to reflect the need for accountability. • The power to invoke non-judicial negotiated settlements ratified by the courts and thereafter enforceable. • The power to require the submission of evidence of the implementation of positive action programmes in the public sector, in the grant-aided sector and in respect of anyone employing, housing or educating more than 100 persons. • The requirement that all Bills in draft, or after their first reading, be referred to the CRE for observation.20 • Initiate/support class action in defined circumstances

Lessons One of the difficulties of providing an informed critique of legislation is the need to see it as but one arm in the fight against discrimination and racism. There are many strengths in the Race Relations Act 1976, particularly following the 2000 amendments, but it has required a commitment by central and local government and public agencies which has been slow to materialise. Reference was made in the introduction to the context within which the British legislation is operating. Where the context of legislation differs, there are bound to be material factors which qualify the transferability of law from one jurisdiction to another. It also makes sense for any system to build on its own knowledge rather than import, uncritically, the wisdom of others. But that said, there is some reluctance by governments to share their experiences and to adopt tried good practice. The British government may point to the Street Report (1967)21 as evidence that it is capable of

202 Challenging Racism in Britain and Germany

adopting an eclectic approach to law reform and to the SEMRU/CRE report (MacEwen et al., 1994) that it is willing to commission comparative studies, but there is little evidence that it has maintained a serious interest in analysing the value of laws elsewhere. Similarly, few European countries have been systematic and serious about examining other jurisdictions with the differences in various facets of race relations and the legal system proving a ready but facile riposte to requests for comparative studies. One of the recommendations of the Ford Report to the European Parliament (Ford, 1991) was that a critical examination of different legal provisions in member states be undertaken. This resulted in the report by the Strasbourg Centre for Human Rights on the varied legal instruments against racial discrimination, racism and xenophobia operating within the then twelve members of the European Community:22 it is regrettable that the individual reports relating to each state were not published or made readily accessible to the public. The Council of Europe has also been active in the call for comparative studies as witnessed by the Report on Community Relations and that on Racial Violence and Harassment in Europe.23 The Vienna Declaration (Council of Europe, 1993) provided for an action programme to be adopted and for members to report periodically on its implementation: the European Union similarly proposed an Action Programme for 2001 to 2006 in its 1999 proposals.24 Amongst the instruments for change in Europe are the European Commission against Racism and Xenophobia (ECRI) established by the Council of Europe following the Vienna Summit meeting of Heads of State and Government and the European Monitoring Centre on Racism and Xenophobia (EUMC) established in 1997 under EU regulation (EC/1035/97). The cumulative effect of these measures at a European level may lead to the UK reviewing its enforcement measures. However, the review of the 1976 Act when considered by the Home Office reflecting on the reports from the CRE (the third review of the 1976 Act (CRE, 1998a)) and the Better Regulation Task Force (Review of Anti-Discrimination Legislation (DTI, 1999)) resulted in commitments by government to ‘mainstreaming’, joint working by the equality commissions, promoting equal opportunities in the public sector and leading by example but it was not persuaded of the need for major legislative change either in respect of the individual regimes or in bringing them together (Cabinet Office, 1999). Indeed it was the Macpherson Report into institutional racism in the police surrounding the death of Stephen Lawrence that led to the amendments effected in 2000.25

Martin MacEwen 203

Economic measures and sanctions count in the most telling way. Effective enforcement equates with four factors: • First, creating a culture change so that discrimination is recognised and condemned. Despite the present Act having been on the statute book for over twenty-five years, there is evidence that many people don’t understand what indirect discrimination entails and have little if any understanding of systemic discrimination arising from the unqualified acceptance of traditional norms. The British government has tended to pay lip-service to the effective promotion of multiculturalism generally but it has done very little to improve and sustain public knowledge of equal rights. The systematic analysis of ‘institutional racism’ undertaken by the Macpherson Inquiry into the murder of Stephen Lawrence published in 1999 has renewed interest generally into the nature of systemic racism. The various Action Plans to implement the recommendations may help to sustain a more integrated response to both racism and discrimination. • Second, defining discrimination so that evasion is not a practical option for the vast majority of people. The scope of the British law is broad and exemptions are within reasonable limits. Nonetheless, removing prior and future legislation, including statutory instruments, from the ambit of unlawful breach not only sends contradictory messages about governments’ intentions but also negates a particular duty which governments should adopt. • Third, investing in processes that lead to the successful pursuit of just claims. • Fourth, imposing penalties that hurt, making it worthwhile for the complainant to seek a remedy and that are damaging economically as well as morally for the respondent. Negotiated extra-judicial settlements may be beneficial provided: • The backdrop is a position of relative strength for the complainant (there is a wealth of literature on complaint resolution which emphasises this). Where, as in most Australian states for example, there is a requirement to ‘conciliate’ in respect of all complaints there is a danger that the process of conciliation is seen as one of accommodation with the assumption that it is always appropriate for parties to compromise. In cases where a party, the complainant, is asserting a public right not to be discriminated against there must

204 Challenging Racism in Britain and Germany

be a mechanism for protecting that public interest during negotiations; these may include the right not to negotiate, i.e. offering an unnegotiable settlement and the right to abandon negotiations. • The process must be optional; it is important that the complainant is able to opt in to conciliation, and not that this discretion is left open only to the respondent, as is the situation in Victoria, Australia. • The public interest is represented in respect of the terms negotiated and there is provision for recording of settlements in a public register. In conclusion one can argue that the rendering of discrimination as a civil rather than a criminal wrong has generally proved advantageous. This approach has been adopted in the USA, Canada, Australia and New Zealand. Those countries which have relied more on the criminal law have fewer prosecutions and convictions despite little evidence that racial discrimination is not commonplace. Also the creation of an enforcement agency like the CRE is wholly beneficial. It has its critics; some have suggested that a number of its functions would be more effectively carried out by others including local authorities. But generally a specialist agency that can focus on anti-discriminatory work is more effective than delegating the functions, other than selectively, to institutions which have other priorities. Lastly, a common framework within Europe and the UK relating to Equal Opportunitites – facilitated by Article 13 and the Directives thereunder – within the context of Human Rights would be a useful unifying base for promoting common values and underpinning the relevance of law and policy. Notes 1 For a comparative discussion of anti-discrimination law enforcement see MacEwen (1997); for the European dimension see MacEwen (1995) and ECRI (1997); for a critique of the UK provisions see Cambridge Centre for Public Law (2000); and for an overview of reform see Townshend-Smith (2001). For the Commission for Racial Equality’s third review of the 1976 Act see CRE (1998a) – but note that this preceeded the Amendment Act of 2000. The government’s assessment of its performance may be found in its returns to the UN Committee on the Elimination of All Forms of Racial Discrimination – see the 15th UK Periodic Report (Home Office, 1999) as an example. 2 See Scott Davison (1993), Human Rights, pp. 100–25, Milton Keynes: Open University Press. 3 See discussion by Banton (1991, 1994).

Martin MacEwen 205 4 See The Starting Line (CRE, 1992) for the intial lobbying and Article 13 Proposals from the European Commission for Combating Discrimination (CRE, 1998b) for a discussion of the then proposed two directives and the related Action Programme. 5 See Cabinet Office (2001), Towards Equality and Diversity: Implementing the Employment and Race Directives, consultation document issued by the Department of Trade and Industry. See also Northern Ireland Office (1999), Report of the Equality Commission Working Group. 6 For example the Race Relations Act 1976 (Statutory Duties) (Scotland) Order 2002 No. 62. 7 For a discussion of the Australian Commonwealth and State provisions, for example, which follow the Human Rights model, see Thornton (1991). 8 See pp. 49–53 and more generally Cambridge Centre for Public Law (1999). This study provides an independent and thorough review of UK discrimination legislation together with recommendations for reform. 9 Kumar (1986), while now dated, provides a useful analysis of discrimination cases going before tribunals. 10 See respectively CRE (1984), CRE (1988), Henderson and Karn (1987) and Hancock with MacEwen (1989). 11 In some Canadian provinces, some Australian states and in New Zealand the public services are required to agree programmes and targets, usually annually, and to report progress, although failure to monitor effectively, or to follow up recalcitrant authorities, remains a serious difficulty (MacEwen et al., 1994). See also the exacting requirements of the South African Employment Equity Act 1998. 12 See Thornton (1991) at pp. 232 et seq. and MacEwen et al. (1994). Although the impact of these provisions may be negated by the ‘noise’ of different political priorities – and the gigantic inertia of bureaucracies to anything other than incremental change – at minimum they represent a statement of intent. 13 See the Second Review of the Race Relations Act 1976 by the CRE (1991). 14 Marshall v. Southampton District Health Authority (1993) AC. 15 See possible framework in the draft Equality Bill (2002) to be introduced as a Pivate Members Bill in the House of Lords by Lord Lester; this Bill seeks to give effect to the main recommendations of a report by the Cambridge Centre for Public Law and the Judge Institute of Management Studies (2000). 16 See McKenna, in MacEwen et al. (1994). 17 See, for example, Blackburn v. AG (1973). 18 In the case McCormick v. LA (1953) SC 396 the Lord President Cooper observed, ‘The principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law.’ 19 The Equality Bill (2002) includes some of these proposals in extending the ambit of special duties introduced by the Race Relations (Amendment) Act 2000. 20 As noted above, the 1965 International Convention for the Elimination of all Forms of Racial Discrimination obliges ratifying states, of which the UK is one, to repeal all discriminatory legislation. There is an expectation that

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21

22 23

24 25

member parties will effect an inventory of all such laws systematically but few (the UK included) have done so. The Street Report summarised the then position of anti-discrimination law in Canada and the US, drew on the experience of some other jurisdictions and recommended appropriate change to the 1965 Act. Both the civil nature of sanctions and the process of conciliation are examples of approaches initiated elsewhere. See Commission of the European Communities (1992). The Report on Community Relations was a summative one on a number of studies and deliberations by a specialist committee (Council of Europe, 1991) while the report by Robin Oakley on racial violence emanated from the same studies but was produced as an individual study after the ‘final’ report (Council of Europe, 1992). See CRE (2000). See Home Office (2001).

References Banton, M. (1991), ‘Action Against Racial Discrimination’, Ethnic and Racial Studies, 14, 4, October. Banton, M. (1994), ‘Effective Implementation of the Racial Convention’, New Community (April issue). Cabinet Office (2001) Towards Equality and Diversity; Implementing the Employment and Race Directives, consultation document. London: Department of Trade and Industry. Cambridge Centre for Public Law (2000) (in association with the Judge Institute of Management Studies), Independent Review of the Enforcement of UK AntiDiscrimination Law, Oxford and Portland: Hart Publishing; 1999 consultation document available at http://www.law.cam.ac.uk Commission of the European Communities (1992), Legal Instruments to Combat Racism and Xenophobia, Strasbourg: Directorate General, Employment, Industrial Relations and Social Affairs. Commission for Racial Equality (1984), Race and Council Housing in Liverpool: a Research Report, London: CRE. Commission for Racial Equality (1988), Report of Formal Investigation into Tower Hamlets LBC, London: CRE. Commission for Racial Equality (1991), Second Review of the Race Relations Act 1976: a Consultative Paper, London: CRE. Commission for Racial Equality et al. (1992), The Starting Line: Proposals for a European Directive, London: CRE. Commission for Racial Equality (1998a), Reform of the Race Relations Act 1976, London: CRE. Commission for Racial Equality (1998b), Proposals for Legislative Measures to Combat Racism and to Promote Equal Rights in the European Union, London: CRE. Commission for Racial Equality (2000), Article 13 Proposals from the European Commission for Combating Discrimination, London: CRE. Council of Europe (1991), Final Report of the Community Relations Project, Community and Ethnic Relations in Europe, Strasbourg: MG-CR (91) 1 final. Council of Europe (1992), Racial Violence and Harassment in Europe (Robin Oakley), Strasbourg: MG-CR (91) 3 rev. 2.

Martin MacEwen 207 Council of Europe (1993), Vienna Summit, Declaration and Plan of Action on Combating Racism, Xenophobia, Anti-Semitism and Intolerance, http:// www.coe.int/t/e/human_rights/ecri/5-archives. DTI (1999), Better Task Force Review: Anti-discrimination Legislation, London: Department of Trade and Industry. ECRI (1997), Legal Measures to Combat Racism and Intolerance in the Member States of the Council of Europe, Report prepared by the Swiss Institute of Comparative Law, Lausanne, Strasbourg: European Commission against Racism and Intolerance (ECRI). Ford, G. (1991), Report and Findings of the Committee of Inquiry into Racism and Xenophobia (Rapporteur Mr Glyn Ford), Luxembourg: Office for Official Publications of the European Communities. Gregory, J. (1987), Sex, Race and the Law, London: Sage Publications. Hancock D. and MacEwen, M. (1989), Ethnic Minorities and Public Housing in Edinburgh, London: CRE. Henderson, J. and Karn, V. (1987), Race, Class and State Housing, Aldershot: Gower Publishing. Home Office (1999), 15th UK Periodic Report to the UN Committee for the Elimination of All Forms of Racial Discrimination. Part 1 – UK Mainland. London: Home Office Equality Unit. Home Office (2001), The Race Relations (Amendment Act) 2000; New Laws for a Successful Multi-Racial Britain, Proposals for Implementation, London: Home Office Communications Directorate. Kumar, V. (1986), Industrial Tribunal Applications under the Race Relations Act 1976, London: CRE. MacEwen, M. (1991), Housing, Race and Law, London: Routledge. MacEwen, M. et al. (1994), Anti-Discrimination Law on the Grounds of Race in North America and Australasia: a Literature Survey, London; CRE/SEMRU. MacEwen, M. (1995), Tackling Racism in Europe. Oxford and Washington: Berg. MacEwen, M. (1997) (ed.), Anti-Discrimination Law Enforcement, Aldershot: Avebury. Macpherson, Sir W. (1999), The Stephen Lawrence Inquiry, London: CM 4262-I. Northern Ireland Office (1999), Report of the Equality Commission Working Group, Chair Prof. Joan Stringer, Belfast, NI Office. Palmer, C. (1992), Discrimination at Work, 2nd edition, London: Legal Action Group. PSI (1991) (McCrudden, Smith and Brown), Racial Justice at Work, London: Policy Studies Institute. Scott Davison (1993), Human Rights, Milton Keynes: Open University Press. Street, H., Howe, G. and Bindman, G.(1967), Report on Anti-Discrimination Legislation, London: Race Relations Board. Thornton, M. (1991), The Liberal Promise: Anti-discrimination Legislation in Australia, Melbourne: Oxford University Press. Townshend-Smith, R. (2001), ‘Reform of UK Discrimination Law: Philosophy, Principle or Pragmatism’, International Journal of Discrimination and the Law, 5, pp. 39–70.

11 Changing Employers’ Practices: from Exclusion to Inclusion Mary Coussey

Introduction In Britain it has long been known that ethnic minority people face disadvantages in the labour market, both when they seek employment and when they seek progression at work. The causes are complex, accumulative, interrelated and persistent. They include structural disadvantage and racial discrimination, which has continued and become increasingly complex and covert since the 1960s. There are now significant differences between the main ethnic groups, and there is a wide variety of different corporate approaches. It is not possible to identify a single factor that operates to cause exclusion, and recognition of the complexity of behaviours and dynamics is needed in order to frame suitable and relevant policy approaches. The purpose of this chapter is to re-examine the causes of exclusion, to review what has been successful in tackling discrimination at work, and to suggest how employers’ practices need to change to ensure that they are meeting today’s changed social and business climate.

The changes in context Recognition that racial discrimination was an entrenched barrier to visible ethnic minorities in Britain came over thirty years ago, following the publication of research which demonstrated clearly that one in three employers treated an ethnic minority job seeker less favourably than a similarly qualified white job seeker (McIntosh and Smith, 1974). Since then much has changed. The 1976 Race Relations Act strengthened the legal framework by making indirect discrimination – that is, unjustified practices which excluded proportionally 208

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more people from the ethnic minorities – unlawful. The Act also provided for a semi-statutory Code of Practice in Employment, which came into operation in 1984. Its provisions have been taken into account in proceedings before Employment Tribunals. It is useful to consider what effect this legislation has had, and how far external economic and social conditions have contributed to changing behaviour. Is it possible to review the different influences and to identify the key conditions for improving employment opportunities for people from the visible ethnic minorities?

Racial equality programmes The Code of Practice, and its related code for sex equality, has been translated into guidance for busy managers by many professional and employers’ organisations such as the Confederation of British Industries (CBI) and Institute of Personnel and Development (IPD). Well-organised employers with good human resource practices have taken its recommendations on board, have issued equal opportunities policies and guidance, have reviewed their selection, and have carried out training programmes to help managers to understand how to avoid discrimination. A 1995 survey by the Commission for Racial Equality into the implementation of the Code of Practice in large companies indicated that most had a formal policy covering racial equality, and about half of these said that they had a plan to implement their policy. About half the respondents with a plan stated that they monitored its effectiveness, and the same proportion carried out race equality training and had procedures to deal with racial harassment. Another study for the government in 1995 (Coussey, 1995), which included samples of organisations of all sizes, showed that, of those employers who were described as ‘active’, only onethird were taking specific steps to implement an equal opportunities policy, and this became a diminishing proportion if one looked specifically at what was being done; also, many of the steps being taken were ‘soft’, such as promoting a better company image by including equality statements in advertisements. Both studies confirmed that large employers, particularly in the public sector and in services and finance, were doing the most. More recently, the 1998 Workplace Employee Relations Survey1 has given some encouragement. It found that two-thirds of workplaces were covered by formal equal opportunities policies, and that organisations with a formal policy employed proportionately more people from

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the ethnic minorities. In September/October 1999, Equal Opportunities Review published the results of another survey of forty of its subscribers and some of the top 100 FTSE companies. This found that two-thirds of respondents had equal opportunities policies, and 89 per cent of these said that they carried out ethnic monitoring of recruitment. The conclusion might be that most large employers have adopted equal opportunities policies in the past five years, and increasing numbers are also implementing concrete measures and monitoring their policies’ effectiveness. Does this mean that racial discrimination is no longer a serious problem? This has not been seriously argued in Britain, although there has not been a recent study of the extent of racial discrimination. Labour market data suggests that equal opportunities policies have not yet significantly improved the employment and progression rates of ethnic minority people. There is evidence that the nature of discrimination has changed, and this has implications for employers.

Discrimination Overt discrimination such as was common in the 1960s and 1970s is now rare. It appears that in this respect, the Race Relations Act has had an effect on behaviour. After thirty years, few managers are unaware of its existence. Although many may still have a poor level of understanding of the law and perceive it as preventing a crude refusal to employ people of colour, it has prevented much overtly racist behaviour by workplace decision-makers. Discrimination against ethnic minorities, or indeed against anyone who is ‘not like me’, is now based on avoidance, or on giving preference to other socially familiar candidates, rather than on a conscious decision to exclude. Often this is done unconsciously. People from different social or cultural backgrounds may have subtly different rules of behaviour. Examples include the degree of directness in describing achievements or in challenging someone in authority. This may particularly affect communication at meetings, at interviews, and in management, and may lead to misunderstandings and misjudgements being made. Where there are different communication styles, these may result in discrimination against the minority. Majority individuals from the same cultural background will be more favourably considered, because the manager feels more comfortable with them.

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Discrimination occurs if a manager acts on a stereotype and assumes that all members of a group share a common characteristic, without considering the individual’s qualities. Although stereotypes have always been the cause of discrimination, the commonly held ones have changed and are more complex. Examples of current stereotypes include beliefs that people from some minority groups are good at finance, or that some minorities do not have a strong work ethic, or that they have an aggressive approach to conflict resolution at work, or an assumption that women from a Muslim background are not interested in a career, with the result that a Muslim woman is not considered for promotion. In conclusion, discrimination is now covert and more complex. Looking at the recent reports of the Commission for Racial Equality (1997 and 1998), many complaints involve action for which, at face value, there is an explanation. It is only when the treatment of others in similar circumstances is examined that the question of less favourable treatment can be inferred. To take two examples, in the appointment of a Senior Quantity Surveyor a black quantity surveyor was subsequently found to have experienced racial discrimination when detailed comparison showed that the successful candidate met the advertised requirements for qualifications and experience less closely than did the complainant (Griffith v Bridgend County Borough Council, 1998); another cited case involved assessing an employer’s actions in preventing harassment and providing support or counselling for a black employee who had been racially threatened by a client (Lewin-Coward v Birmingham City Council, 1998). Many reported instances involve insensitive behaviour, racial harassment and lack of awareness of minority faith requirements such as wearing the hijaab (headwear). One reported case involved the right of a Bangladeshi woman to wear a hijaab after her return from a pilgrimage to Mecca, following which she was subjected to harassment. She claimed that the company had failed to investigate her complaint under its disciplinary procedures (Khanum v IBC Vehicles). This suggests that the attitudes of Employment Tribunals have changed since the 1970s, when their decisions tended to support company dress rules and codes. Twenty years ago it was commonplace for black and ethnic minority employees to have to tolerate jokes and banter about their colour or origins. Now this is no longer so. As one HR manager put it to the writer: ‘The complaint now is more usually about language and lack of sensitivity on the part of managers. It is more a matter of unconscious behaviour.’

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Practices Indirectly discriminatory practices which exclude or disadvantage ethnic minorities, without any deliberate intention to do so by any individual, continue to be barriers. For example, many new jobs are being filled by means of informal networks or through sub-contracting to agencies and individuals. Often these are part-time or casual jobs which in many industries are increasingly used to provide flexibility. The casual worker who knows the work and the employers’ norms and standards may continue to be used for long periods. Examples include the health sector, where hospitals rely on ‘bank’ staff to meet peaks in demand for nursing services, and broadcasting, where production teams use lists of casuals to provide additional professional support. The distribution and tourism industries also use casual and self-employed staff to cater for peaks in demand. Ethnic minorities have fewer networks with mainstream institutions, and do not learn about these employment opportunities to the same extent as people from the majority. In addition, when a self-employed person has worked for several years on contract to a single employer, he or she is well placed to gain the next contract or to be considered for a permanent vacancy among core staff.

Competencies As immigrants in the 1960s and 1970s, the ethnic minority population in Britain faced multiple disadvantages in access to employment. Their Third-World country educational or professional qualifications were unrecognised, and some had poor or only basic education. Their skills and experience were not in demand or were outdated or unrecognised. Some lacked fluency in English. They lacked knowledge of the job market, had more limited networks, and had inadequate job search and self-presentation skills. These disadvantages resulted in their being confined to low-level and unskilled occupations, often in vulnerable sectors which are more likely to be affected by economic downturn, and in service industries affected by seasonal fluctuations. This accumulation of disadvantages can lock the descendants of immigrants into a cycle of underachievement. They are more likely to live in the least desirable, socially disadvantaged areas, and lack the economic means to move away. They may be subject to ethnic or racial harassment and violence. Their children have poorer educational

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prospects, are more likely to underachieve and leave school without gaining educational qualifications, and are less likely to enter higher education or vocational training. Economic and social exclusion may be thus transferred to second and subsequent generations.

The gap between different ethnic minorities There is some evidence that this transfer of disadvantage has occurred more in some ethnic minority communities than in others. People from Caribbean, Pakistani and Bangladeshi backgrounds have relatively poorer employment respects compared with people from Indian, Chinese and East African backgrounds. Educational disadvantage may be one factor. Berthoud (1999) has pointed out that all ethnic minority men stay longer in the education system to achieve the same qualifications as white men, that African and Indian men are the best qualified, and that Caribbean and white men the least qualified.

The persistent gap in access to employment But although ethnic minorities are more likely to be educated to degree level than white people (21 per cent of ethnic minorities compared with 16 per cent of whites), they are more likely to be unemployed than white graduates. Graduates of African origin are the worst affected, being seven times more likely than white graduates to be unemployed. Overall, ethnic minority people continue to have higher levels of unemployment, especially in metropolitan areas where three-quarters of the ethnic minority population lives. In Greater London, the ethnic minority unemployment rate is almost 14 per cent compared with a white rate of 6 per cent. The increasing proportion of ethnic minority people gaining higher-level qualifications in the 1990s has not been matched by improved career opportunities. In 1990 30 per cent of white employees and 25.4 per cent of ethnic minorities were in management and supervisory positions and in 1999 the proportion of ethnic minorities in these positions had fallen to 24.7 per cent, whereas the proportion of white people had increased to 30.4 per cent (TUC, 1999). Discrimination is one factor in explaining these differences, but does it explain the differential between people of Pakistani and Bangladeshi origin, the poor prospects for graduates of African origin, and the relatively favoured position of people of Indian origin?

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Stimulating employers to take action According to recent qualitative research into the UK’s antidiscrimination legislation, litigation has been the starting point for changes in practices (Centre for Public Law and Judge Institute of Management Studies, 1999). The study attempted to find what factors had stimulated the most active employers, and in comparison, why other employers had not taken action. In all cases, initial action was triggered by a complaint to an Employment Tribunal. A comment from a company solicitor was: ‘This company would not have made the progress it has in having an ethnic mix which reflected the area without the law, and we continue to use it to effect change.’ Another said: ‘It would not work at all if it was entirely voluntary.’ After dealing with a complaint, a combination of factors determined whether an employer continued to take action and to make further changes. As one respondent put it: ‘Litigation has a short-lived effect. What is needed is cultural change in an organisation to sustain progress on equal opportunities.’ A key condition for the continuation of high-level action was the support and active involvement of a senior, or more important, boardlevel manager. Senior managers are particularly influenced by bad publicity. Often, the senior manager had been sensitised to discrimination and equal opportunities by an earlier experience, sometimes in another company, of managing a department that had had a tribunal case against it. Employers with a high public profile and whose customers were members of the public, for example retail and financial services, were sensitive about their image as they believed that adverse publicity from a case could adversely affect their business. Another significant factor in encouraging sustained action is peer or sectoral influence. For example, in the financial sector there are several influential employers who share experience and this spreads good practice amongst others in the sector. This influence does not exist in most other sectors. Joining one of the quality campaigns or employer groups also stimulates continued action, and introduces an element of peer competition. Monitoring was also important, as the data showed organisations that they were vulnerable and made them continue to review selection decisions. There was general agreement by all those interviewed that the equality legislation had had a significant effect on human resource and other practices, and gradually on attitudes. Employers considered that

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the legislation had also influenced expectations. Most people knew in general terms that they were protected against sexual or racial discrimination. Not one employer argued that the equality legislation was no longer necessary. Where organisational change was not sustained, it appeared to be because some of the conditions which have driven progress in the most active organisations were missing. For example, several respondents had found that when a particular senior manager who had been driving change left the company, equal opportunities initiatives were given lower priority. Structural change such as take-overs and workforce reductions had stifled action because energies were focused on dealing with these upheavals. One respondent said that change had not been sustained because the central equal opportunities unit had been disbanded and no one was looking at the overall picture. It was dealt with on a case-by-case basis. The central unit had also been making sure that managers received training, but since its disbandment this had not been happening. Many respondents, especially those in Greater London, were aware that the ethnic mix of the labour market and customer base provided a good business case for an active equal opportunities programme. They were aware that population ageing would affect recruitment, but only a few were considering actively recruiting older people. In retail and financial sectors, customer demands for services to be available for longer hours and at weekends meant that they were considering how to attract and retain women with family responsibilities, and this too provided a business argument for having equal opportunities programmes. Some considered that developments in information technology had changed managers’ roles. Widespread technological improvements resulted in flatter structures, which required managers to become facilitators, and individuals to become responsible for their output and for decisions. This encouraged the introduction of diversity management. It was believed to be consistent with managers’ changing role. Emphasis on maximising individual performance encouraged them to respect and value differences such as sex, age and ethnic background. Other respondents saw diversity policies as consistent with becoming a global organisation. For example, one equal opportunities manager said: ‘We need a consistent corporate world view. It is essential to develop values which are appropriate to this, and cultural change and valuing diversity are seen as an essential part of business transformation.’

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However, the introduction of diversity policies was confined to those employers with long-standing equal opportunities programmes. It appeared to be partly motivated by the need to introduce new messages which were not seen as focusing on particular groups, which would appeal to line managers, and new initiatives, to help keep up the momentum. The survey also included employers in Northern Ireland, under the Fair Employment legislation. This legislation, in addition to outlawing direct and indirect discrimination on grounds of religion and political opinion, requires employers to review the religious composition of their workforce at least every three years, and to take action to reduce imbalances of either community in the workforce. This legislation has had a significant effect in creating fairer participation by the two communities (Standing Advisory Commission on Human Rights, 1997). Employers said that the Fair Employment legislation had made a fundamental difference to equal opportunities. It was described as ‘the key driver’ and ‘absolutely crucial to make things happen’. The requirement to monitor and prepare action plans to reduce underrepresentation by a deadline was very important. One Equal Opportunities manager said: The duty to monitor focused the minds of senior managers. The Triennial Review put them in the spotlight. It has entirely changed our attitudes, approach and culture. It has proved to be a good thing and we could not do without it. Without legislation, voluntary codes simply do not work. Employers who were part of a UK-wide organisation said that they were struck by the differences in attitudes towards equal opportunities of their colleagues in Great Britain, who were much less ready to take equality into account and ‘were on another planet’. This was because their mainland British colleagues ‘knew they would not get caught in the long grass’. Equal opportunities in Great Britain was at the bottom of the queue and, as competitive pressures increased, equal opportunities disappeared. But in Northern Ireland it was something that had to be done.

Ingredients in a successful equality programme Employers in the survey were asked which measures in their internal affirmative action or equal opportunities policies had been the most effective in improving ethnic and racial diversity. Many referred to

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outreach programmes. These include some of the following steps to improve the proportion of qualified applicants from the labour market from which they recruit: • Programmes to make contact with minority schools, colleges, universities, and community advocacy groups, and other local organisations, to market the company and raise awareness of opportunities. • Programmes with interest groups which focus on encouraging applications from professional and executive ethnic minorities. • Support and assistance for programmes which help to develop basic skills for disadvantaged young people. • Direct marketing through attendance at diversity job fairs, through the media, and through job search agencies which target underrepresented groups. • Diversity-focused work experience, attachments, secondments, diversity open events, and similar schemes which offer insights and encouragement to young people. For improving internal progression, individualised career development, including assignment to high-profile project teams, mentoring, and the active support and encouragement of line managers, were described as having had an impact. These programmes do not operate in isolation. It is important to see them as part of an affirmative or, in British parlance, positive action programme which includes regular monitoring of progress and reviews of the success of outreach measures.

Involving managers No strategy for racial equality can be sustained unless managers are involved and understand and accept the aims and goals of the programme. In any examination of what has been effective in employment, it is important to recognise that structural changes have occurred since the 1980s when the British Code of Practice for racial equality was drafted. Many organisations have devolved decisionmaking to managers to simplify management structures, focus on core business functions, and cut overheads. This has been made easier because of technological developments, which were referred to by employers in the anti-discrimination study as a reason why a new focus was needed.

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The consequences of devolved decision-making were examined in case studies of the private and public sectors (Bedington, Foreman and Coussey, 1997). This found that there were some key conditions which had to be present in order to ensure that change was sustained. These included: • Good communication from the centre, and practical guidance on the action required and standards expected. • A high level of awareness among managers of the concepts and actions required to ensure racial equality. This came partly from communication and guidance and also from training and regular reinforcement of the policy. • Active involvement and leadership from senior management. • Explicit core values which include racial equality. • A clear link made between racial equality and the organisation’s essential functions. • External pressure for racial equality from advocacy groups, customers, trade unions, complaints, litigation, and publicity. • Access to information on progress with a hierarchy of organisational and local targets and benchmarks. • An open problem-solving approach to racial equality. • An accessible system for resolving discrimination complaints. • Participation by managers and ethnic minority staff in solving problems and meeting challenges, and deciding on action. • Recognition of achievements tied to the reward system. These require a commitment to change which goes beyond many of the practices which are standard ingredients of company equal opportunities policies. It requires an acceptance of participation by community advocacy organisations which has not been a feature in the private sector, and it requires participation by managers. It also requires a culture which embraces diversity as a measurable business goal.

Conclusions Looking at the reviews of experience in Britain we can begin to map some elements which appear to be essential components of an effective anti-discrimination model. Equal opportunities policies, stimulated by a Code of Practice which sets broad standards, have been important for changing corporate behaviour. The continuing gap between white and ethnic minority unemployment rates, even for the highly qualified for

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some groups, suggests that voluntary equal opportunities policies have not been sufficiently focused on achieving an increase in representation. The more processes and practices become objective, the more complex and subtle are the means by which decision-makers exclude people from the ethnic minorities. Individual protection Anti-discrimination legislation which gives individuals the right to bring a case against an employer for practising racial discrimination is an essential minimum. Employers’ experience of litigation can be the trigger for action to change practices. Employers acknowledge that they would have done little if not required to do so. But an individual right seems to be insufficient as the basis for stimulating sustained change. Litigation may have a short-lived effect without other influences to maintain action. Internal and external stimuli Many of the additional conditions required to sustain action and ensure that managers implement the necessary measures, such as a sympathetic and active CEO, peer influence, publicity and external pressure, are chance occurrences which are unlikely to happen simultaneously. The changing nature of discrimination and the increase in the complexity of factors which cause disparities suggest that more is needed to simulate action. Employers with diversity policies have recognised that a broader approach is needed. These policies emphasise the need for people to be valued as individuals, but this approach too may be insufficiently focused on reducing under-representation. Focus on measurable outcomes Comparing the approach to equal opportunities in Great Britain with experience in Northern Ireland and the USA, it is possible to identify a fundamental difference. The main impact on employers in the USA and in Northern Ireland is from having to reduce under-representation. This requires employers to take practical steps to increase the diversity of their recruitment and progression. Reviews of decisions may form part of a review of efforts taken, but the emphasis is on assessing the effectiveness of affirmative action and not on whether there have been specific exclusions. A requirement to reduce under-representation is a practical and concrete challenge. It can be achieved by using a range of marketing

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techniques which are already familiar to business. It brings equality considerations into the business arena. Several employers in Northern Ireland and the USA commented that the affirmative action planning was in line with other business planning, and could be integrated with it. In contrast, employers in Great Britain were attempting to involve operations managers with more abstract concepts such as equal opportunity and indirect discrimination. Looking at the UK, only in Northern Ireland is there evidence that the legislation has increased representation. Between 1990 and 1998, the Catholic male proportion of employees increased by 4.4 per cent and the female Catholic proportion of employees by 3.6 per cent (Fair Employment Commission, 1999). Although there is strong opposition in the business community to making ethnic monitoring compulsory, the evidence suggests that, if monitoring is linked with a regulatory framework which requires action to identify and reduce under-representation, this is the key to move from exclusion to inclusion in the workplace. Note 1 Quoted in the Equal Opportunities Review, November/December 1999.

References Bedington, R., Foreman, J. and Coussey, M. (1997), Decentralisation and Devolution. The Impact on Equal Opportunities, Ware, Herts: Wainwright Trust. Berthoud, R. (1999), Young Caribbean Men and the Labour Market, York: Joseph Rowntree Foundation. Centre for Public Law and Judge Institute of Management Studies (1999), Options for Reform. Independent Review of the Enforcement of UK AntiDiscrimination Legislation, University of Cambridge, December 1999. Commission for Racial Equality (1995), Large Companies and Racial Equality, London. Commission for Racial Equality (1997–8), Annual Reports, London. Coussey, M. (1995) ‘How Employers Used the “Equal Opportunities Ten Point Plan”’, Employment Gazette, London, August 1995. Fair Employment Commission (1999), (Monitored establishments) Annual Report, Belfast. McIntosh, N. and Smith, D. (1974), The Extent of Racial Discrimination, London: PEP Broadsheet No. 547. Standing Advisory Commission on Human Rights (1997), Employment Equality: Building for the Future, London: HMSO. TUC (1999), Qualifying for Racism, London.

12 Anti-Discrimination Legislation in Germany: from Abstinence to Activism? The Influence of the New EC Equal Treatment Directive on Future Legislation Rainer Nickel

Introduction Berlin 1997. A temporary placement agency sends a black German woman for a job at a luxury hotel on the elegant Boulevard Unter den Linden. After a short period of time the hotel sends the young woman back to the agency. The director of the hotel argues that the young woman in question does not have ‘an average middle European hairdo’ and so undermines the hotel’s policy to maintain a ‘homogenous appearance’ of the personnel. The young woman takes her case to the labour court. Since the results of the court’s deliberations are uncertain, the young woman accepts a compromise and gets a small amount of compensation for damages.1 Essen 1998. Mr U, a black man, is thirsty after a sports event. He enters a restaurant to order a drink. The owner refuses to serve him and wants to throw him out. Mr U calls the police to register an accusation of insult against the owner and to register the names of the numerous witnesses. Instead of registering the complaint and the witnesses, the police insist that Mr U leaves the premises. The police point out that German law permits the owner ‘freedom of contract’ (Vertragsfreiheit) which means that he is free to serve those guests he/she chooses. The owner explains later that she suspected Mr U of being a drug dealer, because of the sports bag he carried. The complaint of insult that he brought against the owner remained unsuccessful. The licensing board 221

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for restaurants refused to take up the case because Mr U had no additional witnesses for the incident. Why are these incidents not considered cases of illegal discrimination? Why do the local administrators and courts face difficulties addressing such cases in Germany? The answer is simple: in Germany no comprehensive anti-discrimination legislation exists. Judicial protection against ethnic discrimination is only partially regulated, and is effectively laid down only in certain fields of law. There is an especially clear distinction between ‘private’ discrimination and discrimination emanating from the state (the public order), e.g. state officials and courts. Article 3, Paragraph 3 of the Basic Law (Grundgesetz), Germany’s Federal Constitution, forbids all forms of discrimination due to place of origin, ethnic origin and ‘race’. However, this basic right forbidding discrimination is based on a continental European tradition of human rights which primarily protects individuals from instances of state discrimination. Whoever is discriminated against by a public agency or a police officer based on ‘race’, ethnic origin or place of origin can challenge this offence in court on the grounds of Article 3, Paragraph 3 of the Basic Law.2 The legal situation is different when it comes to discrimination by private parties, for example discrimination in the private labour market, at the workplace or in everyday life. As there is no specific legislation covering these cases, only the general rules of the Civil Law Code (Bürgerliches Gesetzbuch, or BGB) can be used against discriminatory practices. Although these general rules can be interpreted in the light of the anti-discrimination provision in Article 3, Paragraph 3 of the Basic Law, it is agreed among courts, lawyers and legal scholars alike that the provision is not directly binding for private parties, but has only an indirect effect: it may guide the interpretation of the general rules of the Civil Law Code. Therefore, in many cases it remains uncertain whether discriminatory practices can be regarded as unlawful, and what remedies can be taken against those practices. As a result, those who attempt to go to court to defend themselves against discrimination by private parties have only a small chance of success. This situation should soon be changed, thanks to Germany’s membership of the European Union. With the Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin3 the EU has taken the first step in implementing Article 13 of the Treaty of the European Community (TEC). Directive 2000/43/EC contains far-reaching principles for providing comprehensive protection

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against discrimination in public and private spheres. Moreover, it provides detailed specifications for achieving an effective judicial process relating to the right to equal treatment. It also requires accompanying measures, for example, the establishment of an Equal Treatment Agency, as well as the encouragement of social dialogue between employers and employees.

The European Union and the fight against ethnic discrimination Measures to achieve adequate means of legal protection against discrimination within the European Union are moving quickly. The new Anti-Discrimination clause in Article 13 of the TEC specifies the obligation of the EU to protect against discrimination based on sex, race, ethnic origins, religion or world view, disabilities, age, or sexual orientation. After its introduction through the Treaty of Amsterdam in 1997, a package of measures was already envisaged by the European Commission in September 1999 to achieve this objective.4 This package of measures contained three sections: two propositions for Council Directives (an Equal Treatment Directive and an Equal Employment Directive), and an accompanying programme of action. Within nine months the Council of the EU had already ratified the first part of the package – Directive 2000/43/EC – as the first pillar of a whole package of measures; it was published on 19 July 2000 in the official journal of the EU. According to its Article 16, the Member States of the EU are obliged to implement by 19 July 2003 the measures foreseen in the Directive. The second element of the package, the proposed Equal Employment Directive, has also been ratified as current EU law (Directive 2000/78/EC, 27 November 2000).5 However, since this Directive no longer covers ethnic discrimination, it will be omitted from the following discussion. The accompanying ‘Programme of action of the Community to protect against discrimination’6 for the years 2001–6 was launched in 2000. It contains a number of measures, such as financial aid to non-governmental organisations for empirical research and for social programmes to accompany the fight against discrimination based on race, ethnic origins, religion or world view, disabilities, age, or sexual orientation. The new Equal Treatment Directive 2000/43/EC presents a number of challenges to the German legislature. Below are presented its most important regulations with comment on their significance, along with

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an outline of the differences between the requirements of the Directive and the current German legal provisions.

Contents of Directive 2000/43/EC Objectives The Directive begins by introducing its objectives in Article 1. According to this Article, the purpose of the Directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin. It strives to achieve uniform minimal standards within the EU and introduces with admirable clarity the reasoning behind this initiative. Referring to the Universal Declaration of Human Rights from 1948 and ensuing human rights pacts, it points out that at stake is the human right to be protected against discrimination: ‘The right to equality before the law and the protection against discrimination for all persons constitutes a universal human right …’ (Consideration 3). The specific measures included in the Directive have the objective in the context of the European Union ‘[t]o ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin …’ (Consideration 12). The considerations in the preamble of the Directive make clear that beyond the formulation in the Directive itself, it is necessary for the development of a democratic and tolerant society to complete the right to formal equality with an additional level of far-reaching, substantial equality.7 This need has been repeatedly stated within the law of the European Union, and has been recently confirmed by Article 21 Paragraph 1 of the Charter of Fundamental Rights of the European Union, which forbids all forms of discrimination based on race, ethnic origins or skin colour. By linking this concept to the term ‘participation’, the EU makes clear that the right not to be discriminated against is more than simply a claim to equal treatment before the law. Instead, an extension of this proposition into the reality of everyday life is required. The right not to be discriminated against is therefore concerned with the transformation of social structures. Scope of the Directive The scope which the Directive covers, laid down in Article 3 of Directive 2000/43/EC, is noteworthy. According to this Article, ‘the Directive shall apply to all persons, as regards both the public and private sectors, including public bodies’ (Article 3, Paragraph 1,

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Sentence 1). However, this universal claim to equal treatment is not meant to be implemented in all areas of life; the Directive represents a contextually defined concept of discrimination. Therefore, instead of introducing a general clause which states exceptions, the Directive specifies, in the form of a catalogue, a number of different areas within which equal treatment can be claimed (Article 3, Paragraph 1, lit.a–h). Emphasis is placed primarily on the area of employment, including vocational training (lit.a–d), and the social, health and educational systems (lit.e–g). The regulations covering employment are essentially drawn from those to be found in the European regulations covering discrimination based on sex, especially Directive 76/207/EU. In order to implement this Directive, the German legislator enacted in Paragraph 611a of the German Civil Code (BGB) specific regulations that should fulfil the requirements of the above Directive. Thus the best and easiest solution would be that the legislator should extend Paragraph 611a of the Civil Code to ethnic discrimination. Similarly, the laws that address the social, health and educational spheres could also be completed, for instance, by adopting a general norm that includes the equal treatment claim of the Directive. In addition to the areas of employment, social affairs and education (lit.a–g) the final point of Article 3 Paragraph 1, lit.h, addresses the equal right to access to and supply of goods and services which are available to the public, including housing. This regulation deserves further attention. The right to equal access to, and equal supply of, goods and services Apart from discrimination in employment and occupational life,8 the forms of discrimination most often experienced concern equal access to the housing market and equal treatment in daily life (e.g. access to restaurants, discotheques or other services such as taxis or hotels, etc.).9 Article 3, Paragraph 1, lit.h of Directive 2000/43/EC makes clear that freedom of contract in the private sphere is limited by the right to equal treatment, at least when it comes to ‘access to and supply of goods and services which are available to the public, including housing’. The implementation of this Directive provision into German law may encounter resistance from arguments based on constitutional law. It is quite commonly held by courts and legal scholars alike that the category of private autonomy in civil law is identical with the basic right to personal freedom which is granted in Article 2, Paragraph 1 of

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the Basic Law. Therefore, it is argued, the Civil Law principle of freedom of contract is secured within the Basic Law.10 But, evidently, private autonomy and personal freedom are not guaranteed without restrictions. Article 2, Paragraph 1 of the Basic Law expressly states that the right to personal freedom is guaranteed only ‘within the constitutional order’, which comprises all existing laws and statutes unless found unconstitutional by the Federal Constitutional Court (FCC – Bundesverfassungsgericht). This constitutional design means that there is already a huge number of restrictions and conditions imposed on the exertion of the freedom of contract within the current legal system. Moreover, the anti-discrimination regulations of Paragraph 611a of the Civil Code (BGB) concerning employment discrimination on the grounds of sex do not violate the basic rights and freedoms guaranteed by the Basic Law. This is well documented in the jurisdiction of the German Federal Constitutional Court.11 The leading decision of the FCC concerning the constitutionality of anti-discrimination provisions does not even mention Article 2, Paragraph 1 of the Basic Law, or refer to private autonomy as an obstacle to anti-discrimination provisions. Instead, the Court states that Paragraph 611a of the Civil Code is to be interpreted in light of the basic right to equality (Article 3, Paragraph 2 GG – Basic Law), and concludes that the constitution demands that a person seeking work must be protected against sex discrimination.12 This decision thus shows that, in light of the claim to equal treatment from Article 3, Paragraph 3 of the Basic Law, a person seeking work has a legal basis for protection from discrimination concerning the private sphere. Doubts about the constitutional validity of the provision in lit.h of the EU Directive cannot therefore be expected to gain recognition. Additionally, the equal treatment provision in Directive 2000/43/EC binding private parties is almost an exact copy of a provision within the UN Convention on the Elimination of all forms of Racial Discrimination (CERD), which was ratified by the Federal Republic of Germany in 1969.13 There are some extreme cases in which serious doubt about the constitutionality of this legislation might be raised. It could be, for example, that renting an apartment in a one-family house inhabited by the owner would be subject to less rigid controls than rentals which have a greater social distance to the owner. But, even in this case, as soon as housing is offered on the open market it is no longer a special case which might legitimise an exception from the general

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rule of Directive 2000/43/EC. The message in lit.h of the Directive does not insist that goods and services must be made available for the public at large, but once goods and services are available on the open market, equal access to goods and services has to be guaranteed. This means that the Directive has the objective of achieving equal participation of all citizens in the market and creating equal access to an open market. ‘Racial profiling’ and the right to equal supply of goods and services The clause in Article 3 Paragraph 1 lit.h of the Directive guaranteeing equal supply of goods and services not only applies to cases of discrimination in the private sector, but also provides comprehensive protection with respect to equal rights to access and provision of goods and services. Because of this, the equal treatment provision is also applicable to discrimination within the public sector. One might guess that there is no difference between the Directive and Article 3 Paragraph 3 of the Basic Law forbidding discrimination on the grounds of ethnic or racial origins. But the Directive goes further, as it expressly deals with the provision of goods and services. Furthermore, it might even cover areas which on first sight are not qualified as ‘supply of goods and services’, and actions of public authorities which at first sight may not appear to be discriminatory. This is especially true in the case of public security and its administrators – public authorities responsible for security, especially the police. Guaranteeing and maintaining public security is a basic function of the public order. The exercise of activities to this end can be considered as a service function towards citizens, and as providing citizens with the ‘good’ of public safety.14 Thus, if we assume for good reasons that the maintenance of the public safety is a service in the sense of lit.h of the Directive, then the police and the entire apparatus for the public order are also bound to respect the equal treatment principle and the prohibition of discrimination anchored in Article 2, Paragraph 2 of Directive 200/43/EC when fulfilling their duty to secure public safety. This brings into focus some practices of the police and other administrative bodies of the public order that can probably be seen as cases of indirect discrimination in the sense intended by the Directives. The most prominent examples are the intensified police controls of persons with dark skin or certain ethnic origins. It has been well known for a number of years that in urban areas especially police controls are more likely to be imposed when one meets certain ethnic criteria. In the US discussion

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these practices are referred to as ‘racial profiling’ – a general term for the categorisation of potential suspects according to ethnic or skin colour criteria. Whether this practice can be justified based on the scope of discretion the police may have in their choice of tactics, or whether it is a case of a prohibited form of discrimination,15 cannot be fully evaluated at this point. There are, of course, many good reasons for the assumption that ‘racial profiling’ marks the persons affected as ‘generally suspect’ and degrades them as potential criminals just because of skin colour or ethnic origin. But police authorities insist that their tactics are influenced not by racism or discriminatory intent but by |statistics and experiences. Nonetheless, the Equal Treatment Directive requires that the legislators, the police and other administrative bodies need to give attention to the questions of whether existing police tactics and practices can simply continue to be applied without any further consideration, and whether they constitute a form of indirect discrimination (which does not need to be intentional to be illegitimate). Exclusion of nationality Specifically excluded from the scope of the Directive are all forms of ‘different treatment due to nationality’. This includes all issues depending on the law pertaining to aliens and its application as well as the laws pertaining to asylum (Article 3 Paragraph 2 of Directive 2000/43/EC). The exclusion of nationality from the application of the Equal Treatment Directive should not be understood to mean that discrimination based on nationality is basically acceptable. Article 3, Paragraph 2 of the Directive only repeats and guarantees the sovereignty of the nation-state in its relations with third-country nationals and is therefore applicable only in this narrow sense. As a result, it does not mean that beyond the laws pertaining to foreign nationals and asylumseekers restrictions or discrimination are allowed. Private parties in particular cannot use Article 3 Paragraph 2 of the Directive as a reason for different treatment. Otherwise, housing rental advertisements which contain the qualifier ‘no foreigners’ would be exempted from consideration within the Directive, which certainly would not respect the objectives of the Directive. Additionally, if nationality is used by public authorities only as a pretext or an excuse for different treatment, then we also clearly have a case of discrimination as laid down in the Directive.

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A narrow interpretation of Article 3 Paragraph 2 of the Directive is also consistent with current legal decision-making in Germany. As early as 1985 an owner of a restaurant was found guilty of insult because he placed a ‘No Turks’ sign on his door.16 Furthermore, the practice of some taxi companies in complying with the wishes of some clients requesting only ‘German’ drivers (no foreigners), has been banned in court as an illegal and unconstitutional discriminatory practice.17 Definitions The principle of equal treatment The Directive selects in Article 2, Paragraph 1 as the basis for the claim for equal treatment the term ‘principle of equal treatment’. According to the legal definition this principle means that ‘there shall be no direct or indirect discrimination based on racial or ethnic origin’. Noteworthy is the use of the controversial terms ‘race’ and ‘racial’. In the Anglo-American context, the term ‘race’ is used as a general category for skin colour, national origin or the ethnic origin and/or the ethnic belonging of a person. The use of the term Rasse in German is a forcible reminder of the race theories of the nineteenth century and the Nuremberg Race Laws (Rassegesetze) of the National Socialist regime. However, in the Directives race is not meant in this tradition. In fact in the preamble to Directive 2000/43/EC, Consideration 6 states: The European Union rejects all theories which attempt to determine the existence of separate human races. The use of the term ‘racial origin’ in this Directive does not imply an acceptance of such theories. If the EU sees the need to expressly clarify this point, why is the term ‘race’ still being used? There is no obvious reason why it cannot be replaced by skin colour, national or ethnic origin and/or ethnic belonging. For the German legislation it certainly would be advisable to leave out the term ‘race’ for reasons of clarity. The inclusion of the term ‘race’ in Article 3 Paragraph 3 of the 1949 German Federal Constitution (Grundgesetz – Basic Law) is not a barrier, since the legislature always has the opportunity to make clarifications on this point. The definition in Article 2 Paragraph 1 of Directive 2000/43/EG also mentions along with the term ‘race’ the term ‘ethnic origin’ as a criterion for discrimination. The meaning behind this term does not permit a simple definition. If we look at the common stereotypes, which determine the differentiation between ‘us’ and ‘them’ as a

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measure, then we find that actual or assumed specific group characteristics provide the logic for drawing boundaries. In the German case one could, for example, distinguish ‘the Hessian’ as well as ‘the Bavarian’, and both could be discriminated against on the basis of their ethnic origin even when, on closer inspection, common origins of Hessians and Bavarians prove to be fictional, as most constructions of social groups are. Thus, the term ‘ethnic origin’ refers to stereotypes existing in society and attempts, through legislation, to repress the use of these stereotypes as discriminating factors. The objective of the Directive is then to secure equal participation of all persons irrespective of existing or imagined ethnic differences. Discrimination The key element of any regulation which strives to combat discrimination is the definition of the term ‘discrimination’ itself. As every differentiation implies unequal treatment, there is a need to draw the line between justifiable differential treatment and unjustifiable differential treatment, the latter being those forms of discrimination that go against the principle of equal treatment as laid down in Article 2, Paragraph 1 of Directive 2000/43/EC. Thus in Article 2, Paragraphs 2 and 3, the Directive defines the exact meaning of the term ‘discrimination’. These provisions reflect a comprehensive understanding of discrimination: in addition to the forms of direct and indirect discrimination – well known from Directive 76/207/EC concerning sex discrimination and from judgements of the ECJ with regard to this Directive – Directive 2000/43/EC also in Paragraph 2 defines harassment as a form of discrimination. Direct and indirect discrimination Article 2, Paragraph 2 of the Directive fortunately clarifies that an effective strategy for protection against discrimination should include indirect as well as direct discrimination. This clarification is especially important in the German legal context: in the past, Article 3, Paragraph 3 of the Basic Law provided protection with respect to direct discrimination, but indirect discrimination has until now been a controversial concept.18 This controversy is removed with the solution proposed by the European Directive. The regulation in Article 2, Paragraph 2(b) defines indirect discrimination as follows: [I]ndirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons

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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. This definition clearly raises the issue of the different impact of an apparently neutral regulation, and this ‘different-impact test’ is new to neither German nor European law. The Federal Labour Court (Bundesarbeitsgericht – BAG) in Germany has found a number of times that decisions on banning discrimination in labour law involve banning indirect discrimination in the above mentioned sense. 19 These court rulings are based on decisions of the European Court of Justice which continually show that Directive 76/207/EU with respect to discrimination based on gender includes indirect discrimination. 20 The European Court of Justice’s legal decisions pertaining to discrimination against women will therefore be transferable in the future to respective cases of ethnic discrimination, which will be especially important for comprehensive protection against ethnic discrimination, and for the definitions applicable for effective sanctions. Harassment Directive 2000/43/EC enters new territory when it comes to the regulation on harassment in Article 2, Paragraph 3. Next to the classical forms of discrimination covered by direct and indirect discrimination, the Directive finds that [h]arassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. The first key term in this regulation is the term ‘violating the dignity.’ In the German context, the term dignity is frequently linked with Article 1, Paragraph 1 of the Basic Law: ‘The dignity of man is inviolable’. Dignity is also mentioned in Paragraph 130 of the Criminal Code covering Volksverhetzung (agitation to violence). Both provisions use ‘violation of dignity’ as a circumscription of severe violations of human rights. If Article 2, Paragraph 3 of Directive 2000/43/EC were interpreted in that sense, the provision would be useless because severe

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violations of human rights are covered by the Directive itself and by many regulations of the Member States anyway. But the enumeration of examples in Article 2 Paragraph 3 of the Directive makes clear that harassment begins earlier. Harassment exists when behaviour aims to degrade a person, or has this effect, as through activities such as intimidation or hostility. This definition permits that behaviour which is, for example, insulting to the extent covered by Paragraph 185ff of the German Criminal Code can be seen as harassment in the sense of the Directive. The definition of harassment as a form of discrimination therefore aims at a much wider scope of application. It includes, for example, behaviour which US labour laws and US courts have categorised as ‘hostile work environment’.21 Examples could be, for instance, anonymous graffiti in the sanitary facilities, or anonymous threats. Since the Directive applies to all persons in the public and private sectors, the question arises of the consequences for labour law in general and specifically for the compensation of victims. German labour law might suggest that an employer could be made liable and even be sued in court for failure to eliminate a hostile work environment if the co-workers or colleagues responsible for creating a hostile atmosphere cannot be identified. Another important aspect of the definition of harassment is the perspective from which it is defined – that of the violated person rather than of the ‘perpetrator’, as it covers acts which have the purpose ‘or effect’ of creating a hostile environment. Exceptions Deviation from the principle of equal treatment is permitted only in a gradual procedure, and only in two very clear exceptional cases. The first exception concerns cases of labour relations: Article 4 of Directive 2000/43/EC states under which conditions exceptions can be permitted (but do not have to be!) by the member states in the area of the work occupational requirements: […] Member States may provide that a difference of treatment which is based on a characteristic related to racial or ethnic origin shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

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This exception could possibly be referring to situations in which for reasons of authenticity certain ethnic characteristics are considered decisive. The casting of persons in roles in theatre and cinema could be a possible exception. In any case exceptions are permitted only under the further condition that the requirement serves to fulfil a legitimate objective and that it is proportionate. This formulation in Article 4 of Directive 2000/43/EC provides sufficient guarantees against the misuse of reference to ‘genuine and determining occupational requirements’. It has to be stressed that this tight regulation of exceptions from the equal treatment rule in Article 4 of the Directive contains very necessary additional conditions and restrictions under which exceptions from the rule are acceptable. An illustration of its importance would be the introductory example from a hotel in Berlin.22 It is very doubtful if the criteria of the ‘average middle European hairstyle’ which the hotel missed in the case of this young woman would be considered to be a suitable requirement, and would pass the test of Article 4 of the Directive.23 The second exception from the principle of equal treatment concerns indirect discrimination. According to the legal definition in Article 2, Paragraph 2 lit.b of Directive 2000/43/EC, ‘indirect discrimination shall be taken to occur 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’. Exceptions from this rule can be granted only under strict conditions, namely if ‘that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’. This rather awkward definition derives evidently from the commonly used ‘principle of proportionality’ (Verhältnismäßigkeitsprinzip), which was originally created by the German Federal Constitutional Court as a means to scrutinise laws restricting basic rights and freedoms of the German Basic Law,24 and which has since become a genuine part of the law of the European Union.25 The version of the principle of proportionality laid down in Directive 2000/43/EC is both general and unspecific enough that it is almost impossible to derive clear criteria for legitimate exceptions from it. Therefore, it could be more useful for the German and other European legislature to describe legitimate exceptions more precisely. The German legislator may refer to the exceptional clause to be found in the Civil Code which forbids gender discrimination (Article 611a, Paragraph 1, p. 2 BGB). In this clause differential treatment is considered permissible only when the characteristic in question is considered an indispensable condition.

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The exception in Article 2b of the Directive covers solely indirect discrimination. Direct discrimination – that is, the direct reference to ethnic membership (and ‘race’) or ethnic origins – is strictly forbidden, with the exception of the specific case with respect to occupational requirements in Article 4 of the Directive, as described above. Defence of rights, rights of associations and the ‘burden of proof’ In addition to the clear definition of acts of discrimination, the Directive also includes conditions for the effective legal enforcement of the claim to equal treatment. The Directive includes (wisely) a special chapter on issues related to the enforcement of rights in court. This area – the practical application of anti-discrimination rules and statutes – is where the greatest difficulty often exists in practice. Articles 7 and 8 of Directive 2000/43/EC contain a number of provisions designed to promote the goals of the Directive. Article 7, Paragraph 1 guarantees the general defence of rights before a court. Although this provision might affect other European legal systems, it has only minor significance for Germany: Article 19, Paragraph 4 of the German Basic Law already guarantees full access to court for everybody and in every matter. Much more important in the German case is Article 7, Paragraph 2, introducing rights of associations to make claims in the name of individuals who have suffered discrimination, and also Article 8, with its special conditions for burden of proof. The right of associations to claims (collective claims) The Directive’s comprehensive concept of defence of rights, which embraces a collective conception of discrimination and aims at a realisation of collective interests, and not solely individual rights, becomes particularly clear in Article 7, Paragraph 2. It orders that a right of associations to make claims has to be established, and describes the requirements associations have to fulfil if they want to represent persons who have been discriminated against: Member States shall ensure that associations, organisations or other legal entities, which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.

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The concept of collectively organised legal aid, and of associations being able to sue in court on behalf of individuals, is not very familiar in Germany. In particular, there is no such thing as class action.26 In the German legal system, individuals and associations traditionally have the right to claims on their own behalf only, with very few exceptions. The Directive adds another exception in expressly ordering the German legislator to enable claims to be made by associations. It spells out the criteria that associations or other organisations must meet to initiate claims, namely that they must ‘have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with[…].’ This leaves the national legislature sufficient room to define quantitative or qualitative criteria for the authorisation of associations to this privilege. The Directive makes no statements on whether the government or other state institutions are required to provide financial support to these groups and associations. Considering the very limited financial resources of many associations and NGOs, the availability of funding would seem crucial if the right of associations to make claims is to be effective. Given Member States’ responsibility to promote the aims of the Directive it seems vital to fund associations in one way or another. The financial responsibility of state institutions follows from the fact that associations will be active not only in their own interest, but in the general interest. Moreover, they will be supporting member states of the EU in fulfilling obligations relating to international law, European law and – in the case of Germany – constitutional law. Within the structure of the definition of the rights of associations to lay claims it is already foreseen that they can give legal counsel to individuals suffering discrimination, and if need be represent them in court. Until now, in Germany this right has been the sole preserve of lawyers admitted to the bar, with only very limited exceptions in special fields of law. As a result of Article 7, Paragraph 2 of the Directive, it will therefore also be necessary to change the statute that reserves for lawyers the right to give counsel and to represent in court (Rechtsberatungsgesetz). Easing the burden of proof Article 8, Paragraph 1 of Directive 2000/43/EC contains an element that is key for the effectiveness of rights, namely rules for the easing of the burden of proof. As in the statute on sex discrimination within

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labour law (Article 611a, Paragraph 1, p. 4 Civil Code – BGB), it will be sufficient in future for the individual concerned to establish before court ‘facts from which it may be presumed that there has been direct or indirect discrimination’. If the individual claiming to have been discriminated against is able to do so, the burden of proof shifts to the opposing party, which must prove the contrary. The modification of the traditional burden of proof will be especially significant in the most common cases of discrimination, that is, in the areas of housing, work, restaurants and clubs. In these cases the individual often finds proof difficult, either because discrimination has been covered up or because there have been no witnesses or other concrete means of proof. By changing the burden of proof, the opposing party is forced either to prove that this has not been a case of discrimination, or to demonstrate understandable reasons for differential treatment. 27 Past judgements of the Federal Constitutional Court have already dealt with the technical details of this mechanism. In its leading decision (BVerfGE 89, 276), the FCC specified the minimal requirements for a claim for equal treatment to be achieved in court in cases of sexual discrimination. The precise definitions in this decision offer sufficient points of reference for the legislature to formulate minimal standards with respect to Directive 2000/43/EC. Sanctions The effectiveness of legal protection against discrimination depends on whether claimants can feel confident that, if they win their case, sanctions will be brought to bear. It was some time before Federal lawmakers in Germany understood this in relation to discrimination against women in employment, and the ECJ had to make a number of decisions about the respective paragraph (611a BGB) of the German Civil Law before this became clear. Article 15 of Directive 2000/43/EC now states very clearly that sanctions in the case of disrespect for the principle of equal treatment must be ‘effective, proportionate and dissuasive’. Reflecting past negative experiences of the hesitant application of the Directive with respect to discrimination in the employment of women (76/207/EU), the new Directive 2000/43/EC obliges member states to report on their progress: The Member States shall notify those provisions to the Commission by 19 July 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them.

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Harmonisation of the sanctions provided by Member State statute will be controlled under Article 15 of the Directive 2000/43/EC. This enables the Commission if need be to initiate a claim against the Member State for breaking the EC treaty (Article 226 ff. TEC and Article 249 TEC). This mechanism provides the best means to put the Directive into practice effectively and guarantee its application.28 Possible legal consequences for offences against the principle of equal treatment laid down in Article 2 of the Directive 2000/43/EC are primarily an order to refrain, compensation for harm, and damages for pain and suffering. A coercive measure requiring the signing of a contract – for instance where there has been discrimination in hiring procedures – is not foreseen in the Directives, nor are minimal fines recommended. However, the obligation to establish effective and deterring sanctions in Article 15 of the Directive means that at the very least the minimum compensation defined in the legislation must be paid. Accompanying measures Not only does the Directive support and enable the person suffering discrimination, but it also encourages and demands support from society in general. In Article 11, special reference is made to the possibility of groups of employers and employees using collective bargaining to secure application of the equal treatment principle. According to Article 11, Member States are obliged to encourage employers’ associations and unions alike to conclude agreements laying down anti-discrimination rules. Internal agreements within companies could also be a suitable means to strengthen protection against discrimination. In Germany there has been a number of voluntary company agreements in the past.29 Article 12 of the Directive also stresses the importance of NGOs and the establishment of a dialogue between the Member States and ‘appropriate non-governmental organisations which have, in accordance with their national law and practice, a legitimate interest in contributing to the fight against discrimination on grounds of racial and ethnic origin with a view to promoting the principle of equal treatment’. Unfortunately, the Directive does not indicate whether and how this dialogue should be institutionalised, and to what degree the NGOs should be included in the law-making process itself. Article 13 of the Directive is likely to provide some headaches for German lawmakers. It demands that an agency be established to function as an observatory and documentation centre, empowered to investigate practices in issues of equal treatment. It would also be

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responsible for conducting ‘an independent investigation’ and preparing an ‘independent report’. It is clear that such an agency must have independent legal status if it is to inquire effectively into, for example, discriminatory patterns within government institutions. Models for such an agency could be the commissions or agencies in AngloAmerican legal systems. In the British case, this would be the CRE; in the Netherlands, a Federal Office against Racial Discrimination (LBR) was established in the 1970s; in the USA, it is the Equal Employment Opportunity Commission (EEOC), which has the task of monitoring the application of the Civil Rights Acts in the area of employment. Article 13 of Directive 2000/43/EC obliges the German federal legislator to undertake similar institutional decisions. One possibility in Germany would be to use the existing institutions, widening their competences – there are numerous Commissioners for Foreigners30 at the national, state and communal levels which could be given ‘independent status’. However, this is unlikely to work well because of their close integration in the respective administrative structures of the state and local government. A further complication is that ethnic discrimination cannot be limited to an issue affecting foreign nationals: in Germany there are increasing numbers of German citizens of African, Yugoslav, Turkish or other ethnic origin and it makes no sense to refer these citizens to the Commissioner for Foreigners when they experience discrimination. So a new institutional design is needed to cope with the provisions of Article 13 of Directive 2000/43/EC, and good and bad experiences of other countries’ institutional arrangements need to be taken into account when the new independent institutions are designed. Additional measures The intention of Directive 2000/43/EC is to guarantee a minimal standard for an effective anti-discrimination policy. In Article 6, Paragraph 2, it is clearly stated that member states are free to develop more farreaching regulations. Moreover, the implementation of the Directive ‘shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive’ – not an issue in Germany, where the rather thin level of protection guaranteed is not even adequate for the requirements of the Directives. In its Article 5, the Directive permits Member States to adopt positive measures ‘to ensure full equality in practice’ without specifically including such positive measures in the Directive. However, European

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Community law provides a wide range of possibilities for the Member States of the EU to support equal treatment in practice. For the German legislator there are a number of alternatives. The first task will be to clarify the need for action in this area before taking specific supportive measures into consideration. The extent to which positive measures could in some cases conflict with the prohibition of discrimination guaranteed in Article 3 Paragraph 3 of the Basic Law will need to be studied more closely only if and when these measures are proposed.

Deficiencies and tasks for the future Directive 2000/43/EC of the European Union represents a comprehensive concept. It is based on the notion that discrimination relates to social groups and group memberships. It includes, moreover, cases of discrimination by non-state agencies or between private persons. It strives to guarantee with a bundle of accompanying measures that the person discriminated against can effectively fight back in court. The legal situation in Germany reflects in all of these instances a number of discrepancies and lacks transparency and clarity. As mentioned previously, the prohibition of discrimination grounded in the Basic Law (Article 3, Paragraph 3) functions with respect to civil law cases only indirectly, if at all. Even if one interpreted Article 3 Paragraph 3 of the Basic Law broadly in the sense of an objective legal claim for equal treatment,31 or if discrimination in civil cases could be read into the state’s obligation to fight discrimination,32 the significance of these interpretations would still fall far short of the requirements of an effective Anti-Discrimination Law.33 Within civil law, it is particularly vague where claims for equal treatment apply, especially in respect of limits and exceptions, the burden of proof, and consequences for the discriminators. The general clauses of the Civil Law Code (BGB, §§138, 242) do not make clear the extent and limits of the banning of discrimination. Difficulties which have arisen in protecting women from discrimination in labour law are likely to be similarly encountered in typical cases of discrimination in housing, work, access to restaurants and other private services open to the public. It is particularly hard for those suffering discrimination to gain recognition of concrete measurable material damage when it is measured according to the traditional system. These difficulties mean that it is almost impossible to produce precedence, or for a judge to give legal shaping to a claim for equal treatment claim within the framework of the Civil Code – with a few

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exceptions34 which merely serve to confirm that the present legal framework is totally inappropriate to deal with numerous incidents of discrimination. The state of anti-discrimination legislation in the Federal Republic of Germany has been criticised several times in the past.35 The UN committee monitoring member states of the UN Convention on the Elimination of all kinds of Racial Discrimination (CERD) has frequently but unsuccessfully approached the Federal Government to undertake further legal measures against discrimination.36 The SPD and the Green Party have developed detailed legal drafts for legislative measures, and both have offered similar comprehensive proposals for legislation approaching the minimal standards of the EU Directive.37 These proposals were lost sight of during the 1998 election campaign and disappeared after the change of government. The new coalition government of the Social Democrats and Greens promised an AntiDiscrimination Law in the coalition contract, but to date not even a draft proposal is available. Future perspectives The European Union has made clear in its Directive 2000/43/EC that there is a major task to be accomplished with respect to protection from discrimination throughout Europe. The Directive can be seen in a wider perspective as an expression of the concern to combat racist activities and far-right extremism within Member States. It signifies a further contribution to the development of a ‘sphere of freedom, security and rights’ (Article 29 Treaty of the European Union). The ‘European Year against Racism 1997’ and the events around the change of government in Austria in 1999 have certainly contributed to the speed of the ratification of the Directive. The Directive makes it obligatory for EU Member States to undertake an active policy of equal treatment. Its detailed instructions, including an obligation to report to the Commission and the dissemination of information to the public (Article 10) can be seen as a means of pressuring some resistant Member States to put into practice a modern policy of equal treatment. Unfortunately, Germany is among those countries in Europe that has a long way to go in this direction. It is still an open question what form the government and the legislature will pursue to accomplish the objectives of the Directive and to initiate an active and comprehensive equal treatment policy. The limited information currently available on

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the preparation of a draft and the procedures to apply the Directive suggest that the intention is to draw up minimal regulations and avoid a comprehensive application of the Directive. It is possible that a similar unhappy process will occur as happened with the issue of discrimination against women, when the Federal Republic of Germany had to be admonished several times by the European Court of Justice (ECJ) for its inadequate application of the Directive 76/207/EC requiring Member States to establish effective Anti-Discrimination Legislation.38 One can only hope that the Federal Government and the parliament will be conscious of their responsibility to fulfil their obligations to the international, European and constitutional laws and avoid the mistake of putting off an active civil rights policy until there is no other choice. Notes 1 ‘Haarspaltereien um ein paar Zöpfchen’ (‘Splitting hairs because of a pair of braids’), Frankfurter Rundschau, 24 September 1997. 2 There are still many open questions concerning the scope of Article 3 Paragraph 3 of the Basic Law, e.g. what about police who carry out raids on black or ‘foreign looking’ persons at train stations, etc., on the grounds that these may, because of their colour, belong to the category considered ‘known drug dealers’? Is there a basis for successfully challenging this practice as being discriminating? There is a similar debate in the USA about whether ‘racial profiling’ is an acceptable police tactic or whether it is discriminating against minorities. See for example New York Times, 14 January 2001. 3 Directive 2000/43/EC, European Council, 29 June 2000, published in the Official Journal, L 180, 19 July 2000, pp. 22–6. 4 EU Commission 565/99, 566/99 and 567/99. These documents as well as supplementary information and the texts of the new directives can be found on the internet pages of the EU Commission, http://www.europa.eu. int/index.htm. 5 Published in the Official Journal, L 303, 2 December 2000, pp. 16–22. 6 Programme launched by decision 2000/750/EC of the European Council, 27 November 2000, published in the Official Journal, L 303, 2 December 2000, pp. 23–8. 7 For an analysis of the principles and underlying concepts of the Directive, see S. McInerney (2000), ‘Equal Treatment between Persons Irrespective of Racial or Ethnic Origin: a Comment’, European Law Review, 25, 317ff. 8 In western Europe immigrants and minority workers suffer unemployment rates frequently two or three times higher than those of national workers. A new empirical study of the International Labour Organisation (ILO) on the possible influence of discrimination in access to employment, covering findings of four countries (Belgium, Germany, the Netherlands and Spain), shows how discrimination differs by region, economic sector, occupation, size of establishment, and ownership: R. Zegers de Beijl (ed.) (2000),

242 Challenging Racism in Britain and Germany

9

10

11 12 13

14

15

16 17 18

19 20 21 22

Documenting Discrimination Against Migrant Workers – A Comparative Study of Four European Countries, Geneva: ILO. Reliable statistical data on ethnic discrimination in Germany are to be found only for the area of employment, and not for the other areas. Still, numerous examples of everyday discrimination (e.g. search for housing, insurances, at restaurants) can be found, for example in R. Nickel (1999), Gleichheit und Differenz in der vielfältigen Republik (Equality and Difference in a Diverse Republic), 81ff, Baden-Baden: Nomos; Die Ausländerbeauftragte von Berlin (1994), Was tun gegen Diskriminierungen? (What to do against discrimination?), Berlin; also J. Martens ‘Die alltägliche Schikane’ (‘The Daily Chicane’), in Die Zeit, no. 35, 26 August 1994. Article 2, Paragraph 2 of the Basic Law states: ‘Everyone has the right to free development of his personality insofar as he does not violate the rights of others or offends against the constitutional order or against morality.’ In Decisions of the Federal Constitutional Court (BVerfGE), vol. 89, p. 276. BVerfGE, vol. 89, p. 276; guiding sentence No. 2. Cf. Bundesgesetzblatt (Federal Law Gazette) 1969, II, p. 962. According to Article 5(f) of this Convention, the Federal Republic of Germany is bound to guarantee the right of everyone to have ‘access to every place or service which is for use by the public, like transport, hotels, restaurants, cafés, theatres, or parks, regardless of race, skin colour, national origin, or nationality.’ Cf. E. Denninger (1994), Menschenrechte und Grundgesetz (Human Rights and Basic Law), Weinheim: Beltz, Athenaum, 13 ff. Denninger sees in the renaissance of security a (post)modern shift in paradigms. For the problem of a ‘basic right (Grundrecht) to security’ cf. J. Isensee (1983), Das Grundrecht auf Sicherheit (Basic Right to Security), Berlin: de Grujter. Currently there is a wide public debate in the US on the practice of ‘racial profiling’, especially that by the police departments of New York and New Jersey (cf. New York Times, 14 January 2001). Police officials in New Jersey by now have changed their practices of control to avoid a civil rights charge by the Federal Department of Justice (cf. New York Times, 19 March 2001). Oberlandesgericht Frankfurt/ Main, NJW (Neue Juristische Wochenschrift), p. 1720. Oberlandesgericht Düsseldorf, ZIP (Zeitschrift für Internationales Privatrecht), 2000, 1357. See for example P. Rädler, (1999), Verfahrensmodelle zum Schutz vor Rassendiskriminierung (Procedural Models for the Protection against Ethnic Discrimination), p. 28 with further references. On the other hand, in favour of a protection from indirect discrimination resulting from Article 3, Paragraph 3 GG, see L. Osterloh in M. Sachs (ed.) (1999), Comments on the Basic Law, 2nd ed., München: Beck, Article 3, Paragraph 3, note 255; and R. Nickel op. cit. (1999), 148 ff. BAG (Bundesarbeitsgericht – Federal Court of Labour), in NJW, 1993, 3091, and NJW, 1992, 1125. European Court of Justice, in NJW, 1986, 3020 (Bilka department store). Cf. (extensively) S. Baer (1995), Würde oder Gleichheit? (Dignity or Equality?), 20ff. and 270ff. Cf. footnote 2 above.

Rainer Nickel 243 23 Dubious, and sometimes racist, occupational requirements are clearly a common problem in other Member States of the European Union as well. The Frankfurter Allgemeine Zeitung has recently reported the case of a darkskinned sales woman in Marseille who was fired by the manager of the local Monoprix supermarket on the grounds that ‘the colour of her skin did not suit the department where she worked’. The woman gained an official apology from the head management of the Monoprix supermarket chain, and got a compensation. 24 Cf. H. Dreier, in H. Dreier (ed.), Comments on the Basic Law, vol. 1 (1996), Tübingen: Mohr, Preface, note 91ff. 25 Cf. G. Hirsch (1997), Das Verhältnismäßigkeitsprinzip im Gemeinschaftsrecht (The Principle of Proportionality in EC Law), Bonn: Zentrum für Europäisches Wirtshaftsrecht; N. Emiliou (1996), The Principle of Proportionality in European Law, London: Kluwer Law International. 26 Class actions have been – and are still – a very important instrument for enforcing US Civil Rights law; for an analysis see M. Tushnet (1994), Making Civil Rights Law, New York: Oxford University Press. 27 Details of procedures and instruments required will have to be decided by the legislature or by juridical practice. In the US, there is a similar jurisdictional situation where in the end the Supreme Court has defined the methods of proof for cases of discrimination in a number of decisions. See extensive comments in ‘Shifting Burdens of Proof in Employment Discrimination Litigation’, Harvard Law Review (Board of Editors), Developments in the Law – Employment Discrimination, 109 HLR 1568 (1996), 1579ff. 28 On the duty of putting the Directive into practice (converting it into national law), and on the ‘effet utile’ to be considered, cf. ECJ, case 48/75, collection 1976, pp. 497ff., no. 69 (73); Calliess/Ruffert, TEC Article 249, note 46ff. 29 Amongst others, the companies Volkswagen and Thyssen/Krupp have made agreements for preventing, respectively sanctioning acts of discrimination. 30 The name ‘Commissioner for Foreigners’ reflects the German immigration politics of the 1970s and 1980s with its concept of ‘guestworkers’. The obvious notion that the migrant workers would stay instead of leave after a couple of years became apparent to lawmakers only in the 1990s when first legal steps were made to enable the naturalisation of the second generation of immigrants. Long political debates followed, focusing on immigration and refugee law. The new government under Chancellor Schröder finally introduced a new German nationality and naturalisation law in 1999, abandoning the concept of ius sanguinis and facilitating naturalisation. At present a new immigration law is under discussion: in 1991, the City of Frankfurt am Main established an ‘Office of Multicultural Affairs’ instead of a ‘Commissioner for Foreigners’, signalling that the City with its non-German population reaching the benchmark of 30 per cent seeks new ways to deal with immigration. 31 R. Nickel (1999), Equality and Difference in a Diverse Republic (supra note 9), 148ff. 32 J. Abr. Frowein (1998), ‘Die Überwindung der Diskriminierung als Staatsauftrag in Article 3 Abs. 3 GG’ (‘Overcoming Discrimination: a

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33 34

35 36 37

38

Demand for Government Action in Article 3, Paragraph 3 Basic Law’) in Festschrift für H. Zacher (1998), 157ff. Cf. extensively Nickel (1999), Equality and Difference in a Diverse Republic, op. cit., 132ff, 148ff. There are exceptionally few cases known from the recent past where ethnic discrimination has been the subject of court decisions. Apart from cases from the area of insurance (termination of car insurance because of Turkish citizenship unlawful: decision by the LG Rottweil, NJW-RR 1989, 536; withdrawal of a provisional agreement for reimbursement unlawful: decision by the LG Berlin, NJW-RR 1989, 1112) there is mainly the case of the taxi companies (decision by OLG Düsseldorf, ZIP 2000, 1357) where the court had nullified the decision of a taxi company to yield to certain wishes of its clients (‘no foreign drivers’). Cf. Nickel (1999) Equality and Difference in a Diverse Republic, op. cit., passim; J. Abr. Frowein (1998), ‘Overcoming Discrimination’ (supra note 32), 157ff. The Country Reports of the UN Commission are available at the UN website: www.unhchr.ch/html/ menu2/6/cerd.htm. Bundestags-Drucksachen (Federal Parliament Prints), 13/9706 from 20 January 1998 (Green Party) and 13/10081 from 3 March 1998 (Social Democratic Party). Latest reminder: ECJ in NJW (1997), 1839.

13 Racism, Discrimination, Citizenship and the Need for Anti-Discrimination Legislation in Germany Czarina Wilpert

Racism and discrimination exist in all modern societies. Some scholars find similar factors characterising patterns of racism and discrimination throughout Europe (Wieviorka, 1994). In fact it has also been argued that, despite institutional differences and quite different policies and models of integration, the effects are so similar as to be the same: racialised, discriminated, immigrant/ethnic minorities underprivileged below a dominant majority.1 Indeed, many apparent parallels exist between the manifestations of racism and discrimination in a number of societies, such as the xenophobia aroused by the political discourse surrounding issues of asylum or immigration policies, populist movements and the street violence of rowdies, hooligans and skinheads, as well as the symbols and ideologies employed by right-wing extremists and neo-fascist parties. Nonetheless, despite the similarities between racism and discrimination in Western European countries and despite the influences of farright ideologies supported by transnational associations and networks, individuals are still residents of nation-states and are subject to the laws of their respective lands. The institutional basis for access to citizenship and the means to implement international conventions grounded in the legal system of each state are central if foreigners and other ethnic/immigrant minorities are to be protected from racism and discrimination. This position, however, is not uncontested. It has been argued that citizenship in itself is not that important for foreign minorities since the (rights of the) ‘individual transcends the citizen’ (Soysal, 1994: 245

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143). The conviction behind this approach is that foreign residents, even as non-citizens, are legitimated as individuals by ideologies grounded in a transnational community through international codes, conventions and laws on human rights, independent of their citizenship in a nation-state. On the one hand, I would agree with much of the argumentation that points out that this is a world of conflicting and contradictory ideologies. And I certainly would agree that international conventions do set new norms, civil, social, and citizenship rights. On the other hand, I argue that these rights need to be institutionalised within the individual state if individuals are to be put in the position to claim them. The approach pursued by ‘the limits to citizenship’ neither analyses the mechanisms for putting international conventions into effect, nor gives attention to the concept of discrimination. It also overlooks the significance of the discriminating factors established in the criteria for rights of access to citizenship. Individual non-citizens may be confronted with lack of means of implementation within the institutions of the nation-state of human rights agreements grounded in the supranational community. The EU, for instance, has set a number of common points for harmonising policy on respecting the civil and social rights of migrant workers and their families, but it has not yet intervened in issues of citizenship rights. And, although the European Union has agreed, as a result of the signature of the Amsterdam Treaty in 1997 by the member states, to implement anti-discrimination legislation, this legislation may not be applicable to non-citizens. The EU is, however, in the midst of a process of pursuing procedures with the membership states as a consequence of Article 13 of the Amsterdam Treaty, which addresses the equality of all persons before the law and protection for all from discrimination as a human right. The European Commission has put forth two directives in the year 2000 as guidelines for the adaptation of legislation at the national level for equal treatment between persons irrespective of ‘racial’ or ethnic origins (2000/43/EC). The second directive (2000/78/EC) specifies and adds equal treatment and protection from all forms of direct and indirect discrimination due to religion, world-view, disabilities, age or sexual orientation. Protection from these forms of discrimination should also apply to third nationals, but not to unequal treatment based on citizenship. Furthermore, this directive has no impact on policies addressing rights to entry, to residency or the employment and occupations of third nationals.

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The specific requirements of the Equal Treatment Directives to be met are to be adopted in the national legislation and returned and reported upon, to the Commission, respectively, in July and December 2003. Each state designs its own legislation and its own set of institutional arrangements to meet the goals of these directives. The power to protect minorities from discrimination and promote justice still lies with the individual state. Once the harmonisation of this concern is achieved among all European countries a new basis for claims against discrimination would be available, via the modalities reached within the countries of origin. Nonetheless, citizenship and rights to citizenship continue to play a role in the extent to which a party may claim protection from discrimination and especially demand equal treatment. Thus, with the equal treatment directives the European Union is a step further towards the protection of minority rights; nonetheless, citizenship will remain in many cases a discriminating factor. Moreover, there is some evidence that supranational bodies are not the object of claims-making, i.e. sought as a means to implement human rights, but that immigrants, irrespective of their citizenship status, tend not to claim rights via supranational institutions. Koopmans and Statham (1998: 33–6) provide some evidence that neither immigrants who are citizens of the country (Great Britain), nor are who are simply long-term resident foreigners (Germany)2 tend to claim rights vis-à-vis supranational institutions. Claims-making when it takes place, occurs more frequently at the national level. In this chapter I focus on institutional forms of racism and discrimination and the debate in Germany on the legal means to protect all persons perceived or defined as ‘outsiders’ (persons of colour, ethnic minorities, foreigners) from acts of discrimination. This chapter has two main parts. The first addresses an institutional view of discriminatory practices, emphasising some of the particularities of the German case, especially the significance of the concepts of citizenship and immigration. I will argue that, despite the new legislation (May 1999) giving under certain conditions a right to access to citizenship based on ius soli,3 there remain some grey areas for a larger population who do not yet have rights to citizenship, and who because of the historical discourse surrounding migration, integration and citizenship, may not perceive a desirable civic belongingness from the body politic of the dominant society. The second section focuses on the need for antidiscrimination legislation in Germany.

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What constitutes institutional discrimination? According to Article 1, Convention No. 111 of the International Labour Organisation (ILO) conventions, institutional discrimination is understood as ‘any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity’. Such distinctions, exclusions or preferences based on the above categorisations constitute institutional discrimination. An institution may refer to non-codified traditions or explicit directives, regulations or legislation. At times, references are made to direct or indirect discrimination (ILO). Direct discrimination entails identification of a person as belonging to a group whose members are considered to be ineligible because of their origins and who, for that reason, are to be systematically excluded from, or differentially treated in, matters of access to rights and social goods otherwise enjoyed in a society. In other words, that person is denied equal access to opportunity. Indirect discrimination refers to the policies of an institution that are not based on formal distinctions but rather on selection criteria, test requirements and so forth, which in practice systematically disadvantage a particular group. In this chapter primary attention is given to direct discrimination.

Institutions and discrimination The concept of institutional discrimination has received very little serious consideration in academic debate in Europe. Even where it has been recognised as a legitimate theoretical concept, it tends to have been understood intuitively, that is, without its nature being clarified or its applicability in different contexts being spelled out. This is the reason why a study of institutional practices and its theoretical basis should stand at the centre of any comparative work. Miles (1991), one of the few social scientists who has seriously discussed the concept in the context of institutional racism, suggests limiting the application of the concept to cases where it is possible to trace the underlying ideology, the discourse that led to institutionalisation of discriminatory practices. Some theoreticians may find it banal to address the significance of institutions in issues of racism and discrimination. A number of others often assume that discrimination results primarily from prejudice or xenophobia, that is, that discrimination and fear of the foreigner are

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normal processes (Hopf, 1992). My argument is that institutions not only practise discrimination but institutions also legitimate ideologies for further prejudice and discrimination. These then become not only individual acts of prejudice or xenophobia based on fear of the foreigner, but institutions are based on the assumed consensus of collectively held ideologies. Societal institutions have a regulating and normative influence. Because of the hold they have on processes of classification and recognition, they have authoritative strength and simplify the individual’s understanding and acts of decision-making. Institutions are legitimated by ideologies, and institutional practices grow out of dominant systems of belief. Institutions are products of communication and a thought world (Douglas, 1987). Institutions retain their authoritative strength until their cognitive conventions (their ideological basis) are challenged.

Discrimination and the concept of citizenship Anti-discrimination legislation normally addresses the issue of discrimination between citizens or between institutions and citizens. Since the majority of persons in Germany4 discriminated against either because of perceived somatic differences or assumed cultural, ethnic, national, or religious differences have the status of non-citizens, it is first necessary to look at the role the institution of citizenship plays in the issue of discrimination. Much of the work on citizenship focuses primarily on its normative implications for rights to political participation in a specific state or society (Brubaker 1989, 1992; Hammar, 1993; Bauböck, 1992). As Hammar (1993) explains it from the normative perspective, one often differentiates between the formal membership in a state and the substantive meaning of citizenship, the rights and duties that follow from formal citizenship in a given state. Bauböck (1992: 7) goes a step further and suggests that the notion of citizenship might be better grasped by studying the institutional boundaries to citizenship. This approach has served as the key to my own analysis of some of the institutional roots for racist ideologies in Germany (Wilpert, 1991, 1993). In Bauböck’s view this would not be limited to the German case but would apply generally to the Western liberal concept of citizenship which he views as rooted in national closure, in the sense of limited access from outside and a belief in cultural homogenisation from inside. My argument will be that there are significant degrees of difference in the institutionalisation of these beliefs.

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Citizenship and nationality Citizenship evidently has different connotations in different politicolinguistic traditions with the concepts of citizenship and nationality occasionally being confounded. In English, for example, the two are used interchangeably at times. Citizenship usually refers to the abovementioned rights and duties within a socio-political community, whereas nationality derives from ethnos, the nation, the nation-state. According to Brubaker (1992) the French concept of citizenship has been universalist, assimilationist and state-centred. The German conception has been particularist, organic and Volk- (ethnic) centred, with ethnic or cultural unity being primary and constitutive of nationhood and political unity being derivative. Generally, in the republican tradition, citizenship is viewed as being separate from nationality. Habermas (1992) traces the development of the modern concept of citizenship back to Rousseau´s notion of selfdetermination; ‘popular sovereignty’ arose in contrast to royal sovereignty and was considered a result of a contract between a people and its government (1992: 4). The emphasis is not on national identity but on procedures for political decision-making. In this tradition, it is argued that people are not assumed to owe their collective identity to a prior homogeneity of descent or culture, and that consensus is achieved through the course of argument between free and equal citizens. It is Habermas’s (1992: 4) interpretation that ‘citizenship was never conceptually tied to national identity’; only briefly did the democratic nation-state forge a close link between ‘ethnos’ and ‘demos’. This line of thought, in the tradition of Durkheim and Parsons, views the evolution of the concept of citizenship as resting on the assumption that citizenship might be seen as a modern basis of social solidarity where participation is founded on a number of structural and cultural preconditions: an urban culture, secularisation, the decline of particularistic values, the emergence of the ideal of a public realm, the erosion of particularistic commitments, and the administrative framework of the nation-state (Turner, 1993: vii). Important in the following analysis is the perspective that citizenship is about the nature of social membership within modern political collectivities. In this view, citizenship is defined as ‘a set of practices (juridical, political, economic and cultural) which define a person as a competent member of society and which as a consequence shape the flow of resources to persons and social groups’ (Turner, 1993: 2). If this

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definition is accepted, what should be the criteria for membership in a secularised modern political collective? What contribution does this line of thought make to an understanding of the ongoing debate about rights of access to citizenship? Two basic principles determine access to citizenship in contemporary nation states: ius sanguinis (the principle of descent) and ius soli (the principle of territoriality). Most modern states have a combination of the two. Citizenship may also be controlled through naturalisation. Basically, every state is free to shape its own rules for naturalisation. Behind the various traditions regulating access to citizenship lie basic premises about rights to membership and the very nature of the nation-state itself.

The German concept of citizenship Rights of access to citizenship have been tied to a specific self-definition and ideology of the ethnic state or nation-state. The ethnic criterion for defining rights to membership and, thus, full citizenship followed traditionally from the definition of the German state itself. As Oberndörfer (see Chapter 2) emphasises, the rooting of citizenship in an ethnic past has made a substantial contribution to the identity of the new German republic. Until May 1999, Article 116 of the Basic Law (Grundgesetz) defined a German citizen as a person who de jure holds German citizenship, a spouse or descendant of persons who were settled in the German Reich of 31 December 1937, or a refugee or deportee with German Volkszugehörigkeit (ethnicity).5 This notion of citizenship has also characterised Germany’s language of migratory phenomena, the semantics of which derive from the German concept of citizenship and rights to membership, and provide the basis for the expression ‘Germany is not a country of immigration’ (Einbürgerungsrichtlinien, 15 December 1977, para. 2.3).6 This definition of German citizenship has been grounded in Germany’s constitution. These institutionally anchored definitions of access to citizenship have not only determined practices, but they have also influenced everyday ideologies about the legitimacy of rights to belong. This fact has led to distinct policies and terminologies which differentiate two major groups of persons migrating to Germany from foreign states: (a) the Aussiedler who qualify for rights to membership, citizenship, and even dual citizenship in German society due to their descendancy from an ethnic collective incorporated into German

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territory during the Third Reich, and (b) foreign workers, ‘guestworkers’ and their families, who were recruited to work and then return to their native countries. Members of either group are not considered to be immigrants. In the case of the Aussiedler, membership in the greater German Reich between the end of December 1937 and 8 May 1945 created a common history and mutual responsibility that gave citizenship to all ethnic Germans living within this vast territory. Thus, Hitler’s ideology of the Aryan peoples had a lasting impact. It has constructed a myth of belongingness and collective identity according to which other states’ citizens and residents defined as ethnic Germans have a right to belong to the modern German state. However, with both foreigners and ethnic Germans migrating to and settling in Germany, this special right to citizenship, which was accorded only to the latter group, has been discriminatory. This distinction between the descendants of members of the great German Reich and long-term foreign residents supplied the logic for social institutions that set boundaries and systematically disadvantage other migratory groups. Until 1993 legal foreign residents who have lived in Germany for three or more decades did not have the right to citizenship, even under certain specific conditions.7 The new right to access to citizenship: a conditioned ius soli Since May 1999 a major step has been taken to transform the citizenship laws. Ius sanguinis has been complemented by a conditioned ius soli. For the first time a change has been made which permits citizenship by ius soli, through birth on the territory of the German state. This piece of legislation has given the right to citizenship to children of foreigners born in Germany of parents where one parent has an eight-year legal status and at least an unlimited residence permit. Parents who meet these conditions may make an application. Moreover, children who were born under these conditions and who were ten years old or younger by the end of the year 2000 could also apply for this right to citizenship based on ius soli. These children are permitted to retain both the new citizenship and their inherited citizenship, which they received by descent, until they reach legal majority. Between the ages of eighteen and twenty-three years, they must make an explicit choice. New rights to naturalisation for adult foreigners The access of adult foreigners to German citizenship has also been eased. The necessary period of legal residency has been reduced from

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fifteen to eight years for adult foreigners. Adult foreigners with the stated legal residence may become citizens based on application if they are willing to express their respect for the basic law and if they hold no allegiances to parties or associations that have the intention to endanger the democratic order and security of the German state. An adult foreigner is, moreover, required to give up his former citizenship when being naturalised as a German citizen, to have not been judged as committing a criminal offence, and to prove that he/she is in the position to provide for the economic well-being of their families without the help of social or unemployment assistance. Finally, adult applicants for citizenship must supply proof of their fluency in German. The required proof differs greatly (from written tests to the subjective judgement of the individual civil servant) depending on the state where the application is being made. The statistical impact on claims to citizenship and naturalisation rates It is important to recognise that the new citizenship legislation of 1999 has qualitatively changed the situation with respect to the rights of children of legal foreign residents born in the country. Up until 1999 about 22 per cent (1.63 million) of the 7.3 million foreigners officially resident in Germany, more than one-fifth of the total, were born in the country. These children were born as foreigners and had to meet a variety of conditions to eventually become naturalised. Up until 1995 Germany had a naturalisation rate of foreigners lower than 1 per cent. About 500 000 children of foreign parents were born in Germany in the last decade (1990s to 2000), whose parents may apply before the end of the year 2000 to be recognised as citizens due to the new ius soli, based on the age of the child and legal status of a parent. In the year 2000, the first year when the new legislation took effect, some 186 000 foreigners became German citizens. In the year 2001 the number of naturalisations decreased by 4 per cent to 178 000. It has been estimated that about 20 000 new citizenships in the year 2000 were due to the claims of children of legal foreign residents who were born during the decade of the 1990s and who took advantage of this legislation which expired at the end of the year 2000 (Migration und Bevölkerung, 7 September 2002). Application rates for citizenship based on ius soli in retrospect were relatively small compared to the size of the potential population. Rights to citizenship were not taken advantage of to the extent that might have been expected for those children born in Germany during the decade of the 1990s.

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Comparative disadvantages: denial of a passive dual citizenship Moreover, it could also be argued that there are still major differences in rights of access to citizenship for adults. There continues to be differential treatment of resident foreigners with respect to rights to access to citizenship and the Aussiedler (persons of German origins who were settled in the German Reich of 31 December 1937, or a refugee or a deportee with German ethnicity). One of the major principles of differential treatment is that the Aussiedler are not required to give up their former citizenship upon entering Germany and becoming citizens of the Federal Republic. Nor are they forbidden access to German citizenship based on their inability to support their families without the need of social assistance or unemployment aid. Thus, for adult foreigners, there continues to be a discrepancy between the conditions they must meet to be recognised as citizens and those met by other non-citizens of German heritage from the former territory of the German Reich of 1937. The political climate: the legitimacy of citizenship and immigration policies In addition to the institutional conditions which differentiate the rights of foreigners and Germans entering the country as Aussiedler or Spätaussiedler, the dominant political discourse gives ideological support to institutional rigidity. This refers to the legitimacy of the rights of foreigners to have access to citizenship as well as to the most recent attempt of the SPD–Green Coalition to adopt an official policy on migration. Although the discussion surrounding the new ‘Migration Policy’ (Zuwanderungsgesetz)8 does not address citizenship directly, it does address the underlying sentiments as to the kinds of migrants welcome and the need for a policy of integration. The positions taken on this issue also demonstrate the polarisation still existing between the political parties on these issues. Political discourse and the legitimacy of access to citizenship The public debate about rights of access to citizenship for Germany’s resident foreign population has been influenced by the political and social climate in Germany since unification. The 1993 changes in citizenship rights must be seen in the context of the violent xenophobic and racist attacks that peaked that year. For instance, the concept of dual citizenship first entered the discussion in the German parliament after the firebombings in Mölln and Solingen in the west of Germany, events that had been preceded by the mobbings in Hoyerswerda and

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Rostock-Lichtenhagen. Many people believed that it was the asylum debate that had thrown coals on the fires of discontent. Indeed, after Hoyerswerda and Rostock some politicians argued that ‘if we stop the misuse of asylum, if we stop the flow of economic asylum seekers, we can stop the violence’ (Minister of the Interior Seiters in Rostock, 1992). Through this logic the victims of racism became the cause of racist violence. Explanations for this violence were found in the natural rise of xenophobia. In this context a new asylum law received first priority. It was after the second attack, which was directed against the Solingen home of long-standing residents from Turkey, that legislative proposals for establishing a right of access to citizenship gained parliamentary approval. This piece of legislation was directly tied to the ‘asylum compromise’. The ‘asylum compromise’ was reached in the agreement between the Social Democratic Party (SPD), Germany’s major left-of-centre opposition party, and the Free Democratic Party (FDP), the liberals, who were junior members of the government coalition. It stipulated that elements of a new alien/immigration law and new regulations for access to citizenship be formulated. However, no agreement could be reached within Germany’s government coalition, so the FDP Commissioner for Alien Affairs (Ausländerbeauftragte) Cornelia Schmalz-Jacobsen, proposed on her own a new right to citizenship on 4 March 1993. During the 12th legislative period (1990–4) altogether three different draft proposals to reform the citizenship and naturalisation laws were brought before parliament for consultation. The Greens (Bündnis 90/Grünen) were the first on 4 December 1991. The SPD proposed a right to dual citizenship on 29 April 1993. Several arguments by the representatives of the Christian Democratic Union (CDU) and the Christian Social Union (CSU), the major forces in the country’s ruling right-of-centre coalition, were central in the proposal’s rejection: The Union (CDU) refuses dual citizenship … because it is irreconcilable with the essence of membership in the state … Citizenship (Staatsangehörigkeit) is bound up with a whole set of legal relationships out of which rights and responsibilities emerge … These relate to the inner core of our state and our democracy … As history has dramatically taught us, every nation (Volk) is a historical community, from which one cannot simply exit. Naturalisation must be preceded by the integration of foreigners. This is the way. These persons must adapt to this country. They must integrate themselves.

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(Marschewski: 13199. Excerpts from the parliamentary debate, Bundestag (1993) Druchsache 12/4533) After the violence in Solingen the FDP executive committee prepared a proposal to combat xenophobia and acts of aggression against foreigners. The FDP foreign minister, Kinkel, announced that he would fight for a proposal for double citizenship and local voting rights for foreigners. To leave the 1.6 million Turks out of the EU proposed local voting rights for EU foreigners after the wave of fire bombings and deaths would provoke murder and manslaughter.9 Neither dual citizenship nor voting rights for resident non-EU foreigners won parliamentary approval at that time. The split in the coalition between the Christian Democratic Union and Free Democrats on this issue continued until just before the next election in 1998. At that point the FDP did rescind from their position. The FDP Minister for Justice, Schmidt-Hortzig, expressed the FDP’s interest in extending the definition of citizenship beyond the principle of ius sanguinis to one of ius soli. It was in fact in the beginning of the 1998/9 legislative period with the compromise proposal of the FDP, which made the current legislation possible. The CDU/CSU’s refusal of dual citizenship was consistent with the policy of that government. The Minister of the Interior, Kanther, was opposed to dual citizenship, because he saw citizenship as a sign of belongingness to the Volk. According to Kanther (1 June 1996) individuals who do not know where they belong should keep their original membership (Staatsangehörigkeit). Moreover, until now the dominant opinion within the CDU and the CSU about granting a right to citizenship to the children of resident foreigners at birth is that citizenship has to be the final product of integration (Zeitelmann, 25 June 1996). The new Social-Democratic/Green coalition government took power and announced the plan to pass a new citizenship law in autumn 1999, which would permit not only ius soli for the children of legally resident foreigners, but also the passive acceptance of dual citizenship, to make it easier for the decision to become citizens. In response the Christian Democrats initiated a campaign against dual citizenship, which mobilised over 500 000 signatures. The SPD Minister of the Interior, Schilly, was committed to introducing ius soli for children of legal foreigners born on German territory, and thus he backed down from the original proposal. As a result, the passive acceptance of dual citizenship has been denied as legitimate behaviour.10 Exceptions are made only in individual cases of hardship.

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Institutional discrimination Does this change to the conditions of access to citizenship for children born in Germany of legally resident adults nullify the charge of institutional discrimination in connection with rights to citizenship? How significant is the change of access to citizenship for certain groups of foreigners in the revision of the Alien Act with respect to decreasing institutional discrimination? The cautious move for slow changes in the rights of access to citizenship was a positive step to encourage naturalisation, but it was not a sufficient means for removing institutional discrimination in the current historical context. Long-term foreign residents, third-country nationals, who were recruited to work in the country and have paid taxes for a number of years are subject to institutional discrimination. Differential treatment exists even in the case of certain residents who are now considered to have rights to citizenship such as those young persons between eighteen and twenty-three years of age, children of legally resident foreigners who meet the aforementioned specifications of eight years’ residency and six years’ schooling. These young adults do not have the same treatment, with respect to access citizenship or acceptance of dual citizenship as do ethnic Germans (Aussiedler), who are permitted dual citizenship. Moreover, despite long-standing labour migration and settlement, there continue to be two kinds of migrants. Members of the one group receive treatment equal to that of German citizens; members of the other must still prove their ability to integrate, with respect to the ability to take care of themselves and their families without recourse to social assistance or unemployment aid. This situation, along with the declared position of not being a country of immigration, and the preface to the naturalisation regulations about not seeking to increase the number of citizens through naturalisationm, are further evidence of viewing certain kinds of migration and settlement as undesirable. Different signals need to be given about the desirability of having non-Germans become citizens and about their rights to do so if rates of naturalisation are to increase. Discrimination also exists with respect to the Maastricht agreements on rights to vote in local elections. A moral contradiction exists on this issue: voting rights being granted to foreign residents of Germany who come from countries of the European Union, but not to longer standing resident foreigners. This practice can only be interpreted as the proof of a hierarchy of ethnic preferences11 and a further indicator of

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institutional discrimination against legally resident foreigners, who in the case of the Turks, are from an associated country of the EU. One of the main arguments used against granting voting rights to other resident foreigners is that non-citizens should be forced to make a choice about their citizenship loyalties. Contradictory conditions continue, however. For instance, an exception to the ethnic conditions governing the right to membership has been granted, but dual citizenship is still denied. The argument against dual citizenship usually rests on the issue of loyalty. Nonetheless, migrants of ethnic German origins, citizens of states that were former territories of the Third Reich, continue to have a right to citizenship and dual citizenship fifty years after the end of the Third Reich. Until now a substantial proportion of Germany’s foreign population was growing yearly by birth alone. In 1995 there began to be a slight increase in naturalisations.12 Until recently Germany’s foreign population expressed little incentive or belief in the desirability or utility of citizenship. In the year 2000, certainly due to the new citizenship legislation, naturalistions grew to 2.5 per cent. Nonetheless, as stated earlier, parents have not taken advantage of the new ius soli rights for their children born in Germany in the 1990s. However, for those who can apply at birth changes are to be expected. This would mean that at least in a decade, there could be a body of young adults of foreign origins, maybe as many as one million, with German citizenship who would most likely be increasingly prepared to participate in the body politic. The share of those children who took advantage of ius soli in retrospect does not seem to provide much support for this idea. The next question is whether the fact of granting a right to citizenship at birth will have an impact on the families and the entire community of eligible foreigners. If a citizenship campaign and a civic education programme gains more strength, as initially planned by the SPD–Green coalition government, it could have an impact on the willingness of adults and young adults who have not felt that they were considered to be desirable candidates for citizenship, to become citizens in larger numbers than has heretofore been the case. This would change the climate considerably, since not being a citizen is one of the major barriers to legal protection against discrimination.

Issues in the discussion about anti-discrimination legislation At first glance there may seem to be little need of specific legislation for protecting foreigners and ethnic minorities against discrimination in

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the Federal Republic of Germany. The Federal German constitution, the Basic Law (Grundgesetz), speaks of the inviolable dignity of the human being. Article 3, para. 1, proclaims the equality of all persons before the law and Article 3, para. 3 forbids discrimination or preferential treatment because of heritage, race or language: ‘no one may be discriminated against or preferred because of sex, origins, belief, or their religious or political ideologies’. Article 3, para. 3 of the Basic Law clearly states that no one may be discriminated against or given preference because of their sex, descent, race, language or country of origin, beliefs, religion, or political philosophy. If the state were to discriminate on any of these grounds it would be possible to take legal action. Rights to equal treatment as foreign citizens There are, however, two loopholes in this law. Firstly, it does not apply to foreign citizens. German courts have established that discrimination based on an individual’s citizenship is constitutional. Thus discrimination based on citizenship is permitted. In fact, there are a number of laws that discriminate between Germans and foreigners: the alien law, labour law, social insurance law, child and youth assistance law, the law for founding associations, various occupational regulations, crafts regulations, and many federal aid programmes such as the vocational assistance law (Mager, 1992). According to constitutional law, all of these rights are solely guaranteed to Germans. This does not mean that foreigners may not participate in public assemblies. However, foreigners have no basis to go before court to defend a basic right to assembly (Leskien, 1993). One expert has taken the position that to avoid discrimination it would only be necessary to remove the specification that these laws refer to the rights of ‘German citizens’ (Leskien, 1993). Some observers believe that this law is in principle applicable to members of immigrant minorities even if they do not have German citizenship (Alexy, 1994). If it is applicable, why should legislation protecting foreigners and minorities be required, considering these constitutional principles? To date, the interpretation of Article 3 is that it does not forbid discrimination on the basis of citizenship. Protection from all forms of discrimination from private persons and legal bodies Secondly, Germany’s Basic Law does not cover discrimination between private parties within civil society (Mager, 1992). Basic laws are generally considered to be laws of defence between the citizen and the state.

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Thus there is a need (a) to make an explicit reference to the rights of foreign citizens to be protected against discrimination, and (b) to pass legislation to protect persons from all forms of discrimination in legislation pertaining to relations between all private persons and between legal bodies and private persons. A lack of specific instruments within administrative law A major difficulty in the German legal system is that administrative law does nor provide explicit instruments that would permit public agencies to take action against racist discrimination. One example is the fact that in many places in Germany there are bars or discotheques that explicitly announce that Turks are not allowed entry. Theoretically, this could be countered through the legislation which controls the licensing of restaurants (Gastättengesetz) and one could reasonably refuse or withdraw the operating licence of those owners discriminating on the basis of race, colour or origin. Attempts to do this have failed. To protect their positions, owners need only to demonstrate that permitting the entry of Turks would create conflict between Germans and Turks, leading to disturbance of the peace (Leskien, 1993). Needed additions to the civil code Another example can be found in paragraph 823 of the civil code. This paragraph is intended to protect the personal rights of an individual; it should be possible to seek redress before the law if an owner or employer refuses to sign a contract with an individual for reasons of ‘race’. The German basic law (Article 3, para. 3) would substantiate this as well. A refusal to conclude a contract for racist reasons would offend the personal rights of an individual. Mager (1992) concludes that this indirect interpretation of discrimination is not adequate. Although labour laws in Germany do permit the defence of an employee against unfair discrimination (for example, if he or she is denied promotion or unjustly fired because of age, origins, gender, ‘race’ or nationality, etc.), German labour law does not apply, however, if a person is not hired for discriminatory reasons. In the case of those already employed there is a procedure, the case can be reported and pursued by the works council. This may not be very helpful if the works council is not itself favourable towards foreigners or non-Germans. Thus, even among the employed, there is a need for new possibilities to have recourse to litigation or to claim one’s rights.

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In this case it has been proposed to use as a model the precedent set by legislation addressing sexual discrimination. Progress has been possible in this area due to the enactment of a law in the civil code that specifies that it is unlawful for an employer to discriminate in hiring procedures because of one’s sex.13 This could be a good model for specifying other kinds of ethnic or racist discrimination. Reversal of the burden of proof A number of other barriers to legal recourse against discrimination exist. One of the greatest barriers to legal action in civil law is that the discriminated person must carry the burden of proof (Mager, 1992). As indicated above, directives have in the meantime been established to assist persons discriminated against because of their sex and which enable them to claim indemnity; in addition, the burden of proof has been reversed and is no longer left to the victim of sexual discrimination (John, 1994). This would be a necessary procedure to be able to provide effective protection to either foreigners or other discriminated minorities. Berlin’s commissioner for alien affairs, Barbara John, believes that this kind of legislation is required to protect foreigners and ethnic minorities. Instead of general and comprehensive anti-discrimination legislation, John believes that it is more practicable to intervene in specific laws, such as the licensing of restaurants, discotheques and bars, insurance regulations and employment laws. Although Germany is also party to a number of international conventions for the protection of human rights, this fact alone is not sufficient to protect against discrimination. The most important is CERD, the international Convention on the Elimination of All Forms of Racial Discrimination, which dates from 7 March 1966. Germany has not made a declaration under Article 14, which would permit individual petitions against discrimination. As a signatory of this convention it would be required to pass protective laws that this convention mandates within the national legislative structure. This has not yet been put into effect in Germany. Once more, this convention does not apply to the treatment of foreign citizens and does not have any influence on naturalisation and citizenship legislation. In its report to the United Nations with respect to CERD, Germany does not report on the situation of its foreign citizens, but rather on the integration of its Danish minority in the land of Schleswig-Holstein. Since unification this information has been complemented by reports on the Sorbian minorities in the former states of East Germany (Banton, 1994).

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To date, at the beginning of the second electoral period of the SPD–Green coalition government, no specific legislation for equal treatment and the protection of minorities from discrimination has been proposed in parliament. Nonetheless, as mentioned at the outset and in the previous chapter (Nickel), Germany, along with other countries of the European Union, has agreed with the signature of the Amsterdam Treaty to develop legal and institutional instruments to combat racist, ethnic or religious discrimination. According to the Equal Treatment Directive of the European Commission (Council Directive 200/43/ EC, 29 June 2000) legislative proposals and other instruments should be available and reported to the European Commission by July 2003. These proposals are in preparation in the Federal Departments of Justice and Labour. These have not yet entered the public debate. A view from the outside of government gives the impression that an attempt is being made to prepare legislation, but not to prepare the public. The state commissioners (Ausländer-beauftragten) for issues relating to foreigners and immigrants have also been focusing on the issue of the protection of ethnic minorities from discrimination. Thus, among some experts, interest has been growing in Germany in antidiscrimination legislation, but there is not yet a clear understanding of what such legislation should entail. A key issue will be the possibility of including the protection of legally resident foreigners as well as immigrant citizens in the legislation and instruments developed (Arbeitsgruppe Gleichbehandlung/ Nichtdiskriminierung, Infobrief, August 2001). This rests on the fact that, as mentioned previously, a large number of the persons who are discriminated against in Germany are indeed not German citizens. A precedent has been set in this field, however, since the constitutional court forbade insurance companies, which had until then ranked liability schemes according to nationality, to continue to do so (Ausländerbeauftragte, 1995).

Incitement to hatred and violence As important as discrimination are slander, insults and incitement to hatred and violence directed at persons because of their origins or apparent signs of difference. There are laws in Germany against incitement to hatred, insults, or violence, Volksverhetzung directed at persons as members of certain groups. Persons prosecuted for this crime can be given from three months to five years of imprisonment. It has, however, been difficult to enforce in court. Very few cases have been

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prosecuted (John, 1994). One of the reasons is that the persons must have the intention to violate the human dignity of the persons concerned. Violation of human dignity is evidently not easy to prove.14 Laws have been drawn up to fight anti-semitism and to prohibit the use of Nazi symbols, but these are very difficult to extend to other forms of racism. The Hamburg Institute for Racism and Migration Research (Leskien, 1993) submitted evidence to the public prosecutor’s office in connection with the mass incitement to hatred in Rostock-Lichtenhagen. The responsible prosecutor declined to make any inquiries with the argument that the expressions used, Ausländer raus (foreigners out) or ‘Germany for the Germans’, did not attack the right to life of foreigners and thus did not harm their human dignity. Leskien asks whether this means that only calls to murder or annihilation would be recognised as incitement to hatred before court. Nonetheless, expressions of hatred stating that Turks should receive the same treatment as was once meted out to the Jews have been recognised as constituting incitement (Leskien, 1993). There are a number of problems with the offence of insult or slander. The persons or group of persons who have been insulted must make the formal claim. Moreover, it is not clear whether a group of persons such as ‘the foreigners’ can be insulted. The line of argument in this case is that when the circle of persons who may be insulted is too large, the insult is not differentiated enough. Here, court decisions have been inconsistent in their refusal to recognise these as cases of incitement to hatred. Incitement to violence is, however, criminal according to the current legal system and may be prosecuted, although not specifically as racist violence. The question has been raised whether it is necessary to add the racist motive to characterise the motivation of the act of violence. Since the murderous attacks in Mölln and Solingen a law has been enacted which grants foreigners the possibility of retribution from the state for suffering caused by acts of violence against them.

Conclusions Germany’s constitution and signature to international agreements provide the moral basis for specific legislation to protect immigrants and ethnic minorities against discrimination and racist violence. Germany still does not recognise residents formally as immigrants, and thus as candidates for citizenship, and as long as they remain resident foreigners

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have little chance for protection against discrimination in civil society. Moreover, since access to citizenship has long been ideologised as something to be earned through assimilation or for the individual to prove through integration and rejection of their original citizenship, there are ideological barriers to the legitimacy of anti-discrimination legislation for the foreign resident as well as the autochtone. The foreign residents in most cases do not believe they have the same rights as citizens. It is the alien law and legislation between the country of origin and the German state which establishes their rights.15 German citizens as a whole believe that foreigners are protected by the basic law against racism. The issue of protection as foreigners is less clear, but would seem to be solved if these persons chose to become citizens. Foreigners, it is generally believed, have the choice. The barriers produced by historical practices and discriminatory ideologies in the migration process are less apparent to the average citizen. More specific instruments need to be established to permit public agencies to take action against racial discrimination. The international agreements need specific directives for implementation. Minorities and foreigners need to be protected from discrimination within civil society between private persons and institutions. Legal remedies need to be established to permit compensation for racist acts and discrimination. An example may be taken from sexual discrimination, where specific laws have been enacted to protect discrimination in hiring for reasons of gender. Moreover, the burden of proof of discrimination should also be reversed, and no longer left to the individual but to the agency accused of discriminating. As long as the burden of proof is left to the minority, the object of discrimination, it is also risky for a lawyer to advise a client to take a case to court. Whoever loses a case in court not only has to pay his or her own costs but pays the costs of the opponent as well. As a result it is difficult to establish precedence. Finally, as one expert has remarked, lawyers are not specialised in the field of ethnic or racial discrimination. In the German case lawyers are skilled in alien law to protect foreigners from being expelled, but none specialises in the issues of discrimination experienced by immigrants in the country (Leskien, 1993). Moreover, there is no public authority or institution with the mission to inform and advise those suffering discrimination. There is no formally established and recognised monitoring system which records and documents cases of discrimination brought to court. Unfortunately this issue has not yet been taken into consideration in the proposals now being elaborated.

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Considering the historical process involved, the current transformations in the citizenship legislation and the easing of naturalisation should contribute to awareness on all sides. Once there is a broad group of Turkish Germans who have a right to vote, one might expect more initiatives in this direction. After achieving basic changes in rights to citizenship, it remains to be seen if the governing parties will successfully launch an initiative to protect foreigners from racism and discrimination and give them a greater chance than in the past to become full members of the civil society. The fact that the children of foreigners now have the right to citizenship at birth gives some hope for progress with respect to legislation to protect minorities against discrimination and to advocate their full rights and participation in this society. However, the escalation and further polarisation of political views after 11 September 2001 and the ensuing debate on security, do not lighten the task. Nor does the current political strength of the governing SPD–Green coalition encourage a view of their ability to win the public on this issue. The German government, however, remains obligated to its signature of the Amsterdam Treaty and the obligations that follow from the Equal Treatment Directive. Notes 1 Hans Entzinger in a paper presented at the Vienna Institute of Advanced Studies in November 1994. 2 Thomas Hammar (1993) refers to resident foreigners without voting rights as denizens. 3 To permit citizenship at birth for children born in Germany of foreigners who have one parent with at least eight years’ legal resident status. 4 Due to the traditional barriers to naturalisation in Germany, this still remains the case. There are some seven million legal foreign residents in Germany and despite the change in legislation the ratio of the naturalised to the community of foreign residents is still a minority. 5 Aussiedler are German citizens or Volkszugehörige (ethnic Germans) who were resident before 8 May 1945 within the territorial boundaries of the German Reich as they were on 31 December 1937 and who left that territory after the completion of the post-war expulsion of Germans. (This definition applies to Poland, the former Soviet Union, the former Czechoslovakia, Hungary, Romania, the former territory of Yugoslavia, Danzig, the Baltic states, Bulgaria, Albania, and China.) 6 The directives for naturalisation accompanying the Citizenship Act express two basic premises of the self- understanding of the German state towards immigration and conditions for citizenship: (a) ‘The Federal Republic of Germany (FRG) is not a country of immigration; that (the FRG) does not strive to increase the number of citizens through naturalisation’

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7

8

9 10

11

12

13

(Einbürgeruntgsrichtlinien of 15 December 1977, Para.2.3). (b) The cultural conditions for citizenship (Par. 3.1) stress the condition of a voluntary and constant orientation to Germany and the German culture. Previous to these changes the Alien Act had been amended in 1991 and more importantly in June 1993 to grant a right to citizenship for young persons between 16 and 23 years. This change created an exception to German naturalisation tradition, for the preamble of the German citizenship Act (which has not yet been changed) states that naturalisation should be an exception. The first change, which took effect on 1 January 1991, gave legally resident foreigners a regular right under certain conditions: (a) The children of foreigners between 16 and 23 years of age could be naturalised as German citizens if they have eight years of residency and six years of schooling in Germany, if they give up their original citizenship and if they are not registered as having a criminal record; (b) Adult foreigners who had been legally resident for fifteen years could become naturalised citizens of Germany if they applied before 31 December 1995, gave up their former citizenship, did not have a criminal record, and could support themselves and their families without relying upon aid for unemployment (Arbeitslosenhilfe) or welfare (Sozialhilfe). The new legislation was barely approved of by Parliament and questionably passed by split vote of the state of Brandenburg coaltion (SPD–CDU) government. A decision is now pending about its procedural validity before the German constitutional court. Mord und Totschlag Suddeutsche Zeitung, 11 June 1993. There is some speculation that this is also the reasoning behind the reticence found among the majority of parents, especially among the resident Turks, who could have claimed citizenship for their children born in Germany, but did not. Pragmatic immigrants can arrange to reclaim their citizenship of origin. This is thought to be a common practice; nonetheless naturalisation statistics of persons of Turkish origins do not indicate that this is as widespread as might be suggested. Since the statement of Giscard d´Estaing about the undesirability of Turkey as a Muslim country joining the European Community, it is clear that it is not only Germany that harbours prejudice vis-a`-vis Turks. In 1996 around 9 per cent of the population in Germany were foreigners. The demographer Münz (1996) then estimated that if naturalisation rates remained as they were, Germany should have a foreign population of between 14 and 25 per cent in the next forty years. At that time the naturalisation rate was about 1.2 per cent. In the year 2000 naturalisation rates were at 2.5 per cent. But Germany still remains a country with one of the lowest rates in Europe. In most comparable European countries naturalisation rates range between 3 and 5 per cent. In a number of other countries children of an immigrant population become citizens by birth, under less rigid conditions, and do not appear in the naturalisation statistics. This is the case in France, Great Britain, Belgium and the Netherlands. German labour laws do have a clause which protects employees against being sacked for discriminatory reasons, but a potential worker is not protected against discrimination in the hiring process.

Czarina Wilpert 267 14 The Initiative of Black Germans have attempted to bring to court incidents which they considered incitement to racial hatred or a violation of human dignity, but with little success. Legal action against the use of racist symbols which are not specific to National Socialism is much more difficult to accomplish. 15 The question would be whether the foreign resident believes that he or she should have the same right as the German residents. Most studies indicate that foreigners, and especially those of Turkish origin, believe that they are discriminated against in Germany. The responses to this may be expected to be different depending on the social context, generation and de facto opportunity structure. Also, minority groups from Turkey feel generally less discriminated in Germany. This rests on their feelings of experienced discrimination in the country of origin.

References Alexy, H. (1994), ‘Integration und Minderheitenschutz – Überlegungen aus Anlaß der Diskussion um die Verankerung des Minderheitenschutzgesetzes im Grundgesetz’, in Minderheiten- und Antidiskriminierungspolitik: Alternative zur Integration?, Friedrich-Ebert-Stiftung (ed.), Bonn: 43–60. Banton, M. (1994), ‘The Twelfth Report of Germany under the International Convention on the Elimination of all Forms of Racial Discrimination’, New Community, 20, 3: 496–501. Bauböck, R. (1992), ‘Immigration and the Boundaries of Citizenship’, Monographs in Ethnic Relations, Centre for Research in Ethnic Relations (ed.), University of Warwick. Beauftragte der Bundesregierung für die Belange der Ausländer (ed.) (1992), Jugend ohne deutschen Pass, Bonn. Beauftragte der Bundesregierung für die Belange der Ausländer (ed.) (1993a), Entwurf eines Gesetzes zur Änderung und Ergänzung des Staatsangehörigkeitsrechts, Mitteilungen, Bonn. Beauftragte für die Belange der Ausländer (ed.) (1993b). Das Einbürgerungs- und Staatsangehörigkeitsrecht der Bundesrepublik Deutschland, Mitteilungen, Bonn. Beauftragte der Bundesregierung für die Belange der Ausländer (ed.) (1995a). Bericht der Beauftragten der Bundesregierung für die Belange der Ausländer über die Lage der Ausländer in der Bundesrepublik Deutschland, Mitteilungen, Bonn. Beauftragte der Bundesregierung für die Belange der Ausländer (ed.) (1995b). Diskriminierung von Ausländern in der Kfz-Versicherung, Mitteilungen, Bonn. Brubaker, R. (ed.) (1989), Immigration and the Politics of Citizenship in Europe and North America, London: University Press of America. Brubaker, R. (1992), Citizenship and Nationhood in France and Germany, Cambridge, Mass.: Harvard University Press. Bundestag (1993a), Tagesordungspunkt 6: Erste Beratung des vom Bundesrat eingebrachten Entwufs eines Gesetzes zur Änderung und Ergänzung des Staatsangehörigkeitsrechts, Bonn, Deutscher Bundestag, 11 November 1993, Drucksache 12/5684. Bundestag (1993b), Tagesordnungspunkt 8: Erste Beratung des von der Fraktion der SPD eingebrachten Entwurfs eines Gesetzes zur Erleichterung der Einbürgerung und Hinnahme der Doppelstaatsangehörgkeit, Bonn, Deutscher Bundestag, 29 April 1993, Drucksache 12/4533.

268 Challenging Racism in Britain and Germany Bundestag (1993c), Der Bundesrat: Entwurf eines Gesetzes zur Änderung und Ergänzung des Staatsangehörigkeitsrechts, Bonn, Deutscher Bundestag, 16 September 1993, Drucksache 12/5684. Bundestag (1994), Plenarprotokoll 12/225 des Deutschen Bundestages vom 28 April 1994 zum Tagesordnungspunkt 3, Bonn, Deutscher Bundestag, 28 April 1994, Plenarprotokoll 12/225. Bundestag (1996), Stenographischer Bericht des Plenarprotokoll des Deutschen Bundestages vom 08.02.1996 zum Tagesordnungspunkt 5 (Neuregelung des Staatsangehörigkeitsrechts), Bonn, Deutscher Bundestag, 8 February 1996, Plenarprotokoll 13/99. Bundestag, Deutscher (o.Z.), Bündnis 90/ Die Grünen: Entwurf eines Gesetzes zur Regelung der Rechte von Niederlassungsberechtigten, Einwanderinnen und Einwanderern, Bonn, Deutscher Bundestag, Drucksache 12/1714. Bundestag, Deutscher (1999), Entwurf eines Gesetzes zur Reform des Staatsangehörigkeitsrechts, 16 March 1999, Druchsache 14/533. Çinar, D. (1993a), From Aliens to Citizens: a Comparative Analysis of Rules of Transition, Vienna: Institute for Advanced Studies. Deutsche Nationalstiftung (ed.) (1994), Resolution zum Thema Staatsbürgerschaft und Einwanderungspolitik in Deutschland, Hamburg. Deutsches Ausländerrecht (1997), 12. Auflage, Bonn: Beck-Texte im dtv. DGB-Bundesvorstand (ed.) (1993), Beschluß des DGB-Bundesvorstandes vom 09. November 1993 zu den Anforderungen an eine Gesetzgebung zum Schutz vor ethnischen Diskriminierungen. Die Ausländerbeauftragte des Senats von Berlin (ed.) (1994), Was tun gegen Diskriminierungen? Alltägliche Diskriminierungen und internationaler Schutz, Berlin. Die Ausländerbeauftragte von Berlin (ed.) (1992), Schutzgesetze gegen ethnische Diskriminierung, Berlin. Douglas, M. (1987), How Institutions Think, London: Routledge & Kegan Paul. Fleischer, H. (1990), ‘Entwicklung der Einbürgerungen seit 1986’, Wirtschaft und Statistik, 5 (1990): 319–22. Forum gegen Rassismus, Arbeitsgruppe Gleichbehandlung/ Nichtdiskriminierung, Umsetzung Article 13 des EG-Vertrages, Amsterdamer Vertrag, Infobrief, Berlin, August 2001. Habermas, J. (1990), ‘Staatsbürgerschaft und nationale Identität’, in Faktizität und Geltung – Beiträge zur Diskurstheorie des Rechts und des Rechtsstaates, Frankfurt am Main, Suhrkamp. Habermas, J. (1992), ‘Citizenship and National Identity: Some Reflections on the Future of Europe’, Praxis International, 1, 12: 2–19. Hammar, T. (1993), ‘Political Praticipation and the Civil Rights in Scandinavia’, in Racism and Migration in Western Europe, J. Wrench and J. Solomos (eds), Oxford: Berg Publisher, pp. 115–28. Hopf, C. (1992), ‘Einführung: Zu den Fragestellungen der Veranstaltung und zu den Begriffen “Ethnozentrismus” und “Rassismus”’, in Lebensverhältnisse und soziale Konflikte im neuen Europa, Bernhard Schäfers (ed.), Frankfurt/New York: Campus Verlag, pp. 379–81. John, B. (1994), ‘Antidiskriminierungsgesetze als Chance?’, in Was tun gegen Diskriminierung?, Die Ausländerbeauftragte des Senats von Berlin (ed.), Berlin. Kohl, H. (1993), ‘Freedom of Speech and Hate Expression: the German Experience’, New Community, 20, 1: 147–54.

Czarina Wilpert 269 Koopmans, Ruud and Paul Statham (1998), Challenging the Liberal Nation-State? Postnationalism, Multiculturalism, and the Collective Claims Making of Migrants and Ethnic Minorities in Britain and Germany, Wissenschaftszentrum, Berlin. Leskien, D. (1993), Paper delivered at the Conference on Discrimination, Racism and Citizenship, 25–27 November, Anglo-German Foundation Report. Mackert, J. (1999), Kampf um Zugehörigkeit: Nationale Staatsbürgerschaft als Modus sozialer Schliessung, Opladen. Mager, U. (1991), Schutz der Ausländer vor Diskriminierung druch Privatpersonen – Das geltende Recht sowie Rechtsgutachten, Berlin, Freie Universität Berlin, Mager, U. (1992), ‘Schutz der Ausländer vor Diskriminierung durch Privatpersonen: Das geltende Recht sowie Möglichkeiten und Grenzen der Verbesserung’, in Schutzgesetze gegen ethnische Diskriminierung, Die Ausländerbeauftragte, Berlin, Senatsverwaltung für Soziales. Migration und Bevölkerung, Humboldt Universität zu Berlin, Ausgabe, 4 May 2002: 1–2. Migration und Bevölkerung, Humboldt Universität zu Berlin, Ausgabe 7 September 2002: 1–2. Miles, R. (1991), Rassismus: Einführung in die Geschichte und Theorie eines Begriffs, Hamburg: Argument. Rittstieg, H. (1991), ‘Das neue Ausländergesetz: Verbesserungen und neue Probleme’, in Das neue Ausländerrecht. Kommentierte Einführung mit Gesetzestexten und Durchführungsverordnungen, Barwig u.a. (ed.), 30–8. Soysal, Y. N. (1994), Limits of Citizenship. Chicago: Chicago University Press. SPD, Vorstand der (1995), Leitlinien für eine moderne Integrationspolitik,14–17 November, Referat für Öffentlichkeitsarbeit. Thränhardt, D. (1995), ‘Die Reform der Einbürgerung in Deutschland’, in Forschungsinstitut der Friedrich-Ebert-Stiftung, 63–116. Turner, B. (1990), ‘Outline of a Theory of Citizenship,’ Sociology, 24, 2: 189–217. Turner, B. (1993), ‘Contemporary Problems in the Theory of Citizenship’, in Citizenship and Social Theory, B. Turner (ed.), London: Sage Publications, 1–18. Wieviorka, M. (ed.) (1994), Racisme et xénophobie en europe: une comparaison internationale, Série Sociologie, Paris. Wilpert, C. (1991), ‘Migration and Ethnicity in a Non-Immigration Country: Foreigners in a United Germany’, New Community, 18, 1: 49–62. Wilpert, C. (1993), ‘The Ideological and Institutional Foundations of Racism in the Federal Republic of Germany’, in Racism and Migration in Europe in the 1990s, J. Solomos and Wrench, J. (eds), London: Berg Publishers.

Texts of legislation: Einbürgerungsrichtlinien (1977). Grundgesetz für die Bundesrepublik Deutschland (1992). Internationale Liga für Menschenrechte, Bausteine Diskriminierungsgesetz.

für

ein

Anti-

14 Afterword: Reflections on Challenging Racism and Discrimination in Britain and Germany Zig Layton-Henry and Czarina Wilpert

Rights to citizenship are central to challenging racism and discrimination. The perception of legitimate rights to political participation provide the grounds upon which disadvantaged and discriminated minorities may begin to mobilise against racism and discrimination. This is particularly true for minorities created through the process of international migration who may not be considered part of the national community for several generations. Britain and Germany have entirely different historical traditions with respect to citizenship and the nation-state, but both states have used their citizenship policies to differentiate rights of access to full participation in the body politic. Britain used the limitation of immigration rights of British subjects at the end of the colonial period to disqualify holders of British passports in colonies and former colonies from the right to become resident citizens of Britain. This limitation of previous immigration rights was done in tandem with the initiation of the first ‘race relations’ legislation to protect distinctive, non-white minorities in Britain from racism and discrimination. Until May 1999 German citizenship legislation was based primarily on descent and a belief in ethnic homogeneity. Despite four decades of de facto immigration and settlement of foreign labourers and their families, Germany adhered to the concept of an ethnic nation-state, where the preamble to the naturalisation code expressed this procedure to be exceptional. Making foreigners into citizens was not encouraged and could be allowed only if they showed a high degree of assimilation with the German community. 270

Zig Layton-Henry and Czarina Wilpert 271

The Social Democratic–Green coalition government also initiated the first year of their government in 1998 with the proclamation of the new Federal Minister of the Interior, Schily, that Germany had zero migration needs and should continue to be a non-immigration country. At the same time the minister announced a new citizenship law to extend the rights to citizenship beyond ius sanguinis (descent) to a conditioned ius soli (birth on state territory). This for the first time gave the children of legally resident foreign citizens the right to citizenship with birth, and the opportunity for an additional claim from all children of legal foreign residents born on German territory in the last ten years who register within a limited period time. This piece of legislation can be considered a major qualitative change for children born to parents who have been legal residents for at least eight years. This can be considered an important step in indicating the legitimacy of rights to belongingness in the German state. It is an invitation to the children of long-term residents to participate in the political and civic life of Germany. Only time will tell if the invitation has been positive enough. Will the long-time foreign residents of Germany perceive the new legislation as an opportunity? Will the establishment of new rights to citizenship at birth for the descendants of resident foreigners and the reduction of the period of residency needed to apply for citizenship (from fifteen to eight years for adult foreigners) have a significant impact on the political participation and the demand for rights of recognition and equality? The naturalisation rates climbed slowly but steadily among foreigners in Germany in the late 1990s, but they are still far below the same rates for similar nationalities in neighbouring countries. The year 2000 could be an opportunity for another turning point, if the campaign to encourage foreign residents to become citizens is forceful enough. Citizenship legislation was achieved in Germany, but with the compromise of refusing to permit dual nationality beyond the ages of 18–23 years, when a choice must be made. The outspoken campaign against dual citizenship for immigrants initiated by the Christian Democratic Party, which mobilised over five million voters, was the biggest success in changing legislation in postwar German history. The result is that, even after thirty years’ residence, the foreign adult population is still forced to make a choice if they wish to become citizens. What impact will this campaign, which questions the loyalty of immigrants, have on their perception of being welcome and desirable citizens in their country of residence?

272 Challenging Racism in Britain and Germany

Can a slightly changed naturalisation law, which reduces the waiting period from fifteen to eight years, be perceived as a change in sentiment towards immigrants, once again considered incapable of integration? Nonetheless, in many ways Britain and Germany have now reached a turning point. After over twenty-five years of anti-discrimination legislation in effect as race relations laws in Great Britain, considerable revisions are proposed in the debate which would create a more holistic approach to discrimination affecting a number of disadvantaged minority groups for reasons of ‘race’, skin colour, national origins, ethnicity, and for the first time sexual orientation and religion. This is happening at the same time that, as a result of the Treaty of Amsterdam, the European Community has issued guidelines for an equality policy designed to address the protection of all persons discriminated against, whether for reasons of ‘race’, skin colour, ethnic/national origins, religion, physical disability, age or sexual orientation. A commission of representatives of the members states is now actively designing directives on how this policy should be implemented at the national level. Will the combined strength of a new awareness of citizenship rights in Germany, and a more universal approach to all kinds of discrimination moving towards a broader definition of the vulnerable and oppressed, mobilise the solidarity necessary for the body politic to initiate and implement new policies at the national level? The European member states have already agreed to pursue this objective in articles 13 and 137 of the Amsterdam Treaty, but will this receive the necessary support at the national level? Can it be assumed that such decisions at the level of the representatives of national governments will be more effective in setting guidelines than initiatives from the bottom up within the individual states? What are the burning issues which Britain, Germany and the other European member states face when reflecting on an effective equality policy?

British issues • There is a need to define discrimination; in particular, a practical definition of indirect discrimination is needed so that successful remedies can be sought, and institutional discrimination needs to be defined and redressed.

Zig Layton-Henry and Czarina Wilpert 273

• Consideration needs to be given to affirmative action as a means to combat indirect and institutional discrimination. • The issue of whether it is appropriate to collect data on ethnic origins in the Census, ostensibly to combat discrimination, needs to be further debated with reference to the dangers of stereotyping non-white ethnic groups. • There is a need to find ways to target resources towards community groups in inner-city areas which suffer high levels of discrimination and urban deprivation. • Community groups need to be more involved in decisions on actions to regenerate their environment and quality of life. • Should any groups be exempt from the full coverage of the race relations laws as the police and immigration officers have been in the past? For example, although religion has been excluded from anti-discrimination legislation in all parts of the UK except in Northern Ireland, should it now be included, perhaps as part of a Human Rights Act outlawing discrimination on grounds of ethnic origin, race, religion, sexual orientation, age and physical disability? Such a holistic approach is encouraged by the Amsterdam treaty. • Anti-discrimination legislation is grounded in the civil rather than the criminal law, and hence offers the advantage of financial compensation for the victims. However, out-of-court settlements conceal the extent and seriousness of unlawful discrimination, and this lack of documentation needs to be addressed, especially as it enables institutions to escape from reforming their procedures and practices to prevent unlawful acts. • Relying on individual court actions for redress assumes that acts of discrimination are the results of isolated individual acts rather than being institutional and rooted in the culture of society. Should class action be permitted to redress specific forms of institutional discrimination and racism and so assist institutional and cultural change? • How can young people be encouraged to achieve greater educational and employment success as a means of combating social exclusion and gaining more equal citizenship, partly though greater political participation? • How best can racist attacks and racist violence be eliminated, and how can it be ensured that the police deal with these cases appropriately and effectively?

274 Challenging Racism in Britain and Germany

German issues • In Germany, various minorities have very different legal status, for example citizens have different historical legitimacy, and there are differences between citizens and foreigners. • Norms are needed to make possible effective protection against racist violence, since it is currently difficult to combat symbols which carry racist messages, except for the recognised Nazi symbols of racism. • Greater awareness is needed of how institutional racism and social disadvantage contribute to inequality. How can the significance of citizenship and participation be addressed, given that: (a) Awareness of discrimination toward foreigners is lacking. (b) There is little political interest in the topic, and fear of a backlash given the popular view against dual citizenship. (c) National proposals currently in discussion lack awareness of the need for a mandate for an enforcement agency, ethnic monitoring, or positive action measures. (d) Cases of discrimination need to be documented, and a central register of court cases established. (e) Reversing the burden of proof has been effective in cases of sexual discrimination, and should also be adopted in cases of racial discrimination. (f) Risk (financial responsibility) is a problem for individuals taking cases to court. (g) The current major opposition parties, the CDU and FDP, do not address the issue of racist discrimination and the CDU in particular may use it again to mobilise voters. On the other hand, Article 13 of the Amsterdam treaty might influence their response. (h) Currently (early 2001) the federal government is preparing legislation to meet the directives of the Amsterdam treaty with respect to equality. So far this is not foreseen as a comprehensive piece of anti-discrimination legislatio; instead the respective ministries – at present the Ministries of Justice and Labour – are designing legislation which would protect minorities from discrimination in the realm of civil law and within the labour market. There has been to date only very limited public discussion of this legislation. (i) For persons of non-German ethnic origins, there remains the question of the definition of elegibility, that is, of who is

Zig Layton-Henry and Czarina Wilpert 275

discriminated against on grounds of ethnic origin. Moreover, there remain the issues of protection and discrimination in respect of long-term residents who are not citizens but who may still be discriminated against on the grounds of nationality. If citizenship is not seen as a legitimate right of immigrants independent of national origin, and if the criteria for membership continue to be loyalty and degrees of integration into German society, there remains a danger that over the next decade and beyond, when those who have become citizens through ius soli come of age, discrimination based on nationality differences may remain a real issue. Some inspiration with respect to this issue might be gained from Bauböck’s discussion of alternative models for access to citizenship, which rest on the comprehensiveness of membership, and granting of civil rights to all permanent members of the society in which the state is organised, including the substantial elaboration of these rights with respect to civil liberties, rights to political participation and social welfare rights. The essential criterion for membership is social membership won through social ties within the society of the state where one is a candidate for citizenship. The right to citizenship is best proven through the length of stay and should be open to the totality of the settled population. Finally, legislation is significant not only for the redress and protection of minorities who suffer discrimination, but also because it sensitises public opinion, creating new norms for public behaviour towards minorities. Perhaps the implementation of the objectives reiterated in Articles 13 and 137 of the Amsterdam treaty may fulfil this role by sensitising the citizens of the countries of Europe to new norms in relation to all minorities who suffer discrimination. However, racism needs to be challenged at both national and European levels, so national legislation and its effective implementation are also crucial weapons in challenging racism in Britain, Germany and the whole of the European Union.

Index action plans 202–3, 212–18 acts of parliament see legislation Adorno, Theodor W. 155 affirmative action 16, 182–3, 200, 215, 217–18 Africa 6, 49, 101, 211, 238 African Asians 68, 71, 101 African-Caribbeans ix–x 11, 63, 89, 181–2, 194 aid programmes 259–60 Albanians 48, 54 Alber, Jens 148 Alexy, H. 259 aliens 251–3, 258–9 of the Länder 261 Allensbach Polling Institute 127 Alsatians 49, 54 America see United States of America Amin, K. 92 Amsterdam xi, 176, 222, 246, 268–70 Angles 168 Anglo-German Foundation xi anti-discrimination law in Britain 14–19, 174, 189–205, 268–70 in Germany 19–21, 245–69 anti-semitism 11–13, 122–32 Anti-Social Behaviour Orders 120 apartheid 191 Arabic nationalism 52 Arendt, Hannah 27, 43 Argentina 72 Aristotle 27 Armenians 47, 53 Arndt, Ernst Moritz 48 Arnold, H. 137 Aryan peoples 47–8, 53, 249 Asia 47, 52–4, 181 African Asians 68, 71, 101 Asian Britons ix, 10, 11, 62–3: and the law 169, 175, 193; and racism 89–90, 95, 101, 103–4

asylum 243, 250–1 -seekers 1–3, 12–13, 123–61 passim, 182 Athens 28, 30, 41 Auschwitz 130, 131n Aussiedler (ethnic Germans) 251, 252, 254, 257 Australia 45n, 203, 204 Austria 1, 55, 150, 157–8, 168, 238 Empire 51, 54 Aye Maung, N. 180 Azerbaijanis 53 Balibar, E. 141 Bangladeshis 10, 17, 101–3, 169, 211 Banton, M. 3, 87, 204, 255, 261 Basic Law (Grundgesetz) 2, 18, 20, 51–9 passim, 220–69 passim Bauböck, Rainer xii, 7–8, 249, 269 Bavaria 49, 159, 228 Bedington, R. 216 Belfast Agreement 186 Belgium 74, 150, 153–4 Bergmann, Werner xii, 11, 122 Berlin xi, 33, 57–8, 219, 231 Plitz Bridge 123, 129 Bermuda 69 Berthoud, R. 211 Bethnal Green and Stepney Trades Council 3, 110 Betz, Hans-Georg 147, 151–2, 157–8 Bhose, R. 117 Bielefeld, U. 137 Bindman, Geoffrey 10–11 Birmingham 93, 197 Bismarck, Prince Otto von 4, 46, 50–2, 54, 57 Björgo, Tore 147–8 Black Power 178 Bohemians 50 Bohn, I. 12, 144 Bosnians 54 276

Index 277 Bradford 88 Brandenburg 158 Brent 89 Bridges, L. 113, 115 Bright, J. 117 Bristol 111, 118 British Crown 64, 75, 120, 182 British Empire 5, 7, 64–6, 74–5, 168–9 British issues 270–1 Brown, C. 17, 181, 193 Brubaker, W. R. 60–1, 249–50 Bubis, Ignatz 129–30 Buck, Nick 95, 97 Cable Street 177 Calland, R. 112 Campbell, R. 115 Canada 65, 199, 203, 204 Caribbean peoples 6, 10, 17, 62, 211 and racism 81, 93–8, 101, 103–5 Cashmore, E. Ellis 87 CBI 207 Celts 168 census (1991) 96–104, 119, 169, 270 Central Community Relations Unit (Belfast 1992) 185 Charlemagne 50 Charter of Fundamental Rights of the European Union 222 Chelsea 117 Chief Police Officers, Association of 180 China 7, 64, 75 Chinese 1, 17, 103, 185, 211 Christian Democratic Union (CDU) x, 129, 255–6, 265, 272 and extremism 150, 158–9 Christian Social Union (CSU) x, 159, 250–1 Church Councils 50 church model of citizenship 8, 26, 29–31 cities 85, 92, 104–5 inner 10, 17, 105, 182, 271 see also urban areas citizenship ix–x British 5–9, 30, 60–77, 269

German 3–5, 18, 20–1, 46–59, 245–69, 270–2 models of 8, 25–45, 60–1 and nationality 23–77 nominal 44–5 optional 26, 40 rights to 12, 270–2 city model of citizenship 8, 26, 31–4 civis Britannicus sum 65–9, 75 claims 232–3 class action 197–8, 200 club model of citizenship 8, 26–9 coalition government x, 14, 238, 258, 271 Cold War 29 Cologne 137 colonies 5–7, 64–5, 69–70, 270 Commission for Alien Affairs 255, 261–2, 264 Commission for Human Rights 16, 186, 199 Commission for Racial Equality (CRE) ix, 10, 15–19, 88–9, 171–209 passim, 236 Commissioners for Foreigners 236 Commonwealth 5–6, 14, 64–8, 73–5, 170–1 citizens 3, 30, 68, 71 of Independent States (CIS) 52, 128–9 New 62, 66–7, 76, 92, 169 communism 53, 262 company model of citizenship 8, 26, 34–7 competencies 210–11 Compulsory Competitive Tendering (CCT) 118 Congress of Vienna (1815) 50 Conover, P. 60 Conservative Party 6, 14, 61, 65–73 Constant, Benjamin 30 constitution, German see Basic Law Constitutional Court (FCC) 224, 234, 253 Council of Europe 202 courts 20, 115, 182 Appeal 117–18 cases in 192–6 constitutional 224, 234, 253

278 Index courts continued county 115–17, 192, 194 European 176, 199, 229, 234, 239, 256 Sheriff 192, 194 Coussey, Mary xii–xiii, 17–18, 209, 216 Crewe, I. 60 Crime Survey, British 94, 180 criminal code 130, 229–30 Croatians 54 Cross, Malcolm xiii, 9–10, 82, 85, 88–91, 95, 104–5 Crown, British 64, 75, 120, 182 culture 48–50, 54–7 Cunningham, Ray xi curfew 120 Cyprus 6 Czechoslovakia 47, 53, 252 Daniel, W. ix, 17 Darlington 118 Darmstadt 137, 142 Darmstädter Echo 139–40, 142 Darmstädter Tageblatt 140–1 Davis, James C. 155 Davis, N. 169 Declaration of Vienna (1993) 190, 201 Denmark 9, 148–50, 153–4 Danes 20, 51, 168, 255 Denton N. A. 85–6 Der Spiegel 129 Deutschkron, Inge 126 disadvantage 183, 197, 206, 210 discrimination 15, 199, 208–10, 236, 243–69 and civil law 171–7 convention (UN) 191, 224, 238, 254–5 direct 228–9, 232, 245 disability 186, 200 ethnic 221–3 grounds of 172, 184–5 indirect 15, 19, 105, 173, 191–245 passim institutional 175, 244–6, 251–3, 267–8 law (British) 14–19, 174, 189–205, 271–2

law (German) 19–21, 219–59, 266 lawful 20, 254 positive 16, 182–3, 200, 215, 217–18 sex 173, 176, 186, 199, 223–69 passim see also legislation Dittrich, E. J. 137 Docklands 93 Dortmund 137 Douglas, M. 249 Dover 1 Duffield, M. 84 Dummett, A. 64, 169 Durkheim, Emile 156, 250 Edinburgh 197 education 8–19 passim, 172–200 passim, 223 Eire see Ireland Emnid Institute 122, 124, 127, 130n Empire 50–1, 54, 60 British 5, 7, 64–6, 74–5, 168–9 see also Reich employment 13–19 passim, 57–8, 102–4, 157–73 passim, 192–237 passim Code of Practice 17, 196, 207, 215–16 employers 206–18, fair 15, 185–6, 218 tribunals 209, 212 unemployment 97–8, 101, 181, 183, 249 see also legislation England 50, 62–3, 105, 109 and the law 167, 180, 184, 192, 194 entrepreneurship 103–4 Environment, Department of 92, 112 Equal Employment Directive 221 Equal Employment Opportunity Commission (EEOC) 236 Equal Opportunities Commission 19 equal opportunities initiatives 208, 213–18 Equal Treatment Agency 221

Index 279 Equal Treatment Directive 19, 219–42, 247 equal treatment principle 227–32 Equality Commission for Northern Ireland 186 Equity Commission 199 Esping-Anderson, G. 84 Essen 219 ethnic nationalism 46–59 and cleansing 5, 47 Eurobarometer 152, 161n European Commission 19, 152, 168, 221 European Community 91, 219–44 law 176, 200, 229, 233 see also European Union European Convention on Human Rights (1950) 175–6, 190–1 European Court of Justice (ECJ) 176, 199, 229, 234, 239, 256 European Union (EU) 190–1, 219–44 Council of Ministers 18–19, 176, 190, 221: directives 18–19, 219–42 xenophobia in 152–5 European Year against Racism (1997) 238 Evans, T. 185 examination results 100 exclusion 4–5, 9, 157, 226–7, 267 Express Köln 143 Fair Employment Commission 15, 185–6, 218 Faist, T. 9 Falkland Islands 7, 69, 71–2, 75 Falter, Jürgen W. 157–9 fascism 177, 243 Federal Republic of Germany (FRG) 2, 5, 18, 51–7 passim, 122–46 passim, 245–69 West Germany 14, 125–9 Ferdinand the First, Kaiser 134 Feuerhelm, W. 144 Fichte, Johann Gottlieb 46, 51 Fiddick, P. 62 First World War 47 Fitzgerald, M. 93, 110–11, 113, 115

Forbes, D. 110–11, 113, 120 Ford Report (1991) 202 foreigners 236 Foreman, J. 216 Förster, W. 124–5 France 1, 29, 32, 139, 247 and citizenship 46, 49–50, 54–6, 74 and extremism 147–50, 153–4, 157–8 and the law 168, 194 Frankfurt 51 Frankfurter Allgemeine Zeitung 140, 142 Frederick the Great 50–1 Free Democratic Party (FDP) 255, 268 freedom of contract 219, 224 Freedom Party 1 Freiheitliche Partei Österreichs 151, 157 Fremskridtspartiet 151 Fremskrittspartiet 151 French Revolution 29 Front National 1, 147, 151, 157 Fulham 115 Fundamental Law, Federal German see Basic Law Galinski, Heinz 130 Gay, P. 181 German Democratic Republic (GDR) 52, 122, 257 East Germany 124, 126–9, 154, 255 German issues 268–9 Gibraltar 7, 71–2, 75 Ginsburg, N. 115 Giordano, Ralph 126 Good Friday Agreement 186 goods and services, supply of 14, 173, 192, 196, 223–6, 237 Göttingen 49 government British 5, 14, 64, 68–9, 71, 184–5 coalition x, 14, 238, 258, 270 Greece 30, 153–4, 161n, 200 ancient 28, 30 Green Party x, 14, 238, 255, 263, 270

280 Index Gregory, J. 193 Gronemeyer, R. 136 ‘guestworkers’ x, 2–5, 248, 268 Gurr, Ted R. 155 gypsies xi, 122, 133–45, 172 Habermas, J. 250 Hackney 93, 115, 117 Haider, Jörg 1 Hamas movement 124 Hamburg Institute for Racism and Migration Research 263 Hamburger, Franz xiii Hamm, Mark S. 147 Hammar, T. 249 Hammersmith 115 Hansard 70–1, 73, 170 harassment 11, 180–1, 201, 207, 210, 228–30 and local authorities 109–21 Hattersley, Roy 71, 170 Haus der deutschen Kunst 54 health 19, 136, 223 Heath, Edward 68, 170 Hebler, M. 144 Heine, Heinrich 49 Heitmeyer, Wilhelm 147, 152, 155–6 Henderson, R. 64 Herder, Johann Gottfried 46, 52 Hessians 228 Hindus 51, 53, 56, 101, 172 history 53, 74, 251, 264 of British Empire 64–6 German-Jewish 122–3, 128–9 gypsy 133–5, 137 Middle Ages 54, 134 nation-states 46, 50–2 Hitler, Adolf 178, 252 Holocaust 11–12, 47, 122–3, 128 Holy Roman Empire 50 Home Affairs Committee 73 Hong Kong 7, 69, 71, 75 Hood, Roger 95, 182 Hopf, C. 249 housing 14, 172–3, 182, 192–237 passim law 114, 119–20 rented 8, 11, 111–14, 119

Howe, Sir Geoffrey (QC) 171 Hoyerswerda 2, 12, 129, 158, 254–5 Huguenots 50 human biology research 136 human rights 4, 15–26 passim, 220–2, 229–30 Agency 16, 199 Commission on 16, 186, 199–201: Standing Advisory 15, 185–6, 214 European Convention on 175–6, 190–1 law 175, 190, 200, 270 Hungary 47, 50–1, 53–4, 252 Illyrians 48 immigration 1, 21, 168–70, 182, 210–69 passim German x–xi, 57–9 law 67–9, 170 postwar 5–7, 10–11, 66–7, 73–4, 92 Immigration and Nationality Department 73 Imperial Conference (1914) 65 incitement to hatred and violence 15, 256–8 India 47, 53, 134 Indians 17, 101–2, 211: and citizenship 6, 62–5, 68, 72, 74; and the law 169, 183 injunctions 11, 115–17 Institute for Applied Social Research Studies 125 International Labour Organisation (ILO) 246–7, 248 international obligations 190–1, 200, 264 Intifada campaign 124 IPD 207 Iqbal, Sir Mohammed 52–3 Ireland 6, 9, 74, 153–4, 184 Irish 54, 62, 67, 168, 172 see also Northern Ireland Islam 56, 57, 101 Israel 124, 127, 129 see also Jews Italy 6, 50, 54, 168 and extremism 147, 153–4, 161n

Index 281 ius sanguinis (descent) 4, 25, 45n, 61–70 passim, 247–65 passim ius soli (territoriality) x, 6–32 passim, 62–72 passim, 247–69 passim Jäger, S. 144 Jamaica 62 Jaschke, Hans-Gerd 147, 152 Jews xi, 87, 168, 172, 257 anti-semitism 11–13, 15, 122–32, 143 and citizenship 51, 53, 58 Jodice, D. A. 122, 127 John, B. 261–3 Joint Committee against Racialism 110 Jones, T. 101, 182 Jordan, Colin 178 Judge Institute of Management Studies 212 Kaplan, Jeffrey 147 Kasarda, John 95 Kawczynski, R. 134 Keith, Michael 105 Kennedy, John F. 189 Kensington 117 Keynesian employment policy 157 Kinkel, Klaus 129, 256 Kitschelt, Herbert 147, 152, 155, 157, 160 Klein, Marcus 157 Koopmans, Ruud 148–9, 155, 247 Koran 56 Kornhauser, William 156 Kosovo 48 Kriesi, Hanspeter 155 Küchler, Manfred 153–4, 161n Kühnel, Wolfgang xiii, 13, 148 Labour Force Survey 181 government 5, 14, 68–9, 71 market 8–20 passim, 181–2, 206, 213 Party 5, 75, 170, 178 Ladislaus, Voyvode (gypsy) 134 Langensalza 134 law

anti-discrimination 14–21, 174, 189–205, 219–59, 270–1 centres 197, 212 citizenship x, 268–9 civil 171–7, 197 Civil Code 220, 223–4, 234, 237, 255–6 common 16, 170, 177 constitutional 2 criminal 15, 177–80, 197 employment x, 212–13, 230, 234 enforcement 191–9, 232 European Community 176, 199, 219–42 immigration 67 international 20, 68 nationality (British) 7, 68–9, 71 and policy (British) 167–88 race 167–88, 227 sex 193 see also Basic Law; legislation Lawrence, Stephen 3, 11, 175 inquiry 119–20, 202–3 Layton-Henry, Zig xiii–xiv, 5, 170 Leeds 119 Lega Nord 151 Legal Aid 196 legal strategies 109–21 legislation ix–xi, 2–5, 169 Alien Act (Germany 1991) 249, 251 anti-discrimination (British) 14–19, 174, 189–205, 270–1 anti-discrimination (German) 19–21, 219–59, 269 Asylum Act 2, 12, 249–250 Citizenship Act 249, 264–6 Civil Rights Acts 236 Coloured Seaman’s Order (1925) 65 Commonwealth Immigrants Act (1962) 67, 170 Commonwealth Immigrants Act (1968) 67, 71, 170 Crime and Disorder Act (1998) 119–20, 180 Disability Discrimination Commission Act (1999) 200 Education Act (1980) 175

282 Index legislation – continued European Communities Act (1972) 200 Fair Employment (Northern Ireland) Act (1976) 185, 214 Fair Employment (Northern Ireland) Act (1989) 185, 214 Football (Offences) Act (1991) 180 Government of Ireland Act (1920) 184 Government of Wales Act (1998) 167 Housing Act (1996) 119–20 Human Rights Act (1998) 175, 190, 200, 267 Immigration Act (1971) 67–9, 170 Ireland Act (1949) 6 Legal Services Act (1990) 174 Local Government Act (1996) 89–90 Nationality Act (British – 1948) 6, 65–6, 75 Nationality Act (British – 1981) 6–7, 62–3, 69–75 Nationality Law (German – 1913) 49–50 Northern Ireland Act (1998) 186, 199 Northern Ireland Constitution Act (1973) 185 Protection from Eviction Act (1977) 114 Public Order Act (1936) 177–8 Public Order Act (1986) 179 Public Order (Northern Ireland) Order (1987) 185 Queensland Anti-discrimination Act (1991) 199 Questions and Replies Order (1977) 196 Race Relations Act (1965) ix, 3, 14, 170–1, 178, 181, 191 Race Relations Act (1968) ix, 14–15, 170–1, 179, 191 Race Relations Act (1976) ix, 15, 17, 87–9, 106n–15 passim, 167–208 passim Race Relations (Amendment) Act (1994) 200

Race Relations (Amendment) Act (2000) ix, 15, 174–5, 190 Race Relations (Northern Ireland) Order (1997) 185 Race Relations (Remedies) Act (1994) 176 Scotland Act (1998) 167–8 Sex Discrimination Act (1975) 199 Supeme Court Act (1991) 115 see also Basic Law; law Lega Nord 147 Lemos (2000) report 119 Leskien, D. 259, 260, 263, 264 Lester, A. 170 liberal constitutional states and culture 54–7 liberal democratic model of citizenship 8, 26, 37–44 Lipset, Seymour Martin 155 literature 54–6 Lithuania 53 Liverpool 93, 197 local authorities 11, 89–90, 109–21 Loch, Dietmar 157–8, 160 Locke, John 43 London 168–9, 195–6 boroughs 89, 93, 111, 115, 117 Greater 18, 92, 95–9, 101–4, 211, 213 inner 3, 10, 96, 178–9 London Research Centre 111–12, 114 Lorraine 52 Lüdemann, Christian 148 Lustgarten, L. 183 Luther, Martin 50 Luxembourg 52 Maastricht agreements 257 McCloy, John 130 McCudden, C. 193 McIntosh, N. 206 McKenna, Ian 198 McMurray, R. 185 MacEwen, Martin xiv, 16, 189, 193, 197, 202, 204 Macpherson, Sir William 11, 120, 187, 202

Index 283 Mager, U. 254, 259, 260, 261 Maghreb 168 Mainz 137, 139 Malawi 68 Malaysia 69, 71, 183 Malik, Michael Absul (Michael X) 178 Malta 6 Manchester 93, 115, 118 Manitoba 200 Mann, Thomas 51 Marshall, T. H. 9, 60–1 Martin, Connie xi Martins-Heub, K. 134–5 Marxism 84 Massey, D. S. 85–6 Mecca 209 media 13, 131n, 133–45 Mediterranean 154 Merton, Robert K. 156 Middle East 54 Midlands 3, 92, 182 Miklis, M. 129 Mile End Road pogrom 177 Miles, R. 1, 84, 248 Mirrlees-Black, C. 180 models of citizenship 8, 25–45, 60–1 Modood, Tariq 17, 87, 98, 101 Moldavians 53 Mölln 2–4, 158, 254, 263 ‘monochromatic racism’ 184 Moran, Michael 60 Morley, H. 63 Munich 54 Municipal Journal (1993) 110–11 Munro, Colin xiv, 14–16 Muslims 10, 51, 56, 172, 209 British 81, 87–8, 98–105 Turkish 130 Napoleon Bonaparte 46 nation-states 4, 31, 33, 269 concept of 46–52 National Assembly (Frankfurt 1848) 51 National Assembly for Wales 167 National Committee for Commonwealth Immigrants 171

National Front 10–11, 68 National Socialism 5, 12, 28, 122–58 passim National Socialists 46–8, 54, 137, 178, 227 Nationalist ideology 51–2 nationality 169, 246–8 law 6–7, 49–50, 62–6, 69–75 see also citizenship naturalisation 8, 25–45, 72–4, 248–52, 259, 270–1 Navalsimha Rao, Shri 72 Nazis 2, 11–12, 128, 263, 268 neo- 127, 129, 146 see also Reich, Third Netherlands 9, 74, 148–9, 153–4, 161, 236 New Zealand 204 Newham 115 Nickel, Rainer xiv–xv, 18–19 Nicol, A. 64, 169 Noelle-Neumann, E. 127 non-governmental organisations (NGOs) 233, 237 Normans 168 North-Rhine Westphalia 258 Northern Ireland ix, 6, 15, 18, 267 and employment 185, 214, 217–18 and the law 167–8, 184–6, 200 Norton-Taylor, R. 3 Norway 9, 148–9 Nottingham 3 Notting Hill 3, 169 Nuremberg Race Laws 227 Ny Demokrati 151 Oberndörfer, Dieter xv, 4, 251 Ohlemacher, Thomas 148 ombudsman 110–11 Oppenheim, C. 92 ostracism 28, 30 Ottoman Empire 54 Ouseley, Sir Herman 175 Owen, D. 103–4 Pakistan 53, 62, 65, 169 Pakistanis x, 17, 101–2, 172, 211 Palestinians 129

284 Index Palmer, C. 193 Pannick, D. 177 Parekh, Professor Bhikhu 181 Parsons, Talcot 156, 250 patrials 67–8 Patterson, S. 83 people and territory 47–8 see also ius soli Perrineau, Pascal 157 Plato’s Crito 30 Plitz Bridge (Berlin) 123, 129 Poland 2, 6, 47–54, 168, 252 police 93–4, 120, 177–80, 225, 272 Metropolitan 11, 175 policy (British) 86–106, 167–88 Policy Studies Institute 193, 197 political system, German 160–1 Pomerania 48 Portugal 153–4 positive action 16, 182–3, 200, 215, 217–18 Poulter, S. 180 Powell, Enoch 62–3, 68, 92, 170 prejudice 12, 181, 245 Prescod, Marsha xv, 11, 114–15 proof 197, 232–4, 258–9, 273 proportionality principle 231 Prosecution Service, Crown 120 Prussia 47–8, 50–1, 53 public order 177–9, 185 qualifications 102, 210–11 Quebec 65 Queensland 200 Race Agency 191 Race Relations Board ix, 15, 171, 182, 191 see also legislation race riots 169 Racial Discrimination, Federal Office against (LBR) 236 Racial Equality, Commission for ix, 10, 15–19, 88–9, 171–209 passim Racial Equality Councils 197–8 racial equality programmes 207–8 Racial Harassment Project (Leeds) 119

Racial Hygiene and Human Biology Research 136 racial inequality see racism Racial Justice at Work (1991) 193 Racial Preservation Society 179 ‘racial profiling’ 225–6 Racial Violence and Harassment in Europe 201 racism and racial inequality 79–164, 245–69 anti-semitism in Germany 122–32 in Britain 81–108 gypsies and the media 133–45 harassment and local authorities 109–21 mobilisation of extreme right 146–64 see also strategies for combating racism Radtke, F. O. 137 Rajya Sabha 72 Rastafarians 172 Rawls, John 38, 40, 43–4 Reich Holy Roman Empire (First) 50 Bismarck’s (Second) 4, 46, 50, 54 Third (Nazi) 54, 136, 248, 257 Reichstag 51 religion 15, 29–31, 209, 214 Christianity 48, 53–7, 172, 184–5, 218 Renaissance 54 republicanism 184 Republikaner 151, 157–8 Republikune Party 128 respondents 196–7 Rhein-Zeitung Mainz 139–40 Rhineland 52 right-wing extremism 13, 126–8, 146–64, 243 movements of 12, 123, 155–61 Ritter, R. 136 Rittstieg, H. 249 ‘Rivers of Blood’ speech 92, 170 Rochdale 118 Roche, T. W. E. 64–5 Rokeach, Milton 155 Romania 52–4 Romans 168

Index 285 romanticisation 133–7 romanticism 53 Rostock-Lichtenhagen 2, 12, 126–7, 129, 158, 255, 263 Rousseau, Jean-Jacques 31, 49, 250 Rüsen, Jörn 146 ‘Rushdie Debate’ 100, 172 Russia xi, 53, 122, 129 Sachsen-Anhalt 124 Sachsenhausen 12, 123, 129 Sallen, Herbert 126 sanctions 234–5 Sassen, S. 85 Saxony 49, 52, 124, 168 Scandinavia 47, 50, 74, 148 Scarman, Lord Justice 179 Schelling, F. W. J. von 46 Schleswig-Holstein 20, 125, 260 Schmalz-Jacobson, Cornelia 255, 263 Schuman, J. 169 Scotland 62–3, 184, 192, 194 Scots 75, 167–8 Searing, D. 60 Second World War 12, 26, 56, 65, 168 SEMRU (Scottish Ethnic Minorities Research Unit) 201 Serb language 50 Serbs 48, 54 Sherwood, M. 65 Siebenburgen 52 Sikhs 87, 101, 172 Silbermann, Alphons 126 Silesia 48, 53 Singhalese Buddhists 53 slaves 28, 41 Slavs 48, 50, 52, 54 Slovenes 54 Smith, D. J. 17, 182, 193, 206 Smithies, B. 62 social class 10, 82, 84–5, 97, 101 inequality 90–2 Social Democratic Party (SPD) 158–9, 255 in government x, 14, 238, 262, 269 Social Security (DSS), Department of 90–1

Society of Conservative Lawyers 69 socio-economic groups 99 Socrates 30 Solingen 2–3, 158, 254, 256, 263 ‘Solving Neighbour Problems’ 118 Sorbian minorities 260 South Africa 65 Southwark 115 Soviet Union xi, 53, 60, 128, 159 Soysal, Y. N. 245 Spain 153–4 Standing Advisory Commission on Human Rights 15, 185–6, 214 Stephen the Great of Hungary 47 Stephen Lawrence Inquiry (1999) 119–20, 202 Stepney Trades Council 3, 110 Stormont 185 Strasbourg Centre for Human Rights 202 strategies for combating racism 17–21, 165–269 anti-discrimination law (British) 14–19, 174, 189–205, 271–2 anti-discrimination law (German) 19–21, 219–59, 271 employers’ practices 206–18 race laws and policy (British) 167–88 Street, Professor Harry 171, 201 surveys 94, 111, 180–1, 207 Sweden 9, 74, 148–50 Switzerland 58, 148–50 Syria 52 Tarrow, Sidney 147, 155, 157, 159 Tartars 51 Tebbit, Lord Norman 63 territory 47–8 see also ius soli Tetzner, headmaster 134–5 Teutonic Order 53 The Guardian 72–3 The Right Approach 69 Third World 63, 74, 210 Thränhardt, D. 1 Tibi, Bassam 52 Tower Hamlets 101, 104, 197 trade unions 17, 197, 264

286 Index Trades Union Congress (TUC) 211 Trafalgar Square 178 Treaty of Amsterdam (1997) xi, 176, 221, 266–9 Treaty Establishing the European Community (TEC) 176, 220–1, 235, 238 tribunals 17, 176, 192–4, 198, 209, 212 Turkey xi, 2, 21, 130, 227, 255 German Turks 47–8, 122, 236, 251–9 passim Turner, B. 250 Uganda 68 Ulram, Peter A. 157, 160 unemployment 97–8, 101, 181, 183, 249 Unionism 184–5 United Nations 238 United Nations International Convention for the Elimination of all forms of Racial Discrimination (ICERD) 191, 224, 238, 254–5 United States of America (USA) 86, 128, 146, 217–36 passim and citizenship 56–7, 61–2, 64 and the law 171, 183, 189, 203 Universal Declaration of Human Rights 222 university applications 100 urban areas 11, 17, 115, 256, 272 strategies for 92–106 see also cities van Dijk, T. A. 143 Vertovec, S. 9 Victoria (Australia) 203 Vienna 190, 202 Vietnamese 2

violence 1–5, 9–14, 201 British 169, 180, 210, 243, 271 German 123, 125, 134, 147–50, 229, 250–1: incitement to 256–8 Vlaams Blok 151 voting rights 6, 9, 259 Waldinger, Roger 85, 104 Wales 109, 167, 180, 192, 194 Welsh 62, 168 Walker, C. 169 wars 29, 47, 128 Second World 12, 26, 56, 65, 168 Wehler, Hans-Ulrich 146 Weigand, Erich 152 Weimar Republic 4, 46, 51, 56, 58 West Indians 62 see also Caribbean peoples Whitelaw, William 69–70, 73 Wiesbaden 137 Wiesbadener Kurier 139 Wieviorka, M. 245 Willems, Helmut 148, 156 Wilpert, Czarina xv, 3, 19–20, 249 Wilson, William 95 Witte, Rob 3, 147 Wittenberg, R. 122 Workplace Employee Relations Survey 209 Württemberg 49 xenophobia 201, 245, 248 British 168, 185 German 14, 58, 123, 142, 250–1: right-wing 150–5 Youth Censorship, Federal Office for 130 Yugoslavia 47, 53, 54, 236