I grew up near Brixton and from as far back as I can remember it has always been a place of special significance. As a British person of Afro-Caribbean descent, Brixton plays an important role in my cultural narrative. It was Brixton where the first wave of Caribbean immigrants arriving in England in the late 40s laid their roots and built their lives; they brought with them their music, style and culinary traditions which transformed the town, infusing it with a distinctly West-indian feel and flavour. It was also Brixton where, in a culmination of outrage and indignation at anti- black policing and institutional discrimination in the 80s people rioted, and streets and stores were set furiously ablaze. Over the years, whilst the ethnic struggle continued, Brixton nevertheless came to be emblematic of a communal unity that transcended race. Even in the midst of chronic underfunding from both the public and private sectors resulting in pockets of poverty and high crime, Brixton represented a certain togetherness, where blacks and whites united, not by ignoring their cultural and racial distinctions, but by treating these differences as important constituents of a wider communal whole.
These somewhat halcyon days of cultural and racial unity now appear to be a thing of the past in Brixton. Like many areas in London, recent years have seen the town subjected to the invidious forces of gentrification. House prices have sky rocketed and the moneyed (predominantly white) middle-classes, looking for accommodation within reasonable distance to the city, have poured in. It isn’t that an alteration of demographics is itself a problem; London is a city that has historically undergone constant change as different peoples have mixed and mingled together throughout the ages. However, it is the tendency of gentrification to eschew cohabitation and to instead displace communities and cultures that is problematic. The rising rents in Brixton have pushed many local ethnic businesses out of the area and have forced many people, particularly poorer residents of colour, within the local community into cheaper accommodation elsewhere. The result? Brixton is becoming visibly less diverse and the racial and cultural unity that was once the hallmark of the town is fast evaporating.
On a recent visit to a pop-up restaurant and bar complex in the heart of Brixton, I was taken aback by the lack of diversity in what was once one of the most cosmopolitan parts of the town. Besides myself and a friend, the only minorities present were either serving or securing the people on the premises and the diversity of food on offer did little to disguise the conspicuous lack of diversity within the venue itself. Other observers have commented on this changing face of Brixton and remarked on what can only be described as an insidious sort of “ethnic cleansing” taking part as a result of its gentrification.
Some have argued in response to these concerns that gentrification has brought investment which has in turn improved Brixton. This argument is usually embodied by the expression that “a rising tide lifts all boats”. Whilst it is no doubt true that investment improves an area, if the original residents have been forced out of the housing and business markets, then the question is who does this investment improve the area for? As a corollary to this question, we also have to ask ourselves why does investment have to wait for new residents? Couldn’t investment in Brixton to clean up the streets and open up new commercial spaces have pre-dated the demographic shift which in turn could have created jobs and opportunities for those who needed them most? These questions cast doubt over the apparent benefits of the town’s gentrification.
The story of Brixton is indeed a tale of two towns. Unfortunately, whilst the new Brixton certainly has a veneer which is more polished than the old, these improvements have come at the expense of diversity and a slow and gradual eradication of the cultural and communal unity upon which Brixton built its name.
Firstly, Happy New Year. I appreciate it’s been a while since my last blog so allow me to offer my apologies to readers of lifelawandotherthings. I would say that life got in the way, but that would contradict the message in my first ever blog, so no excuses – look for more regular posts from this point forward.
In writing this post, I was inspired by a conversation that I had with one of my best friends a while back. I suppose he thought I had forgotten about it, perhaps he had himself, but at the time I remember thinking that it was so important that the need to write it became etched in my memory, as weighty and ever-present as a university thesis deadline.
The topic of this post is motivation: what it is, how to get it and how to maintain it. Motivation is vital because with it, we are propelled towards our goals and objectives and without it, we struggle to get anything meaningful done at all. I hope this blog helps readers to find the motivation for achieving whatever goals they have in mind for 2018 and to maintain this motivation in their day-to-day lives.
What is Motivation?
Motivation has been defined as the “desire and willingness to achieve a particular goal or objective”. This definition makes it clear that motivation is indivisibly bound up with goals and objectives and in order to have motivation, we must necessarily have these things also. Whilst goals and objectives are essential to the definition, when we speak of motivation in everyday parlance, what we are often alluding to is the “desire and willingness” aspect of the definition. Desire is our wish to achieve a particular objective and willingness is the state of being prepared to achieve a particular outcome. Desire and willingness are the very essence of motivation and once harnessed, these two things propel us towards our goals and objectives.
How to get motivation?
As motivation is the desire and willingness to achieve a particular goal or objective, it is first necessary that we determine precisely what the goals and objectives are that we would like to achieve. Many people claim that they lack motivation but when we enquire deeper into why this is, it becomes clear that they haven’t actually determined the object of their efforts. Once we have taken the step of clearly setting out our goals and objectives, then we may find this alone provides us with the hefty dose of motivation needed to achieve them!
Our desire and motivation to achieve a particular outcome is increased if, as well as clearly defining our goals and objectives at the outset (I find writing them down particularly useful), we also think carefully about why we want to achieve a particular goal or objective. As an example, if my goal is to establish a charity mentoring disadvantaged ethnic minority university students, then I will not simply write this goal down on its own, but I will also set out why I want to achieve this goal i.e. to improve minority representation in the workplace. There can be a host of reasons why we want to achieve a particular goal or objective but once we have outlined some, or at least one of these reasons, we will find that motivating ourselves to achieve them becomes a lot easier.
How to Maintain Motivation?
Maintaining motivation over a period of time can be extremely difficult. Although initially we may have clearly defined goals and objectives and start out energised to achieve them, over time we may find that this desire lulls and this can seriously hamper, if not derail our ability to achieve our goals and objectives altogether. Personally when my motivation to achieve a particular outcome starts to decrease, there are a few useful methods I use which serve to reinvigorate this motivation – the following serves as a collection of some these methods
1. Return to the goal
My first tip for maintaining motivation is to regularly return to the goal or objective that we are striving to achieve and the reasons for it. This is where the benefit of writing down our goals becomes clearer because if our motivation starts to drag, we can easily revisit our written goals, be easily reminded of what they are and the reasons for why we set out to achieve them in the first place. For me this is one of the best ways to get fired-up again to achieve my goals.
Another way of maintaining motivation is through reading books that specifically deal with this topic. There are several books available that can help with motivation and two of my favourites are The Magic of Thinking Big by David J Schwarz and Stop the Excuses by Wayne Dyer; both of these books contain essential messages and helpful tips that help me to galvanise myself back into action whenever my motivation starts to decrease.
3. Motivational videos
I also am a big fan of motivational videos: Some of my favourite speakers are TD Jakes and Les Brown, but there are also a host of excellent compilation videos available on Youtube that I find help motivate me, particularly during preparation for exams and interviews. During my Masters I watched these on a fairly regular basis and found that the positive messages they contain about how to overcome fear and laziness fired me up and made me feel very much willing and able to achieve my goals.
Whilst motivation and the state of being motivated can at times seem elusive, it is worth remembering that if our reasons are clear then our motivation should follow. When this motivation lags, far from this being the end of the world, we can return to our reasons and use a variety of aids to propel ourselves back into action. This should keep us on track and consistently moving towards whatever goals and objectives we set ourselves!
In my decision to write this piece I have chosen, much like the United Kingdom in its decision to leave the European Union, to break somewhat with established convention. In contrast to the deluge of carefully structured articles that have surfaced in the aftermath of Brexit, this post will instead be a ‘thought-piece’ – a stream of consciousness whose design reflects not only my mental chaos as I try to grapple with this occasion, but also the economic, political and social chaos that has gripped the country in the wake of it. In truth it is difficult to know where to start with Brexit, some of the reasons underpinning it are as old as the UK itself, deeply rooted in a history of empire as well as in class politics. On the other hand, some of its conduits were decidedly modern and were anchored in the waters of globalisation, rapid social change and a climax of Euroscepticism carefully whipped up by far right parties in the run up to the vote. Whilst volumes could be written about any one of these topics, in this piece I will pick out a few of the key themes that were the heart of the referendum and offer some of my thoughts on our European exit.
“Democracy” was the buzzword of the leave campaign, a slogan repeatedly chanted like some Vedic hymn both in the run up to and after the EU referendum. “The EU is undemocratic” they cried, “we need our democracy back” they howled. As an initial thought, it’s strange that a negative definition is as close as we ever seem to get to the concept of democracy. In other words, whilst we seem to have a pretty good idea of what democracy it is not, we have virtually no idea of what it is? We know for example, that it is not rule by military might, nor divine right (although many believe that our monarchy contradicts this principle) but who can truly say that they know what democracy is? Philosophers and political theorists have long posited that democracy is best defined as the will of the people as expressed through their vote. That definition seems attractive at a glance and was central to leave campaigner rhetoric in the run up to the referendum, but the immediate question raised is – what if not everybody votes? It’s worth noting that only about 70% of the eligible voting population cast their vote in the EU referendum and the leave camp won by a majority of 51%. Can we really say that the ‘will of the people’ has been exercised when under 40% of the population voted in favour of Brexit? It is clear that lack of voter turnout doesn’t automatically equal lack of democracy, but as an article I read recently suggested, the fact that a vote from such a low percentage of the population on such a critical issue can carry the day can be argued to be indicative of a glaring deficiency in our democratic process and the line between deficient democracy and undemocratic is anything but clear.
Prolific African writer Chinua Achebe once argued that one of the most important aspects of democracy was an “educated, participatory followership”. I have already touched on the lack of participation surrounding the referendum, but perhaps a more troubling question is to what extent those who voted were indeed “educated” in regards to the EU before they cast their lot? Having been born and raised in Britain, I have always been alarmed at just how little the EU features in our domestic education system and despite having been through one of the country’s more rigorous secondary schooling systems, it was not until I studied law at University that I can claim to have developed any real knowledge of the history and workings of the EU. This academic deficit permeates all levels of society and many at the time of the referendum questioned whether they had sufficient knowledge of the EU or perhaps more importantly, what leaving it might mean, before they made their decision. This is not to suggest that if people had this knowledge, they would have definitely voted to remain, but a shadow is definitely cast over the democratic value of a process where many of those voting were unsure as to the subject matter of their vote.
Closely linked to the cries for a return to democracy were calls that Britain needed to exit the EU so as to ensure the “return of British sovereignty”. Sovereignty is defined as the authority of a State to govern itself and the argument was made by many leave campaigners that Britain had been sucked into the EU and was being forced to adopt any and all of its policies. We had thus effectively lost our ability to self-govern and were being “ruled from Brussels”, so the argument frequently went.
In response to this point, we need only look briefly to history which shows that whilst we may have ceded some of our decision-making power to the EU, this was entirely our own choice. When Britain joined the EU in 1975 under the conservative Government of Edward Heath, it had been long established that joining would entail some loss of sovereignty. In 1963, more than 10 years before the UK joined, the Court of Justice of the European Union had ruled that “the [European] Community constitutes a new legal order in international law for whose benefit the states have limited their sovereign rights”. Shortly after this decision, the Court reaffirmed this position, holding that “The transfer by the States from their domestic legal system to the [European] Community legal system…carries with it a permanent limitation of their sovereign rights…” These decisions made crystal clear that any State joining the EU would be required to relinquish some of its sovereignty and it is bizarre that now, almost 50 years after nevertheless choosing to join the EU, loss of sovereignty was such a pivotal issue in the referendum. There is of course the argument that the UK were not sure of just how much sovereignty they would lose as a member of the EU but the reality is that since joining , the UK has maintained the largest share of its sovereignty as compared with any other member State. We opted out of the Schengen agreement abolishing border controls between member states, opted out of the monetary union rejecting the euro as a form of national currency, secured opt-outs for certain provisions of the EU Charter on Fundamental Rights and we also opted out of certain provisions of the EU area of freedom security and justice. This ‘a la carte’ approach to the EU can hardly be squared with the notion that the UK were helplessly accepting all of its rules and our relationship could rather be characterised as the UK holding the EU to ransom, forcing it to adopt our policies and rules.
Some have suggested that in place of our current relationship with the EU, they would like to have an agreement similar to that of Norway and Switzerland which both have single-market access but are not part of the Union. They argue that these countries have been able to retain a greater share of their sovereignty whilst still being able to reap most of the benefits of the EU. A closer look at these countries relationships with the EU however, reveals that this argument is specious. To begin with, a consequence of Norway’s non-membership in the EU has meant that whilst it has had no say in the EU’s law making process, it has nevertheless been required to adopt the majority of the EU’s legislation and has implemented all of the four freedoms including the free movement of persons – the most controversial of all freedoms in the run up to Brexit. Switzerland is in a similar situation and is required to accept the vast majority of EU Laws whilst having no say in their development. If our leaving now means that we will be forced to replicate these models, It is highly doubtful whether more sovereignty really will be the result of our Brexit as some have argued.
The issue of immigration was at the heart of the referendum. I would not go as far as to say that the other issues were tangential, but it is without doubt that the foremost reason that many people voted to leave the European Union was because it had become associated with uncontrolled, and uncontrollable, immigration. From the outset it must be noted that the very portrayal of immigration as a problem, and only a problem, in the run-up to Brexit was spurious. Immigrant communities have for centuries contributed to the enrichment of British society bringing not just culture but, perhaps more importantly, labour to the country. It was the large scale immigration from commonwealth nations at the invitation of the British Government post WWII that helped to re-build the nation and transform it from its ravaged, financially embattled state into one of the most prosperous countries in the world today. It must also be remembered that even in present times, many of our public industries are in large part dependent upon immigrant workers and that immigrants continue to make an immensely useful contribution to British society. These aspects were scarcely touched upon in the run up to the referendum, with the leave campaign choosing to focus exclusively on the problems raised by immigration and the remain campaign, concerned about the potential fallout from any talk of ‘good immigration’, happy for the most part to simply counter their assertions.
There are of course problems related to immigration within the UK however, one of the biggest obstacles to solving these issues has been terminology, with the word ‘immigrant’ being used as a ‘catch-all’ term to lump together very different groups of people. There were essentially 3 main groups that the leave campaign targeted in their bid to leave the EU: Recent EU Migrants, recent Non-EU migrants and immigrant populations already resident in the UK. In relation to EU migrants, the main issues were reported to stem from two main factors which were wage depression affecting mainly working class communities and competition for housing also mostly affecting working class communities. Whilst there is evidence that wages across some industries have fallen in recent years, there has certainly not been one cause of this and it has not been established whether EU migration was even a factor, with many citing the global recession and government austerity policies as the main driving factors behind this phenomenon. In terms of housing, again whilst EU migration may in some instances have increased tensions in this area, there is not a single answer to this question and many agree that the housing crisis in the UK has infact been the result of an epic failure of public policy by consecutive Governments who have failed to build enough houses to meet growing demand. In relation to non-EU migrants, their numbers have increased in recent years, but many who have been categorised with this label are not simply ‘migrants’ moving for potentially economic reasons, but rather are refugees, fleeing wars and persecution. I have elsewhere written about Britain’s involvement in many of these overseas conflicts and it is ironic that whilst we have contributed heavily to the international displacement of persons, we continue to lament taking some of the smallest numbers of refugees in proportion to our population than any other major European nation. The supposed ‘problem’ raised by the third class of person, immigrant communities already here, deserves special mention. Far from presenting a genuine problem for voters to consider, this argument played on prejudicial fears of immigrant communities ‘taking over’ British culture. It rested solely on racial and religious hatred and since Brexit, many who voted simply because they do not like immigrant communities and ethnic minorities have reared their heads, buoyed by feelings that their sentiments are in the majority. This has led to a sharp rise is hate crime in the UK and remains one of the more alarming legacies of Brexit.
It is not yet known what will became of the United Kingdom after Brexit. The general economic picture is reported to be bleak, and some have even predicted a constitutional crisis may be on the horizon as Scotland and Northern Ireland consider whether they will remain part of the UK in future. In my view, one of the most damaging aspects of Brexit is neither economic nor political, but rather that it sends a message to the world that despite the fact that most countries are moving ever closer together, the UK has a vein desire to move backwards; To ossify its borders whilst most are becoming more fluid and to isolate its culture whilst most are becoming more intertwined. As someone who has spent much time living abroad, I know that perhaps more than anything else, it is this image of a reactionary UK, unable to cope with change that will be the lasting legacy of Brexit and our departure is all the more dispiriting as the arguments for it rested on such feeble footing.
This short post was inspired by none other, than my mother. “Don’t beat yourself up!”, four simple words that encapsulate years of wisdom and act as a gentle reminder that even in the midst of life’s most stressful moments, we should never be too hard on ourselves.
Although harmful and ultimately unnecessary, “beating ourselves up” is infact remarkably common. Have you ever had a moment of worry or doubt about something and then replayed or imagined the scenario over and over again in your head until you are stressed-out and worried? This exercise often takes place in the immediate aftermath of a bad experience, but can also be common before a situation has even happened, as we consider all of the possible ways in which it could go wrong.
It goes without saying that there is little to be gained by beating ourselves up. If a situation has recently occurred then it is by definition in the past and we cannot go back in time to change it. So we bombed the interview, or felt we could have done better in our presentation, the fact is that we cannot re-live that moment. However, what we can do is either to take what lessons we can from the bad experience or, if it is the case that we feel we cannot learn from a situation (almost impossible in my view), then we should try and forget about it. As an article I read recently reminded me,“it’s ok to have a shit day” and sometimes it’s best to just forget a bad experience and move on with our lives rather than to endlessly agonise over it. Not beating ourselves up becomes even more important if a situation has not yet happened, as doing so can actually create the experience we are hoping to avoid. If we are thinking only negative thoughts before an event then it is quite likely that this worry will disrupt our preparations and may even impair our performance on the day. The reality is that the event hasn’t happened yet and until it has we’ve simply no idea of how things are going to go, so why imagine the worst?
None of this is meant to suggest that feeling down or worried about something does not represent perfectly normal human emotion. Simply put, we cannot help it if we are upset about a situation that did not go well or feel nervous about a prospective one. However, “don’t beat yourself up!” is a reminder that whilst our feelings in these situations are perfectly natural, they probably aren’t rational and allowing them to snowball out of control is never likely to be helpful. Instead, we should try replacing them with other thoughts and feelings for example, determination to deal with a situation better next time, or positive thoughts about how we will perform in future. Doing this will help us to overcome these negative feelings and invest our emotional energy into more useful pursuits.
So next time you feel that you’ve let feelings of sadness or worry about a past or future situation build up remember, either let them go or re-focus your energies, the important thing, as my mum would say, is “don’t beat yourself up!”.
In a recent decision the Supreme Court has ruled that Section 60 of the Criminal Justice and Public Order Act 1994 (‘s.60’) authorising ‘suspicionless’ stop searches, does not constitute a breach of Article 8 of the European Convention on Human Rights (‘ECHR’) regarding respect for private and family life. This decision has attracted much criticism and a close examination of it raises serious concerns vis-à-vis the soundness of its legal analysis, its accordance with established Strasbourg jurisprudence and its regard for key statistical information relating to the use of stop and search powers. Ultimately, the judgment reaches an errant conclusion with potentially damaging implications for the already fragile relationship between ethnic minorities and the police in the United Kingdom.
The Appellant in this case was a 37 year old Afro-Caribbean woman named Juliette Roberts. Ms. Roberts worked in a school helping young children with disabilities and had no previous cautions or criminal convictions of any kind. In 2010, Ms. Roberts boarded a bus in her local borough of Haringey, North London and following the discovery that she had insufficient funds on her Oyster card and no money with which to pay for her journey, transport police officers were called to the scene. Upon arrival, the police elected to search Mrs. Roberts under s.60 of the Criminal Justice and Public Order Act 1994. S.60 grants police powers of stop and search ‘in anticipation of violence’ and specifically authorises a police officer to stop and search any person or vehicle within a designated area for offensive weapons or instruments within a limited time period. S.60 does not require a police officer to have any reasonable suspicion prior to carrying out a search and only requires that they have the authorisation to do so from an officer of at least the rank of inspector. As Ms. Roberts worked in a school, she was concerned that some of the young people she worked with might see her being searched and so asked to be searched at a police station instead of in public. The police officers refused her request and she was restrained, handcuffed and her body and property were forcibly searched.
After her claims in the Divisional Court and Court of Appeal failed, Ms. Roberts appealed to the Supreme Court, arguing that s.60 was contrary to Article 8 of the ECHR regarding the right to respect for private and family life. Specifically, Ms. Roberts argued that s.60 conferred on overly-broad power on the police and thus was not ‘in accordance with the law’ as required by Article 8(2) ECHR.
In a unanimous decision, The Supreme Court accepted that suspicionless stop searches infringe upon the right to respect for private life, however, they argued that they are in ‘accordance with the law’, in addition to pursuing a legitimate aim and being necessary in a democratic society as required by article 8(2) ECHR. Central to the judges’ decision were what they considered to be the numerous ‘safeguards’ in place to constrain the exercise of the broad power conferred upon police officers. The judges drew particular attention in this regard to the Police and Criminal Evidence Act 1985 (PACE) which govern the steps an officer must take before they begin a search, such as telling a person their name and the object of the search and also to parts of the police Standard Operating Procedures which contain reference to the Race Relations Act 2000 which prohibits racial discrimination in the exercise of police powers. The judges also highlighted the Best Use of Stop and Search Scheme (‘BUSS’) which largely deals with authorisations given by a higher ranking officer before individual officers are allowed to use s.60 stop searches and requirements for data collection regarding the use of the power.The Court reasoned that as failure to follow these safeguards could render a stop and search unlawful and therefore expose an officer to disciplinary action or Civil proceedings, they were sufficient constraints on the use of the s.60 power.
The judges also held that the powers were of ‘great benefit’ to the public and that their unpredictability was critical to their deterrent effect. Finally, the judges’ reasoned that although there was concern that black and minority ethnic people were being disproportionately targeted with the s.60 power, black and minority ethnic people would most benefit from the reduction in violence that would result from the use of such powers as many gang members were from these ethnic groups.
Several aspects of this decision are deserving of criticism and the first is the Court’s assessment of the purported ‘safeguards’ on the exercise of the s.60 stop and search power. In Gillan and Quinton v UK the European Court of Human Rights (‘ECtHR’) had to consider a similar power of suspicionless stop and search under the now defunct s.44 of the Terrorism Act 2000. In finding that s.44 constituted a violation of Article 8, the ECtHR explicitly rejected the argument that the PACE Codes of Practice were a sufficient safeguard against arbitrary searches. The Court accepted that an officer carrying out a stop and search was bound to comply with the Codes, however, it determined that they governed only ‘the mode in which the stop and search is carried out’ as opposed to providing any real constraints on and individual officer’s ‘decision to stop and search’. From an analysis of the the BUSS scheme it is clear that this also places no additional restrictions on an individual officer’s decision to carry out a suspicionless stop and search and focuses only on the prior authorisation. The Court’s argument that the Standard Operating Procedures constitute a safeguard as they contain provisions on the Race Relations Act which if breached could expose an officer to legal or disciplinary proceedings is similarly unpersuasive. In Gillan, an almost identical argument was put forward by the Government, however, this was dismissed by the Court on the basis that “in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.”
The judges’ subsequent remarks about the ‘great benefits to the public’ which stem from s.60 stop searches are also deserving of criticism. Figures taken from the Ministry of Justice 2010 report on Race and the Criminal Justice System show that out of the 118,119 s.60 stop searches carried out by police in 2009/2010, only 2% resulted in an arrest. It is difficult to see how a power with such a miniscule arrest rate can be said to be greatly beneficial to the public and it is obvious that its ‘unpredictability’ has done little to improve its efficacy. With this is mind, the judges’ suggestion that these benefits could in some way justify discriminatory searches is indefensible. Several reports have pointed to the astonishing race disproportionately in the use of the s.60 power, with one study by the Equality and Human Rights Commission indicating that in 2011/12 black people were 28 times more likely to be stopped and searched under s.60 than white people. This disproportionality, coupled with the bewilderingly low arrest rate, suggests grave prejudice in the use of s.60 by the police and it is difficult to see how the Court can seek to justify this on any grounds. The Court’s argument that even if discrimination is a problem, as many of these gangs are ‘largely composed of young people from black and minority ethnic groups…it is members of these groups who will benefit most from the reduction in violence” is specious. Firstly, the premise is highly debateable; there is no universal consensus as to exactly what constitutes a ‘gang’ and many commentators have suggested that the term is disproportionately applied to groups of young black males. Thus in a nation where groups of disaffected white youths almost necessarily outnumber similar groups of black youths, they avoid this type of predatory categorisation and acknowledgement in mainstream discourse. Next, the notion that s.60 has a serious effect on the level of youth violence is also highly debateable. Tellingly, the judges adduce no references to support this assertion, however, common sense dictates that if the arrest rate for s.60 is so low, it is unlikely that it can be having a profound effect on levels of youth violence. What is most concerning about this passage however, is the suggestion that as some young people from black and minority ethnic communities are involved in violent crime, it is somehow justifiable to treat all young black people as potential suspects. Not only would such racial profiling be manifestly unlawful under the same PACE Codes and Race Relations Act that the judges had earlier lauded, but this reasoning has the effect of reinforcing harmful and pernicious stereotypes of young black people as potential criminals, conveniently paying no attention to the overwhelming body of evidence which suggests that they are also far more likely to be the victims of violent crime than any other race.
A close analysis of the Roberts judgement reveals that it reaches a wholly unsatisfactory conclusion. In their analysis, the Supreme Court essentially disregard the criticisms and concerns expressed by the Strasbourg Court in Gillan and reach a decision as to the compliance of s.60 with the ECHR which is seemingly devoid of any appreciation of the many reports and statistics related to the futility and racially disproportionate use of the power . It is perhaps no surprise that after stinging criticism by the Home Secretary regarding the discriminatory and unlawful application of s.60, its usage has dropped dramatically in recent years. Nevertheless, the Court’s holding of it as compliant with Article 8 ECHR and attempts to justify its discriminatory application risk reviving its usage and exacerbating tensions between the police and ethnic minority communities who see it as a tool of racial oppression.
In the wake of the large number of asylum-seekers entering Europe from the Middle-East and Africa, the majority of political and media attention has been focused on the question of which European countries should be responsible for accommodating these people and in what numbers. The narrow focus of this debate has ignored the root causes of the crisis, causing many to disregard the critical role played by many European States in the creation and continuation of hostilities in these asylum seeker’s countries of origin. Through an examination of this role, it is clear that Europe bares great responsibility for the people reaching its shores and in many ways, can be said to have engineered its own crisis.
The greatest number of asylum-seekers arriving in Europe in recent times have been from Syria and this is the result of a long and bloody civil war between State security forces and armed rebel factions which has ravaged the nation’s civilian population. Since the outbreak of the Syrian civil war in 2010, several European States have been implicated in the provision of both financial and military assistance to anti-government forces in their attempt to overthrow the regime of President Bashar Al-Assad and crush his supporters. In August 2012 the British Government announced that it would be sending 5 million pounds to opposition groups in Syria to aid them in their military operations. In addition to providing financial assistance to the rebels, the UK has also been involved in the establishment of military camps in neighbouring States Turkey and Jordan where they have been training rebel fighters. As well as the United Kingdom, France have also played an active role in the Syrian civil war. In 2014, French President Francois Hollande revealed that France had directly supplied weapons to opposition groups in Syria. The direct supply of weaponry to the rebels was made possible after the EU voted to lift an arms embargo on Syria which prohibited the exportation of arms directly to rebel militias. European States have also used indirect means to supply weaponry to rebel groups, such as through the trade of arms with Gulf States who have funnelled these weapons to the opposition factions they support. This supply of financial and military assistance to anti-government forces has had the effect of substantially prolonging the life of the Syrian civil war which has led to millions more civilian deaths, internally displaced persons and asylum seekers travelling to neighbouring States and also to Europe to escape the violence.
The second largest number of asylum-seekers arriving in Europe in recent times are reported to be from Afghanistan, another nation which for years has been riven with internal strife and violence. The involvement of European nations in Afghanistan is well documented and dates back to 2001, when in response to the September 11 attacks in the United States, Britain, later joined by NATO forces from Europe invaded and occupied Afghanistan. In 2003, NATO took permanent command of the International Security Assistance Force (ISAF) and became embroiled in a bitter war with Taliban rulers for the control of key cities within Afghanistan. 2015 is reported to have been one of the most violent years since the Afghan War began with over 5,000 civilian casualties reported this year so far. The perpetual fighting between Afghan, European and US forces has led to the immense displacement of persons as tens of thousands of civilians have fled, many of them to Europe, in order to escape the increasing violence and unrest in the nation.
Libya also represents a common destination from which many of Europe’s recent asylum-seekers have travelled. Prior to events which culminated in foreign military intervention in 2011, Libya was a relatively stable nation with reportedly one of the highest standards of living on the African continent. Due to its large crude oil reserves, it was also one of the founding member states and key nations within OPEC, the organization of petroleum exporting countries. In 2011, Libya descended into a fierce civil war between the security forces of then President, Muammar Gaddafi and armed rebel militias. Following a call from the United Nations for member states to take all measures to “protect civilians and civilian populated areas…while excluding a foreign occupation force of any kind”, a foreign intervention force led by NATO began to offer military support to the rebels, as well as to carry out airstrikes and naval blockades aimed at weakening the President and his security forces. Thousands of civilians died during this period of bitter fighting between Gaddafi’s security forces and western-backed militias determined to overthrow him. As well as high numbers of civilian deaths, the fighting led to thousands of internally displaced persons and many fled the country, seeking asylum in neighbouring States and the West. The killing of Gaddafi created a power-vacuum in Libya and ferocious internecine warfare ensued between the controversial new government and well-armed militias who refused to disband once the new Libyan government was in power. This has been dubbed by many as Libya’s ‘second-civil war’ and has resulted in large numbers of civilian casualties and displaced persons. In addition to this, since the fall of Gaddafi’s government there have been several reports of systematic, racially motivated murders of black African workers by rebel forces who are reported to operate with impunity in the now lawless country. This ongoing violence has led to thousands of civilians fleeing the country, many of whom have made their way to Europe in order to escape the violence.
The above demonstrates the key role that several European nations have played in the violent conflicts many asylum-seekers now travelling to the continent are risking their lives to escape. This role has been characterised both by the provision of financial and military assistance to various armed factions and by the direct intervention of European forces within these foreign conflicts. Instead of bringing about a swift-resolution to these conflicts, European involvement has had the effect of intensifying and protracting these armed struggles, the result of which has been an even greater exodus of people, many of whom have fled to Europe in search of safety. In many ways therefore, the ‘migrant-crisis’ has been a phenomenon of Europe’s own making and it is clear that as such, European nations should take far more responsibility for these desperate people’s accommodation.
“The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry…In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking…”
This was Chief Justice John Roberts’ damning indictment of the majority opinion in the recent US Supreme Court case of Obergefell v Hodges, a decision which legalized same-sex marriage across the United States. Whilst many commentators have endorsed the position that the judgment represents a usurpation of the people’s democratic freedoms and an attempt to legislate from the bench, others have defended the judgment as a simple extension of the liberties contained within the Constitution and recognized in the Court’s jurisprudence. This article aims to examine those arguments in order to determine how the landmark Obergefell decision should correctly be characterized.
This case was brought by a number of same-sex couples against the States of Michigan, Kentucky, Ohio and Tennessee. All of these states legally defined marriage as a union between one man and one woman and the Claimants argued that these laws violated their fundamental rights under the 14th amendment to the United States Constitution. The specific provisions of the 14th amendment in question were the ‘Due Process’ and ‘Equal Protection’ clauses which, taken together, prohibit any State from denying to any person life, liberty or property without due process of law and forbid any State from refusing to afford anyone equal protection under its laws. The Claimant’s arguments were that by refusing to allow them to marry and/or refusing to recognize their same-sex marriages, the laws of the States in question impinged on the fundamental liberties inherent in the 14th amendment and resulted in an unacceptable disparity in treatment between themselves and same-sex couples. After losing their case in the Court of Appeals the Claimants appealed to the Supreme Court who decided to hear their cases.
The central questions for the Court were:
- Whether the 14th amendment requires a State to licence a marriage by two people of the same sex.
- Whether the 14th amendment requires a State to recognize a same-sex marriage performed in another State.
In a 5 to 4 majority the Court answered both of these questions in the affirmative and based its reasoning on what it held to be four ‘principles and traditions’ which demonstrated not only that marriage is a fundamental right under the US constitution, but that it is a right which same-sex couples can also claim to have the benefit of:
- A person’s choice about who they choose to marry forms part of their individual autonomy which is a recognized right under the Constitution.
- The right to what the Court termed ‘intimate association’ through marriage is one which everybody enjoys.
- Marriage safeguards children and families by affording relationships legal stability and protection.
- Marriage is central to the Nation’s social and legal order.
After identifying these key principles and traditions the Court then explained that the right to marry on equal terms as opposite sex couples was also a matter of ensuring that all people were afforded the same treatment under the laws and thus engaged the equal protection clause of the 14th amendment also.
The Court then pointed out that although the legislature is often the most appropriate medium for change, people do not have to await the result of legislative action before they assert their fundamental rights and as the right to same to sex marriage was one which the Court now agreed was fundamental, legislative action (or inaction) could no longer prove conclusive. Furthermore, as the right to marriage was recognized as a fundamental right of every person no matter where they reside, the Court also concluded that States must recognize marriages performed outside of their own jurisdictions also.
The central argument of the dissenters in this case stems from what they see as the Court’s impingement on the democratic will of the people. Judges, they argue, are appointed to rule on what the law is, not what it should be and as no constitutional right to gay marriage was ever created by those who ratified the Constitution, it is an issue that should properly be left to State legislatures to decide.
Whilst this argument may initially appear to have some appeal, it is infact the product of an extremely rigid and narrow understanding of the American Constitution and of the judge’s role to interpret it. Far from attempting to usurp the people’s freedoms through inventing the law, the majority instead used their judicial powers of interpretation to give a broad meaning to the conception of ‘liberty’ and thus give recognition to a right which homosexuals had long been denied. Whilst some may equate this with judicial ‘policymaking’ the Courts decision to give recognition to fundamental rights fits perfectly with the notion of the Constitution as a ‘living document’ which was designed to and is capable of changing and adapting with time.
It is important to note that this is not a novel development in the Court’s jurisprudence and the 14th amendment has been used as a basis for the recognition of several fundamental rights throughout America’s history. This was the case in the landmark judgment of Loving v Virginia (1967), which recognized the right of all people to marry regardless of race and was also the case in Roe v Wade (1973), where the Court broadly construed the concept of liberty to include a woman’s right to have an abortion. These judgments clearly demonstrate that as well as looking to the original intent of constitutional provisions, it has been the Court’s tradition to consider how constitutional rights should be interpreted in a contemporary context in order to discern how best to preserve their spirit and essence.
Whilst the Courts are obliged to have respect for the legislative process, it would be inconsistent with the Court’s role to simply defer to State legislatures in every case where a constitutional provision does not specifically mention the right in question. If this were the rule the Courts were to follow, many of the racially oppressive ‘Jim Crow’ laws approved by hostile majorities after the Civil War could still very well be in force today; and States keen to deny women certain fundamental rights in relation to their own bodies may still have licence to do so – solely on the basis that these rights are not specifically mentioned in the Constitution.
As Justice Kennedy points out in the majority opinion ‘The dynamic of [the] constitution is that individuals need not await legislative action before asserting a fundamental right’ and this case the Court did exactly what it is tasked to do – interpret provisions of the Constitution in order to determine whether fundamental rights have been violated. The fact that certain States are now obliged to alter their laws is the perceived and rightful corollary once it has been established that a fundamental right has been violated.
It seems therefore that the Court very much adhered to its ‘principles and traditions’ in the Obergefell decision. It grounded the right to same-sex marriage firmly in its case-law and whilst it interpreted the concept of liberty broadly, interpretation is part of the Court’s task and cannot be said undermine the people’s democratic will. As a result claims of ‘judicial policymaking’ should be rejected.