Racism and the Rule of Law

18 June 2020 by

Recent Black Lives Matter protests in London. Image: The Guardian

In the end, we will remember not the words of our enemies, but the silence of our friends” said Martin Luther King in the context of White America’s silence with respect to the struggle for civil rights. The Prime Minister considers it relevant that the alleged murder of George Floyd occurred thousands of miles away – “in another jurisdiction” – yet the former colonies that now compose the United States of America is a jurisdiction which owes its common law legal system and heritage to the United Kingdom. St. George Tucker, in the appendix to his 1803 edition of Blackstone’s Commentaries, wrote that

the common law of England, and every statute of that Kingdom, made for the security of the life, liberty, or property of the subject … were brought over to America, by the first settlers of the colonies, respectively; and remained in full force therein [1].

The Black Lives Matter movement illuminates an incontrovertible chasm in the application of the rule of law in liberal democracy. The basic premise of the rule of law, which in Joseph Raz’s conception is that it should be capable of guiding behaviour, includes the necessary restriction on crime-preventing agencies from perverting the law. A society in which those tasked with upholding and applying the law – under the powers of stop-and-search and arrest – are instead themselves regular perpetrators of racist discrimination and violence, is one in which the rule of law can become a randomised hope that is more or less likely to be realised depending on the race of the citizen in question.

As yet another British Asian professional is hailed as the exemplar of our government’s diversity, one might be forgiven for forgetting that the foundational struggle is not for diversity as such – but instead for something antecedent and more basic – namely equality.

“Most British people today would, I think, rightly regard equality before the law as the cornerstone of our society”, Tom Bingham (former Lord Chief Justice and Senior Law Lord) wrote in The Rule of Law, citing Somerset v Stewart (1772) 20 St T 1[2].

James Somerset was a man who was enslaved and brought to the United Kingdom via Virginia. He applied for a writ of habeas corpus, directed to the Captain of the vessel upon which he was detained. His captor – Charles Stewart – who had purported to purchase Mr Somerset from an unspecified place in the African coast, argued that since slavery was permitted in the plantations and the destination of the vessel was Jamaica, Mr Somerset ought not to be freed. Lord Mansfield, the Lord Chief Justice, disagreed:

From the submission of the negro to the Laws of England, he is liable to all their penalties, and consequently has a right to their protection [3].

While Somerset v Stewart was a helpful step in the long walk to freedom, it did not have the effect of ending slavery in England or the colonies. Over two centuries after Somerset v Stewart, Sir William Macpherson found that the Metropolitan Police was institutionally racist. Institutional racism was defined by the Inquiry as:

The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people [4].

There are those, of varying degrees of governmental competence, who assert that the alleged murder of George Floyd was something that ought to be regarded as out of place and out of mind. And so follow the same soul-sapping conversations between White and Black people as one party purports to convince the other that, in fact, “we” are a country of freedom and equality of opportunity such that the horror of Mr Floyd’s alleged murder ought not to be seen as infecting the social contract within our more benign jurisdiction.

It is true that in the United States the police owe their origins to the largely private slave patrols that sought to further the captivity and disfranchisement of people who would become classed as ‘African-Americans’ once post-colonial liberal democracy was in full swing. In the United Kingdom, by contrast, the policing by consent model that was instituted by Robert Peel was an expression of the democratic social contract: “the police are the public and the public are the police” according to Peelian principles

The former Prime Minister David Cameron asked David Lammy MP to undertake a review of the criminal justice system, and Mr Lammy made 35 specific recommendations; there are 110 recommendations in the Dame Angiolini review into deaths in police custody; there are 30 recommendations in the Home Office review into the Windrush scandal; there are 26 recommendations following Baroness McGregor’s review into workplace discrimination. At the time of writing that is a grand total of 201 recommendations that have not been implemented. It would appear that we are not so much at the end of the beginning, but rather still at the beginning of the beginning as far as racial equality is concerned.

A study of more than one million court records found that black offenders were 44% more likely than white offenders to be sentenced to prison for driving offences, 38% more likely to be imprisoned for public disorder or possession of a weapon and 27% more likely for drugs possession[5]. There is greater disproportionality in the number of Black people in prison in the United Kingdom that in the United States[6]. Latest statistics published by the Sunday Times on 14 June indicate that Black citizens are nine and a half times more likely to be stopped and searched than White citizens, and 49 times more likely to be stopped and searched in ‘suspicionless’ stop and search under s.60 of the Criminal Justice and Public Order Act 1994.

As Marcus Rashford has written, while he may not have had a similar education to those who are elected to Parliament, he has had a social education. A social education that has involved the area of autonomous development, interaction, and liberty that is meant to have been free from excessive and disproportionate state intervention in violation of Article 8 of the ECHR.

It is hard to sell the truth from statistics, and so the truth has required personal narratives from ‘lived experience’. For Black people, interactions with the police and the criminal justice system are so detrimental to mental and physical health that parenting necessarily involves preparing Black children for the unfreedom that will inevitably follow as they go about their private and family lives: the walk to and from school; the purchasing of goods in a store; driving for the first time after having passed one’s driving test; attending a registry office for the purposes of obtaining a marriage certificate; being interviewed for a place at university or a job; renting an apartment – are all to varying degrees overshadowed by the legacy of an ideology according to which savagery is to be expected, and thereby pre-emptively punished. Servitude, on the other hand –  in that pedestrian version of liberal compromise and so-called ‘tolerance’ – is to be both permitted and praised.

In Somerset, Lord Mansfield acknowledged this reality:

[I]t has been said by a great many authorities, though slavery in its full extent be incompatible with the natural rights of mankind, and the principles of good government, yet a modern servitude may be tolerated; nay, sometimes must be maintained [7].

Our former Lord Chancellor and Justice Secretary, Michael Gove, once paid a visit to the then president-elect, Donald Trump. “My colleague Kai Diekmann, of the German newspaper Bild, and I were whisked up to the president-elect’s office in a lift plated with reflective golden panels and operated by an immensely dignified African-American attendant kitted out in frock coat and white cotton gloves,” Mr Gove wrote in his piece for the Times[8].

White cotton gloves were not on display when Nelson Mandela met with Neville and Doreen Lawrence. “We are very used to this type of thing where life is regarded as cheap in South Africa. But nevertheless it is a sign of deep concern that it should happen in a country like Britain”, Mr Mandela said to the BBC on 6 May 1993[9].

Last week Neville Lawrence acknowledged the industrial failure of institutions like the police to reform, stating that in the United Kingdom today Black people are treated as second-class citizens by a system that is meant to protect them. In a country in which Black children comprise 51% of the prison population of young offender institutions, the submission of the Windrush generation to the laws of England has led to ample opportunity for penalisation, but rather less when it comes to protection from those laws. A new deal is long overdue, and it must be one based upon reality not the Churchillian fiction of higher and lower order races.

When the English want to avoid doing something they set up a committee, as the saying goes. And so we now have a Commission that was announced behind the Daily Telegraph’s paywall and is led by a British Asian who has argued that institutional racism is a matter of perception more than reality. The steady churn of systemic inaction continues. There is a word for that, I suppose.

Michael Paulin is a barrister at 1 Crown Office Row. He tweets @mpaulincounsel

[1] St. George Tucker, Blackstone’s Commentaries with notes of reference to the constitution and laws of the federal government of the United States and of the commonwealth of Virginia (William Young Birch and Abraham Small, 1803).

[2] Tom Bingham, The Rule of Law (Allen Lane, 2010, p.55).

[3] Ibid, p.501.

[4] The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny, Paragraph 6.34.

[5] The Guardian, 26 November 2011, https://www.theguardian.com/law/2011/nov/25/ethnic-variations-jail-sentences-study

[6] The Lammy Review, p.89, footnote 7.

[7] p.500.

[8] The Times, 17 January 2017. https://www.theaustralian.com.au/world/the-times/donald-trump-and-the-new-reality/news-story/23f7bf03eae9c6bf030e7b18146c0212

[9] https://www.bbc.co.uk/news/av/uk-16245085/stephen-lawrence-s-family-meet-nelson-mandela

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